EXHIBIT 99.1
REGISTRATION, REPRESENTATION, AND RELEASE AGREEMENT
This Registration, Representation, and Release Agreement (the
"Agreement") is made and entered into as of July 17, 2001 by and between divine,
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inc., a Delaware corporation (the "Corporation"), and those Persons set forth on
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the Schedule of Holders hereto who become a party hereto (collectively, the
"Holders" and individually, a "Holder").
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Recitals
WHEREAS, this Agreement is made pursuant to that certain Agreement and
Plan of Merger, dated as of June 19, 2001, by and among the Corporation, its
wholly-owned subsidiary divine/Emicom, Inc., a Delaware corporation, Emicom
Group, Inc., a Delaware corporation ("Emicom"), and certain of the stockholders
of Emicom (the "Merger Agreement").
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WHEREAS, in order to induce the Holders to make the representations
and agree to the releases contained herein, the Corporation has agreed to
provide the Holders the registration rights set forth in this Agreement.
Agreement
NOW, THEREFORE, in consideration of the foregoing premises and for
other good and valuable consideration, the parties hereby agree as follows:
1. Definitions. Capitalized terms not defined herein shall have the meaning
attributed to them in the Merger Agreement. As used in this Agreement,
"Claims" shall mean any action or actions, cause or causes of action,
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in law or in equity, suits, debts, liens, security interests, liabilities,
claims, demands, damages, punitive damages, losses, costs, or expenses, and
reasonable attorneys' fees of any nature whatsoever, including, without
limitation, claims based upon breach of fiduciary or other duty, legal fault,
misrepresentation or omission, negligence, offense, quasi-offense, contract,
quasi-contract, appraisal rights under Delaware law, or any other theory, or for
actions taken or omitted to be taken in regard to the EM Securities, any
statements made about the EM Securities, or any appraisal rights, or actions
taken or omitted to be taken as a director, shareholder or representative of
Emicom, whether fixed or contingent and including known, suspected or Unknown
Claims, excluding, notwithstanding the foregoing, and solely with respect to the
Corporation, any claim or cause of action that cannot be waived or released
under applicable law, any claim or cause of action for indemnification as a
result of a third party claim made against the Holder or any of the Releasees,
or any claim or cause of action made pursuant to the Merger Agreement or the
Related Agreements (as defined in the Merger Agreement).
"Commission" means the United States Securities and Exchange
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Commission or any successor thereto.
"Common Stock" means the Class A Common Stock, par value $0.001 per
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share, of the Corporation.
"Escrow Shares" has the meaning set forth in the Merger Agreement.
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"Exchange Act" means the Securities Exchange Act of 1934, as amended,
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or any similar federal statute, as the same shall be in effect from time to
time.
"Holder Registrable Shares" means the shares of Common Stock issued to
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the Holders pursuant to the Merger Agreement (including Escrow Shares that have
been released to the Holders, if any) and then outstanding, including any Common
Stock or other security issued or issuable with respect to such Common Stock by
reason of a dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation, or other reorganization of the
Corporation; provided, however, that Holder Registrable Shares shall not include
(a) any shares which have been disposed of pursuant to an effective registration
statement under the Securities Act, (b) any shares which have been sold pursuant
to Rule 144, or (c) any shares when the entire amount of then outstanding Holder
Registrable Shares may be sold within a three-month period pursuant to Rule 144.
For purposes of this Agreement, a Person will be deemed to be a holder of Holder
Registrable Shares whenever such Person has the then-existing right to acquire
such Holder Registrable Shares (by conversion or otherwise), whether or not such
acquisition actually has been effected.
"Person" means an individual, corporation, partnership, limited
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liability company, limited partnership, syndicate, person (including, without
limitation, a "Person" as defined in Section 13(d)(3) of the Exchange Act),
trust, association or entity or government, political subdivision, agency or
instrumentality of a government.
"Public Offering" means any offering by the Corporation of its equity
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securities to the public pursuant to an effective registration statement under
the Securities Act.
