EXHIBIT 2.2
REGISTRATION AND LOCK-UP
AGREEMENT
This REGISTRATION AND LOCK-UP
AGREEMENT (this “ Agreement ”) is made and
entered into as of January 30, 2004, by and among Verticalnet,
Inc., a corporation organized under the laws of the Commonwealth of
Pennsylvania (“ Verticalnet ”), and Brent Habig
(the “ Shareholder ”).
Background
Verticalnet, River Acquisition Co.,
Inc., a corporation organized under the laws of the State of
Delaware (“ River ”), Tigris Corp., a New York
subchapter S corporation (“ Tigris ”), and the
Shareholder are parties to the Agreement of Merger of even date
herewith (the “ Merger Agreemen t”), pursuant to
which, among other things, Tigris is merging with and into River
(the “ Merger ”) and Verticalnet is issuing to
the Shareholder shares of Verticalnet Common Stock, $.01 par value
per share (“ Common Stock ”). Pursuant to the
Merger Agreement, the Shareholder shall have certain rights with
respect to the registration of shares of Common Stock received as
consideration in the Merger for sale under the Securities Act, and
there shall be certain restrictions on the transfer by the
Shareholder of such shares of Common Stock.
Terms and
Conditions
In consideration of the mutual
covenants and promises contained in the Merger Agreement and in
this Agreement and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged,
Verticalnet and the Shareholder agree as follows:
1. Certain Definitions . As
used in this Section 1 and elsewhere in this Agreement, the
following terms shall have the following respective
meanings:
“ Effective Period
” has the meaning set forth in Section 3(a).
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
“ Lock-up Shares
” means that portion of the Merger Shares equal to the
quotient of $2,000,000 divided by the Interim Period
Price.
“ Merger Shares ”
means (a) the shares of Voting Stock Consideration issuable, as
adjusted, to the Shareholder pursuant to the Merger Agreement and
(b) any other shares of Common Stock of Verticalnet issued in
respect of such shares (because of stock splits, stock dividends,
reclassifications, recapitalizations or similar events);
provided , however , that shares of Common Stock held
by the Shareholder which are Merger Shares shall cease to be Merger
Shares upon any sale by the Shareholder pursuant to the Resale
Registration Statement or pursuant to the provisions of Rule
144.
“ Registration Expenses
” means the expenses described in Section 4.
“ Registration
Statement ” means a registration statement filed by
Verticalnet with the SEC under the Act for a public offering and
sale of securities of Verticalnet.
“ Rule 144 ”
means Rule 144 of the SEC promulgated under the Securities
Act.
“ SEC ” means the
Securities and Exchange Commission or any other Federal agency at
the time administering the Securities Act.
“ Securities Act
” means the Securities Act of 1933, as amended, and the rules
and regulations promulgated thereunder.
“ Tranche One Shares
” means one-half of the Lock-up Shares.
“ Tranche Two Shares
” means the Lock-up Shares other than the Tranche One
Shares.
Other terms used herein and not
otherwise defined shall have the respective meanings ascribed to
them in the Merger Agreement.
2. Resale Registration
Statement . On or prior to 45 days after the Closing,
Verticalnet shall file a Registration Statement on Form S-3 (the
“ Resale Registration Statement ”) registering
the offering and sale by the Shareholder of the Merger Shares and
shall use its best efforts to cause the Resale Registration
Statement to become effective within 120 days after the date of
Closing and to remain effective during the Effective Period.
Notwithstanding the foregoing, Verticalnet shall not be required to
comply with the requirements of this Section 2 in the event that
Verticalnet is ineligible to use Form S-3 as a result of any act or
omission on the part of the Shareholder; provided ,
however , at such time that Verticalnet is once again
eligible to use Form S-3, Verticalnet shall then file a Resale
Registration Statement with respect to the Merger Shares. The
Resale Registration Statement shall include the “ Plan of
Distribution ” attached hereto as Exhibit A
.
3. Registration Procedures .
In connection with the registration of the Merger Shares under the
Securities Act, Verticalnet shall as expeditiously as
possible:
(a) prepare and file with the SEC
any amendments and supplements to the Resale Registration Statement
and the prospectus included therein as may be necessary to keep the
Resale Registration Statement effective for a period ending on the
earliest of (i) the date on which all Merger Shares registered
under such Resale Registration Statement have been sold and (ii)
the date all Merger Shares may be sold under Rule 144 within any
90-day period (the “ Effective Period
”);
(b) furnish to the Shareholder such
reasonable numbers of copies of the prospectus in conformity with
the requirements of the Securities Act, and such other documents as
such Shareholder may reasonably request in order to facilitate the
public sale or other disposition of the Merger Shares owned by such
Shareholder;
(c) use its best efforts to register
or qualify the Merger Shares covered by the Resale Registration
Statement under the securities or Blue Sky Laws of such states as
the Shareholder shall reasonably request, and do any and all other
acts and things that may reasonably be necessary or desirable to
enable such Shareholder to consummate the public sale or other
disposition in such states of the Merger Shares owned by such
Shareholder; provided , however , that Verticalnet
shall not be required in connection with this paragraph (c) to
qualify as a foreign corporation or execute a general consent to
service of process in any jurisdiction; and
(d) upon the occurrence of any event
of the kind described in Section 6(c)(i)-(iv) below, use its best
efforts to promptly rectify, or take such reasonable action with
respect to, such
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event so that the Shareholder is
entitled to resume the disposition of the Shareholder’s
Merger Shares in accordance with the terms of this
Agreement.
4. Blackout Periods; Revised
Prospectus .
