<PAGE>
As filed with the Securities and Exchange Commission on June 25, 1999
Registration No. 333-78015
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
AMENDMENT NO. 2
to
FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
ENGAGE TECHNOLOGIES, INC.
(Exact name of registrant as specified in its charter)
---------------
Delaware 7372 04-3281378
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification Number)
incorporation or
organization)
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Engage Technologies, Inc.
100 Brickstone Square
Andover, MA 01810 (978) 684-3884
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
---------------
Paul L. Schaut
President and Chief Executive Officer
Engage Technologies, Inc.
100 Brickstone Square
Andover, MA 01810 (978) 684-3884
(Name, address, including zip code, and telephone
number, including area code, of agent for service)
Copies to:
MARK G. BORDEN, ESQ. KEITH F. HIGGINS, ESQ.
THOMAS S. WARD, ESQ. ROPES & GRAY
HALE AND DORR LLP One International Place
60 State Street Boston, MA 02110
Boston, MA 02109 (617) 951-7000
(617) 526-6000
---------------
Approximate date of commencement of proposed sale to the public: As soon as
practicable after the effective date hereof.
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, check the following box. [_]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If this Form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
check the following box. [_]
---------------
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration Statement
shall become effective on such date as the Commission, acting pursuant to said
Section 8(a), may determine.
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<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+The information in this preliminary prospectus is not complete and may be +
+changed. These securities may not be sold until the registration statement +
+filed with the Securities and Exchange Commission is effective. This +
+preliminary prospectus is not an offer to sell nor does it seek an offer to +
+buy these securities in any jurisdiction where the offer or sale is not +
+permitted. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion. Dated , 1999.
6,000,000 Shares
Engage Technologies, Inc.
[LOGO OF ENGAGE TECHNOLOGIES APPEARS HERE]
Common Stock
-----------
This is an initial public offering of shares of Engage Technologies, Inc. All
of the 6,000,000 shares of common stock are being sold by Engage.
At the request of Engage, the underwriters have reserved at the initial
public offering price up to 600,000 shares of common stock for sale to
employees, customers, resellers and other business associates of Engage and up
to 600,000 shares of common stock for sale to stockholders of CMGI.
It is currently estimated that the initial public offering price per share
will be between $9.00 and $11.00. The common stock has been approved for
quotation on the Nasdaq National Market under the symbol "ENGA".
Upon completion of this offering, CMGI, Inc. will directly own approximately
83% of the outstanding shares of Engage common stock and will continue to
control Engage.
Please see "Risk Factors" beginning on page 7 to read about factors you
should consider before buying shares of the common stock.
-----------
Neither the Securities and Exchange Commission nor any other regulatory body
has approved or disapproved of these securities or passed upon the accuracy or
adequacy of this prospectus. Any representation to the contrary is a criminal
offense.
-----------
<TABLE>
<CAPTION>
Per Share Total
--------- -----
<S> <C> <C>
Initial public offering price................................. $ $
Underwriting discount......................................... $ $
Proceeds, before expenses, to Engage.......................... $ $
</TABLE>
The underwriters may, subject to the terms of the underwriting agreement,
purchase up to an additional 900,000 shares from Engage at the initial public
offering price less the underwriting discount.
-----------
The underwriters expect to deliver the shares against payment in New York,
New York on , 1999.
Goldman, Sachs & Co.
Hambrecht & Quist
Bear, Stearns & Co. Inc.
-----------
Prospectus dated , 1999.
<PAGE>
The inside front cover contains the following:
[Graphical description of the product families offered by Engage. The page
contains an image of three smaller circles surrounding and overlapping a
larger circle. One small circle is labelled, "Targeted Delivery of Content and
Commerce Offerings". One small circle is labelled, "Targeted Delivery of
Advertising". One small circle is labelled, "Web Site Traffic Measurement,
Auditing and Analysis". The larger circle is labelled, "Engage Profiling
Products and Services".]
[Graphical depiction of how a profile is created and used. The page
contains an image of a person sitting before a computer screen; next to the
person is a box containing sample scores within a user profile. The same image
is repeated three times, with the scores in the profile box changed beneath
each of the images. The same image is again repeated at the bottom of the
page, adjacent to which are groups of three banner advertisements, three e-
commerce promotions and three types of editorial content. Arrows point from
these groups to a graphic of a computer screen that has one box labelled "Ad
Banner", another "Dynamic Content" and another "Promo".]
<PAGE>
PROSPECTUS SUMMARY
You should read the following summary together with the more detailed
information and Engage's financial statements and the notes to those statements
appearing elsewhere in this prospectus.
This prospectus contains forward-looking statements based on our current
expectations, assumptions, estimates and projections about Engage and our
industry. These forward-looking statements involve risks and uncertainties.
Engage's actual results could differ materially from those anticipated in these
forward-looking statements as a result of various factors, as more fully
described in the "Risk Factors" section and elsewhere in this prospectus.
Engage Technologies, Inc.
Our Business
Engage provides products and services that enable customers to create and
use profiles of individual Web visitors to target advertisements, content and
e-commerce offerings. An Engage profile is an anonymous collection of
information about an individual Web user's consumer interests, demographic
characteristics and geographic location. These profiles are developed through a
combination of a user's browsing behavior on participating sites on the
Internet and information the user has voluntarily declared at those sites, such
as information provided on an online registration form. Each anonymous profile
omits information that would permit the personal identification of the user,
such as name, address and e-mail address.
Based on its proprietary technology, Engage has built a database currently
containing more than 30 million anonymous consumer profiles, which it has
created using data drawn from multiple, diverse Web sites. When a user visits a
Web site of any customer subscribing to the Engage Knowledge data service,
Engage matches that visitor with his or her profile in the profile database.
The Web site can then use that profile to target offerings to the visitor based
on his or her particular preferences, demographic characteristics and
geographic location.
Each Engage profile contains numerical scores that rank a Web user's
preference level in hundreds of standard categories and subcategories, such as
books, business, computers, fashion, sports and travel. Categories can be
further customized to meet the needs of a specific customer or market. These
profiles are continuously updated and refined based on a visitor's browsing
behavior across multiple Web sites, including pages selected by the user, the
duration of the user's visits and the responses of the user to specific
advertisements and promotions.
Engage's products and services include:
. Engage Knowledge, a service that is currently being tested with customers
and will allow real-time access to Engage's centralized database of
anonymous profiles of Web users;
. Engage ProfileServer, a software product used by customers to create and
deliver site-specific profiles of Web users;
. Accipiter AdManager, an online advertising management system that
automates the scheduling, targeting and delivery of ads on Web sites and
the reporting of advertising campaign results;
. Accipiter AdBureau, an outsourced online advertising management service
using AdManager technology;
. I/PRO services, which provide outsourced Web site traffic analysis and
audits; and
. Engage DecisionSupportServer, a software product that allows customers
3
<PAGE>
to perform sophisticated analyses of the behavior and interests of their
Web site visitors.
Although Engage expects that a significant portion of its future growth will
be attributable to sales of subscriptions to its Engage Knowledge data service
and other products and services that will be based upon Engage's profiling
technology, Engage has generated most of its revenue to date through sales of
its advertising management software and outsourced services, as well as its
services for measuring and analyzing Web site traffic. Engage has incurred
aggregate net losses of approximately $47.6 million since inception in 1995 and
expects to continue to incur significant losses for the foreseeable future.
Engage's ability to reduce these losses will depend in large part on our
ability to generate significant additional revenues. Engage operates in a
highly competitive market and it may not achieve profitability. A material
portion of Engage's revenue to date has been derived from sales of products and
services to affiliates of CMGI.
Our Market Opportunity
The Internet is capable of transforming the way businesses market and sell
products. The interactive nature of the Web offers the potential for businesses
to market to individuals on a one-to-one basis in real-time. Businesses are
seeking to improve the effectiveness of their marketing campaigns by directing
their advertisements and promotions toward the Web users they most want to
reach. By targeting advertisements and promotions to the most relevant users,
Internet marketers seek to improve their response rates and brand awareness and
reduce costs by eliminating spending that is not directed to their desired
audience.
While the growth and interactive nature of the Internet are generating a
large volume of consumer data useful for targeted marketing, Web users are
increasingly concerned about the potential for loss or abuse of their privacy.
To balance the desires of Internet marketers and consumers, there is a need for
a solution that enables marketers to tailor their offerings effectively to
individual users, while also preserving the privacy and anonymity available to
individuals on the Internet.
Our Strategy
Engage's strategy includes a number of elements designed to enhance its
position as a provider of profile-driven Internet marketing products and
services:
Establish Engage as a recognized brand for Internet profiling. We believe we
have the opportunity to establish Engage as the recognized brand for
audience targeting on the Internet by developing a family of "Engage-
enabled" products and services that use our proprietary profiling
technology.
Offer multiple products based on open standards. To promote broad acceptance
of Engage profiles, we plan to continue to design our products based on open
standards that enable our products to work both with our own applications
and third-party applications.
Continue to enhance profiles. We intend to continue to improve the quality
and usefulness of Engage Knowledge profiles by increasing our installed base
of subscribers to the Engage Knowledge data service, improving our profiling
algorithms and technology and refining our profile categories to provide
broader, more detailed and market-specific information.
Focus on specific markets. We plan to tailor our profiling products for
specific markets, including Web publishers and advertising networks as well
as the automotive and retail markets.
Offer family of Engage products and services. We intend to offer a range of
different products and services to our existing installed base of customers.
Maintain position as advocate for Internet privacy. We plan to maintain our
commitment regarding issues of consumer privacy on the Internet.
4
<PAGE>
Control by CMGI
CMGI will own approximately 83% of the outstanding common stock after this
offering. CMGI's ownership may have the effect of delaying or preventing a
change of control of Engage. In addition, CMGI will have the power to elect
Engage's entire board of directors and approve or disapprove mergers or other
significant corporate transactions submitted to Engage stockholders for
approval.
The Offering
<TABLE>
<C> <S>
Shares offered by Engage...................... 6,000,000 shares
Shares to be outstanding after this offering.. 45,973,798 shares(1)
Nasdaq National Market symbol................. ENGA
Use of proceeds............................... For general corporate purposes,
including working capital
</TABLE>
- --------
(1) Based on 1,225,324 shares of common stock outstanding as of April 30, 1999,
plus 38,748,474 shares of common stock issuable upon conversion of
outstanding convertible notes and convertible preferred stock as of that
date. Excludes 6,467,794 shares issuable upon the exercise of outstanding
stock options as of April 30, 1999.
Engage, the Engage logo, Accipiter, AdBureau, AdManager, ProfileServer,
DSServer, Engage Knowledge, GeoKnowledge Engage Technologies, I/AUDIT and I/PRO
are trademarks of Engage. All other trademarks and service marks are the
property of their respective owners.
Unless otherwise specifically stated, information throughout this prospectus
assumes:
. the underwriters' over-allotment option is not exercised;
. the conversion of $37,446,850 of indebtedness to CMGI into shares of
convertible preferred stock prior to the closing of this offering;
. the conversion of all outstanding shares of our convertible preferred
stock into shares of common stock upon the closing of this offering;
. the effectiveness of a two-for-one stock split immediately prior to the
date of this prospectus;
. all stock splits of CMGI common stock with a record date prior to the
date of this prospectus; and
. an initial public offering price of $10.00 per share.
----------------
Engage was incorporated in Delaware on July 18, 1995. Our principal
executive offices are located at 100 Brickstone Square, Andover, MA 01810. Our
telephone number at that location is 978-684-3884. Our Internet address is
www.engage.com. The information contained on our Web site is not incorporated
by reference in this prospectus.
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<PAGE>
Summary Financial Data
The following table summarizes our statement of operations data. This
financial information reflects the results of operations of Accipiter since
April 8, 1998 and the results of operations of I/PRO since April 7, 1999.
<TABLE>
<CAPTION>
Nine Months Ended
July 18, 1995 Year Ended July 31, April 30,
(inception) -------------------- --------------------
to July 31, 1996 1997 1998 1998 1999
---------------- --------- --------- ----------- --------
(unaudited)
(in thousands, except per share data)
<S> <C> <C> <C> <C> <C>
Statement of Operations
Data:
Revenue................. $ -- $ 25 $ 2,217 $ 613 $ 8,997
Cost of revenue......... -- 31 2,238 1,189 5,626
------- --------- --------- -------- --------
Gross (loss) profit... -- (6) (21) (576) 3,371
Operating expenses:
In-process research and
development........... -- -- 9,200 9,200 4,500
Research and
development........... 1,796 7,261 5,859 4,688 5,816
Selling and marketing.. 155 1,566 4,015 2,524 6,614
General and
administrative........ 428 1,429 1,993 1,017 2,409
Amortization of
goodwill and other
intangibles........... -- -- 1,391 358 3,543
Stock compensation..... -- -- 426 65 657
------- --------- --------- -------- --------
Total operating
expenses............. 2,379 10,256 22,884 17,852 23,539
------- --------- --------- -------- --------
Loss from operations.... (2,379) (10,262) (22,905) (18,428) (20,168)
Gain on sale of product
rights................. -- -- 9,240 9,240 --
Equity in loss of joint
venture................ -- -- -- -- (417)
Loss on disposal of
property and
equipment.............. -- -- -- -- (174)
Interest expense, net... -- -- (172) (60) (411)
------- --------- --------- -------- --------
Net loss ............... $(2,379) $ (10,262) $ (13,837) $ (9,248) $(21,170)
======= ========= ========= ======== ========
Pro forma basic and
diluted net loss per
share.................. $ (.83) $ (.62)
========= ========
Weighted average shares
of common stock used in
computing pro forma
basic and diluted net
loss per share......... 16,750 34,210
========= ========
</TABLE>
The following table is a summary of our balance sheet at April 30, 1999 (1)
on an actual basis, (2) on a pro forma basis after giving effect to the
conversion of all debt to CMGI into shares of convertible preferred stock and
the conversion of all outstanding convertible preferred stock into common stock
and (3) on a pro forma as adjusted basis to reflect the sale of 6,000,000
shares of common stock at an assumed initial public offering price of $10.00
per share, after deducting the underwriting discount and estimated offering
expenses.
<TABLE>
<CAPTION>
April 30, 1999
-------------------------------
Pro Forma
Actual Pro Forma As Adjusted
-------- --------- -----------
(in thousands)
<S> <C> <C> <C>
Balance Sheet Data:
Cash and equivalents............................ $ 661 $ 661 $ 55,186
Working capital (deficit)....................... (40,204) (2,757) 51,768
Total assets.................................... 54,970 54,970 109,495
Debt to CMGI.................................... 37,447 -- --
Stockholders' equity............................ 5,101 42,548 97,073
</TABLE>
6
<PAGE>
RISK FACTORS
This offering involves a high degree of risk. You should carefully consider
the risks described below before you decide to buy our common stock. If any of
the following risks were to occur, our business, financial condition or results
of operations would likely suffer. In that event, the trading price of our
common stock could decline, and you may lose all or part of your investment.
We have incurred substantial losses and anticipate continued losses
We have never been profitable. We have incurred net losses totalling $47.6
million from inception to April 30, 1999. We expect to increase our spending
significantly and therefore expect to continue to incur significant losses for
the foreseeable future.
We will need to generate significant additional revenue to achieve
profitability. We may not achieve profitability. If our revenue grows more
slowly than we anticipate or if our operating expenses either increase more
than we expect or cannot be reduced in light of lower revenue, our business,
financial condition and results of operations will be materially and adversely
affected.
We have recently begun to introduce our Engage Knowledge data service, and it
is uncertain whether it will achieve widespread customer acceptance
We have implemented our Engage Knowledge data service with customers on a
test basis and have not yet realized any revenue from sales of this service.
While we expect to implement this service on a commercial basis in July 1999,
we may encounter delays or difficulties in this commercial introduction. The
profiling capabilities used to create and maintain the Engage Knowledge data
service serve as the platform for most of our current and planned profile-based
products and services. We expect that a significant portion of our future
revenue will depend on sales of the Engage Knowledge data service and other
products and services incorporating our profile technology. There can be no
assurance that our Engage Knowledge data service, or our profiling approach for
the creation of anonymous profiles, will achieve widespread customer
acceptance, and any failure to do so would have a material adverse effect on
our business, financial condition and results of operations.
Profile-based targeting may not achieve its intended benefits and our revenue
therefore may not grow as expected
Our products and services are designed to enable Web publishers, advertisers
and merchants to target their intended audiences more effectively. Because
Engage profiling technology is new, we cannot be sure that the use of our
anonymous profiles will result in more effective targeting of advertisements or
other marketing and promotional activities. Our revenue would be adversely
affected if advertisers and merchants do not perceive that the use of profiles
will improve the effectiveness of their marketing campaigns or if our customers
are otherwise unable to generate a sufficient return on investment from the use
of our profiles. If the use of our profile-based products and services does not
demonstrably improve the responsiveness of Web visitors, Engage's business,
financial condition and results of operations will be materially adversely
affected.
The value of the Engage Knowledge service depends on continued contributions of
data from customers subscribing to this service
Decisions by our major customers not to contribute their data to the Engage
Knowledge database would hinder the quality and growth of the Engage Knowledge
database and could severely impair the effectiveness and value of the Engage
Knowledge data service and our other planned profile-based products. The
anonymous user profiles currently in the Engage Knowledge database have been
created from data generated by customers that are testing the Engage Knowledge
data service. Organizations subscribing to the Engage Knowledge data service
currently can elect not to contribute user data to the Engage profile database.
These organizations may elect not to contribute data due to concerns relating
to sharing proprietary information about their users and perceived privacy
concerns. Although
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customers that do not contribute their data generally are required to pay
significantly higher subscription fees for use of the Engage Knowledge data
service, the impact of these higher fees may be insufficient to cause customers
to contribute data to the Engage Knowledge database.
Our business may be seriously harmed if we do not successfully develop profile-
based products and services for specific markets
We plan to develop Engage Knowledge data services that are tailored for the
requirements of specific markets, such as the automotive and retail markets.
Our success in introducing these services will depend on our ability to obtain
access to the consumer information necessary to create a meaningful database of
market-specific interests and preferences, as well as the ability to enter into
marketing relationships with partners having expertise in these markets. There
can be no assurance that we will be successful in obtaining this data or the
necessary marketing relationships, and any failure to do so would impair our
ability to introduce our planned products and services for these markets.
Our quarterly operating results are subject to significant fluctuations and
you should not rely on them as an indication of our future results
Our revenue and operating results may vary significantly from quarter to
quarter due to a number of factors, not all of which are in our control. Future
revenue is difficult to forecast and for the foreseeable future will be
influenced by the timing and amount of sales to new customers, as well as user
traffic levels and advertising and electronic commerce activity on our
customers' Web sites.
The market for profile-based marketing products and services is new. As a
result, we must educate potential customers on the use and benefits of our
products and services. In addition, the implementation of the Engage Knowledge
data service requires a significant commitment of resources by our customers.
It can, in some cases, take our sales organization several months to finalize a
sale. This makes it difficult to predict the quarter in which a sale may occur.
Many of our expenses, particularly personnel costs and rent, are relatively
fixed, and are incurred in part based on expectations of future revenue. We may
be unable to adjust spending quickly enough to offset any unexpected revenue
shortfall. Accordingly, any shortfall in revenue may cause significant
variation in operating results in any quarter.
Because of these factors, you should not rely on quarter-to-quarter
comparisons of our results of operations as an indication of our future
performance. It is possible that, in future periods, our results of operations
may be below the expectations of public market analysts and investors. This
could cause the trading price of our common stock to decline.
We have only been in business for a short period of time and your basis for
evaluating us is limited
We began commercial shipments of our first software products in early 1998.
You must consider the risks, expenses and uncertainties that an early stage
company like ours faces, particularly in the new and rapidly evolving Internet
market. Because we have only recently commenced commercial sales, our past
results and rates of growth may not be meaningful and you should not rely on
them as an indication of our future performance.
We will continue to be controlled by CMGI, Inc., whose interests may differ
from other stockholders
CMGI, Inc. currently beneficially owns approximately 96% of the outstanding
shares of our common stock, and after the offering will own approximately 83%
of the outstanding shares of our common stock. Accordingly, CMGI will continue
to have the power to elect our entire board of directors and to approve or
disapprove any corporate transaction or other matter submitted to our
stockholders for approval, including the approval of mergers or other
significant corporate transactions. The interests of CMGI may differ from the
interests of the other stockholders. Future decisions by CMGI as to the
disposition of any or all of its ownership position in Engage could be
influenced by the possible need of CMGI to maintain control of Engage in
8
<PAGE>
order for CMGI to avoid becoming a registered investment company. Registration
as an investment company would subject CMGI to numerous regulatory requirements
with which CMGI would have difficulty complying. As a result, CMGI may be
motivated to maintain at least a majority ownership position of Engage, even if
other stockholders of Engage might consider a sale of control of Engage to be
in their best interests. As long as it is a majority stockholder, CMGI has
contractual rights to purchase shares in any financing of Engage sufficient to
maintain its majority ownership position. CMGI's ownership may have the effect
of delaying or preventing a change in control of us or discouraging a potential
acquiror from attempting to obtain control of us, which in turn could adversely
affect the market price of our common stock.
A material portion of our growth to date has been attributable to sales to CMGI
affiliates
Eleven of our customers are affiliates of CMGI. In fiscal 1998, sales of
products and services to affiliates of CMGI accounted for $235,000, or
approximately 11%, of Engage's total revenue. In the first nine months of
fiscal 1999, sales of products and services to affiliates of CMGI accounted for
$1.4 million, or approximately 15%, of Engage's total revenue. To the extent
that our growth in revenue has been attributable to sales of products and
services to these affiliates, there can be no assurance that our historical
rate of growth is an indication of our future prospects. While Engage believes
that the transactions between it and other affiliates of CMGI have been on
arms'-length terms, it is possible that Engage might have received more
favorable terms than it would have if it were not an affiliate of CMGI. In
addition, the terms of our sales to affiliated customers could change if these
customers cease to be affiliates of CMGI in the future. CMGI has been and
continues to be instrumental in introducing Engage to customers and other
business partners. If the relationship between Engage and CMGI ended or was
fundamentally altered, our business, financial condition and results of
operations could be materially adversely affected.
Growing concerns about the use of "cookies" and data collection may limit our
ability to develop user profiles
Web sites typically place small files of information commonly known as
"cookies" on a user's hard drive, generally without the user's knowledge or
consent. Cookie information is passed to the Web site through the Internet
user's browser software. Our technology currently uses cookies to collect
information about an Internet user's movement through the Internet. Most
currently available Internet browsers allow users to modify their browser
settings to prevent cookies from being stored on their hard drive, and a small
minority of users are currently choosing to do so. Users can also delete
cookies from their hard drive at any time.
Some Internet commentators and privacy advocates have suggested limiting or
eliminating the use of cookies. The effectiveness of our technology could be
limited by any reduction or limitation in the use of cookies.
If the use or effectiveness of cookies is limited, we would likely have to
switch to other technology that allows us to gather demographic and behavioral
information. While such technology currently exists, it is substantially less
effective than cookies. Replacement of cookies could require significant
reengineering time and resources, might not be completed in time to avoid
negative consequences to our business, financial condition or results of
operations, and might not be commercially feasible.
In addition, privacy concerns may cause some Web users to be less likely to
visit Web sites that subscribe to the Engage Knowledge data service. If enough
Web users choose not to visit sites using or providing information to the
Engage Knowledge data service, our ability to sell subscriptions to the Engage
Knowledge data service would be adversely affected.This would, in turn, have a
material adverse effect on our business, financial condition or results of
operations.
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Legislation or regulations may be adopted that could affect our ability to
generate or use information for profiles and may hinder our ability to conduct
business
The legal and regulatory environment governing the Internet and the use of
information about Web users is uncertain and may change. United States
legislators in the past have introduced a number of bills aimed at regulating
the collection and use of personal data from Internet users and additional
similar bills are being considered during the current congressional session.
Although we believe that none of the current bills, as drafted, would have a
material adverse effect on our business, it is possible that a bill may be
modified and enacted into law that negatively affects our ability to collect
and use data about Web users. The European Union has recently adopted a
directive addressing data privacy that may result in limitations on the
collection and use of specific personal information regarding Internet users.
In addition, Germany has imposed its own laws protecting data that can become
personally identifiable through subsequent processing. Other countries may also
enact limitations on the use of personal data.
To date, these regulations have not materially restricted the use of our
products. However, legislation or regulations may in the future be adopted
which may limit our ability to target advertising or collect and use
information in one or more countries. Further, a number of laws and regulations
have been and may be adopted covering issues such as pricing, acceptable
content, taxation and quality of products and services on the Internet. Such
legislation could dampen the growth in use of the Internet generally and
decrease the acceptance of the Internet as a communications and commercial
medium. In addition, due to the global nature of the Internet, it is possible
that multiple federal, state or foreign jurisdictions might inconsistently
regulate our activities and our customers. Any of the foregoing developments
could have a material adverse effect on our business, financial condition and
results of operations.
We may have difficulty managing our expanding operations
We have recently experienced a period of rapid growth. This growth has
placed a significant strain on our managerial, operational and financial
resources. Our total revenue increased from $25,000 in the fiscal year ended
July 31, 1997 to $2.2 million in the fiscal year ended July 31, 1998, and the
number of our employees increased from 67 as of July 31, 1997 to 209 as of
April 30, 1999. A number of our senior managers have been with us for less than
a year. To accommodate this growth, we must implement new or upgraded operating
and financial systems, procedures and controls throughout many different
locations. We may not succeed in these efforts. Our failure to expand and
integrate these areas in an efficient manner could have a material adverse
effect on our business, financial condition and results of operations. If we
continue to grow, we will need to recruit, train and retain a significant
number of employees, particularly employees with technical, marketing and sales
backgrounds. These individuals are in high demand. We may not be able to
attract the staff we need.
The acceptance and effectiveness of Internet advertising is not yet fully
established
Our future success is dependent in part on an increase in the use of the
Internet as an advertising medium. The Internet advertising market is new and
rapidly evolving, and it cannot yet be compared with traditional advertising
media to gauge its effectiveness. As a result, demand for and market acceptance
of Internet advertising solutions are uncertain. In addition, there are
software programs that limit or prevent advertising from being delivered to a
user's computer. Web users' widespread adoption of such software would
significantly undermine the commercial viability of Internet advertising. If
the market for Internet advertising fails to develop or develops more slowly
than we expect, our business, financial condition and results of operations
could be materially and adversely affected.
10
<PAGE>
There are currently no generally accepted standards for the measurement of
the effectiveness of Internet advertising and standard measurements may need to
be developed to support and promote Internet advertising as a significant
advertising medium. Our advertising customers may challenge or refuse to accept
our or third-party measurements of advertisement delivery requests from the Web
sites of Web publishers using our solutions.
The acceptance and effectiveness of the Internet as a medium for consumer
transactions is not yet fully established
Our future success is dependent in part on an increase in the use of the
Internet for business transactions with consumers. The electronic commerce
market is new and rapidly evolving and the extent of consumer acceptance of the
Internet is uncertain. If a sufficiently broad base of consumers do not accept
the use of the Internet for transacting business, our business, financial
condition and results of operations could be materially and adversely affected.
We have many competitors and may not be able to compete effectively
The markets for Internet advertising, user targeting and Web site assessment
tools are intensely competitive. We compete directly with providers of
profiling technology, such as Personify, and indirectly with applications that
include more limited profiling capability integrated into their solutions, such
as BroadVision and Vignette. In addition, NetGravity, in concert with Aptex and
MatchLogic, and businesses that offer cash or other incentives to users to
voluntarily provide profile data, are expected to compete in the profiling
solutions market. The primary competitors to our advertising management
software are systems provided by NetGravity and Real Media. In the outsourced
ad serving market, we compete with providers of ad serving services, including
AdForce and DoubleClick. Our traffic measurement and analysis services and
software compete with software offered by Accrue, Andromedia, net.Genesis and
WebTrends, and our audit services compete with ABC Interactive, BPA and
PricewaterhouseCoopers. We also encounter competition from a number of other
sources, including content aggregation companies, companies operating
advertising sales networks, advertising agencies and other companies that
facilitate Internet advertising and electronic commerce.
Many of our existing competitors, as well as a number of potential new
competitors, have longer operating histories, greater name recognition, larger
customer bases and significantly greater financial, technical and marketing
resources than we do. Such competitors may also engage in more extensive
research and development, undertake more far-reaching marketing campaigns,
adopt more aggressive pricing policies and make more attractive offers to
existing and potential employees, strategic partners, advertisers and Web
publishers. We cannot assure you that our competitors will not develop products
or services that are equal or superior to our solutions or that achieve greater
market acceptance than our solutions. In addition, current and potential
competitors have established or may establish cooperative relationships among
themselves or with third parties. Increased competition is likely to result in
price reductions, reduced gross margins and loss of market share. We cannot
assure you that we will be able to compete successfully or that competitive
pressures will not materially and adversely affect our business, financial
condition and results of operations.
Companies doing business on the Internet, including ours, must also compete
with television, radio, cable and print media for a share of advertisers' total
advertising budgets.
Our systems may fail or experience slowdowns and we could lose key data used in
our user profiles
Substantially all of our communications hardware and other data center
operations are located at NaviSite Inc.'s facilities in Andover, Massachusetts.
Fire, floods, earthquakes, power loss, telecommunications failures, break-ins
and similar events could damage these systems, including loss of data used to
create our user profiles. Our business, financial
11
<PAGE>
condition and results of operations could be materially and adversely affected
if our systems were affected by any of these occurrences or if any data used in
our Engage Knowledge database were lost. Our insurance policies may not
adequately compensate us for any losses that may occur due to any failures or
interruptions in our systems or loss of data.
We may need additional financing which could be difficult to obtain
We intend to grow our business rapidly and expect to incur significant
operating losses for the foreseeable future. Therefore, we may require
significant external financing in the future. Obtaining additional financing
will be subject to a number of factors, including:
. market conditions;
. our operating performance; and
. investor sentiment, particularly for Internet-related companies.
These factors may make the timing, amount, terms and conditions of
additional financing unattractive for us. If we are unable to raise capital to
fund our growth, our business, financial condition and results of operations
would be materially and adversely affected.
Technological change may render our products and services obsolete
The Internet market is characterized by rapidly changing technology,
evolving industry standards, frequent new product announcements and
enhancements and changing customer demands. The introduction of new products
and services embodying new technologies and the emergence of new industry
standards can render existing products and services obsolete. Our success
depends on our ability to adapt to rapidly changing technologies and to improve
the performance, features and reliability of our services and products in
response to changing customer and industry demands. Furthermore, we may
experience difficulties that could delay or prevent the successful design,
development, testing, introduction or marketing of services. New services or
enhancements to existing services may not adequately meet the requirements of
our current and prospective customers or achieve any degree of significant
market acceptance.
We face risks associated with our international operations
and plans for expansion
We have operations in a number of international markets. We intend to
continue to expand our international operations and international sales and
marketing efforts. To date, we have limited experience in developing localized
versions of our solutions and in marketing, selling and distributing our
solutions internationally. We have established a direct sales office in the
United Kingdom and a joint venture with Sumitomo to conduct operations in
Japan. We intend to enter other international markets primarily by partnering
with locally based third parties, including entering into joint ventures and
distribution arrangements. Our success in such markets is directly dependent on
the success of our business partners and our and their dedication of sufficient
resources to our relationship.
International operations are subject to other inherent risks, including:
. compliance with the laws and regulations of different countries;
. difficulties in enforcing contractual obligations and intellectual
property rights in some countries;
. difficulties and costs of staffing and managing foreign operations; and
. fluctuations in currency exchange rates.
These risks may materially and adversely affect our business, results of
operations and financial condition.
We may not be successful in acquiring and integrating new technologies or
businesses
We have acquired two companies and intend in the future to continue to
acquire or make investments in complementary businesses, products, services or
technologies. We cannot assure you that we will be able to identify additional
acquisition or investment candidates. Even if we do identify suitable
12
<PAGE>
candidates, we cannot assure you that we will be able to make such acquisitions
or investments on commercially acceptable terms. We recently purchased I/PRO
and may not be successful in managing its operations. In addition, the key
personnel of I/PRO or other acquired companies may decide not to work for us.
If we make other types of acquisitions, we could have difficulty in
assimilating the acquired products, services or technologies into our
operations. These difficulties could disrupt our ongoing business, distract our
management and employees, increase our expenses and adversely affect our
results of operations. Furthermore, we may incur debt or issue equity
securities to pay for any future acquisitions. The issuance of equity
securities could be dilutive to our existing stockholders.
We depend on the continued viability of the Internet infrastructure
Our success depends upon the development and maintenance of a viable
Internet infrastructure. The current Internet infrastructure may be unable to
support an increased number of users. The timely development of products such
as high-speed modems and communications equipment will be necessary to continue
reliable Web access. Furthermore, the Web has experienced outages and delays as
a result of damage to portions of its infrastructure. Such outages and delays,
including those resulting from Year 2000 problems, could adversely affect Web
sites and the level of traffic on our customers' sites. The effectiveness of
the Web may decline due to delays in the development or adoption of new
standards and protocols designed to support increased levels of activity. If
such new infrastructure, standards or protocols are developed, we may be
required to incur substantial expenditures to adapt our products to the new
technologies.