"Releasee" or "Releasees" shall mean any or all of the Corporation,
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the Merger Subsidiary, Emicom, and any corporation, partnership, joint venture,
or business enterprise controlled by, under common control with or controlling
such companies, each of the current and former officers, directors, corporate
representatives of such companies, and all direct or indirect subsidiaries of
such entities, and each of the parents, subsidiaries, officers, directors,
corporate representatives, employees, agents, advisors, lawyers, or accountants
therefore.
"Rule 144" means Rule 144 (including Rule 144(k)) of the Commission
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under the Securities Act or any similar provision then in force under the
Securities Act.
"Securities Act" means the Securities Act of 1933, as amended, or any
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similar federal statute, as the same shall be in effect from time to time.
"Unknown Claims" means any and all Claims including, without
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limitation, any Claim which Holder or Releasees do not know or even suspect to
exist in its or their favor at the time of the giving of the release which, if
known by it or them might have affected its or their decision regarding the
releases.
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2. Required Registration. As soon as practicable after the Corporation becomes
eligible to use Form S-3, but not more than 45 days after the Closing, the
Corporation shall register all of the Holder Registrable Shares pursuant to a
registration statement on Form S-3 (the "Shelf Registration"). The Corporation
shall maintain the effectiveness of the Shelf Registration until such time as
the Corporation reasonably determines, based on an opinion of counsel, that the
Holders will be eligible to sell all of the Holder Registrable Shares then owned
by the Holders without the need for continued registration of the Holder
Registrable Shares in the three-month period immediately following the
termination of the effectiveness of the Shelf Registration. The Corporation's
obligations contained in this Section 2 shall terminate on the second
anniversary of the date on which the Holder Registrable Shares are issued.
Notwithstanding the foregoing, the Corporation may delay filing the Shelf
Registration, and may withhold efforts to cause the Shelf Registration to become
effective, if the Corporation determines in good faith that such registration
might (i) interfere with or affect the negotiation or completion of any
transaction that is being contemplated by the Corporation (whether or not a
final decision has been made to undertake such transaction) at the time the
right to delay is exercised, or (ii) involve initial or continuing disclosure
obligations of the Corporation. In no event shall the Corporation be entitled
to so delay the filing of the Shelf Registration, or withhold efforts to cause
the Shelf Registration to become effective, for a period of more than 45 days.
If, after the Shelf Registration becomes effective, the Corporation advises the
Holders that the Corporation considers it appropriate for the Shelf Registration
to be amended, the Holders shall suspend any further sales of their registered
shares until the Corporation advises them that an amendment to the Shelf
Registration has been declared effective.
3. Registration Procedures.
(a) The Corporation shall keep each Holder advised in writing as to
the initiation of the Shelf Registration and as to the completion thereof. In
addition, the Corporation shall at its own expense:
(i) prepare and file with the SEC such amendments and
supplements to such registration statement as may be necessary to keep such
registration effective and comply with provisions of the Securities Act with
respect to the disposition of all securities covered thereby during such period;
(ii) update, correct, amend, and supplement such registration as
necessary;
(iii) if an offering under the Shelf Registration is to be
underwritten, in whole or in part, enter into a written agreement in form and
substance reasonably satisfactory to the Corporation, the managing underwriter,
and the selling Holders;
(iv) notify the Holders when the Shelf Registration is declared
effective by the SEC and furnish such number of prospectuses, including
preliminary prospectuses, and other documents incident thereto, as the Holders
may reasonably request from time to time;
(v) register or qualify the Holder Registrable Shares under such
other securities or blue sky laws of such jurisdictions of the United States as
the Holders may reasonably request to enable it to consummate the disposition in
such jurisdiction of the Holder
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Registrable Shares (provided that the Corporation will not be required to (i)
qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this provision, or (ii) consent to
general service of process in any such jurisdiction);
(vi) notify the Holders at any time when a prospectus relating to
the Holder Registrable Shares is required to be delivered under the Securities
Act, of the happening of any event as a result of which the prospectus included
in the Shelf Registration contains an untrue statement of a material fact or
omits any fact necessary to make the statement therein not misleading, and at
the request of the Holders, the Corporation will prepare a supplement or
amendment to such prospectus, so that, as thereafter delivered to purchasers of
such shares, such prospectus will not contain any untrue statements of a
