Exhibit 2.6
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REGISTRATION RIGHTS AGREEMENT
April 8, 1998
To each of the several Stockholders named in
Schedule 1.12A or 1.12B to the Agreement and Plan of Merger
dated the date hereof
Dear Ladies and Gentlemen:
This will confirm that in consideration of the provisions contained in the
Agreement and Plan of Merger dated the date hereof (the "Merger Agreement")
between CMG Information Services, Inc. (the "Buyer"), Accipiter, Inc. and CMGI
Acquisition Corporation ("Acquisition"), the Buyer covenants and agrees with
each of you as follows:
1. Certain Definitions. As used in this Agreement, the following terms
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shall have the following meanings:
2. "Commission" shall mean the Securities and Exchange Commission, or any
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other federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Common Stock, $.01 par value, of the
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Buyer, as constituted as of the date of this Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
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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
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letters delivered to the Buyer by the parties hereto pursuant to the Merger
Agreement.
"Merger Shares" shall mean the Common Stock issued pursuant to the
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Merger Agreement.
"Registration Expenses" shall mean the expenses so described in
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Section 6.
"Restricted Stock" shall mean the Merger Shares, excluding Merger
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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
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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.
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2. Required Registration.
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(a) The Buyer will use its reasonable best efforts to cause to be
declared effective a registration statement on From S-3 or any successor thereto
(or in the event the Buyer is not eligible to use Form S-3 or such successor
form, Form S-1 or any other form then available for such purpose) following (i)
the date which is six months after the date hereof and (ii) the date which is
twelve months after the date hereof. Forty-five days prior to each such date,
the Buyer shall send a Notice of Registration Statement and Selling
Securityholder Questionnaire to each individual or entity which holds Restricted
Stock which, as a result of such six month date or twelve month date referenced
above, will no longer be subject to the "lock-up" described in the Investment
Representation and Lock-up Letter executed on the date hereof. To be included on
such registration statement, a holder must return a completed Notice of
Registration Statement and Selling Securityholder Questionnaire within fifteen
days of the date of the Notice of Registration Statement and Selling
Securityholder Questionnaire. If after expiration of such fifteen day period,
the holders of Restricted Stock have not indicated a desire to have eligible
shares with an aggregate price to the public of at least $600,000 included in
the registration statement, the Buyer shall not be required to file a
registration statement at such time. If holders have indicated a desire to have
eligible shares with an aggregate price to the public of at least $600,000
included in the registration statement, the Buyer shall as promptly as
practicable file a registration statement covering such shares and shall use its
reasonable best efforts to have such registration statement declared effective.
(b) If the intended method of disposition is an underwritten public
offering, the holders of a majority of the shares of Restricted Stock to be sold
in such offering shall designate the managing underwriter of such offering,
subject to the approval of the Buyer, which approval shall not be unreasonably
withheld.
(c) The Buyer shall be entitled to include in any registration
statement referred to in this Section 2 shares of Common Stock to be sold by the
Buyer 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.
(d) The Buyer's obligation to file a registration statement or cause
such 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 the
Buyer which the Buyer determines in good faith 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 the
Buyer.
(e) The Buyer shall be obligated to keep a registration statement
filed pursuant to Section 2(a) effective until the earliest of (i) the sale of
all of the shares included thereunder, (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 registration statement
or (iv) the
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registration rights of the holders of such shares have terminated hereunder. At
such time, the Buyer may file a post-effective amendment to such registration
statement removing from registration the shares included in such registration
statement form.
3. Incidental Registration. If the Buyer at any time (other than pursuant
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to Section 2) proposes to register any of its Common Stock under the Securities
Act for sale to the public (except with respect to registration statements on
Forms X-0, X-0 or another form not available for registering the Restricted
Stock for sale to the public), it shall give written notice to all holders of
outstanding Restricted Stock of its intention so to do. Upon the written request
of any such holder, received by the Buyer within 30 days after the giving of any
such notice by the Buyer, to register any of its Restricted Stock which have
been released from their respective Lock-ups (which request shall state the
intended method of disposition thereof), the Buyer will use its reasonable
commercial efforts to cause the Restricted Stock as to which registration shall
have been so requested to be included in the securities to be covered by the
registration statement proposed to be filed by the Buyer. In the event that any
registration pursuant to this Section 3 shall be, in whole or in part, an
underwritten public offering of Common Stock, the number of shares of Restricted
Stock to be included in such an underwriting may be reduced (pro rata among the
requesting holders based upon the number of shares of Restricted Stock owned by
such holders) if and to the extent that the managing underwriter or underwriters
shall be of the opinion that such inclusion would adversely affect the marketing
of the securities to be sold by the Buyer. Notwithstanding the foregoing
provisions, the Buyer may elect not to file, withdraw or file a post-effective
amendment terminating any registration statement referred to in this Section 3
without thereby incurring any liability to the holders of Restricted Stock.