Our business may suffer if we cannot protect our intellectual property
Our success and ability to compete are substantially dependent on our
internally developed technologies and trademarks, which we seek to protect
through a combination of patent, copyright, trade secret and trademark law. In
February 1998, we filed two patent applications in the United States. We cannot
assure you that any of our patent applications or trademark registrations will
be approved, or even if approved, would not be successfully challenged by
others or invalidated. In addition, we cannot assure you that we will be able
to prevent misappropriation of our solutions or technologies, particularly in
foreign countries where laws or law enforcement practices may not protect our
proprietary rights as fully as in the United States.
Our profiling technology collects and utilizes data derived from user
activity on our customers' Web sites. This data is used for advertising and
content targeting. Although we believe that we have the right to use such data
and the compilation of such data in our database, we cannot assure you that any
trade secret, copyright or other protection will be available for such
information. In addition, others may claim rights to such information.
Our business will suffer if we are unable to retain key personnel
We depend on the services of our senior management and key technical
personnel. In particular, our success depends on the continued efforts of our
Chief Executive Officer, Paul L. Schaut; our Chief Operating Officer, David A.
Fish; and our Chief Technology Officer, Daniel J. Jaye, with whom we do not
have employment agreements. The loss of the services of any key employee could
have a material adverse effect on our business, financial condition and results
of operations.
Year 2000 problems may disrupt our business
Many currently installed computer systems and software products only accept
two digits to identify the year in any date. Therefore, the year 2000 will
appear as "00", which the system might consider to be the year 1900 rather than
the year 2000. This could result in system failures, delays or miscalculations
causing disruptions to our operations.
13
<PAGE>
The failure of any of our systems or systems maintained by third parties to
be Year 2000 compliant could:
. cause us to incur significant expenses to remedy any problems;
. affect the availability and performance of our network; or
. otherwise seriously damage our business.
A significant Year 2000-related disruption to our network could cause our
users, advertisers or electronic commerce partners to be dissatisfied with our
network or could impose an unmanageable burden on our technical support staff.
Our failure to correct a material Year 2000 problem could have a material
adverse effect on our business, financial condition and results of operations.
Engage will continue to rely on CMGI for various administrative services, and
conflicts of interest could arise in the provision of such services
Upon the closing of this offering, CMGI and Engage will enter into a
facilities and administrative support agreement under which CMGI will continue
to make available space at its headquarters in Massachusetts and will provide
various services to Engage, including tax and administration, computer and
information systems, telecommunications, utilities and employee benefits
administration. Under this agreement, CMGI has agreed to make available to
Engage at least 28,000 square feet of space at its headquarters facilities in
Andover, Massachusetts, subject to termination upon at least 12 months' notice
by CMGI. The fees payable by Engage for the availability of space and other
services are typically determined through an allocation of CMGI's costs based
upon the proportion of Engage's employee headcount to the total headcount of
CMGI and other CMGI-related companies located in the same facility or using the
same services. We have not independently determined the market value for these
services and may be paying more than fair market value for them if this
allocation method does not fairly reflect Engage's use of these services or if
CMGI were obtaining them at rates greater than their fair market value. This
agreement may be amended by agreement of CMGI and Engage. It is possible that
personnel of CMGI providing these services may encounter conflicts of interests
such as demands on their time by CMGI that might detract from their level of
availability or service to Engage. In addition, Engage's reliance on these
services could result in higher costs than would be incurred if Engage were to
obtain such services from an unrelated third party.
We will have discretion as to the use of the proceeds of this offering
We currently have no specific uses planned for the net proceeds of this
offering. As a result, our management will have broad discretion in applying
the net proceeds of this offering, and could include uses with which
stockholders may disagree. The failure of management to apply such funds
effectively could have a material adverse effect on our business, financial
condition and results of operations. See "Use of Proceeds".
Our stock price is likely to be highly volatile
Following this offering, an active trading market may not develop or be
sustained for our common stock. The price at which our common stock will trade
after this offering is likely to be highly volatile and may fluctuate
substantially due to a number of factors, including:
. actual or anticipated fluctuations in our results of operations;
. changes in or our failure to meet securities analysts' expectations;
. technological innovations;
. increased competition;
. conditions and trends in the Internet and other technology industries;
and
. general market conditions.
In addition, the stock market has from time to time experienced significant
price and volume fluctuations that have affected the market prices for the
securities of technology companies, particularly Internet companies. These
broad market fluctuations may result in a
14
<PAGE>
material decline in the market price of our common stock, regardless of our
operating performance. In the past, following periods of volatility in the
market price of a particular company's securities, securities class action
litigation has often been brought against that company. We may become involved
in this type of litigation in the future. Litigation is often expensive and
diverts management's attention and resources, which could have a material
adverse effect upon our business, financial condition and results of
operations.
Shares eligible for public sale after this offering could adversely affect
our stock price
The availability of a large number of shares for sale could result in the
need for sellers to accept a lower price in order to complete a sale. This
would result in a lower market price of our common stock. After this offering,
there will be outstanding 45,973,798 shares of our common stock, or 46,873,798
shares if the underwriters' over-allotment option is exercised in full. Of
these shares, the 6,000,000 shares sold in this offering will be freely
tradeable except for any shares purchased by our "affiliates" as defined in
Rule 144 under the Securities Act. Of the remaining 39,973,798 shares of common
stock held by existing stockholders, 39,281,464 are subject to 180-day lock-up
agreements and are eligible for sale only if registered or if they qualify for
an exemption from registration under Rules 144, 144(k) or 701 under the
Securities Act. Subject to the provisions of Rules 144, 144(k) and 701, at
least 30,477,194 shares will be available for sale in the public market 180
days after the date of this prospectus, subject in the case of shares held by
affiliates to compliance with applicable volume restrictions.
You will suffer immediate and substantial dilution
The initial public offering price per share will significantly exceed the
net tangible book value per share. If Engage were to liquidate immediately
after the offering, investors purchasing shares in this offering would receive
a per share amount of tangible assets net of liabilities that would be less
than the initial public offering price per share. Investors purchasing shares
in this offering will suffer dilution of $8.84 per share from their investment.
15
<PAGE>
USE OF PROCEEDS
Engage estimates that the net proceeds from its sale of 6,000,000 shares of
common stock will be $54.5 million, after deducting the underwriting discount
and estimated offering expenses payable by Engage. If the underwriters' over-
allotment option is exercised in full, Engage estimates that the net proceeds
will be $62.9 million.
Engage presently intends to use a portion of the net proceeds from this
offering for general corporate purposes, including working capital, product
development, increasing sales and marketing capabilities and expanding
international operations. Engage may also use a portion of the net proceeds to
acquire or invest in complementary businesses or products or to obtain the
right to use complementary technologies. Engage has no specific understandings,
commitments or agreements with respect to any such acquisition or investment.
Pending these uses, the net proceeds of this offering will be invested in
short-term, interest-bearing, investment-grade securities.
DIVIDEND POLICY
Engage has never declared or paid any cash dividends on its capital stock.
Engage presently intends to retain future earnings, if any, to finance the
expansion of its business and does not expect to pay any cash dividends in the
foreseeable future. Payment of future cash dividends, if any, will be at the
discretion of Engage's board of directors after taking into account various
factors, including Engage's financial condition, operating results, current and
anticipated cash needs and plans for expansion.
16
<PAGE>
CAPITALIZATION
The following table sets forth Engage's capitalization as of April 30,
1999:
. on an actual basis after giving effect to the two-for-one common stock
split;
. on a pro forma basis to reflect the conversion of Engage's debt to CMGI
into convertible preferred stock and the conversion of all of Engage's
convertible preferred stock into common stock; and
. on a pro forma as adjusted basis to reflect the conversion of Engage's
debt to CMGI into convertible preferred stock, the conversion of all of
Engage's convertible preferred stock into common stock and the
application of the estimated net proceeds from the sale of common stock
in this offering, assuming an initial public offering price of $10.00 per
share, after deducting the underwriting discount and estimated offering
expenses payable by Engage.
Historically, CMGI has funded Engage's operations as needed, with a
corresponding increase in Engage's debt to CMGI. Customer and other receipts
are transferred to CMGI and are applied to reduce Engage's obligations to
CMGI. Engage expects that it will continue to borrow funds from CMGI under
this arrangement until the closing of this offering and that the net
obligations incurred after the end of the fiscal quarter preceding the
closing, to the extent outstanding, will be converted into additional shares
of Engage common stock at the initial public offering price.
<TABLE>
<CAPTION>
April 30, 1999
----------------------------------------
Pro Forma
Actual Pro Forma As Adjusted
----------- ----------- -------------
(in thousands, except share data)
<S> <C> <C> <C>
Debt to CMGI........................... $ 37,447 $ -- $ --
Stockholders' equity:
Series A convertible preferred stock,
par value $0.01; 1,500,000 shares
authorized, issued and outstanding
(actual); no shares authorized,
issued or outstanding (pro forma and
pro forma as adjusted)............... 15 -- --
Series B convertible preferred stock,
par value $0.01; 238,597 shares
authorized, issued and outstanding
(actual); no shares authorized,
issued or outstanding (pro forma and
pro forma as adjusted)............... 2 -- --
Common stock, par value $0.01;
60,000,000 shares authorized
(actual); 150,000,000 shares
authorized (pro forma and pro forma
as adjusted); 1,225,324 shares issued
and outstanding (actual); 39,973,798
and 45,973,798 shares issued and
outstanding (pro forma and pro forma
as adjusted)(1)...................... 12 399 459
Additional paid-in capital............. 57,964 95,041 149,506
Deferred compensation.................. (4,822) (4,822) (4,822)
Accumulated other comprehensive
income................................ (422) (422) (422)
Accumulated deficit.................... (47,648) (47,648) (47,648)
----------- ----------- -----------
Total stockholders' equity............. 5,101 42,548 97,073
----------- ----------- -----------
Total capitalization.................. $ 42,548 $ 42,548 $ 97,073
=========== =========== ===========
</TABLE>
- --------
(1) Excludes 6,467,794 shares of common stock issuable upon exercise of
outstanding options, as of April 30, 1999, at a weighted average exercise
price of $2.16 per share.
17
<PAGE>
DILUTION
The pro forma net tangible book value (deficit) of Engage as of April 30,
1999 was approximately ($1.4) million, or approximately $(.03) per share of
common stock. Pro forma net tangible book value (deficit) per share represents
the amount of Engage's total tangible assets less total liabilities, divided by
the pro forma number of shares of common stock outstanding, after giving effect
to the conversion of Engage's debt to CMGI into convertible preferred stock and
the conversion of all of Engage's convertible preferrred stock into common
stock and the two-for-one stock split. After giving effect to the sale of the
common stock offered by Engage in this offering at an assumed initial public
offering price of $10.00 per share, after deducting the underwriting discount
and estimated offering expenses payable by Engage, the pro forma net tangible
book value of Engage, as adjusted, as of April 30, 1999 would have been
approximately $53.2 million or approximately $1.16 per pro forma share of
common stock. This represents an immediate increase in net tangible book value
of $1.19 per share to Engage's existing stockholders and an immediate dilution
in net tangible book value of $8.84 per share to new investors of common stock
in this offering. If the initial public offering price is higher or lower, the
dilution to the new investors will be greater or less, respectively. The
following table illustrates this per share dilution:
<TABLE>
<S> <C> <C>
Assumed initial public offering price............................. $10.00
Pro forma net tangible book deficit per share at April 30,
1999........................................................... $(.03)
Increase per share attributable to this offering................ 1.19
-----
Pro forma net tangible book value per share after this offering... 1.16
------
Dilution per share to new investors............................... $ 8.84
======
</TABLE>
The following table summarizes, on a pro forma basis, as of April 30, 1999,
the number of shares of common stock purchased from Engage, the total
consideration provided to Engage and the average price per share provided by
existing stockholders and giving effect to the shares to be issued in
connection with this offering. The calculation below is based on an assumed
initial public offering price of $10.00 per share, before deducting the
underwriting discount and estimated offering expenses payable by Engage.
<TABLE>
<CAPTION>
Shares Purchased Total Consideration Average
--------------------- ----------------------- Price Per
Number Percentage Amount Percentage Share
---------- ---------- ------------ ---------- ---------
<S> <C> <C> <C> <C> <C>
Existing stockholders.. 39,973,798 87% $ 95,440,000 61% $ 2.39
New investors.......... 6,000,000 13 60,000,000 39 $10.00
---------- --- ------------ ---
Total................ 45,973,798 100% $155,440,000 100%
========== === ============ ===
</TABLE>
This discussion and table assume no exercise of options outstanding under
Engage's 1995 Equity Incentive Plan. As of April 30, 1999, there were options
outstanding to purchase a total of 6,467,794 shares of common stock at a
weighted average exercise price of $2.16 per share. To the extent that any of
these options are exercised, there will be further dilution to new investors.
18
<PAGE>
SELECTED CONSOLIDATED FINANCIAL DATA
The following selected financial data should be read in conjunction with
"Management's Discussion and Analysis of Financial Condition and Results of
Operations" and Engage's consolidated financial statements and notes to those
statements and other financial information included elsewhere in this
prospectus. The statement of operations data for the period from July 18, 1995
(inception) to July 31, 1996, the years ended July 31, 1997 and 1998 and the
nine months ended April 30, 1999 and the balance sheet data as of July 31, 1997
and 1998 and April 30, 1999 are derived from the audited financial statements
of Engage that have been audited by KPMG LLP, and are included elsewhere in
this prospectus. The statement of operations data for the nine month period
ended April 30, 1998 is derived from the unaudited financial statements of
Engage included in this prospectus. The balance sheet data as of July 31, 1996
is derived from unaudited financial statements of Engage not included in this
prospectus. In the opinion of management, the unaudited consolidated financial
statements have been prepared on a basis consistent with the audited
consolidated financial statements which appear elsewhere in this prospectus and
include all adjustments, which are only normal recurring adjustments, necessary
for a fair statement of the financial position and results of operations for
the unaudited periods. The historical results presented herein are not
necessarily indicative of future results.
<TABLE>
<CAPTION>
Nine Months Ended
July 18, 1995 Year Ended July 31, April 30,
(inception) -------------------- --------------------
to July 31, 1996 1997 1998 1998 1999
---------------- --------- --------- ----------- --------
(unaudited)
(In thousands, except per share data)
<S> <C> <C> <C> <C> <C>
Statement of Operations
Data:
Revenue:
Product revenue........ $ -- $ 25 $ 1,742 $ 379 $ 6,520
Product revenue,
related parties....... -- -- 203 143 1,274
Services and support
revenue............... -- -- 240 82 1,113
Services and support
revenue, related
parties............... -- -- 32 9 90
------- --------- --------- ------- --------
Total revenue.......... -- 25 2,217 613 8,997
Cost of revenue......... -- 31 2,238 1,189 5,626
------- --------- --------- ------- --------
Gross (loss) profit.... -- (6) (21) (576) 3,371
Operating expenses:
In-process research and
development........... -- -- 9,200 9,200 4,500
Research and
development........... 1,796 7,261 5,859 4,688 5,816
Selling and marketing.. 155 1,566 4,015 2,524 6,614
General and
administrative........ 428 1,429 1,993 1,017 2,409
Amortization of
goodwill and other
intangibles........... -- -- 1,391 358 3,543
Stock-based
compensation.......... -- -- 426 65 657
------- --------- --------- ------- --------
Total operating
expenses.............. 2,379 10,256 22,884 17,852 23,539
------- --------- --------- ------- --------
Loss from operations.... (2,379) (10,262) (22,905) (18,428) (20,168)
Gain on sale of product
rights................. -- -- 9,240 9,240 --
Equity in loss of joint
venture................ -- -- -- -- (417)
Loss on disposal of
property and
equipment.............. -- -- -- -- (174)
Interest expense, net... -- -- (172) (60) (411)
------- --------- --------- ------- --------
Net loss................ $(2,379) $ (10,262) $ (13,837) $(9,248) $(21,170)
======= ========= ========= ======= ========
Unaudited pro forma
basic and diluted net
loss per share......... $ (.83) $ (.62)
========= ========
Weighted average shares
of common stock used in
computing pro forma
basic and diluted net
loss per share......... 16,750 34,210
========= ========
</TABLE>
<TABLE>
<CAPTION>
July 31,
-------------------------- April 30,
1996 1997 1998 1999
------- -------- ------- ---------
(In thousands)
<S> <C> <C> <C> <C>
Balance Sheet Data:
Cash and equivalents..................... $ -- $ -- $ 96 $ 661
Working deficit.......................... (4,427) (14,209) (8,609) (40,204)
Total assets............................. 2,403 1,782 24,046 54,970
Debt to CMGI............................. 3,507 14,018 7,753 37,447
Stockholders' (deficit) equity........... (2,299) (12,539) 12,720 5,101
</TABLE>
19
<PAGE>
MANAGEMENT'S DISCUSSION AND ANALYSIS OF
FINANCIAL CONDITION AND RESULTS OF OPERATIONS
The following discussion should be read in conjunction with Engage's
financial statements and notes to those statements and other financial
information appearing elsewhere in this prospectus. In addition to historical
information, the following discussion and other parts of this prospectus
contain forward-looking information that involves risks and uncertainties.
Engage's actual results could differ materially from those anticipated by such
forward-looking information due to various factors, including, but not limited
to, those set forth under "Risk Factors" and elsewhere in this prospectus.
References to fiscal 1996, fiscal 1997 and fiscal 1998 mean the fiscal years
ended July 31, 1996, 1997 and 1998, respectively.
Overview
Engage offers a range of software products and services that enable Web
publishers, advertisers and merchants to target and deliver advertisements,
content and e-commerce offerings to their audiences and to measure their
effectiveness.
Engage commenced operations in September 1995 as a wholly-owned subsidiary
of CMGI. As of April 30, 1999, CMGI owned approximately 96% of the outstanding
common stock of Engage.
Engage derives its revenues from product revenue and service and support
revenue. Product revenue consists of revenue from: (1) licenses of its software
products, AdManager, ProfileServer and DecisionSupportServer, and (2)
subscriptions to its service offerings, AdBureau advertising management
services, I/PRO web site traffic measurement, auditing and analysis services
and the Engage Knowledge data service.
Product licenses are typically perpetual, although some have a one to three
year term. The fees for licenses of AdManager vary based on the volume of
advertisements served, and the fees for licenses of ProfileServer and
DecisionSupportServer vary based on the volume of activity on the customer's
site. Engage recognizes revenue from product licenses when a signed, non-
cancellable license exists, delivery of the product has occurred and Engage's
fees are fixed and determinable and collection is probable. Engage typically
recognizes revenue from perpetual product licenses in the quarter in which the
software is shipped and recognizes revenue from periodic licenses ratably over
the period of the license.
Subscriptions to Engage's services typically have a one year term, although
some are on a quarterly basis. The subscription fees for the Engage Knowledge
data service vary based on traffic to the customer's site, contributions of
data by the customer and the application with which the service is used. In the
future, fees may also vary based on the number of profiles used. The fees for
AdBureau vary based on the number of advertisements served. Revenue is
recognized ratably over the period of the subscription or, in the case of
usage-based subscriptions, monthly based on actual usage. Subscription
agreements typically include terms for automatic renewal unless the customer
provides notice of termination.
Engage's support and service revenue derives from its software maintenance
and other professional services, including consulting, installation and
training. Engage recognizes revenue from these services upon the delivery of
these services or, in the case of maintenance agreements, over the term of the
agreement. To date, substantially all of Engage's customers have entered into
maintenance contracts.
Engage began commercial shipments of its first software products,
ProfileServer and DecisionSupportServer, in the early part of fiscal 1998.
Effective April 1998, Engage acquired Accipiter, Inc., and began to sell the
Accipiter AdManager system and subscriptions to the Accipiter AdBureau service.
In April 1999, Engage acquired Internet Profiles Corporation (I/PRO) and began
to sell the I/PRO line of analysis and audit products and services. As of April
30, 1999, Engage had implemented its Engage Knowledge data service with
customers on a test basis.
20
<PAGE>
Engage has not recognized any revenue from the Engage Knowledge data service
through April 30, 1999. However, Engage expects that a significant portion of
its future revenue will be attributable to the Engage Knowledge data service
and other products and services based on its profiling technology that enable
its customers to create and use profiles that categorize information about a
Web user's consumer and demographic characteristics and geographic location.
Engage expects that it will begin to implement this service on a commercial
basis in July 1999. Any failure of the Engage Knowledge data service, or
Engage's global profiling technology, to achieve widespread customer acceptance
would have a material adverse effect on Engage's business, financial condition
and results of operation.
Engage's revenue from sales to related parties consists of sales of products
and services to customers that are affiliates of CMGI. In the nine months ended
April 30, 1999, Engage sold products and services to 11 affiliates of CMGI.
Engage believes that the terms and conditions of those sales are not materially
different than the terms and conditions of sales to unrelated third parties.
In August 1997, Engage sold rights to some of its data warehouse products to
Red Brick Systems, Inc. for $9.5 million in cash and 238,160 shares of Red
Brick common stock, recording a pretax gain of $9.2 million on the sale. In
January 1999, the Red Brick shares were exchanged for 142,896 shares of
Informix Corp. due to Informix's acquisition of Red Brick.
In April 1998, CMGI acquired Accipiter, which sells Internet advertising
management solutions, in exchange for 10,109,536 shares of CMGI common stock.
In August 1998, Accipiter was merged with Engage in a stock-for-stock merger in
which 700,000 shares of Engage's Series A convertible preferred stock were
issued to CMGI. Engage has reflected the acquisition of Accipiter in its
consolidated financial statements as if it occurred in April 1998. The total
purchase price for Accipiter was valued at $31.3 million. Upon consummation of
the Accipiter acquisition, CMGI, in its consolidated financial statements,
reported an expense of approximately $18.0 million representing acquired in-
process research and development that had not yet reached technological
feasibility and had no alternative future use. On May 7, 1999, CMGI announced a
voluntary restatement of the in-process research and development charge related
to the Accipiter acquisition to address valuation methodologies suggested by
the Securities and Exchange Commission in a letter dated September 9, 1998 to
the American Institute of Certified Public Accountants SEC Regulations
Committee and as clarified through subsequent practice. Upon consideration of
this guidance and additional practice that has developed since the Commission's
letter was first made public, the $18.0 million charge as previously reported
by CMGI has been reduced to $9.2 million and amounts allocated to goodwill and
other intangible assets have been increased from $11.5 million to $20.3
million. Engage has reflected the Accipiter acquisition accounting in its
consolidated financial statements as adjusted for the current Commission
methodologies.
Approximately $1.7 million of deferred compensation was recorded during
fiscal 1998 relating to approximately 173,080 shares of CMGI common stock held
in escrow to be issued to employee stockholders of Accipiter who satisfy a two-
year employment continuation provision. Compensation expense is being
recognized over the two-year service period beginning April 1, 1998. The
acquisition has been accounted for using the purchase method, and, accordingly,
the purchase price has been allocated to the assets purchased and liabilities
assumed based upon their fair values at the date of acquisition. The portion of
the purchase price allocated to goodwill and developed technology is being
amortized on a straight-line basis over five years. Amounts allocated to the
employee workforce and the Accipiter trade name are being amortized on a
straight-line basis over two years.
In August 1998, Engage acquired, for $1.4 million in cash, 49% of the shares
of Engage Technologies Japan, a joint venture with Sumitomo Corporation in
Japan. Engage's ownership interest was subsequently reduced to 46% after the
issuance of additional equity in the joint venture to a new investor. The joint
venture was established to sell Engage's
21
<PAGE>
products and services in Japan. This investment is being accounted for under
the equity method of accounting. Engage's share of the joint venture's foreign
currency translation adjustments is reflected in both the investment account
and in shareholders' equity as a component of comprehensive income on the
consolidated balance sheet. Under a separate license agreement, Engage licensed
its Engage Knowledge technology to the joint venture in consideration for a
non-refundable $3.0 million prepaid royalty and future royalties of 11.11% of
future revenue. The initial lump sum royalty has been deferred and is being
recognized as income over three years beginning in December 1998, the estimated
period over which Engage expects to provide maintenance and support. In
addition, Engage and the joint venture entered into a reseller agreement under
which Engage granted the joint venture an exclusive right to resell its
products to end users in Japan. Under the terms of the reseller agreement, the
joint venture is entitled to purchase Engage's products for resale to end-users
in Japan, excluding Japanese distribution rights granted to Red Brick.
In April 1999, Engage acquired I/PRO, which provides Web site traffic
measurement and audit services, for approximately $32.7 million, consisting of
$1.6 million in net cash, $20.9 million in CMGI shares and $10.2 million in
Engage shares and options. The acquisition has been accounted for using the
purchase method, and, accordingly, the purchase price has been allocated to the
assets purchased and liabilities assumed based upon their fair values at the
dates of acquisition. Engage has recorded an expense of $4.5 million in the
third quarter of fiscal 1999 representing acquired in-process research and
development that had not yet reached technological feasibility and had no
alternative future use. Goodwill and other intangibles, totaling $27.2 million,
were recorded and are being amortized on a straight-line basis over two or five
years, depending on the asset class. In addition, CMGI must pay up to $3.0
million to I/PRO stockholders if the following performance goals are met:
. the gross revenue of I/PRO for the year ended March 31, 2000 exceeds
$10.8 million;
. as of May 31, 1999 data contributed to the Engage knowledge database
equals 65% or more of the volume of data contributed to I/PRO on the
closing of the transaction and this data constitutes 75% or more of the
data generated by visitors to the Web sites of I/PRO customers as of
March 31, 2000; and
. various employees of I/PRO are employed by Engage on March 31, 2000.
Engage must reimburse CMGI for any such payments, at CMGI's election, in
cash or by issuance of shares of Engage common stock at its then fair market
value. Any additional payment will be treated as additional purchase price and
amortized over the balance of the two or five year period.
Engage recorded deferred compensation of $1.7 million in 1998 related to the
Accipiter acquisition and $4.2 million for the nine months ended April 30,
1999, representing the difference between the exercise price of stock options
granted and the estimated fair market value of the underlying common stock at
the date of grant. The difference is recorded as a reduction of stockholders'
equity and is being amortized over the vesting period of applicable options,
typically four years. Of the total deferred compensation amount, $657,000 had
been amortized as of April 30, 1999. The amortization of deferred compensation
is recorded as an operating expense. We currently expect to amortize the
following remaining amounts of deferred compensation as of April 30, 1999 in
the periods indicated:
<TABLE>
<CAPTION>
in
thousands
---------
<S> <C>
Year ended July 31, 1999.............................................. $ 886
2000............................................... 1,135
2001............................................... 1,043
2002............................................... 1,043
2003............................................... 715
------
$4,822
======
</TABLE>
Engage's corporate headquarters are shared with CMGI and several other CMGI
affiliates. CMGI allocates facility and services costs among these affiliates
based upon headcount within each affiliate and within each department of each
affiliate. Services provided by CMGI include support for human resources,
22
<PAGE>
systems, business development and marketing. Actual expenses could have varied
had Engage been operating on a stand-alone basis. Costs allocated to Engage are
considered to equal fair market value for the facilities used and services
provided.
Engage has incurred significant net losses and negative cash flows from
operations since its inception, and as of April 30, 1999, had an accumulated
deficit of approximately $47.6 million. These losses have been funded primarily
through the issuance of preferred stock and from funds advanced by CMGI. Engage
intends to continue to invest heavily in sales, marketing and promotion,
technology and infrastructure development. As a result, Engage believes that it
will continue to incur operating losses and negative cash flows from operations
for the foreseeable future and that the rate at which such losses will be
incurred may increase from current levels.
Results of Operations
Comparison of the Nine Months Ended April 30, 1998 and April 30, 1999
Revenue
Total revenue increased from $613,000 in the nine months ended April 30,
1998 to $9.0 million in the nine months ended April 30, 1999, primarily as a
result of the commencement of sales of Accipiter AdManager and AdBureau due to
the acquisition of Accipiter as well as the introduction of ProfileServer and
DecisionSupportServer. In addition, a portion of this increase is the result of
the acquisition of I/PRO and the inclusion of I/PRO's April 1999 revenue in
product revenues for the nine months ended April 30, 1999. Revenue from product
licenses accounted for approximately 85% of total revenue during the nine-month
period ended April 30, 1998, compared to approximately 87% during the nine-
month period ended April 30, 1999. Revenue from one customer accounted for
approximately 10% of total revenue during the nine months ended April 30, 1999.
Cost of Revenue
Cost of product revenue includes royalties paid to various parties for the
incorporation of their technology into Engage's products, as well as fees paid
for outsourced data center operations and the amortization of developed
technology acquired in the Accipiter and I/PRO acquisitions. Cost of support
and services revenue is primarily comprised of payroll and benefits, and
allocated overhead costs associated with Engage's customer support,
installation and training staff.
Cost of product revenue increased from $36,000 in the nine months ended
April 30, 1998 to $1.3 million in the nine months ended April 30, 1999. The
increase was due primarily to an increase in operational costs associated with
the introduction of Engage's AdBureau services. In addition, a portion of the
increase is the result of costs associated with the resale of a third-party
vendor's products in conjunction with Engage's product offerings. The costs
associated with such arrangements typically provide for lower margins than
Engage's other product offerings. Finally, a portion of the increase is the
result of increased amortization costs resulting from the amortization of
developed technology acquired in the Accipiter and I/PRO acquisitions.
Cost of service and support revenue increased from $1.2 million in the nine
months ended April 30, 1998 to $4.3 million in the nine months ended April 30,
1999. Costs in both periods exceeded the related revenue due to Engage's
continued investment in service and support staff in advance of anticipated
product sales. Engage's service and support staff increased from 30 at April
30, 1998 to 63 at April 30, 1999.
Operating Expenses
In-Process Research and Development. In-process research and development
expense was $9.2 million during the nine months ended April 30, 1998 due to the
completion of the Accipiter transaction, compared to $4.5 million during the
nine months ended April 30, 1999 which resulted from the I/PRO acquisition.
Research and Development. Research and development expenses consist
primarily of payroll and related costs, consulting and contractor fees,
facility-related costs, such as rent and computer and network services, and
depreciation expenses. Research and development expenses increased from
$4.7 million in the nine months ended April 30, 1998 to $5.8 million in the
nine months ended April 30, 1999. The increases were the result of the growth
of Engage's research and development activities and the inclusion of
Accipiter's operations for the entire nine-month period ended April 30, 1999,
and the inclusion of I/PRO's operations for one month in the nine-month period
ended April 30, 1999. These increases in costs were partially offset by a
23
<PAGE>
decrease in facility and related costs that resulted from lower allocated costs
from CMGI due to higher utilization rates of corporate facilities and increased
staffing at other entities within CMGI.
Selling and Marketing. Selling and marketing expenses consist primarily of
payroll and related costs, consulting and professional fees and advertising
expenses. Selling and marketing expenses increased from $2.5 million in the
nine months ended April 30, 1998 to $6.6 million in the nine months ended April
30, 1999. The increase in costs was primarily due to the continuing expansion
of Engage's sales force and the inclusion of Accipiter's and I/PRO's
operations. Engage's sales and marketing staff increased from 27 at April 30,
1998 to 66 at April 30, 1999. In addition, a portion of the increase was
related to increases in product advertising costs resulting from the release of
new products.
General and Administrative. General and administrative costs consist
principally of payroll and related costs, consulting and professional fees,
facility and related costs and depreciation expense. General and administrative
expenses increased from $1.0 million in the nine months ended April 30, 1998 to
$2.4 million in the nine months ended April 30, 1999. The increase was
primarily due to an increase in payroll and related costs associated with the
support of growing operations as well as the inclusion of Accipiter's and
I/PRO's operations. In addition, a portion of this increase was the result of
increased professional fees incurred in connection with increased contract
activity and the formation of Engage's Japanese joint venture.
Amortization of Goodwill and other Intangibles. Amortization of intangible
assets increased from $358,000 in the nine months ended April 30, 1998 to $3.5
million during the nine months ended April 30, 1999. The increase was primarily
due to the acquisition of Accipiter in April 1998, and to a lesser extent, the
acquisition of I/PRO in April 1999.
Stock Compensation
Stock compensation costs increased from $65,000 in the nine months ended
April 30, 1998 to $657,000 during the nine months ended April 30, 1999.
Beginning in April 1998, Engage commenced the recognition of compensation
expense relating to approximately 173,080 shares of CMGI common stock held in
escrow to be issued to employee stockholders of Accipiter who satisfy a two-
year employment continuation provision. Additionally, stock compensation costs
of $69,000 were recorded during the nine months ended April 30, 1999 as a
result of stock options granted during 1999 with exercise prices below the
estmated fair market value of the common stock at the date of grant.
Gain on Sale of Product Rights
Gain on sale of product rights was approximately $9.2 million during the
nine months ended April 30, 1998 as a result of Engage's sale of some rights to
its data warehouse products to Red Brick during the first quarter of fiscal
1998.
Equity in Loss of Joint Venture
Equity in loss of joint venture was a loss of approximately $417,000 during
the nine months ended April 30, 1999. In August 1998, Engage acquired 49% of
the shares of Engage Technologies Japan, a joint venture with Sumitomo
Corporation in Japan. Engage's ownership interest was subsequently reduced to
46% after the issuance of additional equity in the joint venture to a new
investor. The joint venture was established to sell Engage's products and
services in Japan. This investment is being accounted for under the equity
method of accounting, and as such, Engage's portion of the joint venture's
losses during the nine months ended April 30, 1999 are included in Engage's
results of operations.
