EXHIBIT 10.5
REGISTRATION AGREEMENT
THIS REGISTRATION AGREEMENT (this "AGREEMENT") is made as of February 18,
2000, by and among Corechange, Inc., a Delaware corporation (the "COMPANY"),
each of the Persons listed on the SCHEDULE OF INVESTORS attached hereto
(collectively referred to herein as the "INVESTORS" and individually as an
"INVESTOR"), HarbourVest Venture Partners V Direct Fund L.P. ("HARBOURVEST"),
and each of the other holders of Registrable Securities who may from time to
time become a party hereto by executing a counterpart to this Agreement.
WHEREAS, the Investors and the Company are party to a Series B Convertible
Preferred Stock Purchase Agreement of even date herewith (the "PURCHASE
AGREEMENT"), pursuant to which the Investors acquired shares of the Company's
Series B Preferred, par value $.01 per share;
WHEREAS, the Company and HarbourVest are parties to the Convertible
Preferred Stock Purchase Agreement dated January 21, 1998 (the "HARBOURVEST
AGREEMENT"), that contains in Sections 8.5 through 8.14 certain provisions
relating to registration of Company securities in the event of a public offering
therefor;
WHEREAS, in order to induce the Investors to enter into the Purchase
Agreement, the Company and HarbourVest have agreed to enter into this Agreement,
which shall supersede in all respects the provisions set forth in Sections 8.5
through 8.14 of the HarbourVest Agreement, and shall provide in lieu thereof the
registration rights set forth in this Agreement; and
WHEREAS, the execution and delivery of this Agreement is a condition to the
Closing under the Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement intending to be legally
bound hereby agree as follows:
Unless otherwise provided in this Agreement, certain terms used herein
shall have the meanings set forth in SECTION 11 hereof.
SECTION 1. REQUESTED REGISTRATION.
(a) REQUEST FOR REGISTRATION. At any time after the second year after the
First Closing (as defined in the Purchase Agreement), if the Company shall
receive from Initiating Holders a written request that the Company effect any
registration with respect to all or a part of the Registrable Securities, the
Company will:
(i) promptly give written notice of the proposed registration to all
other Holders; and
(ii) as soon as practicable, use its diligent best efforts to effect
such registration (including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate qualification
under applicable blue sky or other state securities laws, appropriate
compliance with applicable regulations issued under the Securities Act and
listing on appropriate exchanges) as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of
such Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any Holder or Holders
joining in such request as are specified in a written request given by any
other Holder within 20 days after receipt of such written notice from the
Company; PROVIDED that the Company shall not be obligated to effect, or to
take any action to effect, any such registration or any related actions
pursuant to this SECTION 1(A): (A) in any jurisdiction in which the Company
would be required to execute a general consent to service of process in
effecting such registration, qualification or compliance, or in which the
cost of the foregoing is unreasonable in light of the number of Registrable
Securities requested to be sold in such jurisdiction, unless the Company is
already subject to service in such jurisdiction and except as may be
required by the Securities Act or applicable rules or regulations
thereunder; (B) if at the time of any request to register Registrable
Securities pursuant to this SECTION 1(A), the Company is engaged or has
fixed plans to engage within 30 days of the time of the request in a
registered public offering as to which the Holders may include Registrable
Securities pursuant to SECTION 2 or is engaged in any other activity which,
in the good faith determination of the Company's Board of Directors, would
be adversely affected by the requested registration to the material
detriment of the Company, then the Company may at its option direct that
such request be delayed for a period not in excess of six months from the
effective date of such offering or the date of commencement of such other
material activity, as the case may be, such right to delay a request to be
exercised by the Company not more than once in any one-year period; (C)
within six months after the effective date of any other registration of the
Company's securities; (D) for a registration on Form S-1 or S-2, the
aggregate value of the Registrable Securities being registered is less than
$5,000,000; or (E) for a registration on Form S-3, the aggregate value of
the Registrable Securities being registered is less than $250,000.
Subject to the foregoing clauses (A), the Company shall file a registration
statement covering the Registrable Securities so requested to be registered as
soon as practicable, after receipt of the request or requests of the Initiating
Holders.
The Holders of Series A Preferred shall be entitled, as Initiating
Holders, to no more than two requested registrations under this SECTION 1(A).
The Holders of Series B Preferred shall be entitled, as Initiating Holders, to
no more than two requested registrations under this SECTION 1(A). A registration
shall not count as one of the permitted requested registrations hereunder until
it has become effective.
The registration statement filed pursuant to the request of the
Initiating Holders may, subject to the provisions of SECTION 1(B) below,
include other securities of the Company which are held by officers or
directors of the Company or which are held by persons who, by virtue of
agreements with the Company, are entitled to include their securities in
any such registration, but except as provided in the last sentence of
SECTION 1(B) below the Company shall have no right to include any of its
securities in any such registration.
(b) UNDERWRITING. If the Initiating Holders intend to distribute
the Registrable Securities covered by their request by means of an
underwritten offering, they shall so advise the Company as part of their
request made pursuant to Section 1(c) and the Company shall include such
information in the written notice referred to in Section 1(a) above. The
right of any Holder to registration pursuant to SECTION 1 shall be
conditioned upon such Holder's participation in such underwriting and the
inclusion of such Holder's Registrable Securities in the underwriting
(unless otherwise mutually agreed by a majority in interest of the
Initiating Holders, the underwriters and such Holder with respect to such
participation and inclusion) to the extent provided herein. A Holder may
elect to include in such underwriting all or a part of the Registrable
Securities he holds.