4. Registration Procedures. If the Buyer is required by the provisions of
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Sections 2 or 3 to file a registration statement covering shares of Restricted
Stock, the Buyer agrees to:
(a) subject to the provisions of Sections 2 and 3, prepare and file
with the Commission such registration statement including such securities and
use reasonable commercial efforts to cause such registration statement to become
effective;
(b) subject to the provision of Section 4(a), prepare and file with
the Commission such amendments and supplements to such registration statement
and the prospectus included therein as may be necessary to keep such
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 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
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;
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(e) notify the holders of Restricted Stock included in the
registration statement upon the occurrence of any event as a result of which the
prospectus included in such 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 the Buyer may delay preparing, filing and distributing
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any such supplement or amendment if the Buyer determines in good faith that such
supplement or amendment might, in the reasonable judgment of the Buyer, (i)
interfere with or affect the negotiation or completion of a transaction that is
being contemplated by the Buyer (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 the Buyer's stockholders at
such time; provided, further, that (x) the Buyer shall give notice (a
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"Standstill Notice") of any such delay, (y) such delay shall not extend for a
period of more than thirty (30) days without the written consent of the holders
of a majority of the Registered Stock included in such registration statement
and (z) the Buyer 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 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
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the Buyer shall not for any such purpose be required to qualify generally to
transact 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;
(g) use reasonable efforts to include the Restricted Stock covered by
such registration statement on the Nasdaq National Market or any securities
exchange on which the Common Stock of the Buyer is then listed; and
(h) in the event of an underwritten public offering of the Restricted
Securities, enter into and perform its obligations under an underwriting
agreement, in usual and customary form reasonably acceptable to the Buyer, with
the managing underwriter of such offering.
5. Obligations of Holder. In connection with the registration of the
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Restricted Stock pursuant to a registration statement, each holder of shares of
Restricted Stock included thereon shall:
(a) furnish to the Buyer such information regarding itself and the
intended method of disposition as necessary to assure compliance with federal
and applicable state securities laws or as the Buyer shall reasonably request;
(b) upon receipt of any notice from the Buyer of the happening of any
event of the kind described in Section 4(c), immediately discontinue disposition
of Restricted Stock
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pursuant to the registration statement until withdrawal of the stop order
referred to in Section 4(c); and
(c) not sell or otherwise transfer any Restricted Stock during the
period from the date specified in the Standstill Notice given by the Buyer
pursuant to Section 4(e) above that the Buyer has determined that it will delay
the preparation and filing of an amendment or supplement to the prospectus
included in the registration statement until the expiration date specified in
such notice.
6. Expenses. All expenses incurred by the Buyer in complying with
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Sections 2, 3 or 4, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Buyer, 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 $5,000 (per registration statement) in fees of one counsel to the
sellers of Restricted Stock, which counsel shall be Xxxxxxxxx & Xxxxx PLLC
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."
The Buyer will pay all Registration Expenses. All Selling Expenses shall be
borne by the participating sellers.
7. Indemnification and Contribution. In the event that any Restricted
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Stock is included in a registration statement under this Agreement:
(a) to the extent permitted by law, the Buyer 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 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 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. The Buyer 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
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apply to amounts paid in settlement of any Loss if such settlement is effected
without the consent of the Buyer (which consent shall not be unreasonably
withheld), nor shall the Buyer 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 registration
statement; and provided, further, that the Buyer 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 the Buyer has
previously furnished or made available copies
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thereof or (ii) following written notice by the Buyer of an event described in
Section 4(c) or 4(e).