Interest Expense, Net
Interest expense, net was approximately $60,000 for the nine months ended
April 30, 1998, compared to $411,000 for the nine months ended April 30, 1999.
No interest expense was recorded during the first six months of the nine months
ended April 30, 1998. In the second half of fiscal 1998, Engage entered into an
arrangement with CMGI which requires Engage to accrue interest on intercompany
debt at a rate of 7% per annum.
Comparison of Fiscal Years Ended July 31, 1996, 1997 and 1998
Revenue
Total revenue increased from zero in fiscal 1996 to $25,000 in fiscal 1997
and $2.2 million in fiscal 1998. The increase in fiscal 1998 resulted from the
acquisition of Accipiter in April 1998, which added Accipiter's AdManager
24
<PAGE>
and AdBureau products and services to Engage's product portfolio, as well as
the introduction of Engage's ProfileServer and DecisionSupportServer products.
All revenue during fiscal 1997 was derived from one customer, while revenue
from three customers accounted for 20%, 12% and 11% of revenue during fiscal
1998.
Cost of Revenue
Cost of product revenue was 10% of product revenue in fiscal 1998. Cost of
service and support revenue exceeded services and support revenue in fiscal
1998 as Engage hired additional services and support staff throughout the year
in anticipation of increased product sales. In addition, Engage's release of
several new products during the year resulted in additional support costs to
diagnose and correct customer-specific product issues that typically occur with
the release of a new software product.
Operating Expenses
In-Process Research and Development. In-process research and development
expense in fiscal 1998 was $9.2 million, resulting from the acquisition of
Accipiter.
Research and Development. Research and development expenses increased from
$1.8 million in fiscal 1996 to $7.3 million in fiscal 1997 and decreased to
$5.9 million in fiscal 1998. The increase in fiscal 1997 was due to significant
increases in personnel costs associated with the continued development of new
products. The decrease in fiscal 1998 was primarily due to a decrease in
staffing that occurred when Engage sold some rights to its data warehouse
products to Red Brick at the beginning of fiscal 1998. In addition, a portion
of the decrease was the result of reassigning employees from research and
development to product support, consulting and training upon the release of
several of Engage's products in fiscal 1998.
Selling and Marketing. Selling and marketing expenses increased from
$155,000 in fiscal 1996 to $1.6 million in fiscal 1997 and $4.0 million in
fiscal 1998. The increases were the result of significant growth in Engage's
sales force during this period, as well as increased advertising expenditures
in fiscal 1998.
General and Administrative. General and administrative expenses increased
from $428,000 in fiscal 1996 to $1.4 million in fiscal 1997 and $2.0 million in
fiscal 1998. The increase was the result of increased payroll and related
costs, as well as increased facilities costs required to support growing
operations.
Amortization of Goodwill and Other Intangibles. Amortization of goodwill and
other intangibles assets was $1.4 million in fiscal 1998, resulting from the
acquisition of Accipiter in April 1998.
Gain on Sale of Product Rights
Gain on sale of product rights was $9.2 million in fiscal 1998, as a result
of the sale of rights to data warehouse products to Red Brick.
Interest Expense, Net
Interest expense, net was $172,000 in fiscal 1998. In the second half of
fiscal 1998, Engage entered into an arrangement with CMGI which requires Engage
to accrue interest on intercompany debt at a rate of 7% per annum. No interest
expense was recorded in fiscal 1997.
Combined Historical Quarterly Revenue
The following table sets forth unaudited combined historical revenue for the
six quarters ended April 30, 1999. Total revenue has been derived by adding the
quarterly historical revenue of Engage, Accipiter and I/PRO as if Engage had
acquired Accipiter and I/PRO on August 1, 1997. Engage acquired Accipiter in
April 1998 and I/PRO in April 1999. This data has been derived from unaudited
financial statements of Engage, Accipiter and I/PRO and does not necessarily
reflect the total revenue that would have been achieved if Engage had acquired
Accipiter and I/PRO as of August 1, 1997. This data is not necessarily
indicative of the future quarterly revenue of Engage.
<TABLE>
<CAPTION>
Three Months Ended
----------------------------------------------------------------
January 31, April 30, July 31, October 31, January 31, April 30,
1998 1998 1998 1998 1999 1999
----------- --------- -------- ----------- ----------- ---------
(in thousands)
<S> <C> <C> <C> <C> <C> <C>
Total
revenue...... $1,352 $1,827 $2,716 $2,873 $4,090 $5,937
</TABLE>
25
<PAGE>
Liquidity and Capital Resources
Since its inception, Engage has financed its operations primarily through
funds advanced from CMGI. In addition, Engage has funded its investing
activities, specifically its acquisition of Accipiter and I/PRO, through the
issuance of its convertible preferred stock.
Net cash used in operating activities amounted to approximately $2.0
million, $9.0 million, $10.5 million for fiscal 1996, fiscal 1997 and fiscal
1998, respectively, and amounted to approximately $7.9 million and $7.2 million
for the nine months ended April 30, 1998 and 1999, respectively. The increase
in cash used in operations has primarily been caused by increasing net
operating losses, which are partially offset by non-cash depreciation and
amortization charges included in the applicable net income or loss. In
addition, net cash used in operating activities in fiscal 1998 and the nine
months ended April 30, 1998 included a non-cash gain on sale of product rights
of $9.2 million, partially offset by the non-cash write-off of in-process
research and development costs. Net cash used in operations during the nine
months ended April 30, 1999 included approximately $2.8 million from the
increase in accrued expenses during the period, as well as $3.2 million from
the increase in deferred revenue during the period. The increase in deferred
revenue is the result of advance payments received from customers for Engage's
products.
Net cash used in investing activities amounted to approximately $1.6
million, $490,000 and $1.2 million during fiscal 1996, fiscal 1997 and the nine
months ended April 30, 1999, respectively, while investing activities provided
$473,000 and $536,000 of cash during fiscal 1998 and the nine months ended
April 30, 1998, respectively. Investing activities used $1.6 million, $490,000,
$216,000, $153,000 and $165,000 during fiscal 1996, fiscal 1997 and fiscal 1998
and the nine months ended April 30, 1998 and 1999 to acquire property and
equipment required to support the growth of the business. Investing activities
during fiscal 1998 and the nine months ended April 30, 1998 included $689,000
of net cash acquired from the acquisition of Accipiter. Investing activities
during the nine months ended April 30, 1999 used approximately $1.4 million in
Engage's investment in a Japanese joint venture, which was partially offset by
$347,000 of net cash acquired from the acquisition of I/PRO.
Net cash provided by financing activities amounted to approximately $3.6
million, $9.5 million, $10.1 million for fiscal 1996, fiscal 1997 and fiscal
1998, respectively and amounted to $7.9 million and $9.0 million for the nine
months ended April 30, 1998 and 1999, respectively. Cash provided in each
period was primarily related to funds advanced from CMGI to fund Engage's
operations. Cash provided by financing activities during fiscal 1997 was
partially offset by the repayment of debt of $1.0 million. Cash provided by
financing activities during the nine months ended April 30, 1999 includes net
proceeds of $1.9 million from the issuance of Series B convertible preferred
stock.
Under an informal arrangement with CMGI, Engage has maintained a zero
balance cash account. CMGI has funded Engage's operations as needed, with a
corresponding increase in Engage's obligations to CMGI. Customer and other
receipts have been remitted to CMGI and have been applied to reduce Engage's
obligations to CMGI. The outstanding balance of Engage's obligations to CMGI at
the end of each fiscal quarter, commencing with the quarter ended January 31,
1998, have been evidenced by demand promissory notes bearing interest at an
annual rate of 7% and convertible into shares of Engage convertible preferred
stock at the fair market value of such stock as of the end of the applicable
quarter. As of April 30, 1999, there were outstanding $37.4 million in
principal amount of these notes to CMGI of which $22.1 million in principal
amount was attributable to the acquisition of I/PRO. Engage expects that it
will continue to borrow funds from CMGI under this arrangement until the
closing of this offering and that the net obligations incurred after the end of
the fiscal quarter preceding the closing, to the extent outstanding, will be
converted into Engage common stock at the initial public offering price.
Engage has experienced a substantial increase in its expenditures since
inception
26
<PAGE>
consistent with its growth in operations and staffing. Engage anticipates that
expenditures will continue to increase for the foreseeable future as Engage
accelerates the growth of its business. Additionally, Engage will continue to
evaluate investment opportunities in businesses that management believes will
complement its technologies and market strategies.
Engage currently anticipates that its available cash resources, together
with the net proceeds from this offering, will be sufficient to meet its
anticipated needs for working capital and capital expenditures for at least the
12 months following the date of this prospectus. However, Engage may need to
raise additional funds in order to fund more rapid expansion, to develop new or
enhance existing services or products, to respond to competitive pressures or
to acquire complementary products, businesses or technologies. On a long-term
basis, Engage may require additional external financing through credit
facilities, sales of additional equity or other financing vehicles. If
additional funds are raised through the issuance of equity or convertible debt
securities, the percentage ownership of Engage's stockholders will be reduced
and its stockholders may experience additional dilution. Engage cannot assure
you that additional financing will be available on terms favorable to Engage,
or at all. If adequate funds are not available or are not available on
acceptable terms, Engage's ability to fund its expansion, take advantage of
unanticipated opportunities, develop or enhance services or products or
otherwise respond to competitive pressures would be significantly limited.
In-Process Research and Development
Accipiter
CMGI acquired Accipiter on April 8, 1998 for total purchase consideration of
$31.3 million. In August 1998, Accipiter merged with Engage in a stock-for-
stock merger in which consideration of 700,000 shares of Engage Series A
Convertible Preferred Stock were issued to CMGI. The portion of the purchase
price allocated to in-process research and development was $9.2 million, or
approximately 29% of the total purchase price. At the acquisition date,
Accipiter's major in-process project was the development of AdManager version
4.0, which was intended to provide the ad serving functionality that customers
were requiring as the use of the Internet rapidly increased and customer Web
sites became more complex. In general, previous AdManager releases did not
provide for the fault tolerance, redundancy and scalability that customers
began to seek after AdManager versions 1.0 and 2.0 were released. Accordingly,
customers' long-term product needs required Accipiter to substantially redesign
the AdManager architecture to develop new technologies to provide:
. improved fault tolerance, which is the ability to operate during a system
failure, and scalability, which is the ability to expand capacity,
. an object-oriented user interface, which is a screen display that enables
users to easily operate a computer program,
. application programming interfaces, which enable a program to exchange
data with other programs and
. a new report engine, which is a component that generates reports.
This redesigned AdManager architecture was later released as version 4.0.
At the date of the acquisition, management estimated that completion of the
AdManager version 4.0 technology would be accomplished by June 1998. Engage
began beta testing AdManager version 4.0 at a customer site in June 1998 and
commercially released the product in August 1998. The initial development
effort had commenced in late 1997. At the acquisition date, the new AdManager
technology had not reached a completed prototype stage and beta testing had not
yet commenced. At the time of the Accipiter purchase, the AdManager version 4.0
project was approximately 71% complete.
The value of in-process research and development was determined using an
income approach. This approach takes into consideration earnings remaining
after deducting from cash flows related to the in-process technology, the
market rates of return on contributory assets, including developed technology,
assembled workforce, working
27
<PAGE>
capital and fixed assets. The cash flows are then discounted to present value
at an appropriate rate. Discount rates are determined by an analysis of the
risks associated with each of the identified intangible assets. The discount
rate used for in-process research and development was 24.5%, a slight premium
over the estimated weighted-average cost of capital of 24%, and the discount
rate used for developed technology was 21%.
The resulting net cash flows to which the discount rate was applied are
based on Engage management's estimates of revenues, cost of revenues, research
and development costs, selling and marketing costs, general and administrative
costs, and income taxes from such acquired technology. These estimates are
based on the assumptions set forth below.
Accipiter recorded revenue in 1997 of less than $1 million. Because of the
absence of meaningful historical revenue of Accipiter, management projected
revenue for the initial year of the forecast period based on its assessment of
future market potential and the ability of Accipiter to successfully launch its
new product offering. After the initial year of the users and online activity
and the impact such growth would have on Internet advertising. These
projections are based on Engage management's estimates of the significant
growth in the number of companies engaged in e-commerce, the need for e-
commerce companies to serve ads over the Internet, expected trends in
technology and the nature and expected timing of new product introductions by
Engage and its competitors. These estimates also include growth related to the
use of Accipiter technologies in conjunction with Engage's products, the
marketing and distribution of the resulting products through Engage's sales
force and the benefits of Engage's incremental financial support and stability.
Engage's estimated cost of sales as a percentage of revenue is expected to
be slightly lower than Accipiter's on a stand-alone basis, which was 16% in
1997, as fixed costs included in cost of sales are spread over a larger revenue
base and provide for the realization of efficiencies due to economies of scale
through combined operations. Due to these savings, the estimated cost of sales
as a percentage of revenue is expected to decrease by 1% each year from
Accipiter's historical percentage, to a low of 11% in the fifth forecast year.
Engage's selling, general and administrative costs are expected to be higher
than Accipiter's on an absolute basis, but lower as a percentage of revenue.
Due to the small revenue base in 1997 and the impact of significant costs
associated with building a corporate infrastructure and building a workforce
for future operations, Accipiter's selling, general and administrative costs in
1997, as a percent of revenue, are not representative of the expected costs for
the combined operations of Engage and Accipiter. Efficiencies due to economies
of scale through combined operations, such as consolidated marketing and
advertising programs, are expected to be realized immediately.
I/PRO
Engage acquired I/PRO on April 7, 1999 for total purchase consideration of
$32.7 million. The portion of the purchase price allocated to in-process
research and development was $4.5 million, or approximately 14% of the total
purchase price. At the acquisition date, I/PRO's major in-process project was
the development of a new data processing system, project name Normandy, which
is intended to provide improved functionality. In general, the existing data
processing system does not provide sufficient fault tolerance, scalability and
data processing efficiency to meet future customer needs. Accordingly,
customers' long-term product needs required I/PRO to substantially redesign the
data processing system to develop new technologies in the areas of: (1) fault
tolerance and scalability, (2) system management, (3) data capture and (4) path
analysis functionality, which is the ability to track movement of Web visitors
across Web pages.
At the date of the acquisition, management estimated that completion of the
Normandy technology would be accomplished by August 1999. The initial
development effort had commenced in late 1998. At the acquisition date, the new
Normandy technology had not reached a completed prototype stage and beta
testing had not yet commenced. At the time of the I/PRO purchase, the Normandy
project was approximately 64% complete.
28
<PAGE>
The value of in-process research and development was determined using an
income approach. This approach takes into consideration earnings remaining
after deducting from cash flows related to the in-process technology, the
market rates of return on contributory assets, including core developed
technology, assembled workforce, working capital and fixed assets. The cash
flows are then discounted to present value at an appropriate rate. Discount
rates are determined by an analysis of the risks associated with each of the
identified intangible assets. The discount rate used for in-process research
and development was 30%, a premium over the estimated weighted-average forecast
period, revenue was predicted to grow at rates comparable to the growth of
Internet cost of capital of 25%, and the discount rate used for core developed
technology was 22%.
The resulting net cash flows to which the discount rate was applied are
based on Engage management's estimates of revenues, cost of revenues, research
and development costs, selling and marketing costs, general and administrative
costs, and income taxes from such acquired technology. These estimates are
based on the assumptions set forth below.
Management projected average annual revenue increases for the forecast
period based on its assessment of future market potential and the ability of
I/PRO to successfully implement the Normandy technology. Revenue was predicted
to grow at rates comparable to the growth of Internet users and online activity
and the impact such growth would have on Internet service companies. Revenue
related to the Normandy project were separately identified.
These projections are based on Engage management's estimates of the
significant growth in the number of companies engaged in e-commerce, the need
for e-commerce companies to utilize independent audit, verification and
analysis services, expected trends in technology and the nature and expected
timing of new product introductions by its competitors. These estimates also
include growth related to the use of certain I/PRO technologies in conjunction
with Engage's products and the benefits of Engage's incremental financial
support and stability.
I/PRO's estimated cost of sales as a percentage of revenue is expected to
significantly decrease on a stand-alone basis, which was 85% in 1998, as
certain fixed costs included in cost of sales are spread over a larger revenue
base and provide for the realization of efficiencies due to economies of scale.
The Normandy technology is expected to greatly increase the automation of data
processing, allowing significant labor cost savings per revenue dollar.
Increases in hardware utilization are also expected. Due to these savings, the
estimated cost of sales as a percentage of revenue is expected to decrease to a
low of 20% in the fifth forecast year.
I/PRO's operating expenses are expected to increase on an absolute basis,
but to significantly decrease as a percentage of revenue over the term of the
forecast, which was 192% in 1998. Certain fixed expenses are spread over a
larger revenue base and provide for the realization of efficiencies due to
economies of scale. Due to these savings, the estimated cost of sales as a
percentage of revenue is expected to decrease to a low of 49% in the fifth
forecast year.
Recent Accounting Pronouncements
In June 1997, the Financial Accounting Standards Board issued SFAS No. 131,
"Disclosures About Segments of an Enterprise and Related Information". SFAS No.
131 establishes standards for the way that public business enterprises report
selected information about operating segments in annual and interim financial
statements. It also establishes standards for related disclosures about
products and services, geographic areas and major customers. SFAS No. 131
requires the use of the "management approach" in disclosing segment
information, based largely on how senior management generally analyzes the
business operations. SFAS No. 131 has been adopted by Engage effective August
1, 1998.
In March 1998, the Accounting Standards Executive Committee of the American
Institute of Certified Public Accountants, issued Statement of Position 98-1,
"Accounting for the Cost of
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Computer Software Developed or Obtained for Internal Use". SOP 98-1 requires
the capitalization of various internal costs related to the implementation of
computer software obtained for internal use. Engage is required to adopt this
standard in the first quarter of fiscal year 2000, and expects that the
adoption of SOP 98-1 will not have a material impact on its financial position
or its results of operations.
In April 1998, the Accounting Standards Executive Committee of the American
Institute of Certified Public Accountants issued Statement of Position 98-5,
"Reporting Costs of Start-Up Activities". Under SOP 98-5, the cost of start-up
activities should be expended as incurred. Start-up activities are broadly
defined as those one-time activities related to opening a new facility,
introducing a new product or service, conducting business in a new territory,
conducting business with a new class of customer, commencing some new operation
or organizing a new entity. SOP 98-5 is effective for Engage's fiscal 1999
financial statements. Engage does not expect its adoption to have a material
impact on its financial position or results of operations.
In June 1998, the Financial Accounting Standards Board issued SFAS No. 133,
"Accounting for Derivative Instruments and Hedging Activities". SFAS No. 133
establishes accounting and reporting standards for derivative instruments,
including some derivative instruments embedded in other contracts, collectively
referred to as derivatives, and for hedging activities. SFAS No. 133 requires
the recognition of all derivatives as either assets or liabilities in the
statement of financial position and the measurement of those instruments at
fair value. Engage is required to adopt this standard in the first quarter of
fiscal year 2000, and expects that the adoption of SFAS No. 133 will not have a
material impact on its financial position or its results of operations.
Year 2000 Compliance
Many currently installed computer systems and software products are coded to
accept only two digit entries in the date code field. These date code fields
will need to accept four digit entries to distinguish 21st century dates from
20th century dates. As a result, many companies' software and computer systems
may need to be upgraded or replaced in order to comply with these "Year 2000"
requirements or risk system failure or miscalculations causing disruptions of
normal business activities. Engage is in the process of evaluating and
correcting the Year 2000 compliance of its proprietary products and services
and third party equipment and software that it uses, as well as its non-
information technology systems, such as building security, voice mail and other
systems.
State of Readiness
Engage has made an assessment of the Year 2000 readiness of its operating,
financial and administrative systems, including the hardware and software that
support Engage's systems. Engage's Year 2000 compliance efforts consist of the
following:
. identification of all software products, information technology systems
and non-information technology systems that may be affected by Year 2000
issues;
. assessment of repair or replacement requirements;
. repair or replacement;
. testing;
. implementation; and
. creation of contingency plans in the event of Year 2000 failures.
For its currently marketed software products, Engage has substantially
completed its Year 2000 compliance testing efforts and believes that its
products are Year 2000 compliant in all material respects. Engage also has
conducted less extensive testing of older versions of its products. While
Engage is not aware of any material respect in which its older products are not
Year 2000 compliant, it intends to offer customers using older products the
option to upgrade to current versions at no additional charge. Engage also has
tested and continues to test its internal and third-party provided systems that
are used to deliver customer services. Engage has received assurances from
NaviSite, a major third-party vendor, that NaviSite will be responsible for
ensuring that its system is Year 2000 ready.
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For all other systems, Engage's Year 2000 task force is currently conducting
an inventory of and developing testing procedures for all software and related
systems that it believes may be affected by Year 2000 issues. Since third
parties developed and currently support many of the systems that Engage uses, a
significant part of this effort will be to ensure that these third-party
systems are Year 2000 compliant. To date the internal evaluation has resulted
in the identification of a small number of desktop computers whose operating
systems are not Year 2000 compliant; these computers were replaced by Engage in
the third quarter of fiscal 1999. Until such testing is completed and such
vendors and providers are contacted, Engage will not be able to completely
evaluate whether its systems will need to be revised or replaced. The testing
and implementation phases are expected to be completed by the end of June 1999.
Costs
Through April 1999, Engage has spent approximately $374,000 on Year 2000
compliance issues and expects to incur an additional $550,000 in connection
with identifying, evaluating and addressing Year 2000 compliance issues and
replacing non-compliant computer hardware. Most of Engage's expenses have
related to, and are expected to continue to relate to, the operating costs
associated with time spent by employees and consultants in the evaluation
process and Year 2000 compliance matters generally. Such expenses, if higher
than anticipated, could have a material adverse effect on Engage's business,
financial condition and results of operations.
Risks
Engage is not currently aware of any Year 2000 compliance problems relating
to its products or systems that would have a material adverse effect on its
business, financial condition and results of operations, without taking into
account Engage's efforts to avoid or fix such problems. There can be no
assurance that Engage will not discover Year 2000 compliance problems in its
products or systems that will require substantial revision. In addition, there
can be no assurance that third-party software, hardware or services
incorporated into Engage's material systems will not need to be revised or
replaced, all of which could be time-consuming and expensive. The failure of
Engage to fix or replace its internally developed proprietary software or
third-party software, hardware or services on a timely basis could result in
lost revenue, increased operating costs, the loss of customers and other
business interruptions, any of which could have a material adverse effect on
Engage's business, financial condition and results of operations. Moreover, the
failure to adequately address Year 2000 compliance issues in its internally
developed proprietary software could result in claims of mismanagement,
misrepresentation or breach of contract and related litigation, which could be
costly and time-consuming to defend.
Engage is heavily dependent on NaviSite to provide outsourced data services.
A significant Year 2000 related disruption of the outsourced data services that
NaviSite provides to Engage could cause customers to consider canceling
services with Engage or cause an unmanageable burden on Engage's technical
support, which in turn could materially and adversely affect Engage's business,
financial condition and results of operations.
In addition, there can be no assurance that governmental agencies, utility
companies, Internet access companies, third-party service providers and others
outside of Engage's control will be Year 2000 compliant. The failure by such
entities to be Year 2000 compliant could result in a systemic failure beyond
the control of Engage, such as a prolonged Internet, telecommunications or
electrical failure, which could also prevent Engage from delivering its
services to its customers, decrease the use of the Internet or prevent users
from accessing its Web sites which could have a material adverse effect on
Engage's business, financial condition and results of operations.
Contingency Plan
As discussed above, Engage is engaged in an ongoing Year 2000 assessment and
is in the process of developing contingency plans. The results of Engage's Year
2000 simulation testing and the responses received from third-party vendors and
service providers will be taken into account in adopting final contingency
plans.
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BUSINESS
Engage
Engage offers a range of products and services that enable Web publishers,
advertisers and merchants to target the delivery of advertisements, content and
e-commerce offerings to their audiences and to measure their effectiveness.
Engage has generated most of its revenue to date through sales of its
advertising management software and outsourced services, as well as its
services for measuring and analyzing Web site traffic. Engage is currently
testing its Engage Knowledge data service with customers, and plans to
implement this service on a commercial basis in July 1999. Engage Knowledge
will provide real-time access to Engage's database of more than 30 million
anonymous profiles of Web users for more effective targeting of online
advertising, promotions and content. Engage expects that a significant portion
of its future growth will be attributable to sales of subscriptions to the
Engage Knowledge data service and other products and services that will be
based upon Engage's profiling technology.
Industry Background
Growth of the Internet and Internet Marketing, Commerce and Analysis
The Internet has emerged as a significant global communications medium. The
growth in the number of Web users is expected to continue as Internet access
becomes more widely available, bandwidth increases and Internet content
improves and incorporates more multimedia capabilities. International Data
Corporation (IDC) has estimated that the number of Web users worldwide will
increase from approximately 97 million at the end of 1998 to approximately 320
million by the end of 2002, representing a compound annual growth rate of 35%.
As the Internet grows, advertisers and marketers have the opportunity to
reach broad, global audiences. Jupiter Communications has estimated that
spending for advertising on the Internet in the United States will increase
from approximately $1.9 billion in 1998 to $7.7 billion by 2002, representing a
compound annual growth rate of 42%. The Direct Marketing Association has
estimated that spending on Internet direct marketing to consumers will grow
from an estimated $224 million in 1998 to $2.0 billion in 2003, representing a
compound annual growth rate of 55%. Due to the growth in the number of Web
users, the interactive nature of the Web and the Web's global reach,
advertisers and marketers are increasing their use of the Internet to promote
their products, services and brands. In particular, the Web allows advertisers
and marketers to target an advertisement or offering to each user in real-time
and receive direct user feedback.
The Internet also has emerged as a significant global medium for the
electronic transaction of business, or e-commerce. Forrester Research has
estimated that consumer purchases of goods and services over the Internet in
the United States will increase from approximately $8 billion in 1998 to
approximately $76 billion in 2002, representing a compound annual growth rate
of 76%. Consumers can benefit from the faster, more convenient and potentially
less expensive transactions that e-commerce can provide, while merchants can
cost-effectively reach a global audience. The Internet is also playing an
increasingly important role in facilitating offline transactions by providing
more and better information to consumers. For example, although very few
automobiles are actually sold online, Forrester Research has estimated that in
1998 approximately 2.0 million Web households, representing 13% of all new car
purchases, used the Internet to research and select a vehicle before visiting
the dealer and that 6.4 million households, representing 41% of all new car
purchases, will use the Internet prior to purchasing a vehicle by 2002. As
electronic commerce expands, traditional and Internet merchants are turning to
the Web to locate customers, advertise and market their products and facilitate
transactions.
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By knowing more about their customers and their customers' preferences, Web
publishers and merchants can improve their sites to address the interests of
their audience. The interactive nature of the Web allows businesses to gather a
wealth of information. However, there are few tools currently available that
effectively use that data to measure and analyze the activities and behavior of
Web site visitors to facilitate strategic decision making.
Increasing Demand for Targeting Capabilities
Early Internet marketing efforts were directed primarily at placing
advertisements on the most frequently visited Web sites and pages within those
sites. As the Internet has matured, businesses have sought to improve the
effectiveness of their marketing campaigns by directing their advertisements
and promotions toward the Web users they most want to reach. By targeting
advertisements and offerings to the most relevant users, Internet marketers
seek to improve their response rates and brand awareness and reduce costs by
eliminating spending that is not directed at their intended audience.
As marketers have become more sophisticated in their approach to marketing
over the Internet, an increasing number of advertising-supported sites have
been established, increasing the number of competitors offering advertising
impressions and exerting downward pressure on advertising prices. In March
1999, Jupiter Communications estimated that between 70% and 80% of the
advertising inventory on Web sites was unsold. Web publishers are seeking to
sell more inventory at higher rates by offering advertisers the ability to
target advertisements based on the interests and demographic characteristics of
the visitor, rather than simply the content of the page being viewed.
Increasingly, Internet marketers are demanding a better return on
investment. Return on investment is favorably affected by either increasing
response rate or brand awareness (return) or reducing costs of advertisements
or transactions (investment). Because the response rate for Internet
advertising is typically very low, businesses that can attain even a small
absolute increase in the advertising response rate can increase their return on
investment substantially. In addition, the large number of Web users and the
global nature of the Internet can lead to inefficient spending when merchants
deliver untargeted advertisements or promotional offerings to Web users. These
merchants expect to improve their return on investment by targeting their
advertising and offerings to those Web users who meet their desired criteria.
Although marketers can indirectly target their messages by delivering
advertisements to a specific Web site or Web page, many businesses desire to
improve their return on investment further by directly targeting
advertisements, e-commerce offerings and other content using detailed data
about a visitor's preferences and demographic characteristics.
In addition, Web publishers and merchants are seeking to increase the
frequency and duration of Web user visits to their sites to enable them to sell
more advertising inventory and increase e-commerce revenue. By customizing the
content of Web pages to reflect users' interests and preferences, Web
publishers and merchants are seeking to attract more traffic to their Web
sites, increase visitor loyalty and improve the appeal of their e-commerce
offerings.
The Need for Solutions to Distinguish Web Users While Respecting Their Privacy
The Web offers the potential for Web publishers, advertisers and merchants
to better understand their respective audiences and to capitalize on the
individual targeting capability, real-time feedback and other marketing
advantages offered by the Internet. Significant information about Web site
visitors can be derived from an analysis of:
. the Web sites and page views selected by users;
. the pattern in which users move from one site or page to another;
. the duration of a user's visit to a site or page;
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. the purchasing and other activities of users while at a Web site; and
. the responses of visitors to specific advertisements and promotions.
While the Internet offers the opportunity to collect a wide variety of
information that could be used to improve audience targeting, Web users are
increasingly concerned about the potential for loss or abuse of their privacy.
Although Web site visitors can obtain significant benefits from a Web
publisher's or merchant's ability to personalize content and target e-commerce
offerings based on the user's tastes and preferences, many consumers do not
want specific identifiable information about themselves, such as their name,
home or e-mail address, made available to third parties.
To balance the desires of marketers and consumers, there is a need for a
solution that will enable Internet marketers to tailor offerings effectively to
each user while at the same time preserving the privacy and anonymity available
to individuals on the Internet.
The Engage Solution
Engage provides products and services that enable customers to create and
use profiles of individual Web visitors to target advertisements, content and
e-commerce offerings.
The following table shows the products and services offered by Engage:
<TABLE>
<CAPTION>
Products and
Services Description Benefits
- ------------------------------------------------------------------------------------------------
<C> <S> <C>
Profiling
Engage Knowledge Service providing real- Allows targeted online advertising, content
Data Service(1) time access to database and e-commerce offerings, which can improve
of anonymous global response rates, brand awareness and
profiles of Web users customer loyalty and reduce marketing costs
Engage ProfileServer Software to create and Permits customization of interest
deliver site-specific categories to track preferences specific to
local profiles of Web the customer's business. Can be used alone
users or together with profiles delivered as part
of the Engage Knowledge data service
- ------------------------------------------------------------------------------------------------
Advertising Management
Accipiter AdManager Automated online Automates online advertising management for
advertising delivery and Web sites, including scheduling, targeting
management software and serving of ads and reporting of
campaign results
Accipiter AdBureau Outsourced online Delivers the capabilities of Accipiter
advertising management Admanager without requiring the customer to
service using AdManager make the investment needed to create an
technology advertising management infrastructure
- ------------------------------------------------------------------------------------------------
Web Site Traffic
Measurement, Auditing
and Analysis
I/PRO NetLine Service Outsourced Web site Enables Web sites to better understand user
traffic measurement and traffic and behavior and thereby improve
analysis service their Web sites
Nielsen I/PRO I/Audit Outsourced service Allows media sellers to prove Web site
Services providing audits of site traffic volume and campaign results to
traffic and ad campaign media buyers
results
I/PRO Research Services Custom consulting Provides customized analysis and
services providing interpretation of visitor behavior to help
audience behavior customers formulate their Web strategies
analysis
Engage Site-based data Allows customers to perform sophisticated
DecisionSupportServer warehouse software for analysis of the behavior and profiles of
audience analysis their Web site visitors
Engage Knowledge Consulting services Allows customers to gain valuable market
Research Services(2) based on global profile research by analyzing Web-wide user
database behavior, interest trends and patterns
across the Engage Knowledge data service
</TABLE>
- --------------------------------------------------------------------------------
(1) Currently being tested with customers and expected to be implemented on a
commercial basis in July 1999.
(2) Expected to be introduced in July 1999.
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An Engage profile is an anonymous collection of information about an
individual Web user's consumer interests, demographic characteristics and
geographic location. These profiles are developed through a combination of a
user's browsing behavior on participating sites on the Internet and information
the user has voluntarily declared at these sites, such as information provided
on an online registration form. Each anonymous profile omits information that
would permit the personal identification of the user, such as name, address and
e-mail address.
Based on its proprietary technology, Engage has built a database containing
more than 30 million anonymous consumer profiles, which it has created from
data drawn from multiple, diverse Web sites. Customers can use these profiles
to target relevant advertisements, content and e-commerce offerings to
individual Web users based on each user's particular preferences, demographic
characteristics and geographic location.
Engage's profiling technology can create local and global user profiles.
Local profiles, which are created and maintained by Engage's customers, contain
data derived from the customer's own Web site and typically map preferences
based on particular interest categories designed by the customer and
demographic characteristics. Global profiles, which are compiled from data
contributed to the centralized Engage Knowledge database from the Web sites of
all participating Engage customers, are provided to customers on a subscription
basis and provide a broader and more detailed description of users' interests.