material fact or omit to state any fact necessary to make the statements therein
not misleading;
(vii) cause all Holder Registrable Shares to be listed on each
securities exchange or automated quotation system on which similar securities
issued by the Corporation are then listed or quoted and obtain all necessary
approvals for trading thereon;
(viii) provide a transfer agent and registrar for all such Holder
Registrable Shares not later than the effective date of such registration
statement;
(ix) enter into such customary agreements (including underwriting
agreements in customary form) and take such other actions as are reasonably
required in order to expedite or facilitate the disposition of such Holder
Registrable Shares;
(x) make available for inspection by any underwriter
participating in any disposition pursuant to such registration statement, and
any attorney, accountant or other agent retained by any such seller or
underwriter, all financial and other records, pertinent corporate documents and
properties of the Corporation, and cause the Corporation's officers, directors,
employees and independent accountants to supply all information reasonably
requested by any such seller or underwriter, attorney, accountant, or agent in
connection with such registration statement;
(xi) advise each seller of such Holder Registrable Shares,
promptly after it shall receive notice or obtain knowledge thereof, of: (A) the
issuance of any stop order by the Commission suspending the effectiveness of
such registration statement, (B) the initiation or threatening of any proceeding
for such purpose, or (C) any notice from Nasdaq or any other exchange on which
the Corporation's shares are traded that such shares are subject to a delisting
proceeding, and promptly use its reasonable efforts to prevent the issuance of
any such stop order, or to obtain its withdrawal if any such stop order shall be
issued or such proceeding be initiated (and, if such stop order shall be issued,
or such shares be delisted, such sellers shall suspend the use of the prospectus
until it shall be withdrawn); and
(xii) at the request of the managing underwriters in connection
with an underwritten offering, furnish on the date or dates provided for in the
underwriting agreement (i) an opinion of counsel, addressed to the underwriters,
covering such matters as such underwriters and sellers may reasonably request,
including such matters as are customarily furnished in connection with an
underwritten offering; and (ii) a letter or letters from the
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independent certified public accountants of the Corporation addressed to the
underwriters, covering such matters as such underwriters, in which letter(s)
such accountants shall state, without limiting the generality of the foregoing,
that they are independent certified public accountants within the meaning of the
Securities Act and that in their opinion the financial statements and other
financial data of the Corporation included in the registration statement, the
prospectus(es), or any amendment or supplement thereto, comply in all material
respects with the applicable accounting requirements of the Securities Act..
(b) Notwithstanding anything stated or implied to the contrary in the
first paragraph of Section 3 above, the Corporation shall not be required to
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consent to any underwritten offering of the Holder Registrable Shares or to any
specific underwriter participating in any underwritten public offering of the
Holder Registrable Shares.
(c) Except as required by law, all expenses incurred by the
Corporation in complying with this Section 3, including but not limited to, all
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registration, qualification, and filing fees, printing expenses, fees and
disbursements of counsel and accountants for the Corporation, blue sky fees and
expenses (including fees and disbursements of counsel related to all blue sky
matters) ("Registration Expenses") incurred in connection with any registration
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pursuant to this Section 3 shall be borne by the Corporation. All underwriting
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discounts and selling commissions applicable to a sale incurred in connection
with any registration of Holder Registrable Shares and the legal fees and other
expenses of any Holder shall be borne by that Holder.
(d) Notwithstanding any provision of this Section 3 to the contrary,
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the Corporation shall not be required to amend the Shelf Registration or amend
or supplement a prospectus if (i) such amendment of supplement would require the
Corporation to disclose a material financing, acquisition, or other transaction
then being pursued by the Corporation and the Board of Directors of the
Corporation shall determine in good faith that such disclosure is not in the
best interests of the Corporation or would interfere with such transaction or
(ii) the Corporation shall determine in good faith that there is a valid
business purpose or reason for suspending the use of such prospectus in
accordance with Section 3(a)(vi) hereof instead of making such amendment or
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supplement. The Corporation shall not be permitted, however, to defer any such
amendment, supplement, or use of the Shelf Registration, or the prospectus
included in the Shelf Registration, pursuant to this Section 3(d) for a period
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of more than 45 days per year.