If officers or directors of the Company holding other securities
of the Company shall request inclusion in any registration pursuant to
SECTION 1, or if holders of securities of the Company who are entitled, by
contract with the Company, to have securities included in such a
registration (the "OTHER SHAREHOLDERS") request such inclusion, the
Initiating Holders shall to the extent permitted by applicable laws and
regulations, on behalf of all Holders, offer to include the securities of
such officers, directors and Other Shareholders in the underwriting and may
condition such offer on their acceptance of the further applicable
provisions of this Agreement. The Company shall (together with all Holders,
officers, directors and Other Shareholders proposing to distribute their
securities through such underwriting) enter into an underwriting agreement
in customary form (including, without limitation, customary indemnification
and contribution provisions on the part of the Company) with the
representative of the underwriter or underwriters selected for such
underwriting by a majority in interest of the Initiating Holders and
reasonably acceptable to the Company; PROVIDED that such underwriting
agreement shall not provide for indemnification or contribution obligations
on the part of Holders greater than the obligations of the Holders pursuant
to SECTION 5. Notwithstanding any other provision of this Agreement, if the
representative advises the Initiating Holders in writing that marketing
factors require a limitation on the number of shares to be underwritten,
the securities of the Company held by officers or directors of the Company
and the Other Shareholders (other than Registrable Securities) shall be
excluded from such registration to the extent so required by such
limitation and if a limitation of the number of shares is still required,
the Initiating Holders shall so advise all Holders of Registrable
Securities whose securities would otherwise be underwritten pursuant hereto
and the number of shares of securities that may be included in the
registration and underwriting shall be allocated among all such Holders in
proportion, as nearly as practicable, to the respective amounts of
Registrable Securities of the Company which they held at the time of the
request for registration made by the Initiating Holders pursuant to SECTION
1(A). No Registrable Securities or any other securities excluded from the
underwriting by reason of the underwriter's marketing limitation shall be
included in such registration. If any Holder of Registrable Securities,
officer, director or Other Shareholder who has requested inclusion in such
registration as provided above disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice
to the Company, the underwriter and the Initiating Holders. The securities
so withdrawn shall also be withdrawn from registration. If the underwriter
has not limited the number of Registrable Securities or other securities to
be underwritten, the Company may include its securities for its own account
in such registration if the underwriter so agrees and if the number of
Registrable Securities and other securities which would otherwise have been
included in such registration and underwriting will not thereby be limited.
SECTION 2. COMPANY REGISTRATION.
(a) If the Company shall determine to register any of its
securities either for its own account or the account of a security holder
or holders exercising their respective demand registration rights, other
than a registration relating solely to employee benefit plans, or a
registration relating solely to a Commission Rule 145 transaction or a
registration on any registration form which does not permit secondary sales
or does not include substantially the same information as would be required
to be included in a registration statement covering the sale of Registrable
Securities, the Company will:
(i) promptly give to each Holder written notice thereof (which
shall include a list of the jurisdictions in which the Company intends
to attempt to qualify such securities under the applicable blue sky or
other state securities laws); provided that the Company shall not be
required to provide prior written notice of any registration to the
extent the Holders would not be entitled to include Registrable
Securities in the Registration Statement pursuant to SECTION 2(B); and
(ii) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting
involved therein, all the Registrable Securities specified in a
written request or requests, made by any Holder within fifteen days
after written notice from the Company described in clause (i) above,
except as set forth in SECTION 2(B) below. Such written request may
specify all or a part of a Holder's Registrable Securities.
Notwithstanding the foregoing, the Company shall have the right to postpone
or withdraw any registration effected pursuant to this SECTION 2 without
obligation to any Holder.
(b) UNDERWRITING. If the registration of which the Company gives
notice is for a registered public offering involving an underwriting, the
Company shall so advise the Holders as a part of the written notice given
pursuant to SECTION 2(A)(I). In such event the right of any Holder to
registration pursuant to SECTION 2 shall be conditioned upon such Holder's
participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting to the extent provided herein.
All Holders proposing to distribute their securities through such
underwriting shall (together with the Company and, directors, officers and
the Other Shareholders
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the underwriter or
underwriters selected for underwriting by the Company, PROVIDED that the
Company shall use its reasonable best efforts to ensure that such
underwriting agreement shall not provide for indemnification or
contribution obligations on the part of Holders materially greater than the
obligations of the Holders pursuant to SECTION 5. Notwithstanding any other
provision of this SECTION 2, if the underwriter determines that marketing
factors require a limitation on the number of shares to be underwritten,
the underwriter may (subject to the allocation priority set forth below)
exclude from such registration and underwriting some or all of the
Registrable Securities which would otherwise be underwritten pursuant
hereto. The Company shall so advise all holders of securities requesting
registration, and the number of shares of securities that are entitled to
be included in the registration and underwriting shall be allocated in the
following manner. The securities of the Company held by the Other
Shareholders and the officers and directors of the Company (other than
Registrable Securities and up to 2,400,000 of the Company's shares held by
Xxx Xxxxxx) shall be excluded from such registration and underwriting to
the extent required by such limitation, and, if a limitation on the number
of shares is still required, the number of shares that may be included in
the registration and underwriting shall be allocated among all such Holders
in proportion, as nearly as practicable, to the respective amounts of
Registrable Securities and other securities which they held at the time the
Company gives the notice specified in SECTION 2(a)(i), PROVIDED that if
such registration has been initiated at the request of Cambridge Technology
Partners ("CTP") pursuant to the exercise of demand registration rights
granted prior to the date of this Agreement, CTP may include up to 202,106
shares of the Company's stock in priority to any Registrable Securities.