These global profiles do not contain personally identifiable information of
individual users, such as name, home or e-mail address, IP address or domain
name.
Each Engage global profile contains a series of numerical scores reflecting
each Web user's inferred preference level in hundreds of standard categories
and subcategories, such as books, business, computers, fashion, sports and
travel as well as demographic and geographic information. Categories can be
further customized to meet the needs of a specific customer or market. Engage
software uses sophisticated proprietary algorithms and methodologies to
continuously update and refine these global profiles based on a visitor's
browsing behavior across multiple Web sites, including pages selected by the
user, the duration of the user's visits and the responses of the user to
specific advertisements and promotions. Engage global profiles also incorporate
anonymous demographic and geographic information reported voluntarily by a
visitor, such as data from an onsite registration form.
When a user visits a Web site of any customer subscribing to the Engage
Knowledge data service, Engage matches that visitor with his or her profile in
the global profile database. The profile is transmitted in real-time to the
subscribing Engage Knowledge customer site, which can then use the profile to
target advertisements, content and e-commerce offerings to that visitor. Based
on past user behavior at other Web sites, an Engage customer can determine the
interests and tailor the experience of even first-time visitors to its Web
site.
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Engage believes that its profiling technology provides a significantly more
meaningful picture of Web user preferences than other available targeting
solutions because:
. Engage builds and constantly updates its profiles based on a user's Web
browsing behavior, resulting in more detailed and current profiles than
could be created with registration or other declared data only;
. Engage profiles classify visitor information across hundreds of interest
categories and subcategories, allowing Web publishers, advertisers and
merchants to identify more precisely their target audience;
. Engage global profiles are developed from data gathered from many diverse
Web sites, generating more detailed and comprehensive information about
Web users than could be gathered from any single site; and
. The Engage Knowledge database currently contains more than 30 million
user profiles, enabling the use of targeting applications for a
significant proportion of Web site visitors.
Engage believes, based on preliminary results of a study conducted for
Engage by a market research organization, Ipsos-ASI, that the use of Engage
profiles to target advertisements can achieve click-through rates greater than
those achieved by untargeted advertisements. Click-through rates represent the
proportion of viewers who click on an advertisement. Engage also believes,
based on this study, that the use of Engage profiles to target advertisements
on Web pages whose content is unrelated to the advertisement can achieve
click-through rates comparable to those achieved by the targeting of
advertisements based on the content of the Web page.
Engage profiles are designed to work with other Engage applications, third-
party software or customers' internally developed solutions, allowing
customers flexibility as the uses of profiling and related applications
develop and evolve.
The following is an example of what a portion of an anonymous user profile
might contain:
Anonymous Web User Profile--ID#: 23987CKF87E99
<TABLE>
<CAPTION>
Interest Categories Score(1)
------------------- --------
<S> <C>
Automobile........................................................... .75
Automobile--Auto Types--Sport Utility Vehicle....................... .73
Automobile--Type of Need--Accessories............................... .23
Entertainment........................................................ .35
Entertainment--Music................................................ .35
Entertainment--Music--Classical..................................... .21
Fashion.............................................................. .39
Fashion--Footwear................................................... .26
Fashion--Business Clothing.......................................... .38
Major Events......................................................... .44
Major Events--Move within State..................................... .44
Money & Finance...................................................... .64
Money & Finance--Type of Need--Online Banking....................... .59
Money & Finance--Investment Types--IRA/401K......................... .34
Response Tendency.................................................... .81
Response Tendency--Commerce......................................... .60
Response Tendency--Commerce--Online Purchases....................... .76
Demographic Data ....................................................
Gender--Female...................................................... .91
Age--35-44 years.................................................... .75
Geographic Data .....................................................
Metro Statistical Areas (MSA)--Atlanta, GA.......................... .97
</TABLE>
- -------------------------------------------------------------------------------
(1)Interest level, based on a scale from 0 to 1.00.
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Building upon its profiling capabilities, Engage offers the following
profile-based marketing solutions:
Targeted Delivery of Advertising
Engage's advertising management software and services allow Web publishers
and advertising networks to target advertising campaigns using either local
profiles or global profiles from the Engage Knowledge data service. Engage also
offers a turnkey outsourced advertising management service that allows Web
sites to gain the advantage of profile-based advertising without making a
significant upfront investment of cash and personnel. By allowing advertisers
to target advertisements based not only on the content of the Web page being
viewed, but also on the visitor's profile, these advertising solutions are
designed to enable Web publishers and advertising networks to sell more of
their advertising inventory and to allow advertisers to improve their return on
investment. Engage's advertising management products, when used in conjunction
with its profiling products and services, can schedule and serve advertisements
in real-time while simultaneously optimizing the impact of a message by, for
example, showing a minivan advertisement to a visitor interested in family
subjects and a sport utility vehicle advertisement to an outdoor enthusiast. In
addition, if it is known that a user is a likely minivan buyer, specific ads
can be served when the visitor is in an unrelated site or section of a site.
Targeted Delivery of Content and Commerce Offerings
Engage's profiling software and global profiles allow Web publishers and
merchants to customize the content of Web pages and target e-commerce offerings
and promotions based on each individual user's interests. By providing Web site
visitors information that is more relevant to them, Web publishers and
merchants can strengthen visitor loyalty and increase the likelihood that a
visitor will stay at the site and make a purchase. A Web site focusing on music
can dynamically alter a Web page to present, for example, a special offer on a
jazz CD only to those visitors whose profiles indicate strong interests in jazz
and offer a different promotion to visitors with classical music interests.
Web Site Traffic Measurement, Auditing and Analysis
Engage's analysis and traffic measurement products and services allow Web
publishers and merchants to collect, manage and analyze data about visitors and
their behavior. By analyzing how users behave and react to specific
advertising, pages or specific content areas, Web publishers can better
understand their visitors and improve the effectiveness of their Web sites.
Engage offers a range of solutions, from a basic outsourced reporting service
to sophisticated software enabling analysis of large amounts of data. Engage
also offers a comprehensive range of auditing services, including total site
traffic audits and internal reporting verification. Engage's auditing services
allow Web publishers to provide advertising buyers with the standardized
verification from an independent third party that these buyers increasingly
require before they will purchase Internet advertising inventory.
Strategy
Our objective is to enhance our position as a leading provider of profile-
based Internet marketing solutions for Web publishers, advertisers and
merchants. Our strategy to achieve this objective includes the following key
elements:
Establish Engage as a Recognized Brand for Internet Profiling
We believe that we have the opportunity to establish Engage as the
recognized brand for profile-based marketing solutions on the Internet. To
capitalize on this opportunity, we are creating a family of "Engage-enabled"
products and services that incorporate our profiling technology to serve a
broad array of customer targeting needs on the Internet. Expanding from the
initial use of our profiling technology in targeting the delivery of
advertisements through our Accipiter advertisement management software, we plan
to integrate our profiling technology with our I/PRO market intelligence
services so that customers can better measure and analyze audience
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behavior at their Web sites. We also plan to develop solutions that will allow
Web publishers, advertisers and merchants to more effectively reach customers
in specific markets, such as automotive and retail and other industry-specific
markets. By implementing our solutions across a broad spectrum of customers and
customer applications, we will seek to establish our profiling technology as
the most widely-used platform for the targeting of advertisements, content and
e-commerce offerings on the Web.
Offer Multiple Products Based on Open Standards
We offer multiple products and services based on open standards that
facilitate the use of Engage's solutions with third-party applications. For
example, our customers can use Engage Knowledge to target advertisements in
conjunction with either our own Accipiter products or advertising management
software provided by other vendors. By enabling customers to choose
applications from third-party vendors, we believe we will be able to broaden
the market for Engage-enabled solutions and increase the quantity and quality
of the profiles compiled in the Engage Knowledge database.
[Graphic consists of a box at bottom labelled "Engage Profiles" with arrows
immediately above it pointing upward at a box labelled "Engage or Third-Party
Applications" and within this box are subheadings labelled "Advertising
Delivery", "Content Publishing" and "E-Commerce Server". This box has arrows
immediately above it pointing toward three boxes labelled "Targeted Ad",
"Personalized Content" and "Customized Offer".]
Continue to Enhance Engage Global Profile Database
Each user visit to the Web site of a participating subscriber to the Engage
Knowledge data service contributes to the depth of the global profile database
and enhances its value to all customers. We will continue to increase the
quality and usefulness of Engage Knowledge profiles by:
. expanding the number of consumer profiles through an increase in our
installed base of subscribers and contributors to the Engage Knowledge
data service;
. developing new profiling algorithms to glean additional knowledge about
Web users from data compiled for each profile; and
. refining our interest categories and subcategories to provide more
detailed and market-specific user profiles.
Focus on Specific Markets
We plan to develop and sell specific Internet marketing solutions for
different markets. We are initially focusing on Web publishers and advertising
networks that derive revenue from advertising on the Web. For this market, we
are enhancing our Accipiter advertising management software and services to
allow Web publishers and advertising networks to use global profiles to
optimize utilization of their advertising space. In addition, we will seek to
increase our customers' advertising revenue by allowing them to offer a new
program to advertisers in which an advertiser will pay for the delivery of
advertising impressions only to those Web site visitors whose Engage profile
matches designated criteria. Our fees for this program will consist of a
portion of the advertising revenue generated when one of our profiles is used.
We also plan to focus on the automotive and retail and other industry-
specific markets. For each market, we plan to develop and market tailored
versions of our Engage Knowledge database that will measure interest levels in
categories specific to those markets. For the automobile market, we will work
with key automotive sites to capture specific and detailed information about
automotive users presently in the purchase cycle and to provide manufacturers
the ability to study consumer preferences for specific automobiles or features.
For the retail market, we will continue to refine geographic-targeting
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capabilities so that national retailers can address specific needs and
preferences within each local audience through the Internet.
We also will aggressively pursue distribution arrangements with companies
that install and integrate hardware and software systems for third parties and
with independent software vendors who can deploy our profiling technologies for
specific markets. Through these indirect channels, we will seek to extend the
deployment of Engage technology and expand our customer base.
Offer Family of Engage Products and Services
We will seek to increase our sales to our installed base of customers by
offering a range of software and services that utilize common Engage profiling
technology. For example, if a customer uses Accipiter AdManager software to
deliver Web advertisements, we will seek to sell a subscription to the Engage
Knowledge data service to enable the customer to improve advertising response
rates and brand awareness. We may also offer the customer a subscription to our
I/PRO services to measure and better understand visitor behavior. Using our
complementary line of software and services, a customer can rely upon Engage
Knowledge profiles to perform a wide range of functions and thus avoid the time
and expense otherwise required to collect, process and store large volumes of
user data multiple times for multiple functions.
Maintain Position as Advocate for Internet Privacy
We believe that concerns about loss of privacy are increasingly important to
Internet users and therefore have designed the Engage Knowledge database with
the goal of being a leader in the protection of the privacy of individuals. We
have been an active participant in the establishment of technology, industry
and regulatory frameworks for Internet privacy and plan to continue to be
aggressive in promoting our commitment to privacy.
Expand into International Markets
We currently market our products and services worldwide through a sales
office in London, our U.S. headquarters and through a joint venture in Japan
established with Sumitomo in July 1998. In addition, we plan to open an office
in Germany in 1999. As of April 30, 1999, we had 22 customers in Europe and
seven elsewhere outside the United States. We plan to expand our penetration of
the international market primarily through joint ventures with partners abroad.
Products and Services
Engage offers a range of software and services that enable Web publishers,
advertisers and merchants to target and deliver advertisements, content and e-
commerce offerings to their audiences and to measure their effectiveness.
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Engage Knowledge Data Service
The Engage Knowledge data service uses a database which contains user
profiles collected from participating sites across the Web. Engage's database
has been designed to create, refine and deliver millions of profiles in real-
time to meet the demands of multiple Web sites. The global profiles used in the
delivery of the Engage Knowledge data service omit personally identifiable
information of individual users such as name, home or e-mail address, IP
address or domain name. The database assigns a computer-generated identifier to
distinguish each Web visitor. This identifier is currently stored as a browser
cookie on the Web user's computer. This Engage Knowledge identifier is
correlated with site-specific identifiers using a proprietary technique called
"dual blind" identification. This technique protects the privacy of the
individual because the participating Web site cannot access the Engage
Knowledge identifier and Engage does not maintain any personally identifiable
information that may have been gathered at the Web site.
Engage Knowledge global profiles contain a series of numerical ranking
codes, as well as demographic and geographic information, with scores that
indicate the level of the consumer's interest in a category or the accuracy of
a demographic or geographic attribute. The categories are hierarchical, with
the top level representing a broad interest area such as "Books", and lower
levels representing increased specificity, such as "Children's Books". Engage
also maintains demographic and geographic information for each profile by using
computer algorithms that infer demographic characteristics or geographic
locations based on Web browsing behavior at participating sites and by using
declared information reported voluntarily by the visitor, such as data provided
by a user on an online registration form. Engage does not retain any of the
personally identifiable information that may have been provided on the
registration form, and therefore the identity of the Web user cannot be derived
from the information contained in the global profile. Each Web page at a
customer site is classified to indicate the interest categories that will be
attributed to visitors to that page.
When a user visits a Web site of any customer subscribing to the Engage
Knowledge data service, Engage matches that visitor to his or her profile in
the global profile database. The profile is then transmitted in real-time to
the subscribing Engage Knowledge customer site, which can then use the profile
to target advertisements, content and e-commerce offerings to that visitor.
As a Web visitor browses through any Engage-enabled Web site, Engage's
software dynamically updates and refines the profile of that visitor based on
the recency, frequency and duration of the consumer's browsing behavior in each
interest category. The Engage Knowledge database can be integrated with third-
party data sources, such as geographic databases, to further enhance the
consumer profiles. Unlike profiles based solely on static registration data,
Engage Knowledge profiles are constantly changing to more accurately reflect
the current interests of an individual.
Engage Knowledge profiles can be used to enhance third-party software
applications by providing targeting capabilities. These applications include
advertising management, content delivery and e-commerce offerings. Engage
provides software tools and services to facilitate the integration of Engage
Knowledge profiles with these third-party applications.
An Engage Knowledge subscription is combined with a license to the Engage
software modules necessary to identify visitors, collect and transfer behavior
records and access profile information. Periodic subscriptions are usually
offered on a quarterly basis and the fees vary depending on traffic to the
customer's site and the application with which the service is used. Engage
expects that fees in the future will also vary based on the number of profiles
used. Engage believes that most customers will contribute their clickstream
data to the Engage Knowledge data service in exchange for reduced subscription
rates and to enhance the quality of future global profiles. Although data
contribution is not required, customers who do not contribute their site
clickstream data to
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Engage Knowledge are required to pay significantly higher fees for use of the
Engage Knowledge profiles. Monthly fees can range from a few thousand dollars
for a low volume Web site to hundreds of thousands of dollars for a large
customer with multiple Web sites.
In March 1999, Engage introduced GeoKnowledge, a data service that features
multiple types of geographic data combined with profiles from the Engage
Knowledge database.
As of April 30, 1999, Engage had implemented the Engage Knowledge data
service with customers on a test basis. Engage expects to implement the Engage
Knowledge data service on a commercial basis in July 1999.
Engage ProfileServer
Engage ProfileServer software collects Web visitor behavior data at the
customer's Web site and declared user information reported voluntarily by a
visitor to create and deliver profiles of individual Web site visitors. The
system enables customers to create their own local profile database, which is
maintained at the customer's site, and to use these local profiles to target
advertisements, content and e-commerce offerings. The ProfileServer system
permits customers to customize the interest categories in the local profiles so
that they track preferences specific to the customer's market. For example, a
clothing retailer could create size and style subcategories. Customers can also
use the system to collect proprietary user data, including identifying
information supplied voluntarily by visitors to their sites. The local
databases created with ProfileServer, which do not become part of the Engage
Knowledge database, can be used by customers either alone or in conjunction
with the Engage Knowledge data service.
ProfileServer is offered to customers under perpetual or annual subscription
licenses with fees that vary based on the volume of visitor activity on the
customer's sites. ProfileServer software typically ranges in price from $12,000
for a basic configuration at a small Web site to up to $100,000 for a complete
feature installation at a high volume site.
Online Advertising Systems and Services
Engage's Accipiter ad management systems and services are designed to manage
and deliver advertising and direct marketing promotions on individual Web sites
and networks of Web sites.
Accipiter AdManager. Accipiter AdManager automates online advertising
management for Web sites by scheduling and targeting ads, automatically
rotating ad inventory and generating up-to-the-minute, customized reports.
AdManager tracks all active advertising campaigns and Web site visitors and
optimizes scheduling of advertisements in real-time to ensure that each
campaign is delivered on schedule to qualified visitors or to the specified
content areas of a site.
AdManager allows sites to deliver relevant advertising to individual
visitors using a wide range of targeting criteria, including:
. Engage global and local profiles;
. area of content that a visitor is viewing;
. geographic location of users;
. key-word or key-phrase searches; and
. time of day or day of week.
AdManager provides versatile easy-to-use scheduling features. Advertisements
within a campaign can be scheduled by the total number of impressions or
clicks, by specific time frames specified by the advertiser or any combination
of counts and date ranges. The campaign reservation system can lock in portions
of available inventory for upcoming campaigns.
Customers can access a variety of reports to see how well a campaign is
performing. Reports can detail, for example, how many impressions and clicks
were generated both from the entire site and by each ad and advertiser.
AdManager also enables customers to securely assign access privileges for
specific functions or information to a variety of users at different levels
from different organizations. For example, a single system can provide
different levels of access to advertising agencies, web site advertising sales
representatives, and third party advertising sales representatives.
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AdManager can be distributed across multiple servers to expand ad serving
capacity and provide high availability to handle the volume requirements of the
largest Web sites.
AdManager is offered to customers under perpetual licenses or annual
subscription licenses, with fees that vary based on the number of
advertisements served. A typical AdManager installation ranges in cost from
$12,000 to more than $100,000, with an additional monthly fee for access to the
Engage Knowledge database.
Accipiter AdBureau. Accipiter AdBureau is Engage's turnkey, outsourced
advertisement management service based on AdManager technology. By subscribing
to AdBureau, a customer can obtain the advertisement management capabilities of
AdManager without the need to invest in on-site and management hardware, server
and administrative software or databases.
AdBureau is marketed primarily to start-up and mid-sized Web sites, as well
as advertising networks. AdBureau is offered to customers under an annual
agreement providing for fees based on the number of advertisements served, with
a $3,500 one-time set up fee and monthly fees based on the number of
advertisments served, ranging from $1,000 per month for the smallest Web sites
to more than $15,000 per month for high volume sites.
Web Site Traffic Measurement, Auditing and Analysis
Engage offers products and services that provide Web site traffic
measurement and analysis and verification of site traffic and advertising
results. Through its I/PRO services, Engage currently measures over seven
billion page views per month across over 350 Web sites.
I/PRO NetLine. I/PRO NetLine is an outsourced traffic measurement service
that continuously measures Web site traffic and delivers results on a daily
basis to the customer. This service enables customers to access reports
immediately, combine data from multiple sites and standardize information for
meaningful comparisons. I/PRO provides a wide range of standard reports and
enables users to customize their reports and the data to be tracked. I/PRO
provides standard reports that contain key data about traffic at a Web site,
including information about the number of users to visit a Web site, the
duration of user visits and the most frequently visited pages of the site.
Customized reports can include information regarding specific pages,
directories and clicks and other in depth data. I/PRO NetLine is priced based
on the volume of traffic at the sites being measured and the number of reports
that are requested, and fees typically range from $2,500 to $5,000 per month.
I/PRO also offers extensive support by professional service account managers
and custom research capabilities.
Engage plans to offer I/PRO NetLine in conjunction with Engage Knowledge
services for global audience analysis. Using profile information from the
Engage Knowledge database, customers of I/PRO NetLine will be able to customize
reports to include more detailed and comprehensive user information, which will
enhance the I/PRO NetLine traffic measurement service.
Nielsen I/PRO I/Audit. Nielsen I/PRO I/Audit outsourced services include
audits of circulation on total audience, specific advertisements or advertising
campaigns, internal management systems and co-operative marketing arrangements.
Nielsen I/PRO I/Audit verifies information directly at the specific Web site
rather than relying on a sample from a panel or other indirect methods. Engage
believes that I/PRO was the first company to offer Web site specific audits of
Web site traffic and advertising campaigns. Engage believes that over 70% of
the 50 most visited sites currently use Nielsen I/PRO I/Audit. Nielsen I/PRO
I/Audit reports are guaranteed to be delivered within ten days of I/PRO's
receipt of the necessary data. Nielsen I/PRO I/Audit services are priced based
on the volume of traffic at the sites being audited and fees typically range
from $2,000 to $4,000 per month. I/PRO has a co-branding and reselling
agreement with Nielsen Media Research and pays royalties to Nielsen on sales of
I/PRO services.
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I/PRO Research Services. I/PRO offers custom consulting services to help
clients meet their Web marketing goals. These services combine analysis of Web
audience data with customized research. Consultants produce in-depth reports
and detailed analyses that allow customers to measure audience behavior,
monitor results against strategic objectives and more effectively manage their
Web strategies. Clients contract for research services on a project basis or at
a stated daily rate.
Engage DecisionSupportServer. Engage DecisionSupportServer is a data
warehouse management and analysis solution that is implemented at the
customer's site. DecisionSupportServer supports a complex, visitor-focused
marketing analysis of Web site usage details and profiles. Web marketers can
monitor standard Web site usage and visitor reports or use Engage's Web
marketing analysis application to answer critical and sophisticated business
questions about visitors, their behavior and their profiles. For example, a
marketer could configure DecisionSupportServer to determine the percentage of a
Web site's repeat visitors who initially visited the Web site from the major
portal sites and who have an interest in sports. DecisionSupportServer can be
used in conjunction with a variety of decision support applications from
Business Objects and other data warehousing vendors. In addition, customers
with unique requirements can retain professional services from Engage or one of
its system integration partners to customize the data warehouse.
Engage DecisionSupportServer is offered to customers under perpetual
licenses or annual subscriptions with fees that vary based on the volume of
visitor activity on the customer's sites. Engage customizes and operates
DecisionSupportServer in-house for specific market segments and customer-
specific analytic consulting engagements. The license fee for
DecisionSupportServer typically ranges from $40,000 to more than $100,000.
Engage Knowledge Research Services. Engage plans to offer Engage Knowledge
Research Services, consisting of custom analysis, research and consulting
services that use information contained in Engage's profile database. Using
this service, customers can obtain analysis of Web-wide user behavior to
identify emerging trends.
Consulting, Maintenance and Support Services
Engage offers comprehensive services and product support to its customers.
Engage's service and support organization, consisting of 46 service
professionals as of April 30, 1999, assists customers in implementing,
administering and maintaining Engage products and services.
Professional Services. Engage's team of service professionals provides
customers with consulting services, project implementation and integration
services and training. Engage's service professionals assist customers with
strategic site assessments and deployment planning in order to optimize each
customer's use of Engage products. These professionals also help customers
implement Engage products and integrate them into the customer's existing
technology infrastructure. Engage's professional services are generally billed
at a daily rate for each consultant employed on a project.
Maintenance and Support Services. Engage provides maintenance and support
services to customers pursuant to annual maintenance agreements. These services
include software version updates and maintenance, as well as telephone and on-
site support. Engage provides regular functional releases to its customers, as
well as maintenance releases as needed. Engage offers a variety of support
services, including "help desk" telephone support on a 14 hours per day, five
days per week basis and a dedicated technical support Web site on a 24 hours
per day, seven days per week basis. Engage's maintenance and support activities
are supplemented by training programs for customers, including introductory
training courses for new users and custom designed seminars for experienced
users of Engage products.
Engage's annual fees for maintenance and support services are based on a
percentage of the list price for the customer's software license fee, typically
ranging from 18% to 25%. To date, substantially all of Engage's customers have
entered into maintenance contracts.
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Customers
Engage licenses its software products to Web publishers and merchants for
use at their Web sites. Engage also offers customers outsourced services
through its AdBureau advertising management service and its I/PRO NetLine
traffic measurement service. Engage had approximately 300 customers as of
April 30, 1999, including the following customers:
<TABLE>
<S> <C>
Advertising Web Site Traffic
Management Profiling Measurement, Auditing
Solutions (1) Solutions (2) and Analysis (3)
1+1 Digital Entertainment Chicago Tribune
AdSmart Network Dell
CNET Drug Emporium Macromedia
Lycos Lycos MediaOne
LookSmart Magnitude Network News Corporation (Fox)
Microsoft National Computer Quokka Sports
Naspers Board (Singapore) Road Runner
National Westminster Bank Net.genesis Weather.com
(XCo) Planet Direct WhoWhere
Sumitomo Theglobe.com USA Today
WebTV TicketMaster
Ulysses (MusicLand)
</TABLE>
(1) Includes customers of Engage as of April 30, 1999 that each accounted for
an aggregate of $75,000 or more of revenue to Engage during the period from
the beginning fiscal 1998 through the end of the first nine months of
fiscal 1999.
(2) Includes customers of Engage as of April 30, 1999 that each accounted for
an aggregate of $20,000 or more of revenue to Engage during the period from
the beginning fiscal 1998 through the end of the first nine months of
fiscal 1999.
(3) Includes customers of Engage as of April 30, 1999 that each accounted for
an aggregate of $63,000 or more of revenue to Engage in calendar year 1998.
Customer Case Studies
The following customer case studies illustrate the selection, use and
implementation of Engage products and services by three customers that Engage
believes represent typical customers for its products.
Ancestry.com -- Profile Based Advertising and Analysis
Ancestry.com, an affiliate of CMGI, is a comprehensive genealogy resource on
the Web, providing users with a large online repository of family and historic
data. Site visitors have free access to genealogical records online. For a
nominal fee, subscribers have complete access to the site's 1,500 databases.
Ancestry.com needed a set of integrated tools for the analysis of Web
traffic collected at its site, user profiling and ad management to enhance the
online experience for site visitors and to increase the effectiveness of
promotions and advertising at its site. Specifically, the site wanted to
understand more about its visitors, convert unregistered visitors to registered
visitors and deliver personalized advertising to its online audience.
Ancestry.com installed Engage Accipiter AdManager advertising management
software to serve online ads and intends to deliver personalized offers through
Engage ProfileServer. To expand its targeting capabilities beyond site-specific
customer information, the site has also subscribed to the Engage Knowledge data
service. In addition, Ancestry.com is installing Engage DecisionSupportServer,
Engage's strategic market intelligence tool, to analyze the collected local
profile data, and uses the Nielsen I/PRO I/Audit services for third-party
verification of its site traffic data.
Through the use of Engage products and services, Ancestry.com will own a
growing proprietary database of local user profiles which it expects will
enable it to better understand the behavioral patterns of its online visitors.
Ancestry.com plans to use the Engage Knowledge data service to deliver targeted
advertising to its online audience.
Ticketmaster -- Profile Based Targeting of Electronic Commerce and Content
Ticketmaster Online is an automated ticketing services company. Ticketmaster
uses Engage ProfileServer to personalize online retailing based on declared
profiles and to target advertising based on both declared and observed behavior
online. In July 1998, Ticketmaster was seeking to address the personalization
requirements of its
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MyTicketmaster site, and needed a solution that
permitted profiles to drive other vendors' personalization applications.
Ticketmaster selected Engage because it offered application-independent
profiling technology that could meet its targeting requirements. Engage worked
with Ticketmaster to integrate a third party's content management application
with Engage's ProfileServer software. Ticketmaster currently has plans to
integrate another third party's advertising managment system. Engage
ProfileServer software captures registration details at the MyTicketmaster area
of the site and the clickstream behavior of visitors throughout its site.
Engage ProfileServer creates user profiles based on declared and behavior data
and maintains them in a centralized proprietary repository for visitor data. In
addition, Ticketmaster installed Engage's DecisionSupportServer strategic
market intelligence tool to analyze the collected data.
With its growing proprietary database of local user profiles, Ticketmaster
expects to be able to enhance the online experience of its repeat site visitors
by recommending events and providing customized offers that appeal to them
individually, thereby increasing the revenue potential of its site.
Weather.com -- Web Site Traffic Measurement, Auditing and Analysis
Weather.com is the online arm of The Weather Channel. Weather.com uses I/PRO
NetLine to increase advertising revenue, to make resource allocation decisions
and to drive strategic partnerships. By understanding the total circulation of
different areas of the site, weather.com is able to charge a premium for high
traffic areas. I/PRO NetLine reports user requests for weather information by
zip codes allowing weather.com to sell these impressions as highly targeted
advertising opportunities at a premium. I/PRO NetLine's ability to report
activity at the most detailed level facilitates resource allocation decisions
by allowing weather.com to understand the resources required to maintain
different parts of its site and the revenue each part generates. Weather.com
also uses I/PRO NetLine to help assess the opportunities for marketing
relationships that will increase traffic at its site and to monitor the
performance of these arrangements on an ongoing basis.
Weather.com also subscribes to the monthly Nielsen I/PRO I/Audit. The audit
report is used in sales presentations to existing and new advertisers to prove
traffic volumes and campaign results.
Sales and Marketing
United States
Our sales and marketing strategy in the United States is to sell:
. directly to prominent Web publishers, large advertisers and Web site
networks;
. through original equipment manufacturer, reseller and co-marketing
arrangements to reach other customers; and
. through Web design and systems integration firms.
As of April 30, 1999, our sales and marketing organization consisted of 66
employees. Our field sales organization is supported by sales representatives
and systems engineers located throughout the United States. Sales
representatives handle incoming calls, help generate qualified leads and
generally advance the sales process. Systems engineers provide comprehensive
pre-sales technical services and support, including creating and delivering
technical and architectural presentations, product demonstrations and product
training, as well as post-sales telephone support, problem escalation
management, patch distribution and publication of technical notes. Our sales
and marketing employees are located in Andover, Massachusetts; Raleigh, North
Carolina; Redwood City, California; and San Francisco, California.
The sales teams for our Accipiter ad management systems and I/PRO services
are organized as dedicated groups focused on sales in specific geographic
regions. A subset of the sales force for Engage Knowledge and Engage profiling
products are targeted to specific industry groups, thereby enabling them to
develop an in-depth understanding of the evolving needs of a particular
industry and the
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Web publishers, advertising networks and Web sites focused on that industry. In
addition, each sales force identifies cross-selling opportunities for other
Engage products.
An important element of our sales strategy is to form business relationships
with third parties to assist us in marketing and selling our products. We will
seek to enter into original equipment manufacturer relationships that permit us
to embed our software products within products sold by other vendors, such as
e-commerce and Web serving software and hardware systems. In addition, some of
our indirect sales channels will consist of either reseller arrangements, in
which our partner resells and possibly customizes our products, or co-marketing
arrangements, in which we will work together with our partner to promote and
generate sales referrals for each others' respective products. We also expect
to develop relationships with Internet systems integrators who often recommend
advertising and marketing management and other Internet solutions to their
clients as part of their design, procurement and deployment work.
To support our sales efforts and actively promote the Engage brand, we
conduct comprehensive marketing programs, including public relations, print
advertisements, online advertisements, seminars, trade shows and ongoing
customer communications programs.
International
We maintain a sales office in London and expect to open an additional office
in Germany in 1999. We intend to expand our operations outside the United
States primarily by partnering with locally-based third parties, including
entering into joint ventures and distribution arrangements. We have formed a
joint venture for the Japanese market with Sumitomo Corporation. As part of
this joint venture, Sumitomo markets a Japanese language version of Engage
software products and the Engage Knowledge data service throughout Japan.
Privacy
The Web offers the potential for privacy by allowing parties to communicate
one-to-one without knowing each others' identity. However, Web users are
increasingly concerned about privacy and the ability of third parties to gather
personal data about them from their activities on the Web. For this reason, the
Engage Knowledge global database of profiles does not store personal
information of individual users such as name, home or e-mail address, IP
address or domain name.
We maintain this level of privacy through a proprietary methodology known as
"dual blind" identification. We assign an anonymous numerical identifier to
each Web visitor and match this "blind" identifier only with information
relating to online usage of a specific computer and do not store or otherwise
use any personally identifying information. This identifier is currently stored
as a browser cookie on the Web user's computer. Each Web visitor also is
assigned a different identifier for each Engage-enabled Web site visited. This
technique is known as "dual blind" identification because a Web site does not
have access to the Engage Knowledge identifier and cannot correlate the
information it may have with information from other Web sites. Conversely, we
do not maintain any information identifying particular users that a Web site
may have correlated with a visitor's local Web site identifier.
We also protect Web user privacy by contractually prohibiting Web sites
subscribing to Engage Knowledge from using global profiles other than for the
purpose of tailoring the experience of the visitor. Customers may not store the
information, correlate it to personal information or use it to try to infer the
physical identity of the visitor. In addition, since October 1998, Engage has
required all contributors to Engage Knowledge to post a privacy policy
statement on their Web sites disclosing that the site provides non-personally
identifiable information to Engage. The policy statement must include a link to
the Engage Web site where a Web user may opt out of the Engage Knowledge
database by clicking on a link that automatically replaces the Engage Knowledge
identifier on the user's computer. We believe that these protections and our
dual blind identification technology are essential to allow sites to
responsibly use global anonymous profiles for their own enterprise
applications.