(e) For purposes of this Section 3, the period of distribution of
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Holder Registrable Shares in a firm commitment underwritten Public Offering
shall be deemed to extend until each underwriter has completed the distribution
of all securities purchased by it.
4. Further Information. Each Holder shall furnish the Corporation with
such information regarding such Holder as the Corporation may reasonably request
and as shall be required in connection with the Shelf Registration and each
Holder shall indemnify the Corporation with respect thereto in accordance with
Section 5 of this Agreement.
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5. Indemnification.
5.1 By the Corporation. The Corporation agrees to indemnify, to the
extent permitted by law, each holder of Holder Registrable Shares, its managers,
officers, and directors
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and each Person who controls such holder (within the meaning of the Securities
Act) against all losses, claims, damages, liabilities and expenses (including
without limitation, attorneys' fees) ("Liabilities") caused by any
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untrue or alleged untrue statement of material fact contained in the Shelf
Registration statement or the prospectus or preliminary prospectus included in
the Shelf Registration, or any amendment thereof or supplement thereto, or any
omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same are caused by or contained in any information furnished in writing to the
Corporation by such holder expressly for use therein or by such holder's failure
to deliver a copy of the Shelf Registration, or any prospectus included in the
Shelf Registration, or any amendments or supplements thereto after the
Corporation has furnished such holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Corporation shall
indemnify such underwriters, their officers and directors, and each Person who
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the holders
of Holder Registrable Shares. The payments required by this Section 5.1 will
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be made periodically during the course of the investigation or defense,
as and when bills are received or expenses incurred.
5.2 By Each Holder. Each holder of Holder Registrable Shares shall
furnish to the Corporation in writing such information and affidavits as the
Corporation reasonably requests for use in connection with the Shelf
Registration and any prospectus included in the Shelf Registration, and, to the
extent permitted by law, shall indemnify the Corporation, its directors and
officers, and each Person who controls the Corporation (within the meaning of
the Securities Act) against any Liabilities resulting from any untrue or alleged
untrue statement of material fact contained in the Shelf Registration, any
prospectus or preliminary prospectus included in the Shelf Registration, or any
amendment thereof or supplement thereto, or any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information or affidavit so furnished
in writing by such holder expressly for use in such registration or prospectus;
provided that the obligation to indemnify under this Section 5.2 or to
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contribute under Section 5.4 below will be several, not joint and several, among
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such holders of Holder Registrable Shares, and the liability of each such holder
of Holder Registrable Shares under this Section 5.2 and under Section 5.4 shall
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be limited to the net amount received by such holder from the sale of Holder
Registrable Shares pursuant to the Shelf Registration.
5.3 Procedure. Any Person entitled to indemnification hereunder
shall (i) give prompt written notice to the indemnifying party of any claim with
respect to which it seeks indemnification (provided that the failure to give
prompt notice shall not impair any Person's right to indemnification hereunder
to the extent such failure has not prejudiced the indemnifying party) and (ii)
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist with respect to such
claim, permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party will not be subject to any liability for any
settlement made by the indemnified party without its consent (but such consent
will not be unreasonably withheld). An indemnifying party who is not entitled
to, or elects not to, assume the defense of a claim will not be obligated to pay
the fees and expenses of more than one counsel for all parties indemnified by
such indemnifying party with
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respect to such claim, unless in the reasonable judgment of any indemnified
party a conflict of interest may exist between such indemnified party and any
other of such indemnified parties with respect to such claim.