For purposes of the foregoing calculation, Xxx Xxxxxx shall be deemed to
hold the lesser of 2,400,000 shares of the Company's stock and the actual
number of shares of the Company's stock (other than shares acquired
pursuant to stock options) owned by Xxx Xxxxxx at such time. If any Holder
of Registrable Securities or any officer, director or Other Shareholder
disapproves of the terms of any such underwriting, he may elect to withdraw
therefrom by written notice to the Company and the underwriter. Any
Registrable Securities or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
SECTION 3. EXPENSES OF REGISTRATION. All Registration Expenses
incurred in connection with any registration, qualification or compliance
pursuant to this Agreement shall be borne by the Company, and all Selling
Expenses shall be borne by the holders of the securities so registered pro
rata on the basis of the number of their shares so registered; PROVIDED,
however, that the Company shall not be required to pay any Registration
Expenses if, as a result of the withdrawal of a request for registration by
Initiating Holders (other than due to a material adverse change in the
business of the Company occurring after the date in which registration was
requested or any refusal to proceed based upon the advice of counsel that
the registration statement, or any prospectus contained therein, contains
an untrue statement of a 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, provided that
such withdrawal is made within 10 days after the Initiating Holders become
aware of the material adverse change or such advice from counsel, as
applicable), the registration statement does not become effective, in which
case the Holders and
Other Shareholders requesting registration shall bear such Registration
Expenses pro rata on the basis of the number of their shares so included in
the registration request.
SECTION 4. REGISTRATION PROCEDURES. In the case of each
registration effected by the Company pursuant to this Agreement, the
Company will keep each Holder advised in writing as to the initiation of
each registration and as to the completion thereof. At its expense, the
Company will:
(a) use its best efforts to keep such registration effective for
a period of one hundred twenty days or until the Holder or Holders
have completed the distribution described in the registration
statement relating thereto, whichever first occurs; provided, however,
that (I) such 120-day period shall be extended for a period of time
equal to the period the Holder refrains from selling any securities
included in such registration in accordance with provisions in SECTION
10 hereof; PROVIDED that Rule 415, or any successor rule under the
Securities Act, permits an offering on a continuous or delayed basis,
and PROVIDED, FURTHER, that applicable rules under the Securities Act
governing the obligation to file a post-effective amendment permit, in
lieu of filing a post-effective amendment which includes any
prospectus required by Section 10(a)(3) of the Securities Act, the
incorporation by reference of information contained in periodic
reports filed pursuant to Section 13 or 15(d) of the Exchange Act in
the registration statement;
(b) furnish such number of prospectuses and other documents
incident thereto as a Holder from time to time may reasonably request
in order to facilitate the public sale or other disposition of the
Registrable Securities by such Holder;
(c) in connection with any underwritten offering pursuant to a
registration statement filed pursuant to SECTION 1 hereof, enter into
an underwriting agreement reasonably necessary to effect the offer and
sale of Common Stock, provided such underwriting agreement contains
customary underwriting provisions and provided further that if the
underwriter so requests the underwriting agreement will contain
customary contribution provisions on the part of the Company.
SECTION 5. INDEMNIFICATION.
(a) The Company will, and hereby does, indemnify each Holder,
each of its officers, directors and partners, and each person controlling
such Holder (within the meaning of the Securities Act), with respect to
which registration has been effected pursuant to this Agreement, and each
underwriter, if any, and each person who controls any underwriter (within
the meaning of the Securities Act), with respect to such sale, against all
claims, losses, damages and liabilities (or actions in respect thereof)
arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any registration statement or
prospectus, incident to any such registration, qualification or compliance,
or based on any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading, or any violation by the Company of the Securities
Act or any rule or regulation
thereunder applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration,
qualification or compliance, and will reimburse each such Holder (within
the meaning of the Securities Act), each of its officers, directors and
partners, and each person controlling such Holder, each such underwriter
and each person who controls any such underwriter (within the meaning of
the Securities Act), for any legal and any other expenses reasonably
incurred in connection with investigating and defending any such claim,
loss, damage, liability or action, PROVIDED that the Company will not be
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any untrue statement
(or alleged untrue statement) or omission (or alleged omission) in
reliance upon and in conformity with or based upon written information
furnished to the Company by such Holder or underwriter or controlling
person and stated to be specifically for use therein.