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We actively participate in the development of privacy standards for the
Internet and are a key contributor to industry groups that are developing
industry standards for privacy. For example, we are a co-author of several of
the specifications of the World Wide Web Consortium's Platform for Privacy
Preferences Project, supported by AOL/Netscape, AT&T, IBM, Microsoft and
others, which seeks to develop an industry standard that will allow Web users
to express their privacy preferences about the type and amount of information
they are willing to share with Web applications. We believe our products will
support the standards that are ultimately produced by this project. We have
also authored a proposed protocol for the distribution of privacy labels for
Web cookies as part of privacy standards developed by the Internet Engineering
Task Force. We are a participant on the board of advisors of TRUSTe, of which
we are a corporate sponsor. TRUSTe is a non-profit organization with the goal
of promoting the adoption of fair information practices on the Web through a
program which permits Web sites to display a seal representing compliance with
TRUSTe privacy guidelines. Engage is also a member of the Online Privacy
Alliance, which is an organization dedicated to improving the protection of
individuals' privacy online through self regulatory efforts. We actively
monitor proposed privacy laws and regulations and seek to comply with all
applicable privacy requirements, both in the United States and throughout the
world.
Operating Infrastructure
Engage's operating infrastructure has been designed to support the combined
volumes of its largest Web site customers. Engage's data center operations are
provided by NaviSite, an affiliate of CMGI, and are located in Andover,
Massachusetts. Engage's infrastructure is designed for maximum reliability,
including redundant network access, backup power pools and advanced network
security. NaviSite provides comprehensive facilities management services,
including monitoring and support 24 hours per day, seven days per week.
Engage operations are run by a variety of Sun Enterprise servers of various
sizes to support its AdBureau and Engage Knowledge operations. All of Engage's
production data is archived nightly to offline, offsite storage.
NaviSite's facilities are powered by multiple uninterruptible power supplies
and contain smoke and heat detection, fire suppression, fluid detection and
other disaster protection systems. Engage's data center operations are
controlled using strict password management and physical security measures.
Intellectual Property
We have filed for patents covering our profiling algorithm and our dual-
blind methodology for protecting end-user privacy. The profiling algorithm
patent application covers the process and algorithm for creating user interest
profiles from behavioral data. The dual-blind methodology patent application
covers the process of identifying visitors uniquely at each Web site while
maintaining a central database of cross-referenceable identifiers and allowing
Web sites to access globally-derived data only via their local identifier.
There can be no assurance that any of our patent applications will be granted.
Even if they are granted, these patents may be successfully challenged by
others or invalidated.
The Engage Knowledge database contains detailed information about millions
of Web users. We believe we have rights to this database's entire data content,
all records and all derived information from the database as a whole, all
updating routines and quality assurance processes and all underlying data
warehousing technology. However, there can be no assurance that any patent,
trade secret or other intellectual property protection will be available for
such information.
We rely upon a combination of patent, trade secret, copyright and trademark
laws to protect our intellectual property. We also limit access to and
distribution of our proprietary information. However, the steps we take to
protect our intellectual property may not be adequate to deter misappropriation
of our proprietary information. In addition, we may be unable to detect
unauthorized uses of and take appropriate steps to enforce our intellectual
property rights.
Although we believe that our services and products do not infringe on the
intellectual
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property rights of others, we are subject to the risk that such a claim may be
asserted against us in the future.
Competition
The market for Internet marketing solutions, including consumer profiling,
online advertising services and systems, and Web site traffic analysis is new,
rapidly evolving and intensely competitive. Engage expects competition to
increase both from existing competitors and new market entrants for various
components of its services. Engage competes primarily on the basis of its
product features and performance, such as its scalable, application-independent
technology and the anonymity and quality of its global database of profiles,
level of service and, to a lesser extent, on price.
Profiling Solutions
Engage competes directly with providers of profiling technology, such as
Personify, and indirectly with applications that include more limited profiling
capability integrated into their solution, such as BroadVision and Vignette.
NetGravity, through a partnership with Aptex and MatchLogic, and businesses
that offer cash or other incentives to users to voluntarily provide profile
data have indicated their intent to compete in the global profiling solutions
market. Engage also competes with companies such as DoubleClick and MatchLogic
that have the ability to aggregate large quantities of customer behavior data
across the Web.
Online Advertising Systems and Services
The primary competitors to Engage's Accipiter AdManager software are
providers of ad serving systems, such as NetGravity and Real Media. In the
outsourced ad serving market, Engage's Accipiter AdBureau service competes with
providers of ad serving services, such as those offered by Adforce and
DoubleClick.
Web Site Traffic Measurement, Auditing and Analysis
The primary competitors for I/PRO's NetLine Web measurement service and the
Engage DecisionSupportServer product are companies offering outsourced
solutions or software solutions, such as Accrue, Andromedia, net.Genesis and
WebTrends. Nielsen I/PRO I/Audit service competes with auditing services from
ABC Interactive, BPA and PricewaterhouseCoopers.
Many of Engage's current competitors, as well as a number of potential new
competitors, have longer operating histories, greater name recognition and
substantially greater financial, technical and marketing resources than Engage.
Engage's current and potential competitors also may have more extensive
customer bases and larger proprietary databases. In addition, current and
potential competitors have established or may establish cooperative
relationships among themselves or with third parties to more effectively
distribute their products or to enhance their product and service offerings.
In addition to these current and potential commercial competitors, Engage
also faces competition from the internal capabilities of some potential
customers. Some of the largest Web publishers use internally developed
interactive marketing solutions rather than the commercial solutions offered by
Engage and its competitors. There can be no assurance that Engage will be able
to compete successfully with these internally developed solutions.
Increased competition may result in price reductions, reduced gross margins
and loss of market share, any of which could have a material adverse effect on
Engage's business, financial condition and results of operations. There can be
no assurance that Engage will be able to compete successfully against existing
or potential competitors or that competitive pressures will not have a material
adverse effect on Engage's business, financial condition and results of
operations.
Employees
As of April 30, 1999, Engage had 209 employees and 40 contractors. Employees
included 57 in development, 63 in customer support and operations, 66 in
selling and marketing, and 23 in administration. Of these,
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<PAGE>
203 employees were located in the United States and 6 in Europe. Included in
the 40 contractors are 11 offshore contract developers in India.
Engage believes that its future success is dependent on attracting and
retaining highly skilled engineering, sales and marketing, and senior
management personnel. Competition for such personnel is intense, and there can
be no assurance that Engage will continue to be able to attract and retain
high-caliber employees. Engage believes that the use of offshore developers
gives it access to scarce technical talent at a favorable cost.
Engage is not subject to any collective bargaining agreements and believes
that its relationship with its employees is good.
Facilities
Engage's principal executive offices are located in Andover, Massachusetts,
with an engineering center in Raleigh, North Carolina, and offices in Redwood
City and San Francisco, California and a sales office in London. Consisting of
an aggregate of approximately 55,000 square feet, these facilities are
currently leased to the Company under leases which are allocated to Engage from
CMGI on a headcount basis or expire in 1999, 2002 and 2004, respectively.
Engage also leases space for its sales and marketing efforts in New York and
the United Kingdom. Engage believes that suitable additional space to
accommodate the anticipated growth will be available in the future on
commercially reasonable terms.
Legal Proceedings
Engage is not a party to any material legal proceedings.
49
<PAGE>
MANAGEMENT
Directors and Executive Officers
The following table sets forth the directors and executive officers of
Engage, their ages and their positions with Engage as of April 30, 1999.
<TABLE>
<CAPTION>
Name Age Position
- --------------------------- --- -----------------------------------------------
<S> <C> <C>
Paul L. Schaut............. 39 Chief Executive Officer, President and Director
David A. Fish.............. 43 Chief Operating Officer
Daniel J. Jaye............. 34 Chief Technology Officer
Stephen A. Royal........... 43 Chief Financial Officer and Treasurer
David S. Wetherell......... 44 Chairman of the Board of Directors
Edward A. Bennett.......... 52 Director
Christopher A. Evans....... 33 Director
Craig D. Goldman........... 55 Director
Andrew J. Hajducky III..... 45 Director
Fredric D. Rosen........... 55 Director
</TABLE>
Paul L. Schaut has served as Chief Executive Officer, President and a
director of Engage since December 1997. Prior to joining Engage, Mr. Schaut was
Vice President of Strategic Partnering for Open Market, Inc., a provider of
electronic commerce software, from January 1997 until November 1997. Prior to
joining Open Market, Mr. Schaut served as Vice President of Sales and Marketing
for ONTOS, Inc., a software company, from March 1995 until December 1996 and as
Managing Director of InterSystems Corporation, a software database company,
from April 1988 until March 1995.
David A. Fish has served as Chief Operating Officer of Engage since January
1999 and served as Vice President of Marketing from April 1998 until December
1998. Mr. Fish is the founder of Rocket Science Software, Inc. and served as
its full time President from October 1997 until April 1998. Prior to that, Mr.
Fish was Division Manager of Knowledge Services at Context Media, LLC, a
knowledge management consulting and software company, from June 1996 until
September 1997. From August 1993 until May 1996, Mr. Fish served as President
and Chief Executive Officer of Narrowcast Technologies Inc., an electronic
publishing and multimedia consulting company, which he founded. Prior to that,
from October 1990 until July 1993, he was Engineering Director of the One
Source Division at Lotus Development Corporation, a software company. Mr. Fish
was Vice President of Marketing of Articulate Systems, Inc., a voice
recognition start-up company, from March 1989 until September 1990. From June
1980 until February 1989, he occupied various positions at Epsilon Data
Management, Inc., a provider of marketing database services.
Daniel J. Jaye has served as Engage's Chief Technology Officer since
September 1995. Prior to joining Engage, Mr. Jaye was Director of High
Performance Computing for Fidelity Investments, a financial services firm, from
February 1993 until September 1995. Prior to joining Fidelity Investments, Mr.
Jaye was a technical manager for Epsilon Data Management, a provider of
marketing database services, from 1991 until 1993 and a Senior Consultant for
Andersen Consulting from 1987 until 1991.
Stephen A. Royal has served as Chief Financial Officer and Treasurer of
Engage since March 1998. Prior to joining Engage, Mr. Royal was Senior Vice
President and Chief Financial Officer and later Chief Administrative Officer of
Omega Performance Corporation, an interactive multimedia training software and
consulting company, from January 1992 until March 1998.
David S. Wetherell has served as a director and Chairman of the Board of
Engage since July 1995. Mr. Wetherell has served as Chairman of the Board,
President, Chief Executive Officer and Secretary of CMGI since 1986 and as a
member of CMG@Ventures I, LLC, a venture capital firm subsidiary of CMGI,
50
<PAGE>
and President of CMG@Ventures, Inc., the managing partner of CMG@Ventures I,
LLC, since January 1995. He is also a managing member of CMG@Ventures II, LLC,
CMG@Ventures III, LLC and @Ventures Management, LLC, which are also strategic
investment and development venture capital subsidiaries or affiliates of CMGI.
From 1982 until joining CMGI in 1986, Mr. Wetherell was a co-founder and
President of Softrend, Inc., a microcomputer software publisher. Mr. Wetherell
is also the founder of BookLink Technologies, Inc., a CMGI subsidiary that was
sold to America Online in 1994.
Edward A. Bennett has served as a director of Engage since January 1999 and
as President of Bennett Media Collaborative, a media consulting company, from
January 1997 until the present. From April 1995 until July 1996, Mr. Bennett
was Chief Executive Officer of Prodigy, Inc., an online service provider.
Prior to joining Prodigy, he served as President and Chief Executive Officer
of VH-1 cable music channel, a division of Viacom, Inc., from 1989 until 1993
and as Executive Vice President and Chief Operating Officer of Viacom Cable, a
division of Viacom from 1979 until 1989.
Christopher A. Evans has served as a director of Engage since January 1999.
Since May 1999 Mr. Evans has served as a private consultant to Engage. From
April 1998 to May 1999, Mr. Evans managed Engage's Accipiter business unit.
From October 1992 until June 1996, Mr. Evans was the principal owner of
Hotlinx, LLC, a printing and online publishing company. Prior to that, from
1985 until 1992, Mr. Evans served as Executive Vice President of DaVinci
Systems, a software company, which he co-founded.
Craig D. Goldman has served as a director of Engage since March 1998 and as
a director of CMGI since June 1997. Mr. Goldman has served as President and
Chief Executive Officer of Cyber Consulting Services Corp. since March 1996.
Prior to that, Mr. Goldman held various positions at The Chase Manhattan Bank,
including Chief Information Officer from 1991 until February 1998.
Andrew J. Hajducky, III has served as a director of Engage since December
1995. Mr. Hajducky has served as Chief Financial Officer and Treasurer of CMGI
since October 1995 and as a member of CMG@Ventures I, LLC, a venture capital
firm subsidiary of CMGI, since January 1995. He is also a managing member of
CMG@Ventures II, LLC, CMG@Ventures III, LLC and @Ventures Management, LLC,
which are strategic investment and development venture capital subsidiaries or
affiliates of CMGI. From April 1984 to October 1995, Mr. Hajducky was the
Entrepreneurial Services Partner of the Merger and Acquisition division of
Ernst & Young LLP. Previously, Mr. Hajducky was the Chief Financial Officer of
Mountain International Company/AccuTel, Inc., a telecommunications and
software company.
Fredric D. Rosen has served as a director of Engage since June 1999. Since
June 1998, Mr. Rosen has been self-employed and has consulted on a part-time
basis. Prior to that, from September 1982 to June 1998, Mr. Rosen served as
President and Chief Executive Officer of Ticketmaster Group, Inc., a provider
of automated ticketing services. Mr. Rosen currently serves on the board of
directors of King World Productions, Inc.
----------------
All directors serve for one-year terms until the next annual meeting of
stockholders and until their successors are duly elected and qualified.
Each executive officer is elected by, and serves at the discretion of, the
board of directors. Each of Engage's executive officers and directors, other
than nonemployee directors, devotes his full time to the affairs of Engage.
There are no family relationships among any of the directors or executive
officers of Engage.
Board Committees
Engage has an audit committee and compensation committee of the board of
directors. The audit committee reviews the results and scope of audits and
other services provided by Engage's independent accountants. The audit
committee also reviews Engage's system of internal accounting and financial
controls. The audit committee consists of Messrs. Bennett, Goldman and
Hajducky.
The compensation committee of the board of directors reviews and recommends
to the
51
<PAGE>
Board the compensation and benefits of all executive officers of Engage,
administers Engage's stock option plans and establishes and reviews general
policies relating to compensation and benefits of employees of Engage. The
compensation committee consists of Messrs. Bennett, Goldman and Wetherell.
Except as set forth in "Transactions and Relationship Between Engage and CMGI",
no interlocking relationships exist between Engage's board of directors or
compensation committee and the board of directors or compensation committee of
any other company.
Director Compensation
Non-employee directors are reimbursed for their reasonable out-of-pocket
expenses incurred in attending meetings of the board of directors or of any
committee thereof. Engage intends to grant Messrs. Evans and Rosen each an
option to purchase 50,000 shares of its common stock, to vest over a five-year
period, at an exercise price of $11.00 per share. Mr. Goldman has been granted
an option to purchase 100,000 shares of Engage common stock, vesting over a
four-year period, at an exercise price of $0.24 per share. Mr. Bennett has been
granted an option to purchase 50,000 shares of Engage common stock, vesting
over a four-year period, at an exercise price of $4.19 per share.
In May 1999, Engage and Mr. Evans entered into a consulting, invention and
non-disclosure agreement under which Mr. Evans provides programming and other
technical services to Engage. This agreement may be terminated at any time upon
90 days notice by Mr. Evans or Engage.
No director who is an employee of Engage receives separate compensation for
services rendered as a director.
Executive Compensation
The following table sets forth the total compensation paid or accrued for
the fiscal year ended July 31, 1998 for Messrs. Schaut and Jaye, who were the
only Engage executive officers whose salary and bonus for such fiscal year were
in excess of $100,000.
Summary Compensation Table
<TABLE>
<CAPTION>
Long-term
Annual Compensation Compensation
------------------- --------------------- All other
Name and Principal Position Salary Bonus Awards compensation
- --------------------------- ------------------- --------------------- ------------
Securities Underlying
Options(1)
<S> <C> <C> <C> <C>
Paul L. Schaut
Chief Executive Offi-
cer................... $ 109,375 $ 25,000 600,000(ENGA) $ --
80,000(CMGI)
Daniel J. Jaye
Chief Technology Offi-
cer................... 118,295 115,500(2) -- 3,529(3)
</TABLE>
- ---------------------
(1) Mr. Schaut received options to purchase Engage common stock (designated in
the table as ENGA) and CMGI common stock (designated in the table as CMGI).
(2) Includes $100,000 bonus paid to Mr. Jaye for his contribution in the sale
of some of Engage's technology to Red Brick Systems, Inc.
(3) Represents the amount of matching contributions made by Engage under the
CMGI 401(k) plan.
52
<PAGE>
Option Grants In Last Fiscal Year
The following table sets forth grants of stock options to Mr. Schaut for the
fiscal year ended July 31, 1998. The exercise price per share of each option
was equal to the fair market value of the common stock on the date of grant as
determined by the board of directors. The potential realizable value is
calculated based on the term of the option at its time of grant (five years).
It is calculated assuming that the fair market value of common stock on the
date of grant appreciates at the indicated annual rate compounded annually for
the entire term of the option, and that the option is exercised and sold on the
last day of its term for the appreciated stock price. These numbers are
calculated based on the requirements of the Securities and Exchange Commission
and do not reflect Engage's estimate of future stock price growth. Mr. Jaye
received no options to purchase either Engage common stock or CMGI common stock
in fiscal 1998.
Option Grants In Last Fiscal Year
<TABLE>
<CAPTION>
Individual Grants
--------------------------------------------------
Potential Realizable
Value at Assumed
Number of Percent of Total Annual Rates of
Securities Options Stock Price Appreciation
Underlying Granted to Exercise for Option Term
Options Employees Price Expiration ------------------------
Name Granted in Fiscal Year Per Share Date 5% 10%
- ------------------------ ---------- ---------------- --------- ---------- ----------- ------------
<S> <C> <C> <C> <C> <C> <C>
Paul L. Schaut.......... 600,000(1) 18.2% $0.19 11/09/02 $ 30,669 $ 67,766
80,000(2) 2.9 2.32 10/26/02 51,116 112,943
</TABLE>
- ---------------------
(1) Represents grants of options to purchase Engage common stock, exercisable
as to 25% of the shares after the first year and the remaining 75% vesting
monthly for the next 36 months thereafter.
(2) Represents grants of options to purchase CMGI common stock, exercisable as
to 25% of the shares after the first year and the remaining 75% vesting
monthly for the next 36 months thereafter.
In fiscal 1998, Engage granted to Mr. Fish an option to purchase 200,000
shares of common stock at an exercise price of $0.24 per share and to Mr. Royal
an option to purchase 100,000 shares of common stock at an exercise price of
$0.24 per share and an option to purchase 50,000 shares of common stock at an
exercise price of $2.38 per share.
53
<PAGE>
Aggregate Option Exercises and Fiscal Year End Option Values
The following table sets forth information regarding exercisable and
unexercisable stock options held as of July 31, 1998 by Messrs. Schaut and
Jaye. There was no public trading market for our common stock as of July 31,
1998. Accordingly, the value of Engage options has been calculated by
determining the difference between the exercise price per share and an assumed
initial public offering price of $10.00 per share.
Aggregate Option Exercises and Fiscal Year End Option Values
<TABLE>
<CAPTION>
Number of Securities
Underlying Unexercised Value of Unexercised
Shares Options at In-the-Money Options at
Acquired Fiscal Year-End Fiscal Year-End
on Value ------------------------- ---------------------------
Name Company Exercise Realized Exercisable Unexercisable Exercisable Unexercisable
- ------------------------ ------- -------- -------- ----------- ------------- ----------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
Paul L. Schaut.......... Engage -- $ -- 0 600,000 $ -- $5,886,000
CMGI -- -- 0 80,000 -- 1,777,500(1)
Daniel J. Jaye.......... Engage -- -- 383,330 216,670 3,796,913 2,131,087
CMGI 8,000 43,625(2) 13,998 10,002 215,875(1) 154,249(1)
</TABLE>
- ---------------------
(1) Based on the difference between the option exercise price and $17.03, which
was the closing price of the CMGI common stock on July 31, 1998.
(2) Based on the closing price of the CMGI common stock on the date of exercise
less the option exercise price.
54
<PAGE>
Stock Plans
1995 Equity Incentive Plan
The 1995 Equity Incentive Plan provides for the issuance of a maximum of
15,000,000 shares of common stock. Under the 1995 Equity Incentive Plan, Engage
is authorized to grant incentive stock options, non-qualified stock options,
stock appreciation rights and restricted stock awards to employees, consultants
and directors. In general, options granted pursuant to the 1995 Equity
Incentive Plan expire within five years after the original grant date. The
board of directors or an appropriate committee of the Board has the right, at
its discretion, to accelerate the vesting of unexercisable options upon a
change of control of Engage. Options are not assignable or transferable except
by will or the laws of descent or distribution. As of April 30, 1999, an
aggregate of 6,467,794 shares of common stock at a weighted average price of
$2.16 per share were outstanding under the 1995 Equity Incentive Plan.
1999 Employee Stock Purchase Plan
The 1999 Employee Stock Purchase Plan was adopted by our board of directors
in June 1999. The 1999 Employee Stock Purchase Plan provides for the issuance
of a maximum of 750,000 shares of common stock.
The 1999 Employee Stock Purchase Plan will be administered by the
compensation committee. All employees of Engage whose customary employment is
for more than 20 hours per week and for more than 6 months in any calendar year
are eligible to participate in the 1999 Employee Stock Purchase Plan. Employees
who would own 5% or more of the total combined voting power or value of
Engage's stock immediately after the grant of the option may not participate in
the 1999 Employee Stock Purchase Plan. To participate in the 1999 Employee
Stock Purchase Plan, an employee must authorize us to deduct an amount, not
less than one percent nor more than 10 percent of a participant's total cash
compensation, from his or her pay during three month plan periods. The exercise
price for the option granted in each payment period is 85% of the lesser of the
last reported sale price of the common stock on the first or last business day
of the plan period.
1999 Stock Option Plan for Non-Employee Directors
The 1999 Stock Option Plan for Non-Employee Directors was adopted by our
board of directors in June 1999. Under the terms of the 1999 Stock Option Plan
for Non-Employee Directors, directors who are not employees of Engage or any
subsidiary of Engage and not affiliates of an institutional investor that owns
shares of Engage's common stock receive nonstatutory options to purchase shares
of Engage's common stock. A total of 250,000 shares of common stock may be
issued upon exercise of options granted under the plan. The board of directors
has discretion to establish the terms of options granted under the plan. All
options must have an exercise price equal to the fair market value of the
common stock on the date of grant.
55
<PAGE>
TRANSACTIONS AND RELATIONSHIP BETWEEN
ENGAGE AND CMGI
Engage was incorporated in July 1995 as a wholly owned subsidiary of CMGI.
CMGI currently owns approximately 96% of Engage's common stock, assuming the
conversion of the convertible note and shares of convertible preferred stock
held by CMGI as of April 30, 1999, and will own 83% upon the closing of this
offering.
CMGI has the power to elect the entire board of directors of Engage and to
approve or disapprove any corporate transactions or other matters submitted to
Engage stockholders for approval, including the approval of mergers or other
significant corporate transactions. CMGI also holds a majority ownership
position in many of Engage's customers and in NaviSite, which provides data
center operations to Engage.
Upon the completion of this offering, Engage and CMGI will enter into the
agreements described below for the purpose of defining various present and
prospective arrangements and transactions between them. These agreements were
negotiated between a parent and its subsidiary and therefore are not the result
of negotiations between independent parties. Engage and CMGI intend that these
agreements and the transactions provided for in such agreements, taken as a
whole, accommodate their respective interests in a manner that is fair to both
Engage and CMGI. However, because of the complex nature of the various
relationships between Engage, CMGI and various CMGI subsidiaries and
affiliates, there can be no assurance that each of the agreements described
below, or the transactions provided for in the agreements, were effected on
terms at least as favorable to Engage as Engage could have obtained from
unaffiliated third parties.
Engage, CMGI and their respective subsidiaries may enter into additional or
modified arrangements and transactions in the future. Engage, CMGI or their
respective subsidiaries, as the case may be, will negotiate the terms of such
arrangements and transactions. Engage expects to adopt a policy that all future
arrangements between Engage and CMGI and their respective subsidiaries will be
on terms that Engage believes are no less favorable to Engage than the terms
Engage believes would be available from unaffiliated parties and must be
approved by a majority of Engage's directors who are not employees of CMGI,
even though such directors may be less than a quorum.
The following is a summary of the material arrangements and transactions
between Engage and CMGI.
Debt Conversion
In July 1998, Engage issued 800,000 shares of its Series A convertible
preferred stock to CMGI in exchange for (i) cancellation of $8.0 million of
intercompany debt and (ii) shares of common stock of Engage previously held by
CMGI. In July 1998, Engage issued 700,000 shares of its Series A convertible
preferred stock to CMGI pursuant to the merger agreement between Engage and
Accipiter. CMGI currently owns 1,500,000 shares of Engage's Series A
convertible preferred stock at an average purchase price of $2.67 per share.
Each share of Series A convertible preferred stock will convert into 20 shares
of common stock upon the consummation of this offering.
Engage has issued a secured convertible demand note to CMGI in exchange for
the cancellation of all intercompany debt incurred by Engage to CMGI prior to
February 1, 1999. This note provides that CMGI may elect to convert amounts
payable under the note into Series C convertible preferred stock at any time.
The amount of each borrowing represented by the note is convertible into shares
of Series C convertible preferred stock at the fair market value of such shares
as of the end of the fiscal quarter in which the borrowing was made. In April
1999, Engage borrowed $22,086,307 from CMGI in connection with the acquisition
of I/PRO. Such borrowings are convertible into Series C convertible preferred
stock at a common equivalent price of $5.06 per share. Additional intercompany
debt incurred after February 1, 1999 accrues interest at a rate of 7% per year
compounded monthly until the day CMGI elects to convert the debt into shares of
Series C convertible preferred stock.
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<PAGE>
All notes held by CMGI were converted into Series C convertible preferred stock
in May 1999. Each share of Series C convertible preferred stock will convert
into twenty shares of common stock upon the completion of this offering.
The following table illustrates the amount of indebtedness of Engage to CMGI
as of April 30, 1999 and the terms on which it has been converted into Series C
convertible preferred stock:
<TABLE>
<CAPTION>
Number of Shares of Series C Per Share Common
Preferred Stock Issued Equivalent
Date of Incurrence Amount of Indebtedness Upon Conversion Conversion Price
- ------------------------ ---------------------- ---------------------------- ----------------
<S> <C> <C> <C>
April 30, 1998.......... $ 5,334,605 112,307 $2.38
July 31, 1998........... 2,418,456 34,798 3.48
October 31, 1998........ 598,117 7,037 4.25
January 31, 1999........ 996,273 10,229 4.87
April 7, 1999........... 22,086,307(1) 218,460 5.06
April 30, 1999.......... 5,531,871 30,733 9.00
</TABLE>
- --------
(1) Excludes $481,221 recorded as additional debt to CMGI pursuant to Engage's
recording the value of the CMGI shares contributed by CMGI for the I/PRO
acquisition. Under an informal agreement with CMGI, Engage anticipates that
this amount will be recorded as additional paid in capital upon the
ultimate conversion of the CMGI debt.
Engage expects to borrow additional amounts from CMGI to fund its operations
prior to the closing of this offering, and such borrowings and accrued
interest, net of any repayments, will be converted into additional shares of
common stock at the initial public offering price upon the closing of this
offering.
Facilities and Administrative Support Agreement
Upon the closing of this offering, CMGI and Engage will enter a facilities
and administrative support agreement under which CMGI will continue to make
available space at its headquarters in Andover, Massachusetts and will provide
various services to Engage, including tax and administrative, computer and
information systems, telecommunications and utilities. Under this agreement,
CMGI has also agreed to make available to Engage at least 28,000 square feet of
space at its headquarters facilities, subject to termination upon at least 12
months' notice by CMGI. The fees payable by Engage for the availability of
space and other services are typically determined through an allocation of
CMGI's costs based upon the proportion of Engage's employee headcount to the
total headcount of CMGI and other CMGI-related companies located in the same
facility or using the same services.
In fiscal 1998 and the nine months ended April 30, 1999, Engage paid CMGI
$339,000 and $365,000 or services similar to those provided under the
administrative support agreement.
Tax Allocation Agreement
Upon the closing of this offering, Engage will enter into a tax allocation
agreement with CMGI to allocate responsibilities, liabilities and benefits
relating to taxes. Engage will be required to pay its share of income taxes
shown as due on any consolidated, combined, or unitary tax returns filed by
CMGI for tax periods ending on or before or including the date on which date
Engage will no longer be a member of CMGI's group for federal, state, or local
tax purposes, as the case may be. CMGI will indemnify Engage against liability
for all taxes in respect of consolidated, combined, or unitary tax returns for
such periods. Accordingly, any redetermined tax liabilities for such periods
will be the responsibility of CMGI, and any refunds or credits of taxes
attributable to Engage or its subsidiaries in respect of consolidated,
combined, or unitary tax returns for such periods will be for the account of
CMGI. Engage will be responsible for filing any separate tax returns for any
taxable period and will be responsible for any tax liabilities (and entitled to
any refunds or credits of taxes) in respect of such returns. Engage will
indemnify CMGI against liability for such taxes.
57
<PAGE>
Neither CMGI nor Engage will have any obligation to make any payment to the
other party for the use of such other party's tax attributes such as net
operating losses. However, if one party realizes a windfall tax benefit because
of an adjustment to items on the other party's tax return, the party that
realizes the windfall tax benefit will be required to pay to the other party
the actual incremental tax savings it has realized. For example, if an expense
deducted by CMGI for a period prior to the closing date were disallowed and
required to be capitalized by Engage for a period after the closing date,
thereby generating future depreciation deductions to Engage, Engage would be
required to pay to CMGI any incremental tax savings as a result of such
depreciation deductions when such tax savings are actually realized by Engage.
Each of Engage and CMGI has control of any audit, appeal, litigation or
settlement of any issue raised with respect to a tax return for which it has
filing responsibility. Payments of claims under the agreement must be made
within 30 days of the date that a written demand for the claim is delivered.
Interest accrues on payments that are not made within 10 days of the final due
date at the rate applicable to under payments of the applicable tax. Any
dispute concerning the calculation or basis of determination of any payment
provided under the tax allocation agreement will be resolved by a law firm or
"big five" accounting firm selected and paid for jointly by the parties.
Investor Rights Agreement
Upon the closing of the offering, Engage and CMGI will enter into an
investor rights agreement under which Engage will grant CMGI registration
rights and rights to purchase shares to maintain its majority ownership. Under
this agreement, CMGI and its assignees will have the right to demand, on up to
seven occasions, that Engage register under the Securities Act the sale of all
or part of their shares of Engage common stock. CMGI and its assignees are also
entitled to include shares of Engage common stock in a registered offering of
securities by Engage for its own account, subject to the underwriters' right to
reduce the number of included shares. Engage will pay all costs associated with
such registration of shares pursuant to this agreement, other than underwriting
discounts and commissions and various other expenses. Also under this
agreement, until such time as CMGI, or any permitted transferee, owns less than
a majority of voting power of the outstanding shares of capital stock of
Engage, Engage will permit CMGI, or the transferee, to purchase a portion in
any shares that it may in the future issue so that CMGI or the transferee may
maintain its majority ownership position. Any such purchases will be at the
same price as is paid by third parties for the shares. This right is
transferable by CMGI to any party that acquires directly from CMGI shares of
common stock representing at least a majority of the outstanding shares of
common stock of Engage.
Other Transactions with CMGI Affiliates
Engage outsources its data center operations for Engage Knowledge and its
AdBureau advertising management service to NaviSite, a CMGI affiliate. For
Engage Knowledge, Engage leases computer equipment and space for equipment from
NaviSite. Engage pays NaviSite fees based on the amount of space and amount of
telecommunications services used by NaviSite to support Engage Knowledge. For
AdBureau, NaviSite provides comprehensive operational and facilities support.
Engage pays NaviSite a percentage of AdBureau revenue. Engage also leases
office computer equipment from NaviSite. Engage expects to continue to
outsource its data center operations to NaviSite and to lease computer
equipment and space for such equipment from NaviSite. Engage paid a total of
$1.2 million, $889,000 and $1.6 million to NaviSite for these services in
fiscal 1997, fiscal 1998 and the nine months ended April 30, 1999.
Engage sells its products and services to customers affiliated with CMGI. In
fiscal 1998 and the nine months ended April 30, 1999, revenue of Engage from
sales to these affiliated companies totalled $235,000 and $1.4 million.
58
<PAGE>
SECURITY OWNERSHIP OF PRINCIPAL STOCKHOLDER AND MANAGEMENT
Principal Stockholder
The following table sets forth information with respect to beneficial
ownership of Engage common stock by CMGI as of April 30, 1999, and as adjusted
to reflect the sale of the shares of common stock offered by Engage in this
offering. CMGI is the only person or entity that owns beneficially more than 5%
of the outstanding shares of common stock. The shares of common stock shown as
held by CMGI include shares issuable upon conversion of convertible preferred
stock and convertible notes held by CMGI as of April 30, 1999. See
"Transactions and Relationship Between Engage and CMGI --Debt Conversion".