5.4 Contribution. To the extent any indemnification by an
indemnifying party provided for in this Section 5 is prohibited or limited by
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law, the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such Liabilities in such proportion as is appropriate to reflect the
relative benefits received by, and the relative fault of, the indemnifying party
and the indemnified party in connection with the statements or omissions which
resulted in such Liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the indemnifying party and
the indemnified party shall be determined by reference to the proportion of
total proceeds from the offering (net of underwriting discounts and commissions
but before deducting expenses) received by such parties. The relative fault of
such indemnifying party and indemnified party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of
material fact or omission or alleged omission to state a material fact, has been
made by, or relates to information supplied by, such indemnifying party or
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 5.4 were determined by pro rata allocation
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or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph;
provided that the limits in the final proviso of Section 5.2 shall apply to this
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Section 5.4. No Person guilty of fraudulent misrepresentation (within the
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meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation.
5.5 Other Indemnification Provisions. The indemnification and
contribution provided for under this Agreement will remain in full force and
effect regardless of any investigation made by or on behalf of the indemnified
party or any officer, director or controlling Person of such indemnified party
and will survive the transfer of securities.
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6. Participation in Underwritten Registrations. No Holder may participate in
any offering under the Shelf Registration which is underwritten unless such
Holder (a) agrees to sell its Holder Registrable Shares on the basis provided in
any underwriting arrangements approved by the Corporation or any other Person or
Persons entitled to approve such arrangements, and (b) completes and executes
all questionnaires, powers of attorney, custody agreements, indemnities,
underwriting agreements, and other documents reasonably required under the terms
of such underwriting arrangements. Each Holder agrees that, upon receipt of any
notice from the Corporation of the happening of any event of the kind described
in Section 3(a)(vi) above, such Person will forthwith discontinue the
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disposition of its Holder Registrable Shares pursuant to the Shelf Registration
until such Holder's receipt of the copies of a supplemented or amended
prospectus as contemplated by such Section 3(a)(vi).
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7. Holdback Agreements. Each holder of Holder Registrable Shares agrees not to
effect any public sale or distribution of equity securities of the Corporation,
or any securities convertible into or exchangeable or exercisable for such
securities, during the seven (7) days prior to the effective date of any
underwritten Public Offering (except as part of such underwritten registration),
unless the underwriters managing the Public Offering otherwise agree to a
shorter period and unless any of the directors and/or officers, of the
Corporation are subject to a shorter period.
8. Representations and Warranties of the Holders
Each of the Holders hereby separately represents and warrants to DI and the
Merger Subsidiary that the statements contained in this Section 8 with respect
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to such Holder are correct and complete as of the date of this Agreement (except
for statements made as of a specific date, which are correct as of such date).
8.1 Organization and Standing. Unless an individual, the Holder is
an entity duly organized, validly existing, and in good standing under the laws
of its jurisdiction of organization.
8.2 Power and Authorization. The Holder has all requisite legal and,
unless an individual, corporate, power and authority to enter into this
Agreement, and to carry out and perform its obligations under the terms of this
Agreement. This Agreement is a legal, valid, and binding obligation of the
Holder, enforceable against the Holder in accordance with its terms.
8.3 No Violation. None of the execution and delivery of this
Agreement, the consummation of the transactions provided for herein or
contemplated hereby, and the fulfillment by the Holder of the terms hereof, will
(with or without notice or passage of time or both) (a) conflict with or result
in a breach of any provision of the organizational documents of the Holder (if
applicable), (b) result in a default, give rise to any right of termination,
cancellation, or acceleration, or require any consent or approval (other than
approval of the board of directors and stockholders of the Holder, if
applicable) under any of the terms, conditions, or provisions of any note, bond,
mortgage, indenture, loan, license, agreement, lease, or other instrument or
obligation to which the Holder is a party or by which it or any of its Assets
may be bound, except in such case where such result could not have a Material
Adverse Effect on the Holder or (c) violate any law, judgment, order, writ,
injunction, decree, statute, rule, or
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regulation of any court or Governmental Entity applicable to the Holder or any
of its Assets, except in such case where such result could not have a Material
Adverse Effect on the Holder.