(b) Each Holder will and hereby does, if Registrable Securities
held by him are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each
of its directors and officers and each underwriter, if any, of the
Company's securities covered by such a registration statement, each person
who controls the Company or such underwriter within the meaning of the
Securities Act and the rules and regulations thereunder, each other such
Holder and Other Shareholder and each of their officers, directors and
partners, and each person controlling such Holder or Other Shareholder,
against all claims, losses, damages and liabilities (or actions in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any such registration statement,
or prospectus, or based on any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, or any violation by the Holder of
the Securities Act or any rule or regulation
thereunder applicable to the Holder and relating to action or
inaction required of the Holder in connection with any such registration,
qualification or compliance, and will reimburse the Company and such
Holders, Other Shareholders, directors, officers, partners, persons,
underwriters or control persons for any legal or any other expenses
reasonably incurred in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such registration
statement or prospectus in reliance upon and in conformity with written
information furnished to the Company by such Holder and stated to be
specifically for use therein; PROVIDED, however, that the obligations of
such Holders hereunder shall be limited to an amount equal to the proceeds
to each such Holder of Registrable Securities sold pursuant to such
registration as contemplated herein.
(c) Each party entitled to indemnification under this SECTION 5
(the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity
may be sought, but the failure of any Indemnified Party to give notice
shall not relieve the Indemnifying Party of its obligation under this
SECTION 5 except to the extent that the Indemnifying Party is adversely
affected by such failure. The Indemnifying Party will be entitled to
participate in, and to the extent that it may elect by written notice
delivered to the Indemnified Party promptly after receiving the aforesaid
notice from such Indemnified Party, at its expense to assume, the defense
of
any such claim or any litigation resulting therefrom, with counsel
reasonably satisfactory to such Indemnified Party, PROVIDED that the
Indemnified Party may participate in such defense at its expense,
notwithstanding the assumption of such defense by the Indemnifying Party,
and PROVIDED, FURTHER, that if the Indemnified Party shall have reasonably
concluded upon advice of counsel that representation of such Indemnified
Party by the counsel retained by the Indemnifying Party would be
inappropriate due to actual or potential differing interests between the
Indemnified Party and any other party represented by such counsel in such
proceeding, the Indemnified Party or Parties shall have the right to select
separate counsel to assert such legal defenses and to otherwise participate
in the defense of such action on behalf of such Indemnified Party or
Parties and the fees and expenses of such counsel shall be paid by the
Indemnifying Party. No Indemnifying Party, in the defense of any such claim
or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in
respect to such claim or litigation. Each Indemnified Party shall furnish
such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be
reasonably required in connection with defense of such claim and litigation
resulting therefrom. No Indemnified Party shall consent to entry of any
judgment or settle any claim or litigation without the prior written
consent of the Indemnifying Party.
SECTION 6. INFORMATION BY HOLDER. Each Holder of Registrable
Securities shall furnish to the Company such information regarding such
Holder and the distribution proposed by such Holder as the Company may
reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to
in this Agreement.
SECTION 7. LIMITATIONS ON REGISTRATION OF ISSUES OF SECURITIES.
From and after the date of this Agreement, the Company shall not, without
the prior written consent of Holders holding at least a majority of the
Series A Registrable Securities and the holders of at least a majority of
the Series B Registrable Securities enter into any agreement (other than
this Agreement) with any holder or prospective holder of any securities of
the Company giving such holder or prospective holder the right to require
the Company to initiate any registration of any securities of the Company,
PROVIDED that this SECTION 7 shall not limit the right of the Company to
enter into any agreements with any holder or prospective holder of any
securities of the Company giving such holder or prospective holder the
right to require the Company, upon any registration of any of its
securities, to include, among the securities which the Company is then
registering, securities owned by such holder if such right is subject to
the limitations and cutbacks set forth in this Agreement with respect to
Other Shareholders. Any right given by the Company to any holder or
prospective holder of the Company's securities in connection with the
registration of securities shall be conditioned such that it shall not be
inconsistent with or more favorable than the rights of the Holders provided
in this Agreement, including the exclusion of such holder's or prospective
holder's securities from registration under the circumstances specified in
SECTIONS 1 and 2.
SECTION 8. RULE 144 REPORTING. With a view to making available
the benefits of certain rules and regulations of the Commission which may
permit the sale of the Restricted Securities to the public without
registration, the Company agrees to:
(a) make and keep public information available as those terms are
understood and defined in Rule 144 under the Securities Act, at all
times from and after ninety days following the effective date of the
first registration under the Securities Act filed by the Company for
an offering of its securities to the general public;
(b) use its best efforts to file with the Commission in a timely
manner all reports and other documents required of the Company under
the Securities Act and the Exchange Act at any time after it has
become subject to such reporting requirements; and
(c) so long as a Holder owns any Restricted Securities, furnish
to such Holder forthwith upon request a written statement by the
Company as to its compliance with the reporting requirements of Rule
144 (at any time from and after ninety days following the effective
date of the first registration statement filed by the Company for an
offering of its securities to the general public), and of the
Securities Act and the Exchange Act (at any time after it has become
subject to such reporting requirements), a copy of the most recent
annual or quarterly report of the Company, and such other reports and
documents so filed as such Holder may reasonably request in availing
itself of any rule or regulation of the Commission allowing such
Holder to sell any such securities.