<TABLE>
<CAPTION>
Percentage of
Outstanding Shares
Beneficially Owned
Name and Address of Shares of Common Stock ------------------------------
Beneficial Owner Beneficially Owned Before Offering After Offering
- ------------------------ ---------------------- --------------- --------------
<S> <C> <C> <C>
CMGI, Inc. ............. 38,271,280 95.7% 83.2%
100 Brickstone Square
Andover, MA 01810
</TABLE>
Management
The following table sets forth information with respect to beneficial
ownership of the common stock of Engage and CMGI, as of April 30, 1999, for (i)
each director of Engage; (ii) each executive officer named in the Summary
Compensation Table; and (iii) all directors and executive officers of Engage as
a group.
Beneficial ownership is determined in accordance with the rules of the
Securities and Exchange Commission and includes voting or investment power with
respect to the securities. Except as indicated by footnote, and subject to
applicable community property laws, the persons named in the table have sole
voting and investment power with respect to all shares of common stock shown as
beneficially owned by them. The number of shares of common stock outstanding
used in calculating the percentage for each listed person includes the shares
of common stock underlying options held by such person that are exercisable
within 60 days of April 30, 1999, but excludes shares of common stock
underlying options held by any other person. Percentage of beneficial ownership
is based on 39,973,798 shares of common stock outstanding as of April 30, 1999,
after giving effect to the conversion of outstanding convertible notes and
convertible preferred stock.
<TABLE>
<CAPTION>
Percentage Percentage
Shares of Engage Ownership Shares of CMGI Ownership
Name Common Stock of Engage Common Stock of CMGI
- ------------------------ ---------------- ---------- -------------- ----------
<S> <C> <C> <C> <C>
Paul L. Schaut.......... 237,500(1) * 5,000(1) *
Daniel J. Jaye.......... 516,666(1) 1.3% 5,332(1) *
David S. Wetherell...... 38,271,280(2) 95.7 10,772,224(3) 11.2%
Edward A. Bennett....... 0 * 0 *
Christopher A. Evans.... 70,000(1) * 0 *
Craig D. Goldman........ 31,250(1) * 195,200(1) *
Andrew J. Hajducky,
III.................... 38,271,280(2) 95.7 68,742(4) *
Fredric D. Rosen........ 0 * 0 *
All directors and
executive officers as a
group (10 persons)..... 39,228,780(5) 95.8% 11,046,498(6) 11.3%
</TABLE>
- ---------------------
* Denotes less than 1% beneficial ownership.
(1) Consists of shares issuable upon the exercise of options exercisable within
60 days of April 30, 1999.
59
<PAGE>
(2) Consists of shares owned by CMGI on an as converted basis. Messrs.
Wetherell and Hajducky disclaim beneficial ownership of all 38,271,280
shares.
(3) Includes 2,305,888 shares issuable upon the exercise of outstanding options
that are exercisable within 60 days of April 30, 1999. Includes 1,701,732
shares held in trust for the benefit of Mr. Wetherell's minor children and
23,372 shares held by Mr. Wetherell and his wife as trustees for the David
S. Wetherell Charitable Trusts, for which 1,725,104 shares Mr. Wetherell
disclaims beneficial ownership.
(4) Includes 47,990 shares issuable upon the exercise of outstanding options
that are exercisable within 60 days of April 30, 1999.
(5) Includes 957,500 shares issuable upon the exercise of outstanding options
that are exercisable within 60 days of April 30, 1999.
(6) Includes 2,439,410 shares issuable upon the exercise of outstanding options
that are exercisable within 60 days of April 30, 1999.
60
<PAGE>
DESCRIPTION OF CAPITAL STOCK
Effective upon the closing of this offering and the filing of Engage's
amended and restated certificate of incorporation, the authorized capital
stock of Engage will consist of 150,000,000 shares of common stock, par value
$.01 per share, and 5,000,000 shares of preferred stock, par value $.01 per
share.
The following summary description of Engage's capital stock, as of the
closing of this offering, is not intended to be complete and is qualified by
reference to the provisions of applicable law and to Engage's amended and
restated certificate of incorporation and amended and restated by-laws filed
as exhibits to the registration statement of which this prospectus is a part.
Common Stock
As of April 30, 1999, there were 39,973,798 shares of common stock
outstanding and held of record by 82 stockholders, after giving effect to the
conversion of all convertible demand notes held by CMGI into convertible
preferred stock and outstanding shares of convertible preferred stock into
common stock upon the closing of this offering. Based upon the number of
shares outstanding as of April 30, 1999 and giving effect to the issuance of
the shares of common stock offered by Engage hereby, there will be shares
of common stock outstanding upon the closing of this offering. In addition, as
of April 30, 1999, there were outstanding stock options for the purchase of a
total of 6,467,794 shares of common stock.
Holders of common stock are entitled to one vote per share for each share
held of record on all matters submitted to a vote of stockholders and do not
have cumulative voting rights. Directors are elected by a plurality of the
votes of the shares present in person or by proxy at the meeting. The holders
of common stock are entitled to receive ratably such lawful dividends as may
be declared by the board of directors. However, such dividends are subject to
preferences that may be applicable to the holders of any outstanding shares of
preferred stock. In the event of a liquidation, dissolution or winding up of
the affairs of Engage, whether voluntarily or involuntarily, the holders of
common stock will be entitled to receive pro rata all of the remaining assets
of Engage available for distribution to its stockholders. Any such pro rata
distribution would be subject to the rights of the holders of any outstanding
shares of preferred stock. The common stock has no preemptive, redemption,
conversion or subscription rights. All outstanding shares of common stock are
fully paid and non-assessable. The shares of common stock to be issued by
Engage in this offering will be fully paid and non-assessable. The rights,
powers, preferences and privileges of holders of common stock are subject to,
and may be adversely affected by, the rights of the holders of shares of any
series of preferred stock that Engage may designate and issue in the future.
Upon the closing of this offering, there will be no shares of preferred stock
outstanding.
Preferred Stock
The board of directors will be authorized, subject to any limitations
prescribed by Delaware law, without further stockholder approval, to issue
from time to time up to an aggregate of 5,000,000 shares of preferred stock,
in one or more series. The board of directors is also authorized, subject to
the limitations prescribed by Delaware law, to establish the number of shares
to be included in each series and to fix the voting powers, preferences,
qualifications and special or relative rights or privileges of each series.
The board of directors is authorized to issue preferred stock with voting,
conversion and other rights and preferences that could adversely affect the
voting power or other rights of the holders of common stock.
Engage has no current plans to issue any preferred stock. However, the
issuance of preferred stock or of rights to purchase preferred stock could
have the effect of making it more difficult for a third party to acquire, or
of discouraging a third party from attemping to acquire, a majority of the
outstanding common stock of Engage.
Registration Rights
The Series B Convertible Preferred Stock Purchase Agreement dated as of
July 31, 1998
61
<PAGE>
provides that the holders of 238,597 shares are entitled to rights with respect
to the registration of such shares under the Securities Act. If Engage proposes
to register any of its securities under the Securities Act, either for its own
account or for the account of another securityholder, the holders are entitled
to notice of such registration and to include their registrable shares in such
registration. However, in the event of a registration pursuant to an
underwritten public offering of common stock, the underwriters shall have the
right to limit the number of shares included in such registration. These rights
terminate for a holder at such time as such holder could sell all of its shares
under Rule 144(k) under the Securities Act. See "Transactions and Relationship
Between Engage and CMGI -- Investor Rights Agreement" for information
concerning registration rights granted to CMGI.
Section 203 of Delaware General Corporation Law
The certificate of incorporation of Engage contains a provision expressly
electing not to be governed by Section 203 of the Delaware General Corporation
Law. In general, Section 203 restricts some business combinations involving
interested stockholders, defined as any person or entity that is the beneficial
owner of at least 15% of a corporation's voting stock or is an affiliate or
associate of the corporation or the owner of 15% or more of the outstanding
voting stock of the corporation at any time in the past three years, or their
affiliates. Because of such election, Section 203 will not apply to Engage.
Limitation of Liability and Indemnification
The certificate of incorporation provides that no director of Engage shall
be personally liable to Engage or to its stockholders for monetary damages for
breach of fiduciary duty as a director, except that the limitation shall not
eliminate or limit liability to the extent that the elimination or limitation
of such liability is not permitted by the Delaware General Corporation Law as
it exists or may later be amended.
The certificate of incorporation further provides for the indemnification of
Engage's directors and officers to the fullest extent permitted by Section 145
of the Delaware General Corporation Law, including circumstances in which
indemnification is otherwise discretionary. In addition, Engage plans to enter
into indemnification agreements with its directors containing provisions which
may require Engage, among other things, to indemnify its directors against
various liabilities that may arise by virtue of their status or service as
directors, and to advance their expenses incurred as a result of any proceeding
against them as to which they could be indemnified.
Stock Transfer Agent
The transfer agent and registrar for the common stock is EquiServe L.P.
62
<PAGE>
SHARES ELIGIBLE FOR FUTURE SALE
Sales of substantial amounts of our common stock in the public market could
adversely affect prevailing market prices of our common stock. Furthermore,
since some shares of common stock will not be available for sale shortly after
this offering because of the contractual and legal restrictions on resale
described below, sales of substantial amounts of common stock in the public
market after these restrictions lapse could adversely affect the prevailing
market price and our ability to raise equity capital in the future.
Upon completion of this offering, we will have outstanding an aggregate of
45,973,798 shares of our common stock assuming no exercise of outstanding
options. Of these shares, all of the shares sold in this offering will be
freely tradable without restriction or further registration under the
Securities Act, unless such shares are purchased by "affiliates" as that term
is defined in Rule 144 under the Securities Act. Of the remaining 39,973,798
shares, all shares are "restricted securities" as that term is defined in Rule
144 under the Securities Act. Restricted securities may be sold in the public
market only if registered or if they qualify for an exemption from registration
under Rule 144 or 701 under the Securities Act, which rules are summarized
below.
Lock-Up Agreements
Stockholders holding an aggregate of 39,281,464 shares of common stock,
including all of our officers and directors, have signed lock-up agreements
with the underwriters under which they agreed not to transfer or dispose of,
directly or indirectly, any shares of common stock or any securities
convertible into or exercisable or exchangeable for shares of common stock, for
a period of 180 days after the date of this prospectus. Transfers or
dispositions can be made sooner:
. with the prior written consent of Goldman, Sachs & Co.;
. in the case of transfers to affiliates;
. as a bona fide gift; or
. to any trust.
Upon expiration of the lock-up period, 180 days after the date of this
prospectus, shares will be available for resale to the public in accordance
with Rule 144.
In addition, stockholders holding an aggregate of 1,010,184 shares have
signed lock-up agreements with CMGI under which they agreed not to transfer or
dispose of, directly or indirectly, any shares of common stock or any
securities convertible into or exercisable or exchangeable for shares of common
stock until April 7, 2000. CMGI has agreed not to waive these restrictions for
a period of 180 days after the date of this prospectus, without the consent of
Goldman Sachs & Co.
Rule 144
In general, under Rule 144 as currently in effect, beginning 90 days after
the date of this prospectus, a person who has beneficially owned shares of our
common stock for at least one year would be entitled to sell within any three-
month period a number of shares that does not exceed the greater of:
. 1% of the number of shares of common stock then outstanding, which will
equal approximately 460,000 shares immediately after this offering; or
. the average weekly trading volume of the common stock on the Nasdaq
National Market during the four calendar weeks preceding the filing of a
notice on Form 144 with respect to such sale.
Sales under Rule 144 are also subject to manner of sale provisions and
notice requirements and to the availability of current public information about
us.
Rule 144(k)
Under Rule 144(k), a person who is not one of our affiliates at any time
during the three months preceding a sale, and who has beneficially owned the
shares proposed to be sold for at least two years, including the holding period
of any prior owner other than an affiliate, is entitled to sell such shares
without complying with the manner of sale, public information, volume
limitation or notice provisions of
63
<PAGE>
Rule 144. Therefore, unless otherwise restricted, "144(k) shares" may be sold
immediately upon the completion of this offering.
Rule 701
In general, under Rule 701 of the Securities Act as currently in effect, any
of our employees, consultants or advisors who purchases shares from us in
connection with a compensatory stock plan or other written agreement is
eligible to resell such shares 90 days after the effective date of this
offering in reliance on Rule 144, but without compliance with various
restrictions, including the holding period, contained in Rule 144.
Registration Rights
Upon completion of this offering, the holders of 38,748,474 shares of our
common stock or their transferees, including CMGI, will be entitled to various
rights with respect to the registration of such shares under the Securities
Act. See "Description of Capital Stock --Registration Rights" and "Transactions
and Relationship Between Engage and CMGI --Investor Rights Agreement".
Stock Options
Ninety days after this offering, Engage intends to file a registration
statement under the Securities Act covering 16,000,000 shares of common stock
reserved for issuance under our 1995 Equity Incentive Plan, 1999 Employee Stock
Purchase Plan and 1999 Stock Option Plan for Non-Employee Directors. Such
registration statement is expected to be filed and become effective 90 days
after the effective date of this offering. Accordingly, shares registered under
such registration statement will, subject to vesting provisions, Rule 144
volume limitations applicable to our affiliates and any applicable lock-up
agreements, be available for sale in the open market 90 days after the
effective date of this offering.
As of April 30, 1999, options to purchase 6,467,794 shares of common stock
were issued and outstanding. Upon the expiration of the lock-up agreements
described above, at least shares of common stock will be subject to vested
options, based on options outstanding as of April 30, 1999.
VALIDITY OF COMMON STOCK
The validity of the common stock offered hereby will be passed upon for
Engage by Hale and Dorr LLP, Boston, Massachusetts and for the underwriters by
Ropes & Gray, Boston, Massachusetts.
EXPERTS
The consolidated balance sheets of Engage Technologies, Inc. and
subsidiaries as of July 31, 1997 and 1998, and as of April 30, 1999, and the
statements of operations, changes in stockholders' equity (deficit) and cash
flows for the three years in the period ended July 31, 1998 and the nine month
period ended April 30, 1999 have been included in reliance on the reports of
KPMG LLP, Engage's independent accountants, given on the authority of that
firm as experts in accounting and auditing.
The balance sheets of Accipiter Inc. as of December 31, 1997 and 1996 and
the statements of operations, stockholders' deficit and cash flows for the year
ended December 31, 1997 and for the period from April 14, 1996 (inception) to
December 31, 1996 have been included in reliance on the reports of KPMG LLP,
Accipiter's independent accountants, given on the authority of that firm as
experts in accounting and auditing.
The balance sheets of Internet Profiles Corporation as of December 31, 1997
and 1998 and the statements of operations, changes in stockholders' equity and
cash flows for the two years ended December 31, 1998 have been included in this
prospectus in reliance on the reports of PricewaterhouseCoopers LLP, Internet
Profiles Corporation's independent accountants, given on the authority of that
firm as experts in accounting and auditing.
64
<PAGE>
AVAILABLE INFORMATION
Engage has filed with the Securities and Exchange Commission, a registration
statement on Form S-1 (including the exhibits and schedules to the registration
statement) under the Securities Act with respect to the shares to be sold in
this offering. This prospectus does not contain all the information set forth
in the registration statement. For further information with respect to Engage
and the shares to be sold in this offering, reference is made to the
registration statement. Statements contained in this prospectus as to the
contents of any contract, agreement or other document referred to, are not
necessarily complete, and in each instance reference is made to the copy of
each contract, agreement or other document filed as an exhibit to the
registration statement.
You may read and copy all or any portion of the registration statement or
any reports, statements or other information Engage files at the Commission's
public reference room at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and at the regional offices of the Commission located at
Seven World Trade Center, 13th Floor, New York, New York 10048 and 500 West
Madison Street, Suite 1400, Chicago, Illinois 60661. You can request copies of
these documents upon payment of a duplicating fee, by writing to the
Commission. Please call the Commission at 1-800-SEC-0330 for further
information on the operation of the public reference rooms. Engage's Commission
filings, including the registration statement will also be available to you on
the Commission's Internet site (http://www.sec.gov).
65
<PAGE>
Index to Financial Statements
<TABLE>
<S> <C>
Engage Technologies, Inc. Page
Independent Auditors' Report.............................................. F-2
Consolidated Balance Sheets as of July 31, 1997 and 1998, and April 30,
1999..................................................................... F-3
Consolidated Statements of Operations for the three years ended July 31,
1998
and for the nine months ended April 30, 1998 (unaudited) and 1999........ F-4
Consolidated Statements of Changes in Stockholders' Equity (Deficit) for
the three years ended July 31, 1998 and for the nine months ended April
30, 1999................................................................. F-5
Consolidated Statements of Cash Flows for the three years ended July 31,
1998
and for the nine months ended April 30, 1998 (unaudited) and 1999........ F-6
Notes to Consolidated Financial Statements................................ F-7
Accipiter, Inc.
Independent Auditors' Report.............................................. F-27
Balance Sheets as of December 31, 1996 and 1997, and March 31, 1998 (unau-
dited)................................................................... F-28
Statements of Operations for the period from April 14, 1996 to December
31, 1996,
for the year ended December 31, 1997, and for the three months ended
March 31, 1997 and 1998 (unaudited)...................................... F-29
Statements of Stockholders' Deficit for the two years ended December 31,
1997
and for the three months ended March 31, 1998 (unaudited)................ F-30
Statements of Cash Flows for the period from April 14, 1996 to December
31, 1996,
for the year ended December 31, 1997, and for the three months ended
March 31, 1997 and 1998 (unaudited)...................................... F-31
Notes to Financial Statements............................................. F-32
Internet Profiles Corporation
Report of Independent Accountants......................................... F-37
Balance Sheets as of December 31, 1997 and 1998 and March 31, 1999
(unaudited).............................................................. F-38
Statements of Operations for the two years ended December 31, 1998 and the
three months ended March 31, 1999 (unaudited)............................ F-39
Statements of Stockholders' Equity (Deficit) for the two years ended
December 31, 1998
and the three months ended March 31, 1999 (unaudited).................... F-40
Statements of Cash Flows for the two years ended December 31, 1998
and the three months ended March 31, 1999 (unaudited).................... F-41
Notes to Financial Statements............................................. F-42
Unaudited Pro Forma Combined Condensed Financial Data for Engage
Technologies, Inc., Accipiter, Inc. and Internet Profiles Corporation
Unaudited Pro Forma Condensed Consolidated Statements of Operations for
the year ended
July 31, 1998 and for the nine months ended April 30, 1999............... F-53
</TABLE>
F-1
<PAGE>
Independent Auditors' Report
The Board of Directors
Engage Technologies, Inc.:
We have audited the accompanying consolidated balance sheets of Engage
Technologies, Inc. and subsidiaries as of July 31, 1997 and 1998, and April 30,
1999, and the related consolidated statements of operations, changes in
stockholders' equity (deficit), and cash flows for each of the years in the
three-year period ended July 31, 1998 and the nine months ended April 30, 1999.
These financial statements are the responsibility of the Company's management.
Our responsibility is to express an opinion on these consolidated financial
statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Engage
Technologies, Inc. and subsidiaries as of July 31, 1997 and 1998 and April 30,
1999, and the results of their operations and their cash flows for each of the
years in the three-year period ended July 31, 1998 and the nine months ended
April 30, 1999, in conformity with generally accepted accounting principles.
KPMG LLP
June 4, 1999, except as to note 16
which is as of June 11, 1999
Boston, Massachusetts
F-2
<PAGE>
ENGAGE TECHNOLOGIES, INC.
CONSOLIDATED BALANCE SHEETS
<TABLE>
<CAPTION>
July 31, Pro forma
------------------ April 30, April 30,
1997 1998 1999 1999
-------- -------- --------- -----------
(unaudited)
(In thousands, except par value)
<S> <C> <C> <C> <C>
Assets
Current assets:
Cash................................ $ -- $ 96 $ 661
Available-for-sale securities....... -- 567 1,036
Accounts receivable, less allowance
for doubtful accounts of $0, $360
and $940 at July 31, 1997 and 1998
and April 30, 1999, respectively... 30 1,824 5,016
Prepaid expenses.................... 82 230 654
-------- -------- --------
Total current assets................ 112 2,717 7,367
-------- -------- --------
Property and equipment, net.......... 1,670 789 2,012
Investment in joint venture.......... -- -- 1,303
Intangible assets, net of accumulated
amortization of $1,498 and $5,385 at
July 31, 1998 and April 30, 1999,
respectively........................ -- 20,540 43,919
Other assets......................... -- -- 369
-------- -------- --------
Total assets ....................... $ 1,782 $ 24,046 $ 54,970
======== ======== ========
Liabilities and Stockholders' Equity
(Deficit)
Current liabilities:
Debt to CMGI........................ $ 14,018 $ 7,753 $ 37,447
Obligation under capital lease...... -- -- 364
Accounts payable.................... -- 499 1,590
Accrued expenses.................... 288 1,614 5,342
Deferred revenue.................... 15 1,460 2,828
-------- -------- --------
Total current liabilities........... 14,321 11,326 47,571
-------- -------- --------
Deferred revenue..................... -- -- 1,856
-------- -------- --------
Obligation under capital lease, net
of current portion.................. -- -- 442
-------- -------- --------
Commitments and contingencies
Stockholders' equity
Series A Preferred Stock, $.01 par
value, 1,500 shares authorized,
1,500, 1,500 and 0 shares issued
and outstanding at July 31, 1998,
April 30, 1999 and April 30, 1999
(pro forma), respectively
(liquidating preference of
$16,340)........................... -- 15 15 $ --
Series B Preferred Stock, $.01 par
value, 239 shares authorized,
239 and 0 shares issued and
outstanding at April 30, 1999 and
April 30, 1999 (pro forma),
respectively (liquidating
preference of $2,000).............. -- -- 2 --
Common Stock, $.01 par value,
150,000 shares authorized, 16,188,
190, 1,226 and 39,974 shares issued
and outstanding at July 31, 1997
and 1998, April 30, 1999, and April
30, 1999 (pro forma),
respectively....................... 162 2 12 399
Additional paid-in capital.......... (60) 41,679 57,964 95,041
Deferred compensation............... -- (1,305) (4,822) (4,822)
Accumulated other comprehensive
(loss)............................. -- (1,193) (422) (422)
Accumulated deficit................. (12,641) (26,478) (47,648) (47,648)
-------- -------- -------- --------
Total stockholders' equity
(deficit).......................... (12,539) 12,720 5,101 $ 42,548
-------- -------- -------- ========
Total liabilities and stockholders'
equity (deficit)................... $ 1,782 $ 24,046 $ 54,970
======== ======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
F-3
<PAGE>
ENGAGE TECHNOLOGIES, INC.
CONSOLIDATED STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Nine months ended
Year ended July 31, April 30,
--------------------------- --------------------
1996 1997 1998 1998 1999
------- -------- -------- ----------- --------
(unaudited)
(In thousands, except per share data)
<S> <C> <C> <C> <C> <C>
Revenue:
Product revenue........... $ -- $ 25 $ 1,742 $ 379 $ 6,520
Product revenue, related
parties.................. -- -- 203 143 1,274
Services and support
revenue.................. -- -- 240 82 1,113
Services and support reve-
nue, related
parties.................. -- -- 32 9 90
------- -------- -------- -------- --------
Total revenue........... -- 25 2,217 613 8,997
------- -------- -------- -------- --------
Cost of revenue:
Cost of product revenue... -- 31 185 36 1,327
Cost of services and
support revenue.......... -- -- 2,053 1,153 4,299
------- -------- -------- -------- --------
Total cost of revenue... -- 31 2,238 1,189 5,626
------- -------- -------- -------- --------
Gross (loss) profit... -- (6) (21) (576) 3,371
------- -------- -------- -------- --------
Operating expenses:
In-process research and
development.............. -- -- 9,200 9,200 4,500
Research and development.. 1,796 7,261 5,859 4,688 5,816
Selling and marketing..... 155 1,566 4,015 2,524 6,614
General and
administrative........... 428 1,429 1,993 1,017 2,409
Amortization of goodwill
and other
intangibles.............. -- -- 1,391 358 3,543
Stock compensation........ -- -- 426 65 657
------- -------- -------- -------- --------
Total operating
expenses............... 2,379 10,256 22,884 17,852 23,539
------- -------- -------- -------- --------
Loss from operations........ (2,379) (10,262) (22,905) (18,428) (20,168)
Other income (expense):
Gain on sale of product
rights................... -- -- 9,240 9,240 --
Equity in loss of joint
venture.................. -- -- -- -- (417)
Loss on disposal of
property and equipment... -- -- -- -- (174)
Interest expense, net..... -- -- (172) (60) (411)
------- -------- -------- -------- --------
Net loss.................... $(2,379) $(10,262) $(13,837) $ (9,248) $(21,170)
======= ======== ======== ======== ========
Unaudited pro forma basic
and diluted net loss per
share...................... $ (.83) $ (.62)
======== ========
Pro forma weighted average
number of basic and diluted
shares outstanding......... 16,750 34,210
======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
F-4
<PAGE>
ENGAGE TECHNOLOGIES, INC.
CONSOLIDATED STATEMENT OF CHANGES IN STOCKHOLDERS' EQUITY (DEFICIT)
<TABLE>
<CAPTION>
Series A Series B Accumulated
Preferred Stock Preferred Stock Common Stock Additional Other
---------------- ----------------- --------------- Paid-in Deferred Comprehensive Accumulated
Shares Amount Shares Amount Shares Amount Capital Compensation Income (Loss) Deficit
------- ------- ------- -------- ------- ------ ---------- ------------ ------------- -----------
(In thousands)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Balance at July
31, 1995......... -- $ -- -- $ -- -- $ -- $ -- $ -- $ -- $ --
Issuance of
common stock.... -- -- -- -- 16,000 160 (80) -- -- --
Net loss........ -- -- -- -- -- -- -- -- -- (2,379)
------- ------- ------ -------- ------- ----- ------- ------- ------- --------
Balance at July
31, 1996......... -- -- -- -- 16,000 160 (80) -- -- (2,379)
Exercise of
stock options... -- -- -- -- 188 2 20 -- -- --
Net loss........ -- -- -- -- -- -- -- -- -- (10,262)
------- ------- ------ -------- ------- ----- ------- ------- ------- --------
Balance at July
31, 1997......... -- -- -- -- 16,188 162 (60) -- -- (12,641)
Reorganization.. 800 8 -- -- (16,000) (160) 8,072 -- -- --
Acquisition of
Accipiter....... 700 7 -- -- -- -- 33,667 (1,731) -- --
Amortization of
deferred
compensation.... -- -- -- -- -- -- -- 426 -- --
Exercise of
stock options... -- -- -- -- 2 -- -- -- -- --
Unrealized loss
on available-
for-sale
securities...... -- -- -- -- -- -- -- -- (1,193) --
Net loss........ -- -- -- -- -- -- -- -- -- (13,837)
------- ------- ------ -------- ------- ----- ------- ------- ------- --------
Balance at July
31, 1998......... 1,500 15 -- -- 190 2 41,679 (1,305) (1,193) (26,478)
Issuance of pre-
ferred stock,
net of
issuance costs
of $66 ......... -- -- 239 2 -- -- 1,932 -- -- --
Acquisition of
I/PRO........... -- -- -- -- 1,010 10 10,171 -- -- --
Amortization of
deferred
compensation.... -- -- -- -- -- -- 4,174 (4,174) -- --
Foreign currency
translation
adjustment...... -- -- -- -- -- -- -- -- 302 --
Amortization of
deferred
compensation.... -- -- -- -- -- -- -- 657 -- --
Exercise of
stock options .. -- -- -- -- 26 -- 8 -- -- --
Unrealized gain
on available-
for-sale
securities...... -- -- -- -- -- -- -- -- 469 --
Net loss........ -- -- -- -- -- -- -- -- -- (21,170)
------- ------- ------ -------- ------- ----- ------- ------- ------- --------
Balance at April
30, 1999 ........ 1,500 $ 15 239 $ 2 1,226 $ 12 $57,964 $(4,822) $ (422) $(47,648)
======= ======= ====== ======== ======= ===== ======= ======= ======= ========
<CAPTION>
Total
---------
<S> <C>
Balance at July
31, 1995......... $ --
Issuance of
common stock.... 80
Net loss........ (2,379)
---------
Balance at July
31, 1996......... (2,299)
Exercise of
stock options... 22
Net loss........ (10,262)
---------
Balance at July
31, 1997......... (12,539)
Reorganization.. 7,920
Acquisition of
Accipiter....... 31,943
Amortization of
deferred
compensation.... 426
Exercise of
stock options... --
Unrealized loss
on available-
for-sale
securities...... (1,193)
Net loss........ (13,837)
---------
Balance at July
31, 1998......... 12,720
Issuance of pre-
ferred stock,
net of
issuance costs
of $66 ......... 1,934
Acquisition of
I/PRO........... 10,181
Amortization of
deferred
compensation.... --
Foreign currency
translation
adjustment...... 302
Amortization of
deferred
compensation.... 657
Exercise of
stock options .. 8
Unrealized gain
on available-
for-sale
securities...... 469
Net loss........ (21,170)
---------
Balance at April
30, 1999 ........ $ 5,101
=========
</TABLE>
See accompanying notes to consolidated financial statements.
F-5
<PAGE>
ENGAGE TECHNOLOGIES, INC.
CONSOLIDATED STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Nine months ended
Years ended July 31, April 30,
--------------------------- --------------------
1996 1997 1998 1998 1999
------- -------- -------- ----------- --------
(unaudited)
(In thousands)
<S> <C> <C> <C> <C> <C>
Cash flows from operating
activities:
Net loss................... $(2,379) $(10,262) $(13,837) $(9,248) $(21,170)
Adjustments to reconcile
net loss to net cash used
for operating activities:
Depreciation and
amortization............. 530 947 1,863 679 4,277
Equity in loss of joint
venture.................. -- -- -- -- 417
Provision for bad debts... -- -- 240 -- 175
Stock compensation........ -- -- 426 65 657
Gain on sale of product
rights................... -- -- (9,240) (9,240) --
Loss on disposal of
property and equipment... -- -- -- -- 174
In-process research and
development.............. -- -- 9,200 9,200 4,500
Changes in operating
assets and liabilities,
net of impact of
acquisitions:
Accounts receivable...... -- (30) (1,438) (97) (2,398)
Prepaid expenses......... (276) 194 (147) 29 (245)
Accounts payable......... -- -- 475 637 356
Accrued expenses......... 151 137 835 17 2,837
Deferred revenue......... -- 15 1,117 56 3,207
------- -------- -------- ------- --------
Net cash used for
operating activities... (1,974) (8,999) (10,506) (7,902) (7,213)
------- -------- -------- ------- --------
Cash flows from investing
activities:
Investment in joint
venture................... -- -- -- -- (1,424)
Net cash acquired on
acquisition of
subsidiaries.............. -- -- 689 689 347
Purchases of property and
equipment................. (1,613) (490) (216) (153) (165)
------- -------- -------- ------- --------
Net cash (used for)
provided by investing
activities............. (1,613) (490) 473 536 (1,242)
------- -------- -------- ------- --------
Cash flows from financing
activities:
Net change in debt to
CMGI...................... 3,587 10,511 10,129 7,852 7,119
Proceeds from stock option
exercises................. -- 22 -- -- 8
Issuance of preferred
stock, net of issuance
costs..................... -- -- -- -- 1,934
Repayment of capital lease
obligations............... -- -- -- -- (47)
Principal payments on
notes..................... -- (1,044) -- -- --
------- -------- -------- ------- --------
Net cash provided by
financing activities... 3,587 9,489 10,129 7,852 9,014
------- -------- -------- ------- --------
Effect of exchange rate
changes on cash............ -- -- -- -- 6
------- -------- -------- ------- --------
Net increase in cash........ -- -- 96 486 565
Cash, beginning of period... -- -- -- -- 96
------- -------- -------- ------- --------
Cash, end of period......... $ -- $ -- $ 96 $ 486 $ 661
======= ======== ======== ======= ========
</TABLE>
See accompanying notes to consolidated financial statements.
F-6
<PAGE>
ENGAGE TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
All information included in these footnotes as of and for
the nine months ended April 30, 1998 is unaudited
(1) Description of Business
Engage provides products and services that enable customers to create and
use profiles of individual Web visitors to target advertisements, content and
e-commerce offerings.
(2) Summary of Significant Accounting Policies
Basis of Presentation
The Company is a majority owned subsidiary of CMGI, Inc. ("CMGI"). The
accompanying consolidated financial statements, which have been prepared as if
the Company had operated as a separate stand-alone entity for all periods
presented, include only revenue and expenses attributable to the Company since
it commenced operations in September 1995.
The consolidated financial statements include certain allocations based on
headcount from CMGI for certain general and administrative expenses such as
rent, legal services, insurance and employee benefits. Management believes that
the method used to allocate the costs and expenses is reasonable; however, such
allocated amounts may or may not necessarily be indicative of what actual
expenses would have been incurred had the Company operated independently of
CMGI.
Principles of Consolidation
The accompanying financial statements include the accounts of the Company
and its wholly-owned subsidiaries, Internet Profiles Corporations ("I/PRO") and
Engage Technologies Limited, after elimination of all significant intercompany
balances and transactions.
Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect certain reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting periods. Actual results could differ from those estimates.