8.4 Ownership of EM Securities. The Holder owns the number of shares
of EM Series A-1 Preferred Stock, EM Series A-2 Preferred Stock, EM Class A
Common Stock, and EM Class B Common Stock (collectively, the "EM Securities")
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set forth opposite the Holder's name on Exhibit 8.4. The Holder is the sole
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record and beneficial owner of the number and type of EM Securities set forth
opposite such Holder's name, free and clear of any Liens, except for those
rights provided for under the EM Stockholders Agreement. Except for the EM
Stockholders Agreement, the Holder is not a party to any option, warrant,
purchase right, or other Contract which could require the Holder to sell,
transfer, or otherwise dispose of such Holder's EM Securities or any securities
issuable upon conversion of such Holder's EM Securities, or to any voting trust,
proxy, agreement, or understanding with respect to the voting of such Holder's
EM Securities or any securities issuable upon conversion of such Holder's EM
Securities.
8.5 Fees and Commissions. The Holder has retained no finder, broker,
agent, financial advisor, or other intermediary (collectively, "Intermediary")
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in connection with this Agreement or the transactions contemplated hereby and
the Holder agrees to indemnify and hold harmless DI and the Merger Subsidiary
from liability for any compensation to any Intermediary and the fees and
expenses of defending against such liability or alleged liability.
8.6 Approvals. No approval, authorization, order, license, or
consent of or registration, qualification, or filing with any Governmental
Entity and no approval or consent by any other Person is required to be obtained
or made by the Holder in connection with the execution, delivery, or performance
by the Holder of this Agreement.
8.7 Investment Representations. The Holder (A) understands that the
Holder Registrable Shares have not been, and until an effective registration
statement is filed in accordance with the Securities Act as contemplated herein,
will not be, registered under the Securities Act, or under any state securities
laws, and are being offered and sold in reliance upon federal and state
exemptions for transactions not involving any public offering, (B) is acquiring
the Holder Registrable Shares solely for his or its own account for investment
purposes, and not with a view to the distribution thereof, (C) is an accredited
investor as defined in Regulation D under the Securities Act, and a
sophisticated investor with knowledge and experience in business and financial
matters, (D) has had the opportunity to obtain information concerning the
Corporation as desired by the Holder in order to evaluate the merits and risks
inherent in holding the Holder Registrable Shares and that all such additional
information requested by the Holder has been provided by the Corporation to the
Holder's full satisfaction, (E) is able to bear the economic risk and lack of
liquidity inherent in holding the Holder Registrable Shares, and (F) is a bona
fide resident of the state or other jurisdiction set forth opposite such
Holder's name on Exhibit 8.7.
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9. Waiver and Release.
9.1 Waiver. Each Holder hereby waives and releases any right to
initiate or prosecute or participate in the initiating or prosecuting of any
Claims against or with respect to
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any Releasee, arising out of or concerning in any way the EM Securities, whether
any such Claims are now existing or hereafter arising. Each Holder hereby
specifically waives any purported right to challenge the validity or seek
rescission of, or to vitiate, this Release on the ground that any information
was kept concealed from such Holder by any of the Releasees and agrees that no
remedy shall be available for any such alleged non-disclosure, and that the
right to rescind this Release on any such grounds is hereby expressly waived.
9.2 Release. Each Holder does hereby release and forever discharge
all Releasees of and from any and all manner of Claims which such Holder now has
or may hereafter have against any Releasee arising out of or concerning in any
way the EM Securities.
9.3 Scope of Release. The release provided for herein is intended by
each Holder to be as broad as the law allows and is intended specifically to be
a compromise and release generally of all released Claims of such Holder against
all Releasees arising out of or concerning in any way the EM Securities. Holder
and Releasees acknowledge that they might hereafter discover facts in addition
to or different from those which they now know or believe to be true with
respect to the subject matter of the Claims released, but nonetheless Holder and
Releasees shall be deemed to have fully, finally, and forever settled and
released any and all Claims whether known or unknown, suspected or unsuspected,
contingent or non-contingent, which now exist, heretofore have existed, or may
come to exist in the future upon any theory of law or equity now existing or
coming into existence in the future.