SECTION 9. TRANSFER OR ASSIGNMENT OF REGISTRATION RIGHTS. The
rights to cause the Company to register securities under this Agreement may
be transferred or assigned by each holder in connection with the transfer
or assignment of any of such Holder's Registrable Securities to another
Holder, to any affiliate of the assigning Holder or to any person or entity
acquiring at least 480,000 Registrable Securities (such number being
subject to adjustment for any stock dividend, stock split, subdivision,
combination or other recapitalization of the Common Stock of the Company)
or such lesser number as the Board of Directors may agree in writing,
PROVIDED that the Company is given written notice by you at the time of or
within a reasonable time after such transfer or assignment, stating the
name and address of such transferee or assignee and identifying the
securities with respect to which such registration rights are being
transferred or assigned, and PROVIDED, FURTHER, that the transferee or
assignee of such rights is not deemed by the board of directors of the
Company, in its reasonable judgment, to be a competitor of the Company; and
PROVIDED, FURTHER, that the transferee or assignee of such rights agrees in
writing to be bound by the obligations of such Holder under this Agreement.
SECTION 10. "MARKET STAND-OFF" AGREEMENT. Each Holder agrees, if
requested by the Company and an underwriter of Common Stock (or other
equity securities) of the Company, not to sell or otherwise transfer or
dispose of any Common Stock (or other equity securities) of the Company
held by such Holder during the one hundred and eighty-day period following
the effective date of a registration statement of the Company filed under
the Securities Act, provided that:
(a) such agreement only applies to the first such registration
statement of the Company including securities to be sold on its behalf
to the public in an underwritten offering; and
(b) all Holders, officers and directors and other shareholders of
the Company holding in excess of 2% of the outstanding Common Stock
(on an as converted basis) of the Company enter into similar
agreements.
Such agreement shall be in writing in a form reasonably
satisfactory to the Company and such underwriter. Notwithstanding the
foregoing, the Company may impose stop-transfer instructions with respect
to the shares (or securities) subject to the foregoing restriction until
the end of such one hundred and eighty-day period.
SECTION 11. DEFINITIONS. For purposes of this Agreement, the
following terms have the meanings set forth below.
"COMMISSION" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
"COMMON STOCK" means the Common Stock of the Company as described
in the Company's Certificate of Incorporation, as amended.
"HOLDER" shall mean any holder of Registrable Securities.
"INITIATING HOLDERS" shall mean Holders who own in the aggregate
more than 50% of either the Series A Registrable Securities or the Series B
Registrable Securities.
"IPO" means the initial sale of Common Stock to the public
pursuant to an underwritten offering registered under the Securities Act.
"PREFERRED STOCK" means the Company's Series A Preferred Stock,
par value $.01 per share, and the Company's Series B Preferred Stock, par
value $.01 per share. For purposes of this Agreement, Preferred Stock shall
not include any other series of the Company's preferred stock.
The terms "REGISTER", "REGISTERED" and "REGISTRATION" shall refer
to a registration effected by preparing and filing a registration statement
in compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement; provided that such terms shall not be deemed to
include the registration of shares pursuant to a registration statement on
Form S-8 or Form S-4, or their successors, or any other form for a similar
limited purpose, or any registration statement covering only securities
proposed to be issued in exchange for securities or assets of another
corporation.
"REGISTRABLE SECURITIES" means the Series A Registrable
Securities and the Series B Registrable Securities.
"SERIES A REGISTRABLE SECURITIES" means (I) Common Stock issued
or issuable upon the conversion of the Series A Preferred, and (II) any
Common Stock issued in respect of securities issued pursuant to the
conversion of the Series A Preferred upon any stock split, stock dividend,
recapitalization or similar event; PROVIDED, HOWEVER, that shares of Common
Stock which are Series A Registrable Securities shall cease to be Series A
Registrable Securities (a) upon any sale pursuant to a registration
statement or Rule 144 under the Securities Act, (b) with respect to a
Holder of Series A Registrable Securities, if all of the Series A
Registrable Securities held by such Holder may be sold pursuant to Rule
144(k) under the Securities Act and such Holder holds less than 5% of the
Company's then outstanding capital stock, and (c) upon any sale in any
manner to a person or entity which, by virtue of SECTION 10 of this
Agreement, is not entitled to the rights provided by this Agreement. Series
A Registrable Securities shall include shares of Common Stock issuable upon
conversion of the Series A Registrable Securities even if such conversion
has not yet been effected.
"SERIES B REGISTRABLE SECURITIES" means (I) Common Stock issued
or issuable upon the conversion of the Series B Preferred, and (II) any
Common Stock issued in respect of securities issued pursuant to the
conversion of the Series B Preferred upon any stock split, stock dividend,
recapitalization or similar event; PROVIDED, HOWEVER, that shares of Common
Stock which are Series B Registrable Securities shall cease to be Series B
Registrable Securities (a) upon any sale pursuant to a registration
statement or Rule 144 under the Securities Act, (b) with respect to a
Holder of Series B Registrable Securities, if all of the Series B
Registrable Securities held by such Holder may be sold pursuant to Rule
144(k) under the Securities Act and such Holder holds less than 5% of the
Company's then outstanding capital stock, and (c) upon any sale in any
manner to a person or entity which, by virtue of SECTION 10 of this
Agreement, is not entitled to the rights provided by this Agreement. Series
B Registrable Securities shall include shares of Common Stock issuable upon
conversion of the Series B Registrable Securities even if such conversion
has not yet been effected.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the
Company in compliance with SECTIONS 1 and 2 hereof, including, without
limitation, all registration and filing fees, printing expenses, fees and
disbursements of counsel for the Company, blue sky fees and expenses,
reasonable fees and disbursements of one counsel for all the selling
Holders and other security holders, and the expense of any special audits
incident to or required by any such registration (but excluding the
compensation of regular employees of the Company, which shall be paid in
any event by the Company, and Selling Expenses).