Revenue Recognition
Prior to August 1, 1998, revenue from sales of product licenses to customers
were generally recognized when the product was shipped, provided no significant
obligations remain and collectibility is probable, in accordance with Statement
of Position ("SOP") 91-1, Software Revenue Recognition. Effective August 1,
1998, the Company adopted the provisions of SOP 97-2, Software Revenue
Recognition. For transactions after August 1, 1998, revenues from software
product licenses and web-site traffic audit reports are generally recognized
when (i) a signed noncancelable software license exists, (ii) delivery has
occurred, (iii) the Company's fee is fixed or determinable, and (iv)
collectibility is probable. Revenue from license agreements that have
significant customizations and modifications of the software product is
deferred and recognized using the percentage of completion method. There was no
material change to the Company's accounting for revenue as a result of the
adoption of SOP 97-2.
F-7
<PAGE>
ENGAGE TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Revenue from periodic subscriptions is recognized ratably over the
subscription term, typically twelve months. Revenue from usage based
subscriptions is recognized monthly based on actual usage.
Service and support revenue includes software maintenance and other
professional services revenues, primarily from consulting, implementation and
training. Revenue from software maintenance is deferred and recognized ratably
over the term of each maintenance agreement, typically twelve months. Revenue
from professional services is recognized as the services are performed,
collectibility is probable and such revenues are contractually non-refundable.
Amounts collected prior to satisfying the above revenue recognition criteria
are classified as deferred revenue.
Cash
Under an arrangement with CMGI, the Company maintains a zero balance cash
account. Cash required by the Company for the funding of its operations is
provided as needed with a corresponding increase in the "Debt to CMGI" account.
Customer receipts and other cash receipts of the Company are remitted to CMGI
upon receipt by the Company and serve to reduce the "Debt to CMGI" account.
Cash on hand at July 31, 1998 and April 30, 1999 is held by the Company's
subsidiaries.
During fiscal 1998, non-cash investing activities included the sale of data
warehouse product rights in exchange for available-for-sale securities and the
repayment of approximately $8,400,000 of debt due to CMGI. In addition, non-
cash investing activities also include the Company's acquisition of Accipiter
(see note 7) in exchange for 700,000 shares of the Company's Series A
Convertible Preferred Stock.
During fiscal 1998, non-cash financing activities included the issuance of
800,000 shares of the Company's Series A Convertible Preferred Stock in
exchange for 16,000,000 shares of the Company's common stock and an $8,000,000
reduction in the debt to CMGI (see note 10).
During fiscal 1999, non-cash investing activities include the acquisition of
I/PRO (see note 7) in exchange for 1,010,184 shares of the Company's common
stock, and additional debt to CMGI totaling $22,086,000.
Marketable Securities
The appropriate classification of marketable securities is determined at the
time of acquisition and reevaluated at each balance sheet date. Marketable
securities have been classified as available-for-sale and are carried at fair
value, based on quoted market prices, with unrealized gains and losses included
in accumulated other comprehensive income (loss) on the consolidated balance
sheets.
Property and Equipment
Property and equipment are stated at cost. Depreciation is computed using
the straight-line method over the estimated useful lives of the assets.
Leasehold improvements and assets under capital leases are amortized using the
straight-line method over the shorter of the lease term or estimated useful
life of the asset. Expenditures for maintenance and repairs are charged to
expense as incurred.
F-8
<PAGE>
ENGAGE TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Investment in Joint Venture
The Company's investment in the common stock of a Japanese joint venture is
accounted for by the equity method.
Intangibles
Intangibles relate to the Company's purchase of Accipiter, Inc. in April
1998 and I/PRO in April 1999 (see note 7). Such costs are being amortized on a
straight-line basis over either two or five years, depending on the periods
expected to be benefited.
Accounting for Impairment of Long-Lived Assets
The Company assesses the need to record impairment losses on long-lived
assets used in operations when indicators of impairment are present. On an on-
going basis, management reviews the value and period of amortization or
depreciation of long-lived assets, including costs in excess of net assets of
companies acquired. During this review, the significant assumptions used in
determining the original cost of long-lived assets are reevaluated. Although
the assumptions may vary from transaction to transaction, they generally
include revenue growth, operating results, cash flows and other indicators of
value. Management then determines whether there has been a permanent impairment
of the value of long-lived assets by comparing future estimated undiscounted
cash flows to the asset's carrying value. If the estimated future undiscounted
cash flows exceed the carrying value of the asset, a loss is recorded as the
excess of the asset's carrying value over fair value.
Research and Development Costs and Software Costs
Expenditures related to the development of new products and processes,
including significant improvements and refinements to existing products and the
development of software, are expensed as incurred, unless they are required to
be capitalized. Software development costs are required to be capitalized when
a product's technological feasibility has been established by completion of a
detailed program design or working model of the product, and ending when a
product is available for general release to customers. To date, the
establishment of technological feasibility and general release have
substantially coincided. As a result, there have been no capitalized software
development costs to date. Additionally, at the date of acquisition or
investment, the components of the purchase price of each acquisition or
investment are evaluated to identify amounts allocated to in-process research
and development. Upon completion of acquisition accounting and valuation, such
amounts are charged to expense if technological feasibility had not been
reached at the acquisition date.
Foreign Currency Translation
The functional currency for the Company's foreign subsidiary and its
investment in joint venture is its local currency. The financial statements of
this subsidiary and the joint venture are translated into United States dollars
using period-end exchange rates for assets and liabilities and average exchange
rates during the period for revenues and expenses. The resulting translation
adjustments are included in accumulated other comprehensive income (loss) on
the consolidated balance sheets. Net gains and losses resulting from foreign
currency transactions arising from exchange rate fluctuations on transactions
denominated in currencies other than the functional currencies are included in
the consolidated statements of operations and were immaterial for all periods
presented.
F-9
<PAGE>
ENGAGE TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Income Taxes
The Company accounts for income taxes under the asset and liability method.
Deferred tax assets and liabilities are recognized for the future tax
consequences attributable to differences between the financial statement
carrying amounts of existing assets and liabilities and their respective tax
bases and operating loss and tax credit carryforwards. Deferred tax assets and
liabilities are measured using enacted tax rates expected to apply to taxable
income in the years in which those temporary differences are expected to be
recovered or settled. The effect on deferred tax assets and liabilities of a
change in tax rates is recognized in income in the period that includes the
enactment date. The Company is currently greater than 80% owned by CMGI, and as
such, CMGI realizes the full benefit of all federal and part of the state net
operating losses that have been incurred by the Company. Therefore, such net
operating losses incurred by the Company will have no future benefit to the
Company. The tax sharing agreement between the Company and CMGI requires the
Company to reimburse CMGI to the extent it contributes to the consolidated tax
liability of the CMGI group; however, under the policy, CMGI is not obligated
to reimburse the Company for any losses utilized in the consolidated CMGI
group.
Advertising Costs
The Company expenses advertising costs as incurred. The Company did not
incur any advertising costs during the year ended July 31, 1996. Advertising
expense was approximately $40,000, $175,000 and $564,000 for the fiscal years
ended July 31, 1997 and 1998 and the nine months ended April 30, 1999,
respectively.
Stock-Based Compensation Plans
The Company has adopted SFAS No. 123, Accounting for Stock-Based
Compensation ("SFAS 123"). As permitted by SFAS 123, the Company measures
compensation cost in accordance with Accounting Principles Board Opinion No.
25, Accounting for Stock Issued to Employees ("APB No. 25"), and related
interpretations. Accordingly, no accounting recognition is given to stock
options granted at fair market value until they are exercised. Upon exercise,
net proceeds, including income tax benefits realized, are credited to equity.
Compensation cost for stock options granted with exercise prices below
estimated fair market value is recognized over the vesting period, typically
four years. The adoption of SFAS 123 was not material to the Company's
financial condition or results of operations; however, the pro forma impact on
earnings has been disclosed in the notes to the consolidated financial
statements as required by SFAS 123 (see note 11).
Segment Reporting
The Company has adopted SFAS No. 131, "Disclosures About Segments of an
Enterprise and Related Information" ("SFAS 131"). SFAS 131 establishes
standards for the way that public business enterprises report selected
information about operating segments in annual and interim financial
statements. It also establishes standards for related disclosures about
products and services, geographic areas and major customers. SFAS 131 requires
the use of the "management approach" in disclosing segment information, based
largely on how senior management generally analyzes the business operations.
SFAS 131 has been adopted effective August 1, 1998. The Company currently
operates in only one segment, and as such, no additional disclosures are
required.
F-10
<PAGE>
ENGAGE TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Unaudited Pro Forma Basic and Diluted Net Loss per Share
Unaudited pro forma basic earnings (loss) per share is based upon the
weighted average number of common shares outstanding during the period.
Unaudited pro forma diluted earnings (loss) per share is based upon the
weighted average number of common shares outstanding during the period plus
additional weighted average common equivalent shares outstanding during the
period, computed using the "if-converted method". Common equivalent shares have
been excluded from the computation of diluted loss per share in each period, as
their effect would have been anti-dilutive in each period presented.
As described in note 16, conversion of all preferred stock and debt to CMGI
will occur upon the completion of a qualified public offering of the Company's
common stock. The unaudited pro forma basic and diluted net loss per share
information included in the accompanying statements of operations for the year
ended July 31, 1998 and the nine months ended April 30, 1999 reflects the
impact on unaudited pro forma basic and diluted net loss per share of such
conversion as of the beginning of each period or date of issuance, if later,
using the if-converted method.
Historical basic and diluted net loss per share have not been presented
because they are irrelevant due to the significant change in the Company's
capital structure and resultant basic and diluted loss per share that will
result upon conversion of the convertible preferred stock and debt to CMGI.
The reconciliation of the numerators and denominators of the unaudited pro
forma basic and unaudited pro forma diluted loss per share computation for the
Company's reported net loss is as follows:
PRO FORMA BASIC AND DILUTED LOSS PER SHARE
<TABLE>
<CAPTION>
Year Ended Nine Months Ended
July 31, 1998 April 30, 1999
------------- -----------------
(In thousands,
except per share data)
<S> <C> <C>
Numerator:
Loss..................................... $(13,837) $(21,170)
-------- --------
Denominator:
Weighted average shares outstanding...... 15,398 296
Assumed conversion of preferred stock.... 790 30,444
Assumed conversion of debt to CMGI....... 562 3,470
-------- --------
Weighted average number of diluted shares
outstanding............................. 16,750 34,210
-------- --------
Basic and diluted loss per share .......... $ (.83) $ (.62)
======== ========
</TABLE>
See note 16.
New Accounting Pronouncements
In March 1998, the Accounting Standards Executive Committee of the American
Institute of Certified Public Accountants ("AcSEC"), issued Statement of
Position 98-1, "Accounting for the Cost of Computer Software Developed or
Obtained for Internal Use" ("SOP 98-1"). SOP 98-1 requires the
F-11
<PAGE>
ENGAGE TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
capitalization of certain internal costs related to the implementation of
computer software obtained for internal use. The Company is required to adopt
this standard in the first quarter of fiscal 2000, and expects that the
adoption of SOP 98-1 will not have a material impact on its financial position
or its results of operations.
In April 1998, the AcSEC issued Statement of Position 98-5, "Reporting Costs
of Start-Up Activities" ("SOP 98-5"). Under SOP 98-5, the cost of start-up
activities should be expensed as incurred. Start-up activities are broadly
defined as those one-time activities related to opening a new facility,
introducing a new product or service, conducting business in a new territory,
conducting business with a new class of customer, commencing some new operation
or organizing a new entity. SOP 98-5 is effective for the Company's fiscal 2000
financial statements. The Company does not expect its adoption to have a
material impact on its financial position or results of operations.
In June 1998, the Financial Accounting Standards Board issued SFAS No. 133,
"Accounting for Derivative Instruments and Hedging Activities" ("SFAS 133").
SFAS 133 establishes accounting and reporting standards for derivative
instruments, including certain derivative instruments embedded in other
contracts (collectively referred to as derivatives) and for hedging activities.
SFAS 133 requires the recognition of all derivatives as either assets or
liabilities in the statement of financial position and the measurement of those
instruments at fair value. The Company is required to adopt this standard in
the first quarter of fiscal 2000, and expects that the adoption of SFAS 133
will not have a material impact on the its financial position or its results of
operations. On May 20, 1999, a proposed Statement of Financial Accounting
Standards was issued for public comment in which the proposal, if approved,
will delay implementation until the first quarter of the Company's fiscal year
2000.
Unaudited Interim Financial Information
The consolidated financial statements for the nine months ended April 30,
1998 are unaudited; however, in the opinion of management, all adjustments
(consisting of normal recurring adjustments) necessary for a fair presentation
of the financial statements for the interim period have been included. Results
of operations for the interim periods presented are not necessarily indicative
of the results that may be expected for the full fiscal year or any other
future period.
(3) Sale of Product Rights
In August 1997, the Company sold rights to some of its data warehouse
software products to Red Brick Systems, Inc. ("Red Brick") for $9,500,000 in
cash and 238,160 shares of Red Brick common stock, recording a pretax gain of
$9,240,000 on the sale. The cash component was received directly by CMGI and
Debt to CMGI was reduced by a corresponding amount. In January 1999, the Red
Brick shares were exchanged for 142,896 shares of Informix Corp. due to
Informix's acquisition of Red Brick.
(4) Available-for-Sale Securities
Available-for-sale securities at July 31, 1998 consists of 238,160 shares of
Red Brick common stock received as part of the Company's sale of product rights
to Red Brick. Available-for-sale securities at April 30, 1999 consists of
142,896 shares of Informix Corp. (see note 3). These securities are carried at
fair value based on quoted market prices. A $1,193,000 and $724,000 unrealized
holding loss was recorded on the Red Brick shares at July 31, 1998 and April
30, 1999, respectively, based on the change in market value since the date of
acquisition. The unrealized holding loss is presented in the equity section of
the Company's consolidated balance sheet as a component of accumulated other
comprehensive loss.
F-12
<PAGE>
ENGAGE TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(5) Property and Equipment
<TABLE>
<CAPTION>
July 31,
Estimated -------------- April 30,
Useful Life 1997 1998 1999
------------------------ ------- ----- ---------
(In
thousands)
<S> <C> <C> <C> <C>
Office furniture and
computer equipment..... 3-5 years $ 911 $ 940 $2,327
Software licenses....... 3 years 2,131 273 305
Leasehold improvements.. 4 years or life-of-lease 105 105 429
------- ----- ------
3,147 1,318 2,862
Less: Accumulated
depreciation and
amortization........... (1,477) (529) (849)
------- ----- ------
$ 1,670 $ 789 $2,012
======= ===== ======
</TABLE>
Property and equipment recorded under capital leases amounted to
approximately $735,000 at April 30, 1999. Total accumulated amortization
related to these assets amounted to approximately $49,000 at April 30, 1999.
The Company had no assets under capital lease at July 31, 1997 or 1998.
(6) Investment in Joint Venture
In August 1998, the Company acquired for $1.4 million in cash, 49% of the
shares of Engage Technologies Japan (the "Joint Venture"), a joint venture with
Sumitomo Corporation in Japan. The Company's ownership interest was reduced to
46.3% in March 1999 as a result of the Joint Venture's selling an ownership
interest to an additional investor. The Joint Venture was established to sell
the Company's products and services in Japan. The Joint Venture is authorized
to solicit additional investors so long as the new investors' ownership
interests do not exceed 30% on a fully diluted, aggregate ownership basis. If
the Joint Venture requires funds in excess of $4 million (excluding the
parties' initial capital contributions) for its operations, the Company is
required to provide a bank guarantee in an amount proportionate to its
ownership interest. This investment is being accounted for under the equity
method of accounting. The Company's share of the Joint Venture's foreign
currency translation adjustments is reflected in both the investment account
and shareholders' equity on the consolidated balance sheet as a component of
accumulated other comprehensive income (loss).
Under a separate license agreement, the Company licensed its Engage
Knowledge technology to the Joint Venture in consideration for a non-refundable
$3 million prepaid royalty and royalties of 11.11% of all future revenues. The
initial prepaid royalty has been recorded as deferred revenue and is being
recognized as income over three years, the estimated period over which the
Company expects to provide maintenance and support. In addition, the Company
and the Joint Venture entered into a reseller agreement under which the Company
granted the Joint Venture an exclusive right to resell its products to end
users in Japan, excluding certain Japanese distribution rights granted to Red
Brick (see Note 3).
(7) Acquisitions
Accipiter
In April 1998, CMGI acquired Accipiter, Inc. ("Accipiter"), a company
specializing in Internet advertising management solutions, in exchange for
10,109,536 shares of CMGI Common Stock
F-13
<PAGE>
ENGAGE TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(which number reflects three CMGI two-for-one stock splits between April 1998
and the date of these financial statements). In August 1998, Accipiter was
legally merged with the Company in a stock-for-stock merger in which
consideration of 700,000 shares of the Company's Series A Convertible Preferred
Stock was issued to CMGI. The Company has reflected in its consolidated
financial statements and the acquisition of Accipiter as if they occurred in
April 1998. The total purchase price for Accipiter was valued at $31,253,000,
including acquisition costs of $198,000. The value of the CMGI shares included
in the purchase price was recorded net of a weighted average 10% market value
discount to reflect the restrictions on transferability.
Management is primarily responsible for estimating the fair value of
purchased in-process research and development. The portion of the purchase
price allocated to in-process research and development was $9,200,000, or
approximately 29% of the total purchase price. At the acquisition date,
Accipiter's major in-process project was the development of AdManager version
4.0, which was intended to provide the ad serving functionality that customers
were requiring as the use of the Internet rapidly increased and customer Web
sites became more complex. In general, previous AdManager releases did not
provide for the fault tolerance, redundancy and scalability that customers
began to seek after AdManager versions 1.0 and 2.0 were released. Accordingly,
customers' long-term product needs required Accipiter to substantially redesign
the AdManager architecture (later released as version 4.0) to develop new
technologies in the areas of: (1) fault tolerance and scalability, (2) an
object-oriented user interface, (3) application programming interfaces and (4)
a new report engine.
At the date of the acquisition, management estimated that completion of the
AdManager version 4.0 technology would be accomplished by June 1998. Engage
began testing AdManager version 4.0 at a customer's site (beta testing) in June
1998 and commercially released the product in August 1998. The initial
development effort had commenced in late 1997. At the acquisition date, the new
AdManager technology had not reached a completed prototype stage and beta
testing had not yet commenced. At the time of the Accipiter purchase, the
AdManager version 4.0 project was approximately 71% complete.
The value of in-process research and development was determined using an
income approach. This approach takes into consideration earnings remaining
after deducting from cash flows related to the in-process technology, the
market rates of return on contributory assets, including developed technology,
assembled workforce, working capital and fixed assets. The cash flows are then
discounted to present value at an appropriate rate. Discount rates are
determined by an analysis of the risks associated with each of the identified
intangible assets. The discount rate used for in-process research and
development was 24.5%, a slight premium over the estimated weighted-average
cost of capital of 24%, and the discount rate used for developed technology was
21%.
The resulting net cash flows to which the discount rate was applied are
based on Engage management's estimates of revenues, cost of revenues, research
and development costs, selling and marketing costs, general and administrative
costs, and income taxes from such acquired technology. These estimates are
based on the assumptions set forth below.
Accipiter recorded revenue in 1997 of less than $1 million. Because of the
absence of meaningful historical revenue of Accipiter, management projected
revenue for the initial year of the forecast period based on its assessment of
future market potential and the ability of Accipiter to successfully launch its
new product offering. After the initial year of the forecast period, revenue
was predicted to grow at rates comparable to the growth of Internet users and
online activity and the impact such growth would have on Internet advertising.
F-14
<PAGE>
ENGAGE TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
These projections are based on Engage management's estimates of the
significant growth in the number of companies engaged in e-commerce (which is
supported by independent market data), the need for e-commerce companies to
serve ads over the Internet, expected trends in technology (such as increased
speed of the Internet, reduced hardware costs and the resulting increase in new
Internet users to whom ads will be served) and the nature and expected timing
of new product introductions by Engage and its competitors. These estimates
also include growth related to the use of certain Accipiter technologies in
conjunction with Engage's products, the marketing and distribution of the
resulting products through Engage's sales force and the benefits of Engage's
incremental financial support and stability.
Engage's estimated cost of sales as a percentage of revenue is expected to
be slightly lower than Accipiter's (classified as support and royalties by
Accipiter) on a stand-alone basis (16% in 1997), as certain fixed costs
included in cost of sales are spread over a larger revenue base and provide for
the realization of efficiencies due to economies of scale through combined
operations. Due to these savings, the estimated cost of sales as a percentage
of revenue is expected to decrease by 1% each year from Accipiter's historical
percentage, to a low of 11% in the fifth forecast year.
Engage's selling, general and administrative costs are expected to be higher
than Accipiter's on an absolute basis, but lower as a percentage of revenue.
Due to the small revenue base in 1997 and the impact of significant costs
associated with building a corporate infrastructure and building a workforce
for future operations, Accipiter's selling, general and administrative costs in
1997, as a percent of revenue, are not representative of the expected costs for
the combined operations of Engage and Accipiter. Efficiencies due to economies
of scale through combined operations, such as consolidated marketing and
advertising programs, are expected to be realized immediately.
Approximately $1,700,000 of deferred compensation was recorded during fiscal
1998 relating to approximately 173,080 shares of CMGI common stock issued to
the then employee stockholders of Accipiter, which are being held in escrow.
These shares are subject to forfeiture upon termination of employment over a
two-year period. Compensation expense is being recognized over the two-year
service period beginning August 1, 1998.
I/PRO
In April 1999, Engage acquired I/PRO, a provider of Web-site traffic
measurement and audit services, for approximately $32,651,000, including
acquisition costs of $244,000. The purchase price consisted of $1,563,000 in
net cash, $20,907,000 in CMGI common shares and $10,181,000 in Engage common
shares and options. The per share value of the CMGI shares included in the
purchase price was $57.99, net of a 9% weighted average market value discount
to reflect the restriction on transferability. The per share value of the
Engage shares included in the purchase price was $6.58 per share. In addition,
CMGI must pay up to $3,000,000 to the former I/PRO stockholders if stated
performance goals are met by I/PRO one year after the closing. Engage must
reimburse CMGI for any payments, due under stated performance goals, in cash or
by issuance of shares of Engage's Series C convertible preferred stock at its
then fair market value, at CMGI's election. Any additional payments will be
treated as additional purchase price.
F-15
<PAGE>
ENGAGE TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
I/PRO's major in-process project was the development of a new data
processing system, project name Normandy, which is intended to provide the
improved functionality required as the use of the Internet rapidly increases
and customer Web site activity increases in volume and complexity. In general,
the existing data processing system does not provide sufficient fault
tolerance, scalability, and data processing efficiency that will be required to
meet future customer needs. Accordingly, customer's long-term product needs
required I/PRO to substantially redesign the data processing system to develop
new technologies in the areas of: (1) fault tolerance and scalability, (2)
system management, (3) data capture and (4) path analysis functionality.
At the date of the acquisition, management estimated that completion of the
Normandy technology would be accomplished by August, 1999. The initial
development effort had commenced in late 1998. At the acquisition date, the new
Normandy technology had not reached a completed prototype stage and beta
testing had not yet commenced. At the time of the I/PRO purchase, the Normandy
project was approximately 64% complete.
The value of in-process research and development was determined using an
income approach. This approach takes into consideration earnings remaining
after deducting from cash flows related to the in-process technology, the
market rates of returns on contributory assets, including core developed
technology, assembled workforce, working capital and fixed assets. The cash
flows are then discounted to present value at an appropriate rate. Discount
rates are determined by an analysis of the risks associated with each of the
identified intangible assets. The discount rate used for in-process research
and development was 30%, a premium over the estimated weighted-average cost of
capital of 25%, and the discount rate used for core developed technology was
22%.
The resulting net cash flows to which the discount rate was applied are
based on Engage management's estimates of revenues, cost of revenues, research
and development costs, selling and marketing costs, general and administrative
costs, and income taxes from such acquired technology. These estimates are
based on the assumptions set forth below.
Management projected average annual revenues increases for the forecast
period based on its assessment of future market potential and the ability of
I/PRO to successfully implement the Normandy technology. Revenue was predicted
to grow at rates comparable to the growth of Internet users and online activity
and the impact such growth would have on Internet service companies. Revenues
related to the Normandy project were identified.
These projections are based on Engage management's estimates of the
significant growth in the number of companies engaged in e-commerce, the need
for e-commerce companies to utilize independent audit, verification and
analysis services, expected trends in technology (such as increased speed of
the Internet, reduced hardware costs and the resulting increase in new Internet
users) and the nature and expected timing of new product introductions by
Engage and its competitors. These estimates also include growth related to the
use of certain I/PRO technologies in conjunction with Engage's products and the
benefits of Engage's incremental financial support and stability.
I/PRO's estimated cost of sales as a percentage of revenue is expected to
significantly decrease on a stand-alone basis (85% in 1998), as certain fixed
costs included in cost of sales are spread over a larger revenue base and
provide for the realization of efficiencies due to economies of scale. Normandy
technology is expected to greatly increase the automation of data processing
allowing significant labor cost savings per revenue dollar. Increases in
hardware utilization are also expected.
F-16
<PAGE>
ENGAGE TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Due to these savings, the estimated cost of sales as a percentage of revenue is
expected to decrease to a low of 20% in the fifth forecast year.
The acquisitions of Accipiter and I/PRO have been accounted for using the
purchase method, and, accordingly, the purchase prices have been allocated to
the assets purchased and liabilities assumed based upon their fair values at
the dates of acquisition. The amount of the purchase prices allocated to
goodwill and developed technology is being amortized on a straight-line basis
over five years. The amount of the purchase price allocated to other
identifiable intangible assets is being amortized on a straight line basis over
the following periods; Accipiter and I/PRO work force over two years, Accipiter
trade name over two years, and I/PRO tradename over five years. Amortization of
developed technology is charged to cost of product revenue while both goodwill
and other identifiable intangible assets are reflected as separate components
within operating expenses.
The purchase price of the Accipiter and I/PRO acquisitions was allocated as
follows:
<TABLE>
<CAPTION>
Accipiter I/PRO
--------- -------
(In thousands)
<S> <C> <C>
Working capital deficit, net of cash acquired of
$689 for Accipiter and $347 for I/PRO................. $ (249) $ (498)
Property and equipment................................. 262 1,676
Other assets........................................... 2 230
In-process research and development.................... 9,200 4,500
Long-term obligations.................................. -- (465)
Goodwill............................................... 20,158 22,288
Developed technology................................... 1,600 3,000
Other identifiable intangible assets................... 280 1,920
------- -------
Purchase price, net of cash acquired................... $31,253 $32,651
======= =======
</TABLE>
The following table represents the unaudited pro forma results of operations
of the Company for the years ended July 31, 1997 and 1998, and the nine months
ended April 30, 1999, as if the Accipiter acquisition had occurred on August 1,
1996 and the I/PRO acquisition had occurred on August 1, 1997. These pro forma
results include adjustments for the amortization of goodwill and other
intangibles and deferred compensation and the elimination of amounts expensed
for in-process research and development. They have been prepared for
comparative purposes only and do not purport to be indicative of what would
have occurred had the acquisitions been made at the beginning of the periods
noted or of results that may occur in the future.
<TABLE>
<CAPTION>
July 31,
-------------------------- April 30,
1997 1998 1999
------------ ------------ ---------------
(In thousands, except per share data)
<S> <C> <C> <C>
Net revenues.................... $ 428 $ 7,348 $ 12,899
Net loss........................ (16,825) (23,149) (25,274)
Net loss per share.............. (.56) (.64) (.65)
</TABLE>
(8) Leases
The Company leases certain computer equipment under capital leases which
expire at various dates through November 2002.
F-17
<PAGE>
ENGAGE TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
In addition to leasing computer equipment under various capital leases, the
Company has entered into noncancelable operating leases covering certain of its
office facilities and equipment which expire through 2004. In addition, the
Company pays CMGI for office facilities used as the Company's headquarters for
which it is charged based upon an allocation of the total costs for the
facilities at market rates.
The Company leases certain property and equipment from a subsidiary of CMGI.
Under the arrangement, the related party negotiates the terms and conditions of
the lease and obtains the assets to be leased. The related party bears all
liability for payment, and the Company is not financially obligated under the
leases. The Company is charged the actual lease fees paid by the related party,
plus an additional administrative charge that approximates the fair value of
the services received.
Total rent expense amounted to $36,000, $305,000, $483,000 and $758,000 for
the years ended July 31, 1996, 1997 and 1998 and the nine months ended April
30, 1999, respectively. Rent expense for office facilities paid to CMGI
amounted to approximately $35,000, $274,000, $258,000 and $214,000 for the
years ended July 31, 1996, 1997 and 1998 and the nine months ended April 30,
1999, respectively. Rent expense for equipment paid to a subsidiary of CMGI
amounted to approximately $1,000, $31,000, $125,000 and $231,000 for the years
ended July 31, 1996, 1997 and 1998 and the nine months ended April 30, 1999,
respectively.
Minimum annual rental commitments are as follows at April 30, 1999:
<TABLE>
<CAPTION>
Operating Capital
Leases Leases
--------- -------
(in thousands)
<S> <C> <C>
1999 (three months)...................................... $ 254 $ 152
2000..................................................... 828 331
2001..................................................... 715 309
2002..................................................... 643 78
2003..................................................... 206 4
2004..................................................... 154 --
------- -----
$ 2,800 874
=======
Less: amount representing interest....................... 68
-----
Present value of capital lease obligations............... $ 806
=====
Comprised of:
Current portion........................................ $ 364
Non-current portion.................................... 442
-----
$ 806
=====
</TABLE>
(9) Income Taxes
No provision for federal or state income taxes has been recorded as the
Company incurred net operating losses for all periods presented. At April 30,
1999, the Company had no significant net operating loss carryforwards available
to offset future federal taxable income as the Company's parent, CMGI, has
utilized substantially all of the Company's net operating losses through April
30, 1999. The Company has recorded a full valuation allowance against its
deferred tax assets since management believes that, after considering all the
available objective evidence, both positive and
F-18
<PAGE>
ENGAGE TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
negative, historical and prospective, with greater weight given to historical
evidence, it is not more likely than not that these assets will be realized. No
income tax benefit has been recorded for all periods presented because of the
valuation allowance.
Temporary differences between the financial statement carrying amounts and
tax bases of assets and liabilities that give rise to significant portions of
federal deferred tax assets (liabilities) are comprised of the following:
<TABLE>
<CAPTION>
July 31, April
---------------- 30,
1997 1998 1999
------- ------- --------
(In thousands)
<S> <C> <C> <C>
Deferred tax assets:
Research credits............................. $ 212 $ 72 $ 72
Deferred revenue............................. -- 288 175
Accruals and other reserves.................. 84 377 1,164
Loss carryforwards........................... 692 1,862 12,142
Depreciation and amortization................ 31 345 --
Deferred compensation........................ -- -- 28
Basis difference in available for sale secu-
rities...................................... -- 821 627
------- ------- --------
1,019 3,765 14,208
Less: Valuation allowance...................... (1,019) (3,765) (12,856)
------- ------- --------
Net deferred tax assets........................ -- -- 1,352
------- ------- --------
Deferred tax liabilities:
Intangibles, other than goodwill............. -- -- (1,352)
------- ------- --------
$ -- $ -- $ --
======= ======= ========
</TABLE>
Subsequently reported tax benefits relating to the valuation allowance for
deferred tax assets as of July 31, 1997 and 1998 and April 30, 1999 will be
allocated as follows:
<TABLE>
<CAPTION>
July 31,
--------------- April 30,
1997 1998 1999
------- ------- ---------
(In thousands)
<S> <C> <C> <C>
Income tax benefit that would be recognized in
the consolidated statements of operations...... $ 1,019 $ 2,085 $ 2,327
Goodwill and other non-current intangible as-
sets........................................... -- 1,189 10,231
Accumulated other comprehensive income (loss)... -- 491 298
------- ------- --------
$ 1,019 $ 3,765 $ 12,856
======= ======= ========
</TABLE>
The Company has net operating loss carryforwards for Massachusetts tax
purposes of approximately $10,700,000 as of July 31, 1998 and April 30, 1999.
The net operating loss carryforwards will expire from 2001 through 2003. In
addition, the Company has net operating loss carryforwards for North Carolina
tax purposes of approximately $4,400,000 and $8,600,000 as of July 31, 1998 and
April 30, 1999, respectively, which will expire from 2001 through 2003, of
which $2,700,000 is related to losses incurred by Accipiter, Inc. prior to its
acquisition by the Company and the related tax benefit will be recorded, if
realized, as a decrease in goodwill and other non-current intangible assets.
The Company also has net operating loss carryforwards for California tax
purposes of $15,100,000 as of April 30, 1999, of which, $15,000,000 is related
to the pre-acquisition period of I/PRO. The Company also has $2,700,000 of
federal net operating loss carryforwards, which will expire from 2011 through
2012, related to losses incurred by Accipiter, Inc. prior to its acquisition.
F-19
<PAGE>
ENGAGE TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
The tax benefits related to net operating loss carryforwards from the pre-
acquisition periods of Accipiter and I/PRO, when realized, will be recorded as
a decrease in goodwill and other non-current intangible assets. The utilization
of these net operating losses may be limited pursuant to Internal Revenue Code
Section 382 as a result of prior and future ownership changes.