9.4 Representations and Warranties With Respect to Release. In
connection with the waiver and release set forth in Sections 9.1 and 9.2 above,
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each Holder represents and warrants that the following are true and correct:
(a) To the best knowledge of Holder, no suit, action,
investigation, inquiry, or other proceeding has been instituted or threatened
that questions the validity or legality of the release.
(b) Holder has not currently assigned or transferred any
interest in any of the Claims released by the release and Holder will not in the
future assign or transfer any interest in any such released Claim.
(c) Holder acknowledges that it has been given the opportunity
to review all information and documents with respect to the Claims released
hereby prior to entering into the release. Holder acknowledges that it has made
an independent investigation in making its decision to enter into the release.
Holder is not relying on any statements or representations by any Releasee in
entering into the release.
10. Miscellaneous.
10.1 Other Registration Rights. The Corporation may hereafter grant
to any Person or Persons the right to request the Corporation to register any
equity securities of the Corporation, or any securities convertible or
exchangeable into or exercisable for such securities, without the prior written
consent of the holders of the Holder Registrable Shares.
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10.2 Assignment of Registration Rights. The registration rights of
any Holder under this Agreement with respect to any Holder Registrable Shares
may be assigned to any Person who acquires such Holder Registrable Shares;
provided that (a) the assigning Holder shall give the Corporation written notice
at or prior to the time of such assignment stating the name and address of the
assignee and identifying the shares with respect to which the rights under this
Agreement are being assigned; (b) such assignee shall agree in writing, in form
and substance reasonably satisfactory to the Corporation, to be bound as a
Holder by the provisions of this Agreement; and (c) immediately following such
assignment the further disposition of such securities by such assignee is
restricted under the Securities Act.
10.3 Successors and Assigns. Except as otherwise expressly provided
herein, all covenants and agreements contained in this Agreement by or on behalf
of any of the parties hereto will bind and inure to the benefit of the
respective permitted successors and assigns of the parties hereto, whether so
expressed or not.
10.4 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
10.5 Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience of reference only and do not constitute a part of,
and shall not be utilized in interpreting, this Agreement.
10.6 Notices. Any notices required or permitted to be sent hereunder
shall be delivered personally or mailed, certified mail, return receipt
requested, or delivered by overnight courier service to the following addresses,
or such other address as any party hereto designates by written notice to the
Corporation, and shall be deemed to have been given upon delivery, if delivered
personally, three days after mailing, if mailed, or one business day after
delivery to the courier, if delivered by overnight courier service:
If to the Corporation, to:
divine, inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
with a copy to:
Xxxx, Xxxx & Xxxxx LLC
00 Xxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: D. Xxxx XxXxxxxx, Esq.
11
If to the Holders of Holder Registrable Shares, to the
addresses set forth in the stock records of the Corporation.
10.7 Governing Law. All questions concerning the construction,
validity and interpretation of this Agreement, and the performance of the
obligations imposed by this Agreement, shall be governed by the laws of the
State of Illinois applicable to contracts made and wholly to be performed in
that state.
10.8 Amendments and Waivers. The provisions of this Agreement may be
amended upon the written agreement of the Corporation and the holder or holders
of a majority of the Holder Registrable Shares. Any waiver, permit, consent, or
approval of any kind or character on the part of any holders of any provision or
condition of this Agreement must be made in writing and shall be effective only
to the extent specifically set forth in writing.
10.9 Final Agreement. This Agreement, constitutes the complete and
final agreement of the parties concerning the matters referred to herein and
supersedes all prior agreements and understandings.
10.10 Execution. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original, and such counterparts together shall constitute one instrument.
10.11 No Strict Construction. The language used in this Agreement
will be deemed to be the language chosen by the parties hereto to express their
mutual intent, and no rule of strict construction will be used against any
party.
10.12 Voluntary Agreement. Each Holder has entered into this
Agreement freely and voluntarily, without coercion, duress, distress, or undue
influence by any other persons or such person's respective directors, officers,
partners, agents, or employees.
10.13 Advice from Counsel. Each Holder understands that this
Agreement may affect legal rights. Each Holder represents that it has received
legal advice from counsel of its choice in connection with the negotiation and
execution of this Agreement and is satisfied with its legal counsel and the
advice received.