"SECURITIES ACT" means the Securities Act of 1933, as amended, or
any similar federal law then in force.
"SELLING EXPENSES" shall mean all underwriting discounts, selling
commissions and transfer taxes applicable to the sale of Registrable
Securities and the fees and expenses of a selling Holder's own counsel
(other than the counsel selected to represent all selling Holders).
SECTION 12. TERM. This Agreement shall terminate and be of no
further force or effect upon the earlier of (i) three years after a
Qualified Public Offering (as defined in the Purchase Agreement), and (ii)
when all subject Registrable Securities can be sold under Rule 144 of the
Securities Act.
SECTION 13. MISCELLANEOUS.
(a) NO INCONSISTENT AGREEMENTS. This Agreement amends, restates
and supercedes the Sections 8.4 through 8.15 of the HarbourVest Agreement
in its entirety, and the Company's obligations under such Sections of the
HarbourVest Agreement are hereby terminated. The Company has not entered
into and shall not hereafter enter into any agreement with respect to its
securities which is inconsistent with or violates the rights granted to the
holders of Registrable Securities in this Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company
shall not knowingly 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 Registrable Securities to include such
Registrable Securities in a registration undertaken pursuant to this
Agreement or which would adversely affect the marketability of such
Registrable Securities in any such registration (including, without
limitation, effecting a stock split or a combination of shares).
(c) REMEDIES. Any Person having rights under any provision of
this Agreement shall be entitled to enforce such rights specifically to
recover damages caused by reason of any breach of any provision of this
Agreement and to exercise all other rights granted by law. The parties
hereto agree and acknowledge that money damages may not be an adequate
remedy for any breach of the provisions of this Agreement and that, in
addition to any other rights and remedies existing in its favor, any party
shall be entitled to specific performance and/or other injunctive relief
from any court of law or equity of competent jurisdiction (without posting
any bond or other security) in order to enforce or prevent violation of the
provisions of this Agreement.
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided herein,
the provisions of this Agreement may be amended or waived only upon the
prior written consent of the Company and holders of a majority of the
Registrable Securities.
(e) SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto shall bind and inure
to the benefit of the respective successors and assigns of the parties
hereto whether so expressed or not. In addition, whether or not any express
assignment has been made, the provisions of this Agreement which are for
the benefit of purchasers or holders of Registrable Securities are also for
the benefit of, and enforceable by, any subsequent holder of Registrable
Securities.
(f) SEVERABILITY. Whenever possible, each provision of this
Agreement shall 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 shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of this Agreement.
(g) COUNTERPARTS. This Agreement may be executed simultaneously
in two or more counterparts in the form attached hereto, any one of which
need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same Agreement.
(h) DESCRIPTIVE HEADINGS. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
(i) GOVERNING LAW. All issues and questions concerning the
construction, validity, interpretation and enforcement of this Agreement
and the exhibits and schedules hereto shall be governed by, and construed
in accordance with, the laws of the State of Delaware, without giving
effect to any choice of law or conflict of law rules or provisions (whether
of the State of Delaware or any other jurisdiction) that would cause the
application of the laws of any jurisdiction other than the State of
Delaware.
(j) NOTICES. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when delivered
personally to the recipient, sent to the recipient by reputable overnight
courier service (charges prepaid) or mailed to the recipient by certified
or registered mail, return receipt requested and postage prepaid. Such
notices, demands and other communications shall be sent to each Investor at
the address indicated on the Schedule of Investors and to the Company and
counsel for the Company and Investors at the address indicated below:
Xxx Xxxxxx
President and CEO
Corechange, Inc.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
with a copy to (which shall not constitute notice hereunder):
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Telecopy No: (000) 000-0000
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Telecopy No: (000) 000-0000
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
* * * * *
IN WITNESS WHEREOF, the parties have executed this Agreement as
of the date first written above.
THE COMPANY: CORECHANGE, INC.
By: /S/ XXX XXXXXX
-------------------------------
Its: PRESIDENT / CEO
------------------------------
HARBOURVEST: HARBOURVEST VENTURE PARTNERS V -
DIRECT FUND L.P.
By:
-------------------------------
Its:
------------------------------
SCHEDULE OF INVESTORS
Corechange, Inc.