(b) to the extent permitted by law, each selling stockholder agrees
to indemnify and hold harmless the Buyer, the officers, directors, employees,
agents and representatives of the Buyer, and each person, if any, who controls
the Buyer 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
registration statement; and such selling stockholder agrees to reimburse any
legal or other expenses as reasonably incurred by the Buyer and any such
officer, director, employee, agent, representative, or controlling person, in
connection with investigating or defending any such Loss; provided, however,
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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,
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further, that, in no event shall any indemnity under this subsection 7(b) exceed
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the sales price of the Restricted Stock sold by such stockholder under the
registration statement; and
(c) promptly after receipt by an indemnified party under this Section
7 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 7, 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,
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however, that an indemnified party shall have the right to retain its own
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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 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.
8. Miscellaneous.
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(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 the Buyer at its address or facsimile number set forth
in the Merger Agreement with a copy to Xxxxxx & Dodge LLP, Xxx Xxxxxx Xxxxxx,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxxx Xxxxxxxx II, Telephone: (617)
000-0000, Facsimile: (000) 000-0000;
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(ii) 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 Xxxxxxxxx & Xxxxx PLLC, Suite 400, 0000 Xxxxxxxxx
Xxxxxxxxx, Xxxxxxx, Xxxxx Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxxxxx,
Telephone: (000) 000-0000, Facsimile: (000) 000-0000; and
(iii) if to any subsequent holder of Restricted Stock, at such
address as has been furnished to the Buyer in writing by such holder with a copy
to Xxxxxxxxx & Xxxxx PLLC, Suite 400, 0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xxxx X. Xxxxxxxxx, 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 the Buyer (in the case of a holder of Restricted Stock) or to the
holders of Restricted Stock (in the case of the Buyer) in accordance with the
provisions of this paragraph.
(b) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware.
(c) This Agreement may not be amended or modified, and no provision
hereof may be waived, without the written consent of the Buyer 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 the Buyer to register shares of Restricted
Stock, or to keep a registration statement including Shares of Restricted Stock
effective, under Sections 2 or 3 shall terminate with respect to each holder
upon such time as all of the holder's Merger 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) the Buyer 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 Securities Act,
(iii) the transferee agrees in writing with the Buyer to be bound by all of the
provisions hereof and (iv) such transfer is made in accordance with the
applicable requirements of the Lock-up. 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.
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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 the Buyer and you.
CMG INFORMATION SERVICES, INC.
By /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx III
Title: Chief Financial Officer
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[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
AGREED TO AND ACCEPTED as of the date first above written.
_______________________________________
(Name of Stockholder)
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(Signature)
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(Print Name)
_______________________________________
(Title, if applicable)
Stockholder's Address for Notice:
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_______________________________________
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Persons Who Signed
Registration Rights Agreement
Aurora Ventures, LLC
Aurora Ventures II, LLC
Xxxxxxxx Xxxxxx
Xxxxxx Best
Xxxxx X. Xxxxxx
Xxxxxx Xxxxx Xxxxxxx
Xxxxxx Xxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxx III
Xxxxxx X. Xxxxxx
Chrisseas X. Xxxxxxx
Xxxxxxx Capital Partners LP - Enhanced Appreciation
Xxxxxxx XxXxxxxx
Xxxx X. Xxxx
Xxxxx Xxxxx
Xxxxxxx X. Xxxxxxx
Xxxxx Xxxxx
Xxxxxx Xxxxx
Xxxx X. Xxxxxxx
Xxxxx Free
Xxx X. Xxxx
Xxxx Ventures, Inc.
Xxxxx X. Xxxxxx
Xxxxxxxxx X. Xxxxxxx
Intersouth Partners III, L.P.
Xxxxxxx X. Xxxxxx
Xxxxxxx Xxxxxx
Xxxxxxx Xxxx Kong
Xxxxx Kong
Xxxxxx Xxxxxxx
Xxxxx X. Major
Xxxx Xxxxx
Xxxx XxXxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxx Xxxxxxxxx
Xxxxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx Xx.
Xxxxxx X. Xxxxxxxxxxx
Southeast Interactive Technology Fund, LLC
Xxx Xxx Xxxxxx Xx.
Xxxx X. Xxxxxx XX
TriState Investment Group II, LLC
Xxxx X. Xxxxxx
Xxxx Xxxxxx
Xxxx Xxxx
Xxxxxx Xxxxx Xxxx