10.14 No Admission of Wrongdoing. Nothing in this Agreement shall be
construed as an admission of liability, fault, or wrongdoing on the part of any
Releasee.
[Remainder of page intentionally left blank;
signature pages follows]
12
IN WITNESS WHEREOF, the Corporation has executed this Agreement as of
the date first set forth above.
divine, inc.
By: /s/ Xxxx X. Xxxxxxxx
----------------------
Name: Xxxx X. Xxxxxxxx
Its: Senior Vice President and General
Counsel
13
divine, inc.
COUNTERPART SIGNATURE PAGE
TO
REGISTRATION, REPRESENTATION, AND RELEASE AGREEMENT
The undersigned hereby executes the Registration, Representation, and
Release Agreement by and among divine, inc. (the "Corporation") and certain
-----------
persons who own issued and outstanding shares of Common Stock of the Corporation
and hereby authorizes this signature page to be attached as a counterpart of
such document executed by the Corporation. The undersigned hereby agrees to be
bound by, and shall be entitled to the rights and benefits of, the terms and
provisions of the Registration, Representation, and Release Agreement.
Dated: _______________ ___, 2001
___________________________________________
(Signature)
___________________________________________
(Print Name of Holder)
14
SCHEDULE OF HOLDERS
Xxx Xxxxxxxxx XXXXX.XXX.XXX N.V. (Xxxxx/Xxxxxx)
Xxxxxx Xxxxxxxxx Orapolis Stiftung (Marilus)
Xxxxxx Kalmbach Partners LLC Xxxxxxxx Xxxxxx
Xxxxxxx Xxxxxxxxx Quest Capital Ventures IV LLC (Xxxxxxxxx)
XXXXXXXX.XX.XXX (Xxxx Xxxxx) Xxxxx Xxxxxxxx
CTI Capital Corporation (Xxxxxx Xxxxx) San Xxxxxxx Capital Corp. (Meitar)
XXX.XXX N.V. (Xxxxxxxx) Set-Up Technologies N.V. (Shuki Eden)
Xxxxxx Xxxxxxx Xxxxxxxx Xxxxxxx (Rafi Rav Chen)
Discount Investment Corp. Ltd. Xxxxxxx Xxxxxx
Xxxxx LLC (Xxxxxx/Singer) Xxxxxx Xxxxxxxxx
Xxxxx Xxxxxxxx (Meitar) Swelemi Holdings N.V. (Xxxxxxxx/Winter)
Tsvi Gal Xxxxxxx Xxxx
Xxxxx Xxxxxxxxx Xxxx Xxxxxxxxxx
GER Internet Investments N.V. (Eyran) WWW.ELM.EM N.V. (Xxx Xxxxxxx)
Xxxxxx Xxxx (Meitar) WWW.HAG.EM N.V. (Xxxxxx Xxxxx)
XXX.XX.XXX N.V. WWW.IMZ.EM N.V. (Xxxxxx Xxxxx)
High Expectations Ltd. (Liquornik) WWW.MYZ.EM N.V. (Xxxxx Xxxxxxxx)
INSOMNITECH Ventures LLC (Lenga) WWW.ORM.EM N.V. (Xxx Xxxxx)
Inveco International Inc.Profit Shar. Plan WWW.P&S.EM N.V. (Pnina Uri)
XXX.XX.XXX N.V. (Xxxxxx Xxxxx) WWW.RAD.EM N.V. (Dov Gal)
Yirmiyahu & X. Xxxxxx WWW.ROCKY.EM N.V. (Xxx Xxxxxx etal)
Koonras Technologies Ltd. (Poalim) WWW.ZAM.EM N.V. (Xxxxx Xxxxxxx)
Xxxxx Xxxxxxx
Krypton Limited
Uri Xxx
XX Communication Systems GmbH (Tal)
M. L. Trust Company Ltd. (Liquornik)
Mayfair Investments Ltd.
Xxxxxx Xxxxx
Xxxxxx & Xxxx Xxxxxx
Emicom Founders, L.P.
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