(a) Verticalnet may by written
notice to the Shareholder require that the Shareholder immediately
cease sales of shares pursuant to the Resale Registration Statement
(a “ Black Out Requirement ”) at any time that
Verticalnet becomes engaged in a business activity or negotiation
which is not disclosed in the prospectus included in the Resale
Registration Statement and which Verticalnet reasonably believes
must be disclosed therein under applicable Law and which
Verticalnet desires to keep confidential for business purposes, the
disclosure of which at such time Verticalnet believes could have a
material adverse effect on Verticalnet or its business or prospects
or on the successful completion of such business activity or
negotiation or on the market price of Verticalnet’s stock.
The Black Out Requirement shall not exceed 90 days in any twelve
month period, and the time period of any one Black Out Requirement
shall not exceed consecutive 30 business days. Verticalnet shall
not be required to disclose to the Shareholder the reasons for
requiring a suspension of sales under the Resale Registration
Statement, and the Shareholder shall disclose to any third party
(other than financial advisors or other experts consulted by such
parties with respect to any such sales of shares who agree to keep
the information confidential) the existence of any such suspension.
Verticalnet will use commercially reasonable efforts to eliminate
any Black Out Requirement as soon as reasonably practicable and
will promptly notify the Shareholder as soon as Verticalnet
determines that the Blackout Requirement is no longer
necessary.
(b) If Verticalnet has delivered a
prospectus to the Shareholder and after having done so the
prospectus is amended to comply with the requirements of the
Securities Act, Verticalnet shall promptly notify the Shareholder
and, if requested, the Shareholder shall immediately cease making
offers of Merger Shares and return all undistributed prospectuses
to Verticalnet. Verticalnet shall promptly provide the Shareholder
with revised prospectuses and, following receipt of the revised
prospectus, the Shareholder shall be free to resume making offers
of the Merger Shares held by such Shareholder.
5. Allocation of Expenses .
Verticalnet will pay all Registration Expenses relating to the
Resale Registration Statement. For purposes of this Section 5, the
term “ Registration Expenses ” shall mean all
reasonable expenses incurred by Verticalnet in complying with this
Agreement, including all registration and filing fees, listing
fees, printing expenses, fees and disbursements of counsel for
Verticalnet, and any state Blue Sky fees and expenses;
provided , however , that except as expressly set
forth herein, in no event shall Registration Expenses include any
underwriting fees, discounts, commissions or fees attributable to
the sale of the Merger Shares or any counsel, accounting or other
Persons retained by the Shareholder in connection with the
consummation of the transactions contemplated by this
Agreement.
6. Shareholder Covenants .
The Shareholder hereby covenants and agrees that:
(a) it will comply with the
prospectus delivery requirements of the Securities Act as
applicable to the Shareholder in connection with sales of Merger
Shares pursuant to the Resale Registration Statement;
(b) upon receipt of a notice from
Verticalnet of the occurrence of any event of the kind described in
Section 6(c)(i)–(iv) below, the Shareholder shall forthwith
discontinue disposition of such Merger Shares under the Resale
Registration Statement until the Shareholder
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receives copies of the supplemented
prospectus and/or amended Resale Registration Statement or until
the Shareholder is advised in writing by Verticalnet that the use
of the applicable prospectus may be resumed:
(i) any request by the SEC or any
other Governmental Body for amendments or supplements to the Resale
Registration Statement or prospectus or for additional
information;
(ii) the issuance by the SEC of any
stop order suspending the effectiveness of the Resale Registration
Statement or the initiation of any proceedings for that
purpose;
(iii) the receipt by Verticalnet of
any written notification with respect to the suspension of the
qualification or exemption from qualification of the Merger Shares
for sale in any jurisdiction, or the initiation or threatening in
writing of any proceeding, for such purpose; or
(iv) the occurrence of any event
that makes any statement made in the Resale Registration Statement
or prospectus or any document incorporated or deemed to be
incorporated therein by reference untrue in any material respect or
that requires any revisions to the Resale Registration Statement,
prospectus or other documents so that, in the case of the Resale
Registration Statement or the prospectus, as the case may be, it
will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading; and
(c) the Shareholder shall furnish to
Verticalnet information regarding the Shareholder and the
distribution of the Merger Shares as is required by Law to be
disclosed in the Resale Registration Statement and is different
from the information concerning the Shareholder and the plan
distribution contained in the Resale Registration
Statement.
7. Indemnification
.
(a) In connection with the Resale
Registration Statement:
(i) Verticalnet will indemnify and
hold harmless the Shareholder, any underwriter (as defined in the
Act) for the Shareholder and each Person, if any, who controls the
Shareholder or underwriter within the meaning of the Securities Act
or the Exchange Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject
under the Securities Act, the Exchange Act or other federal or
state Law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereof) arise out of or are based upon any
of the following: (A) any untrue statement or alleged untrue
statement of a material fact contained in the Resale Registration
Statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, (B) the
omission or alleged omission to state therein a material fact
required to be stated therein, or necessary to make the statements
contained in the Resale Registration Statement not misleading or
(C) any violation or alleged violation by Verticalnet of the
Securities Act, the Exchange Act or any state securities Law; and
Verticalnet will pay to the Shareholder, underwriter or controlling
person, as incurred, any legal or other expenses reasonably
incurred by them in connection with investigating or defending any
such loss, claim, damage, liability, or action; provided ,
however , that the indemnity agreement contained in this
subsection 7(a)(i) shall not apply to: (w) amounts paid
in
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settlement of any such loss, claim,
damage, liability, or action if such settlement is effected without
the consent of Verticalnet (which consent shall not be unreasonably
withheld), (x) any such loss, claim, damage, liab