Schedule of Series B Preferred Convertible Bridge Financing
Date of Interest till Daily Principal # of Series B
Name Amount Deposit 2/18/00 Interest + Interest Pref Shares Address
-------- -------- ------------- -------- ----------- -------- --------
HarbourVest Partners LLC $ 500,000 11/2/99 $ 11,945.21 $ 109.59 $ 511,945 87,707 One Financial Center Boston
Xxx Xxxxxx $ 250,000 11/2/99 $ 5,972.60 54.79 $ 255,973 43,853 000 Xxxxxxxx Xx Xxxxxx
Xxxxxxxx Xxxxxxxx $ 250,000 11/2/99 $ 5,972.60 54.79 $ 255,973 43,853 x/x Xxxxxxxxxx Xxxxxxx,
Xxxxxxxxx
Xxxxxxxxxxxxxx XX $ 100,000 12/29/99 $ 1,139.73 21.92 $ 101,140 17,327 Xxxxxx Xxxxxxxxxx 0,
000 00 Xxxxxxxxx
Minvest AB $ 120,000 12/29/99 $ 1,367.67 26.30 $ 121,368 20,793 Xxxxxxxx Xxxxxx,
000 00 Xxxxxxxxxxxx
Xxxxxx Xxxxxxxxxx $ 25,000 12/29/99 $ 284.93 5.48 $ 25,285 4,332 Xxxxxxxxxxxx 00,
000 00 Xxxxxxxxx
Xxxxxxx Xxxxxx $ 13,000 12/29/99 $ 148.16 2.85 $ 13,148 2,253 Xxxxxxxxxxxx 00,
000 00 Xxxxxxxxx
Xxx Segenmark $ 120,000 12/29/99 $ 1,367.67 26.30 $ 121,368 20,793 Xxxxxxxxxx 00,
000 00 Xxxxxxxxxx
Xxxx Xxxxxxxx $ 50,000 12/29/99 $ 569.86 10.96 $ 50,570 8,664 Xxxxxxxxxxx,
000 00 Xxxxx
Jan Khilberg $ 120,000 12/29/99 $ 1,367.67 26.30 $ 121,368 20,793 Xxxxxxxxxxxxxxxx 00,
0 Xx, 000 00 Xxxxxxxxx
Andreas Segenmark $ 120,000 12/29/99 $ 1,367.67 26.30 $ 121,368 20,793 Xxxxxxxxx 00,
000 00 Xxxxxxxxxx
Svensk Vininformation AB $ 50,000 12/29/99 $ 569.86 10.96 $ 50,570 8,664 Xxx 0000, 000 00 Xxxxxxxxx
X X Xxxxxxx Consulting AB $ 20,000 12/29/99 $ 227.95 4.38 $ 20,228 3,465 Xxxxxxxxxxxxxxxx 00,
0 xx, 000 00 Xxxxxxxxx
Xxxxx Xxxxxxxx $ 50,000 12/29/99 $ 569.86 10.96 $ 50,570 8,664 Xxxxxxxxxxxx 00,
000 00 Xxxxxxxxx
Rosebud Corporation $ 300,000 12/29/99 $ 3,419.18 65.75 $ 303,419 51,982 X/X Xxxx Xxxx Xx Xxxxx,
00 00 Xxxxxx Xxxxx, Xxxxxx
Xxxxxxxxxxx
Xxxxxx Xxxxxxx $ 200,000 12/29/99 $ 2,279.45 43.84 $ 202,279 34,655 Sockenvagen 141,
132 46 Stockholm
Svensk Vininformation AB $ 40,000 12/29/99 $ 455.89 8.77 $ 40,456 6,931 Xxx 0000, 000 00 Xxxxxxxxx
Andreas Strindholm $ 10,000 12/29/99 $ 113.97 2.19 $ 10,114 1,733 Xxxxxxxxxxxx 00, 000 00 Xxxxx
Per Sahlestrom $ 20,000 12/29/99 $ 227.95 4.38 $ 20,228 3,465 Bromma Kyrkvag 448,
168 58 Bromma
Xxx Xxxxxxx $ 18,000 12/29/99 $ 205.15 3.95 $ 18,205 3,119 Xxxxxxxxxxxxx 0,
000 00 Xxxxxxxxx
Xxxxxx Xxxxxxx Marn $ 58,500 12/29/99 $ 666.74 12.82 $ 59,167 10,136 Xxxxxxxxxxxxx 00,
000 00 Xxxxxxxxx
Xxxx Xxxxxxx Xxxx $ 58,500 12/29/99 $ 666.74 12.82 $ 59,167 10,136 Xxxxxxxxxxxxx 00,
000 00 Xxxxxxxxx
Hans Bjurklint $ 35,000 12/29/99 $ 398.90 7.67 $ 35,399 6,065 Xxxxxxxx, 000 00 Harplinge
Xxxxxx xxxxxxxx $ 150,000 12/29/99 $ 1,709.59 32.88 $ 151,710 25,991 Xxxxxxxxxxxxxx 0 X,
000 00 Vasteras
Xxxxxxx Xxxxxxxx $ 150,000 12/29/99 $ 1,709.59 32.88 $ 151,710 25,991 Xxxxxxxxxxx 0, 000 00 Xxxxxxxx
Xxxx Xxxxxx $ 100,000 12/29/99 $ 1,139.73 21.92 $ 101,140 17,327 Xxxxxxxxxxx 0,
000 00 Xxxxxxx-Xxx
Xxxxx xxx Xxxxxxxx $ 143,000 12/29/99 $ 1,629.81 31.34 $ 144,630 24,778 Xxxxxx Xxxx, 000 Xx Xxxxxxxx,
00000 Al Cobendas(Mardrid)
Spanien
Xxxx Xxxxxxxxx $ 81,000 12/29/99 $ 923.18 17.75 $ 81,923 14,035 Xxxxxxxxxxx 00, 000 00 Xxxxxx
Xxxx Xxxxxxxx $ 115,000 12/29/99 $ 1,310.68 25.21 $ 116,311 19,926 Xxxxxxxxxxx 00,
000 00 Xxxxxxxxx
Xxxxx Xxxxxx $ 20,000 1/27/00 $ 100.82 4.38 $ 20,101 3,444 Xxxxxxxxx 0, 000 00 Xxxxxxxxxx
Xxx Xxxxx $ 20,000 1/27/00 $ 100.82 4.38 $ 20,101 3,444 Xxxxxxxxxxxxx 00,
000 00 Xxxxxx
Xxxx Xxxxxx $ 15,000 1/27/00 $ 75.62 3.29 $ 15,076 2,583 Xxxxxxxxxxx 00,
000 00 Xxxxxxxxx
Xxxxx & Partners $ 45,000 1/27/00 $ 226.85 9.86 $ 45,227 7,748 Xxxxx & Partners, P O Xxx 000,
0000 Xxxxxx, Xxxxxxxxxxx
Xxxxxxx Xxxxxxxx $ 16,000 2/7/00 $ 42.08 3.51 $ 16,042 2,748 Xxxxxxxxxxxxxxxx 00,
000 00 Xxxxxxxxx
$3,383,000 $ 50,274 $741 $3,433,274 588,192
Direct Investors in the Series B
--------------------------------
Harbourvest Capital $1,500,000 256,981 Xxx Xxxxxxxxx Xxxxxx,
00xx Xxxxx, Xxxxxx, XX 00000
ABN AMRO Capital (USA)
Inc. $4,000,000 685,284 000 Xxxxx XxXxxxx Xxxxxx,
00xx Xxxxx, Xxxxxxx, XX
00000
Xxxxxxx.xxx $3,500,000 599,623 Xxxxxx House, South Church
Street, Grand Cayman,
Cayman Island, British
West Imdies
Xxxxxxx.xxx $5,000,000 856,604 Xxxxxx House, South Church
Street, Grand Cayman,
Cayman Island,
British West Imdies
Xxxxxx Xxxxxx $25,000 4,283 000 Xxxxx Xxxxxxxxx,
XXX # 000, Xxxxx Xx, XX
00000
UK Private Investors
AIB Nominees $75,000 12,849 AIB Nominees, Allied Irish
Bank House, P.O. Box 468,
Grenville Street,
St. Hellier, Jersey JE 8WT,
Channel Islands
Marquis Limited $50,000 8,566 Xx. Xxxx Xxxxxxxx,
VP Cititrust Switzerland,
00 Xxx xx Xxxxx,
XX XXXX 0000, XX-0000,
Xxxxxx 0, Xxxxxxxxxxx
Xx. Xxxxxxxx Xxxxxxxx Xxxxxx $50,000 8,566 00 Xxxx Xxxxxx, Xxxx Xxxxx,
Xxxxxx, XX00, 0XX, XX
Xx. Xxxxxx Xxxxxx $25,000 4,283 00 Xxxxxxxxxxxx Xxx.,
Xxxxxxxxx, Xx. Xxxxxx,
Xxxxxxx
Xx. Xxxxx Xxxxxx $32,000 5,482 Treetops, 000 Xxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxx 00,
Xxxxxxx
Xx. Xxxxx XxxXxxxx $25,000 4,283 0 Xxxxxxxxx Xxx, Xxxxxxxxx
Xxxx, Xxxxxx 0, Xxxxxxx
Xxx. Xxxxx XxXxxxx $25,000 4,283 Smurfit Print, 00 Xxxxxxx
Xxxx, Xxxxxxxxx, Xxxxxx 0,
Xxxxxxx
Ms. Xxxxxxxx Xxxxxxx $43,750 7,495 0 Xxxxxxx Xxxxxxx Xxxx,
Xxxxxxxx, Xx. Xxxxxxxx,
Xxxxxxx
Total Direct Series B
Preferred I $14,350,750 2,458,583
Total Converted + Direct
Investor $17,733,750 3,046,775
FORM OF PURCHASER SIGNATURE PAGE
PURCHASER SIGNATURE PAGE
By its execution and delivery of this signature page, the undersigned
Purchaser hereby joins in and agrees to be bound by the terms and conditions of
(i) the Series B Convertible Preferred Stock Purchase Agreement dated as of
February 18, 2000 (the "Series B Purchase Agreement") by and among Corechange,
Inc. ("Corechange") and the Purchasers (as defined therein), as to the number of
shares of Series B Convertible Preferred Stock set forth below, (ii) the Amended
and Restated Stockholders Agreement dated as of February 18, 2000 (the
"Stockholders Agreement") by and among Corechange and the Stockholders (as
defined therein) as a "Stockholder" thereunder, and (iii) the Registration
Agreement dated as of February 18, 2000, (the "Registration Agreement") by and
among Corechange and the Holders (as defined therein) as a "Holder" thereunder,
and authorizes this signature page to be attached to the Series B Agreement, the
Stockholders Agreement (as defined therein) as a as a "Holder" thereunder, and
authorizes this signature page to be attached to the Series B Agreement, the
Stockholders Agreement and the Registration Agreement or counterparts thereof.
Name of Purchaser
------------------------------------
By:
Title:
Record
Address:
----------------------------
------------------------------------
Telecopy No.:
-----------------------
Number of Shares:
-------------------
Aggregate purchase price:
$--------------
Agreed and accepted this
___day of _________, 2000
CORECHANGE, INC.
By: _____________________
Title:
PLEASE COMPLETE, SIGN AND RETURN AS SOON AS POSSIBLE BY
TELECOPY, WITH THE ORIGINAL THEN SENT BY OVERNIGHT COURIER, TO:
XXXXXX X. XXXXXX, ESQ.
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Tel: 000-000-0000
Tel: 000-000-0000