(10) Stockholders' Equity
In July 1998, the Company's shareholders authorized 5,000,000 shares of
preferred stock, of which 1,500,000 have been designated as Series A
convertible preferred stock ("Series A Preferred Stock") and 238,597 shares
have been designated as Series B convertible preferred stock ("Series B
Preferred Stock"). In May 1999, the Board of Directors approved the designation
of 2,000,000 shares of the Company's preferred stock as Series C Convertible
Preferred Stock ("Series C Preferred Stock").
Series A Preferred Stock
In July 1998, the Board of Directors authorized and issued 800,000 shares of
Series A Preferred Stock in exchange for 16,000,000 shares of the Company's
common stock and $8,000,000 in principal amount of debt to CMGI. The Series A
Preferred Stock is entitled to receive annual dividends at 7%, as and if
declared. As of and prior to July 31, 1998, no dividends had been declared or
paid by the Company. Each share of Series A Convertible Preferred Stock votes
on an as-converted basis and is convertible into twenty shares of common stock
under certain conditions and subject to certain adjustments. In the event of
any liquidation, dissolution or winding up of the Company, the Series A
Preferred Stock has a liquidation preference of $5 per share, plus cumulative
dividends of 7% compounded annually beginning on February 1, 1998. The Series A
Preferred Stock is convertible into common stock immediately at the option of
the holder, and automatically converts into common stock upon the completion of
a qualifying initial public offering, as defined. See note 16.
In July 1998, the Board of Directors authorized the issuance of an
additional 700,000 shares of Series A Preferred Stock to CMGI in connection
with the Company's acquisition of Accipiter, Inc.
At April 30, 1999, 15,000,000 shares of common stock have been reserved for
issuance upon the conversion of the Series A Preferred Stock.
Series B Preferred Stock
In August 1998, the Board of Directors designated and issued 238,597 shares
of Series B Preferred Stock. Proceeds from the sale were $1,934,000, net of
issuance costs of $6,000. Each share of Series B Preferred Stock votes on an
as-converted basis and is convertible into two shares of common stock under
certain conditions and subject to certain adjustments. In the event of any
liquidation, dissolution or winding up of the Company, the Series B Preferred
Stock has a liquidation preference of $8.38 per share, subject to the prior
payment of the liquidation preference on Series A Preferred Stock. The Series B
Preferred Stock is convertible into common stock immediately at the option of
the holder, and automatically converts into common stock upon the completion of
a qualifying initial public offering, as defined in the stock purchase
agreement. See note 16.
Unaudited Pro Forma Balance Sheet
Upon the closing of a qualifying initial public offering, debt to CMGI will
convert to Series C Preferred Stock, and all of the outstanding shares of
Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock
will convert to 38,748,474 shares of the Company's common stock. This
conversion has been reflected in the unaudited pro forma balance sheet as of
April 30, 1999. See note 16.
F-20
<PAGE>
ENGAGE TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(11) Stock Option Plans
Engage 1995 Equity Incentive Plan
In August 1995, the Company's Board of Directors and Stockholders approved
the 1995 Equity Incentive Plan (the "1995 Plan"). Under the 1995 Plan, non-
qualified stock options or incentive stock options may be granted to the
Company's or its affiliates' employees, as defined. The Board of Directors
administers this plan, selects the individuals to whom options will be granted,
and determines the number of shares and exercise price of each option. Options
granted under the 1995 Plan typically vest over a four year period, with 25% of
options granted becoming exercisable one year from the date of grant and the
remaining 75% vesting monthly for the next thirty-six (36) months. The
following table reflects activity and historical prices of stock options under
the Company's 1995 Plan for the three years ended July 31, 1998 and the nine
months ended April 30, 1999:
<TABLE>
<CAPTION>
Year Ended July 31,
----------------------------------------------------------- Nine Months Ended
1996 1997 1998 April 30, 1999
------------------ ------------------- -------------------- -------------------
Weighted Weighted Weighted Weighted
Number Average Number Average Number Average Number Average
of Exercise of Exercise of Exercise of Exercise
Shares Price Shares Price Shares Price Shares Price
--------- -------- --------- -------- ---------- -------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Options outstanding,
beginning of period.... -- $ -- 2,575,500 $0.15 2,391,000 $0.24 4,148,054 $1.09
Granted................. 2,575,500 0.15 903,500 0.60 3,290,500 1.46 2,508,710 3.80
Exercised............... -- -- (187,500) 0.12 (1,600) 0.43 (26,040) 0.35
Cancelled............... -- -- (900,500) 0.38 (1,531,846) 0.57 (162,930) 0.46
--------- --------- ---------- ---------
Options outstanding, end
of period.............. 2,575,500 $0.15 2,391,000 $0.24 4,148,054 $1.09 6,467,794 $2.16
========= ===== ========= ===== ========== ===== ========= =====
Options exercisable, end
of period.............. -- $ -- 606,178 $0.12 639,444 $0.30 1,704,888 $0.79
========= ===== ========= ===== ========== ===== ========= =====
Options available for
grant, end of period... 1,424,500 1,421,500 1,452,320 470,146
========= ========= ========== =========
</TABLE>
The following table summarizes information about stock options under the
Company's 1995 Plan outstanding at April 30, 1999:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
--------------------------------------- --------------------------
Weighted
Average
Remaining Weighted Weighted
Range of Number Contractual Average Number Average
Exercise Prices Outstanding Life (years) Exercise Price Outstanding Exercise Price
--------------- ----------- ------------ -------------- ----------- --------------
<S> <C> <C> <C> <C> <C>
$ 0.01-$ 0.42 2,834,860 3.3 $ 0.23 1,249,216 $ 0.19
$ 0.43-$ 0.84 81,000 2.4 0.71 51,788 0.71
$ 0.85-$ 1.68 45,674 2.9 1.03 28,282 1.03
$ 2.10-$ 2.94 1,693,478 3.4 2.56 345,206 2.38
$ 2.95-$ 4.19 314,000 4.5 4.19 13,540 4.19
$ 4.20-$ 5.05 1,419,738 4.8 4.95 -- 0.00
$ 5.06-$14.91 79,044 4.9 6.70 16,856 9.18
--------- ---------
6,467,794 3.7 $ 2.16 1,704,888 $ 0.79
========= =========
</TABLE>
F-21
<PAGE>
ENGAGE TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
CMGI 1986 Stock Option Plan
Certain Engage employees have been granted stock options under the CMGI 1986
Stock Option Plan (the "1986 Plan"). Options under the 1986 Plan are granted at
fair market value on the date of the grant and are generally exercisable in
equal cumulative installments over a four-to-ten year period beginning one year
after the date of grant. Outstanding options under the 1986 Plan expire through
2007. Under the 1986 Plan, non-qualified stock options or incentive stock
options may be granted to CMGI's or its subsidiaries' employees, as defined.
The Board of Directors of CMGI administers this plan, selects the individuals
to whom options will be granted, and determines the number of shares and
exercise price of each option. The following table reflects activity and
historical prices of stock options granted to Company employees under CMGI's
1986 Plan for the three years ended July 31, 1998 and the nine months ended
April 30, 1999:
<TABLE>
<CAPTION>
Year Ended July 31,
--------------------------------------------------------- Nine Months Ended
1996 1997 1998 April 30, 1999
------------------ ------------------ ------------------- ------------------
Weighted Weighted Weighted Weighted
Average Average Average Average
Number of Exercise Number of Exercise Number of Exercise Number of Exercise
Shares Price Shares Price Shares Price Shares Price
--------- -------- --------- -------- --------- -------- --------- --------
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Options outstanding,
beginning of period.... 105,360 $0.08 160,320 $0.91 181,240 $1.25 140,780 $ 2.11
Granted................. 76,000 1.84 48,800 1.95 80,000 2.32 296,400 10.00
Exercised............... (21,040) 0.08 (21,880) 0.15 (106,292) 0.84 (57,264) 2.03
Cancelled............... -- -- (6,000) 1.77 (14,168) 1.85 -- --
------- ------- -------- -------
Options outstanding, end
of period.............. 160,320 $0.91 181,240 $1.25 140,780 $2.11 379,916 8.28
======= ===== ======= ===== ======== ===== ======= ======
Options exercisable, end
of period.............. 42,346 $0.22 83,598 $0.81 18,602 $1.76 10,766 $ 2.02
======= ===== ======= ===== ======== ===== ======= ======
</TABLE>
The following table summarizes information about stock options under the
CMGI 1986 Stock Plan outstanding at April 30, 1999:
<TABLE>
<CAPTION>
Options Outstanding Options Exercisable
--------------------------------------- --------------------------
Weighted
Average
Remaining Weighted Weighted
Range of Number Contractual Average Number Average
Exercise Prices Outstanding Life (years) Exercise Price Outstanding Exercise Price
--------------- ----------- ------------ -------------- ----------- --------------
<S> <C> <C> <C> <C> <C>
$3.22-$ 3.89 14,840 2.13 $ 3.62 8,846 $3.31
$ 4.63 25,834 3.49 4.63 -- --
$ 7.53 1,084 1.58 7.53 453 7.53
$20.00 148,200 4.38 20.00 -- --
------- -----
189,958 4.07 $16.56 9,299 $3.52
======= =====
</TABLE>
SFAS No. 123, "Accounting for Stock-Based Compensation" ("SFAS 123"), sets
forth a fair-value based method of recognizing stock-based compensation
expense. As permitted by SFAS No. 123, the Company has elected to continue to
apply APB No. 25 to account for its stock-based compensation plans. Had
compensation cost for awards in fiscal 1996, 1997 and 1998 under the Company's
stock-based compensation plans been determined based on the fair value method
set forth under SFAS 123, the pro forma effect on the Company's net loss would
have been as follows:
<TABLE>
<CAPTION>
Year Ended Year Ended Year Ended Nine Months Ended
July 31, 1996 July 31, 1997 July 31, 1998 April 30, 1999
--------------------- --------------------- --------------------- ---------------------
As Reported Pro Forma As Reported Pro Forma As Reported Pro Forma As Reported Pro Forma
----------- --------- ----------- --------- ----------- --------- ----------- ---------
(In thousands)
<S> <C> <C> <C> <C> <C> <C> <C> <C>
Net loss................ $(2,379) $(2,402) $(10,262) $(10,385) $(13,837) $(14,195) $(21,170) $(23,190)
</TABLE>
F-22
<PAGE>
ENGAGE TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
The fair value of each stock option grant has been estimated on the date of
grant using the Black-Scholes option pricing model with the following weighted
average assumptions for fiscal 1996, 1997 and 1998, and the nine moneths ended
April 30, 1999, respectively: volatility of 80.30%, 66.69%, 90.07% and 100.00%;
risk-free interest rate of 5.81%, 6.19%, 5.48% and 5.16%; expected life of
options of 4.0, 4.0, 3.4 and 2.5 years; and 0% dividend yield for all years.
The weighted average fair value per share of options granted during fiscal
1996, 1997 and 1998 and the nine months ended April 30, 1999 was $0.10, $0.34,
$0.86 and $1.42, respectively.
The fair value of each stock option granted under the CMGI 1986 Plan has
been estimated on the date of grant using the Black-Scholes option pricing
model with the following weighted average assumptions for fiscal 1996, 1997 and
1998, and the nine months ended April 30, 1999, respectively: volatility of
80.30%, 66.69%, 90.07% and 100.00%; risk-free interest rate of 5.81%, 6.19%,
5.50% and 5.16%; expected life of options of 4.0, 6.2, 4.2 and 2.5 years; and
0% dividend yield for all years. The weighted average fair value per share of
options granted during fiscal 1996, 1997 and 1998 and the nine months ended
April 30, 1999 was $2.02, $2.60, $3.16 and $11.96, respectively.
(12) Comprehensive Income
Effective August 1, 1998, the Company adopted Statement of Financial
Accounting Standard ("SFAS") No. 130, "Reporting Comprehensive Income." This
statement requires that all components of comprehensive income be reported in
the financial statements in the period in which they are recognized. The
components of comprehensive loss for the Company include net loss, the net
change in foreign currency translation adjustments and unrealized holding gains
and losses on available-for-sale securities. The financial statements of prior
periods have been reclassified for comparative purposes.
The components of comprehensive loss, net of income taxes, are as follows:
<TABLE>
<CAPTION>
Nine Months
Year Ended July 31, Ended
------------------------------ April 30,
1996 1997 1998 1999
-------- --------- --------- -----------
(In thousands)
<S> <C> <C> <C> <C>
Net loss....................... $ (2,379) $ (10,262) $ (13,837) $ (21,170)
Foreign currency adjustments... -- -- -- 302
Net unrealized holding gain
(loss) arising during the
period........................ -- -- (1,193) 469
-------- --------- --------- ---------
Comprehensive loss............. $ (2,379) $ (10,262) $ (15,030) $ (20,399)
======== ========= ========= =========
</TABLE>
The components of accumulated comprehensive income (loss) are as follows:
<TABLE>
<CAPTION>
Accumulated
Foreign Unrealized Other
Currency Gains (Losses) Comprehensive
Adjustments on Securities Income
----------- -------------- -------------
(In thousands)
<S> <C> <C> <C>
Balance, July 31, 1997............ $-- $ -- $ --
Activity, fiscal 1998............. -- (1,193) (1,193)
---- ------- -------
Balance, July 31, 1998............ -- (1,193) (1,193)
Activity, nine months ended April
30, 1999......................... 302 469 771
---- ------- -------
Balance, April 30, 1999........... $302 $ (724) $ (422)
==== ======= =======
</TABLE>
F-23
<PAGE>
ENGAGE TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
(13) Concentration of Credit Risk
Amounts included in the consolidated balance sheets for accounts receivable,
debt to CMGI, accounts payable and accrued expenses approximate their fair
value due to their short maturities. Financial instruments that potentially
subject the Company to credit risk consist primarily of accounts receivable.
The Company performs periodic credit evaluations of its customers' financial
condition and generally does not require collateral or other security against
trade receivable balances; however, it does maintain reserves for potential
credit losses and such losses have been within management's expectations. The
Company's revenue for the year ended July 31, 1997 was derived from one
customer. Sales to three customers accounted for 20%, 12% and 11% of total
revenues for the year ended July 31, 1998. Sales to two customers accounted for
17% and 16% of total revenues for the nine months ended April 30, 1998 and
sales to one customer accounted for 10% of total revenues for the nine months
ended April 30, 1999. Accounts receivable at July 31, 1997 was due from one
customer. Accounts receivable due from three customers approximated 23%, 12%
and 12% of total accounts receivable at July 31, 1998. Accounts receivable from
two customers approximated 20% and 13% of total accounts receivable at April
30, 1999. The Company's customer base consists of geographically diverse
customers across many industries.
(14) Related Party Transactions
CMGI has provided the Company with systems and related services ("enterprise
services") at amounts that approximated the fair value of services received in
each of the periods presented in these financial statements. The Company also
occupies facilities that are leased by CMGI, whereby CMGI charges the Company
for its share of rent and related facility costs through an allocation based
upon the company's headcount in relation to total headcount for all CMGI
companies located in the premises. The Company has also purchased certain
employee benefits (including 401(k) plan participation by employees of the
Company) and insurance (including property and casualty insurance) through
CMGI. Amounts due CMGI are included in "Debt to CMGI" on the consolidated
balance sheets. See note 16. The following summarizes the expenses allocated to
the Company by CMGI for enterprise services, rent and facilities, and human
resources:
<TABLE>
<CAPTION>
Year Ended July 31, Nine Months
-------------------- Ended
1996 1997 1998 April 30, 1999
------ ------ ------ --------------
(In thousands)
<S> <C> <C> <C> <C>
Enterprise services...................... $ -- $ 129 $ 201 $173
Rent and facilities...................... $ 35 $ 312 $ 366 $303
Human resources.......................... $ -- $ 11 $ 30 $102
</TABLE>
In addition, beginning in fiscal 1997, the Company outsources data center
operations and management information services from CMGI and one of its
affiliates, for which fees were charged at estimated fair value of $1,162,000,
$889,000 and $1,633,000 during the years ended July 31, 1997 and 1998 and the
nine months ended April 30, 1999, respectively.
The Company leases certain property and equipment from a subsidiary of CMGI.
Under the arrangement, the related party negotiates the terms and conditions of
the lease and obtains the assets to be leased. The related party bears all
liability for payment, and the Company is not financially obligated under the
leases. The Company is charged the actual lease fees paid by the related party,
plus an additional administrative charge that approximates the fair value of
the services received (see note 8).
F-24
<PAGE>
ENGAGE TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
The Company sells its products and services to companies that CMGI has an
investment interest or a significant ownership interest. The Company sold no
products to related parties in fiscal 1996 and 1997. Total revenue realized
from sales to related parties were $235,000 and $1,364,000 for the fiscal year
ended July 31, 1998 and the nine months ended April 30, 1999. The related cost
of revenue is consistent with the costs incurred on similar transactions with
unrelated parties.
(15) Geographic Information
The Company currently has offices in the United States and the United
Kingdom. The Company markets its products worldwide. Revenues are grouped into
three main geographic areas; United States, Europe and Rest of world. Revenue
was distributed by geography as follows:
<TABLE>
<CAPTION>
Year Ended July 31, Nine Months
------------------- Ended
1996 1997 1998 April 30, 1999
------ ---- ------- --------------
(In thousands)
<S> <C> <C> <C> <C>
United States........................... $ -- $ 25 $ 1,584 $ 7,457
Europe.................................. -- -- 71 577
Rest of world........................... -- -- 562 963
------ ---- ------- -------
$ -- $ 25 $ 2,217 $ 8,997
====== ==== ======= =======
</TABLE>
(16) Subsequent Events
Designation of Series C Convertible Preferred Stock
In May 1999, the Board of Directors approved the designation of 2,000,000
shares of the Company's preferred stock as Series C Convertible Preferred Stock
("Series C Preferred Stock"). The Series C Preferred Stock is entitled to
receive noncumulative annual dividends, payable when, as and if declared at the
rate of 7% per annum. In the event of any liquidation, dissolution or winding
up of the Company, the Series C Preferred Stock ranks senior to the Series B
Preferred Stock and pari passu with the Series A Preferred Stock, and has a
liquidation preference equal to its purchase price plus dividends computed at
7% per share per annum. Each share of Series C Preferred Stock votes on an as-
converted basis and is convertible at the option of the holder into twenty
shares of common stock, subject to certain adjustments. Upon the closing of a
qualifying initial public offering, all outstanding shares of Series C
Preferred Stock will convert into common stock.
Debt to CMGI
In May 1999, the Company formalized its borrowing arrangement with CMGI and
executed a secured convertible demand note with CMGI dated February 1, 1999.
Advances accrue interest at the annual rate of 7%, and advances and accrued
interest may be prepaid without penalty. Advances outstanding under this note
are secured by substantially all assets and intellectual property of the
Company and principal, and accrued interest may be converted at the option of
CMGI into shares of Series C Preferred Stock. The number of Series C Preferred
shares to be issued upon conversion of each borrowing represented by the note
is based on the estimated fair value of the Company at the end of the quarter
in which such borrowing was made.
In accordance with this arrangement, CMGI elected to convert advances and
accrued interest outstanding at April 30, 1999 in the amount of $37,447,000
into 413,564 shares of Series C Preferred Stock.
F-25
<PAGE>
ENGAGE TECHNOLOGIES, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS--(Continued)
Authorized Share Increase and Stock Split
In June 1999, the Board of Directors approved an increase in the number of
authorized common shares from 30,000,000 to 150,000,000. Upon approval of the
share increase, a two-for-one stock split was declared. All share data shown in
the accompanying consolidated financial statements have been retroactively
restated to reflect this split.
1999 Employee Stock Purchase Plan
The 1999 Employee Stock Purchase Plan was adopted by the board of directors
in June 1999. The 1999 Employee Stock Purchase Plan provides for the issuance
of a maximum of 750,000 shares of common stock and will be administered by the
compensation committee. All employees of Engage whose customary employment is
for more than 20 hours per week and for more than 6 months in any calendar year
are eligible to participate in the 1999 Employee Stock Purchase Plan.
1999 Stock Option Plan for Non-Employee Directors
The 1999 Stock Option Plan for Non-Employee Directors was adopted by the
board of directors in June 1999. Under the terms of the 1999 Stock Option Plan
for Non-Employee Directors, directors who are not employees of Engage or any
subsidiary of Engage and not affiliates of an institutional investor that owns
shares of Engage's common stock receive nonstatutory options to purchase shares
of Engage's common stock. A total of 250,000 shares of common stock may be
issued upon exercise of options granted under the plan. The board of directors
has discretion to establish the terms of options granted under the plan. All
options must have an exercise price equal to the fair market value of the
common stock on the date of grant.
F-26
<PAGE>
INDEPENDENT AUDITORS' REPORT
The Board of Directors
Accipiter, Inc.:
We have audited the accompanying balance sheets of Accipiter, Inc. as of
December 31, 1997 and 1996 and the related statements of operations,
stockholders' deficit, and cash flows for the year ended December 31, 1997 and
the period from April 4, 1996 (inception) to December 31, 1996. These financial
statements are the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial statements based on
our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of
material misstatement. An audit includes examining, on a test basis, evidence
supporting the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and significant
estimates made by management, as well as evaluating the overall financial
statement presentation. We believe that our audits provide a reasonable basis
for our opinion.
In our opinion, the financial statements referred to above present fairly, in
all material respects, the financial position of Accipiter, Inc. as of December
31, 1997 and 1996 and the results of its operations and its cash flows for the
year ended December 31, 1997 and the period from April 4, 1996 (inception) to
December 31, 1996 in conformity with generally accepted accounting principles.
KPMG LLP
Raleigh, North Carolina
March 26, 1998
F-27
<PAGE>
ACCIPITER, INC.
BALANCE SHEETS
<TABLE>
<CAPTION>
December 31,
--------------------
March 31,
1998 1997 1996
----------- ---------- --------
(Unaudited)
<S> <C> <C> <C>
Assets
Current assets:
Cash and cash equivalents.................. $ 689,332 $1,225,245 $ 95,392
Accounts receivable, net of allowance for
doubtful accounts of $19,120 at March 31,
1998 and December 31, 1997................ 711,944 436,744 4,290
Other current assets....................... 2,383 19,935 --
---------- ---------- --------
Total current assets..................... 1,403,659 1,681,924 99,682
Property and equipment, at cost.............. 327,255 282,216 83,262
Less accumulated depreciation................ 65,441 50,440 8,625
---------- ---------- --------
Net property and equipment............... 261,814 231,776 74,637
---------- ---------- --------
Other assets, net............................ 1,648 1,648 1,067
---------- ---------- --------
Total assets............................. $1,667,121 $1,915,348 $175,386
========== ========== ========
Liabilities and Stockholders' Deficit
Current liabilities:
Accounts payable and accrued expenses...... $ 228,291 $ 79,222 $ 36,383
Payroll and sales taxes payable............ 137 605 24,500
Deferred revenues.......................... 247,766 -- --
---------- ---------- --------
Total current liabilities................ 476,194 79,827 60,883
---------- ---------- --------
Notes payable................................ -- -- 250,000
---------- ---------- --------
Total liabilities........................ 476,194 79,827 310,883
---------- ---------- --------
Preferred stock, $.001 par value, 4,250,000
shares authorized:
Series A convertible redeemable preferred
stock 1,735,299 shares designated,
1,424,940, 1,424,940 and 999,999 shares
issued and outstanding at March 31, 1998
and December 31, 1997 and 1996,
respectively.............................. 1,000,000 1,000,000 500,000
Series B convertible preferred stock
2,514,701 shares designated, 2,189,383
and 2,173,883 shares issued and
outstanding at March 31, 1998 and
December 31, 1997, respectively........... 3,000,414 2,979,132 --
Stockholders' deficit:
Common stock $.01 par value, 8,000,000
shares authorized, 1,950,380, 1,950,000
and 1,950,000 shares issued and
outstanding at March 31, 1998, December
31, 1997 and 1996, respectively........... 19,504 19,500 19,500
Additional paid in capital................. 47 -- --
Accumulated deficit........................ (2,829,038) (2,163,111) (654,997)
---------- ---------- --------
Total stockholders' deficit.............. (2,809,487) (2,143,611) (635,497)
---------- ---------- --------
Commitments, contingencies and subsequent
event
Total liabilities and stockholders' defi-
cit..................................... $1,667,121 $1,915,348 $175,386
========== ========== ========
</TABLE>
See accompanying notes to financial statements.
F-28
<PAGE>
ACCIPITER, INC.
STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
Three months ended Period from
March 31, Year ended April 14, 1996
--------------------- December 31, to December 31,
1998 1997 1997 1996
---------- --------- ------------ ---------------
(Unaudited)
<S> <C> <C> <C> <C>
Revenues:
License fees............. $ 491,068 $ 85,050 $ 771,710 $ --
Support fees............. 54,181 3,642 122,356 --
Consulting fees.......... 24,770 -- 93,639 4,290
---------- --------- ----------- ---------
Total revenues......... 570,019 88,692 987,705 4,290
---------- --------- ----------- ---------
Operating expenses:
Development.............. 235,421 130,805 649,209 203,092
Support.................. 125,110 17,000 138,300 --
Marketing................ 150,522 89,282 506,709 170,403
General and
administrative expenses
........................ 392,701 90,591 672,761 168,221
Executive................ 108,708 26,985 179,152 66,224
Selling.................. 220,358 58,081 348,773 45,979
Royalties................ 12,620 -- 23,600 --
Other.................... -- -- 280 268
---------- --------- ----------- ---------
Total operating ex-
penses................ 1,245,440 412,744 2,518,784 654,187
---------- --------- ----------- ---------
Operating loss......... (675,421) (324,052) (1,531,079) (649,897)
---------- --------- ----------- ---------
Other income, net:
Interest income, net..... 11,094 9 19,220 --
Other income (expense),
net..................... (1,600) 3,242 3,745 --
---------- --------- ----------- ---------
Other income, net.......... 9,494 3,251 22,965 --
Income tax benefit......... -- -- -- --
---------- --------- ----------- ---------
Net loss............... $ (665,927) $(320,801) $(1,508,114) $(649,897)
========== ========= =========== =========
</TABLE>
See accompanying notes to financial statements.
F-29
<PAGE>
ACCIPITER, INC.
STATEMENTS OF STOCKHOLDERS' DEFICIT
<TABLE>
<CAPTION>
Common Stock Additional
----------------- paid in Accumulated
Shares Amount capital Deficit Total
--------- ------- ---------- ----------- -----------
<S> <C> <C> <C> <C> <C>
Issuance of common stock
to founders............ 650,000 $ 6,500 $7,900 $ -- $ 14,400
Issuance of shares
pursuant to 2 for 1
stock dividend......... 1,300,000 13,000 (7,900) (5,100) --
Net loss................ -- -- -- (649,897) (649,897)
--------- ------- ------ ----------- -----------
December 31, 1996....... 1,950,000 19,500 -- (654,997) (635,497)
Net loss................ -- -- -- (1,508,114) (1,508,114)
--------- ------- ------ ----------- -----------
December 31, 1997....... 1,950,000 19,500 -- (2,163,111) (2,143,611)
Exercise of stock
options (unaudited).... 380 4 47 -- 51
Net loss (unaudited).... -- -- -- (665,927) (665,927)
--------- ------- ------ ----------- -----------
March 31, 1998
(unaudited)............ 1,950,380 $19,504 $ 47 $(2,829,038) $(2,809,487)
========= ======= ====== =========== ===========
</TABLE>
See accompanying notes to financial statements.
F-30
<PAGE>
ACCIPITER, INC.
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
Three months ended Period from
March 31, Year ended April 14, 1996
--------------------- December 31, to December 31,
1998 1997 1997 1996
---------- --------- ------------ ---------------
(Unaudited)
<S> <C> <C> <C> <C>
Cash flows from operating
activities:
Net loss................ $ (665,927) $(320,801) $(1,508,114) $(649,897)
Adjustments to reconcile
net loss to net cash
used in operating
activities:
Depreciation and
amortization
expense.............. 15,001 -- 41,815 8,735
Bad debt expense...... -- -- 19,120 --
Increase in accounts
receivable........... (275,200) (30,745) (451,574) (4,290)
Increase (decrease) in
other current
assets............... 17,552 (1,000) (19,935) --
Increase in other
assets............... -- -- (581) (1,177)
Increase in accounts
payable and accrued
expenses............. 149,069 59,943 42,839 36,383
Increase (decrease) in
payroll and sales
taxes payable........ (468) (17,467) (23,895) 24,500
Increase in deferred
revenues............. 247,766 -- -- --
---------- --------- ----------- ---------
Net cash used in
operating
activities......... (512,207) (310,070) (1,900,325) (585,746)
---------- --------- ----------- ---------
Cash flows from investing
activities -- purchase of
equipment................ (45,039) (11,467) (198,954) (83,262)
---------- --------- ----------- ---------
Cash flows from financing
activities:
Proceeds from notes
payable................ -- 250,000 550,000 250,000
Proceeds from issuance
of preferred stock..... 21,282 -- 2,679,132 500,000
Proceeds from issuance
of common stock........ 51 -- -- 14,400
---------- --------- ----------- ---------
Net cash provided by
financing
activities......... 21,333 250,000 3,229,132 764,400
---------- --------- ----------- ---------
Net increase
(decrease) in cash
and cash
equivalents........ (535,913) (71,537) 1,129,853 95,392
Cash and cash equivalents
at beginning of period... 1,225,245 95,392 95,392 --
---------- --------- ----------- ---------
Cash and cash equivalents
at end of period......... $ 689,332 $ 23,855 $ 1,225,245 $ 95,392
========== ========= =========== =========
</TABLE>
See accompanying notes to financial statements.
F-31
<PAGE>
ACCIPITER, INC.
NOTES TO FINANCIAL STATEMENTS
December 31, 1997 and 1996
(1) Company Operations and Summary of Significant Accounting Policies
(a) Nature of Business and Presentation
Accipiter, Inc. (the "Company") develops and markets Internet application
software that enables web sites to deliver targeted advertising based on
specific demographic profiles and to track individual visitors on a web site.
Most of the Company's efforts since incorporation have been devoted to
obtaining capital and developing and testing products. Accipiter's clients are
both domestic and international organizations with web sites on the Internet.
The Company was accounted for as a development stage enterprise in
accordance with Statement of Financial Accounting Standards No. 7, "Accounting
and Reporting by Development Stage Enterprises" in 1996. Operations commenced
in 1997.
Interim Financial Statements
The financial statements of Accipiter, Inc. as of March 31, 1998 and for the
three months ended March 31, 1997 and 1998 are unaudited. All adjustments and
accruals (consisting only of normal recurring adjustments) have been recorded
that, in the opinion of management, are necessary for a fair presentation.
Results of operations for the interim periods are not necessarily indicative of
the results for the full year.
(b) Revenue Recognition
The Company's revenue, which consists of license fees, software support and
consulting fees, is recognized in accordance with AICPA Statement of Position
91-1, "Software Revenue Recognition" (AICPA SOP 91-1). Revenue from license
fees is recognized upon shipment of the product and fulfillment of acceptance
terms, if any. Revenue from software support and consulting services is
recognized as services are provided.
(c) Income Taxes
Deferred tax assets and liabilities are recognized for the future tax
consequences attributable to differences between the financial statement
carrying amounts of existing assets and liabilities and their respective tax
bases and operating loss carryforwards. Deferred tax assets and liabilities are
measured using enacted tax rates expected to apply to taxable income in the
years in which those temporary differences are expected to be recovered or
settled. The effect on deferred tax assets and liabilities of a change in tax
rates is recognized in income in the period that includes the enactment date.
(d) Property and Equipment
Property and equipment, consist of computer and office equipment which is
being depreciated using the straight-line method over its estimated useful life
of five years for furniture and three years for office equipment.
(e) Research and Development
Research and development expenditures are expensed as incurred. Software
development costs are required to be capitalized when a product's technological
feasibility has been established either by completion of a detail program
design or a working model of the product and ending when a product is available
for general release to consumers. To date, attainment of technological
feasibility
F-32
<PAGE>
ACCIPITER, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
of the Company's products and general release to customers have substantially
coincided. As a result, the Company has not capitalized any software
development costs since such costs have not been significant.
(f) Use of Estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities as of the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
(2) Income Taxes
There was no income tax benefit for the year ended December 31, 1997 and the
period from April 4, 1996 (inception) to December 31, 1996. The difference
between the actual tax and the expected benefit is as follows:
<TABLE>
<CAPTION>
1997 1996
---- ----
<S> <C> <C>
Computed "expected" tax benefit........................ $(512,800) $(220,900)
Increase benefit in income taxes resulting from:
Increase in valuation reserve........................ 511,700 220,900
Nondeductible meals and entertainment................ 1,100 --
--------- ---------
$ -- $ --
========= =========
</TABLE>
At December 31, 1997, the Company has net operating loss carryforwards
(NOL's) for federal income tax purposes of approximately $1,895,000 which
expire in varying amounts between 2011 and 2012. The Company has NOL's for
state tax purposes of approximately $1,895,000 which expire in varying amounts
between 2001 and 2002. Additionally, the Company has research and development
credits of approximately $23,000 which expire in varying amounts between 2009
and 2010. Due to the uncertainty regarding the ultimate realizability of the
Company's NOL's, a full valuation allowance has been provided such that
deferred tax assets are not recognized.
The components of deferred tax assets and deferred tax liabilities as of
December 31, 1997 and 1996 are as follows:
<TABLE>
<CAPTION>
1997 1996
---- ----
<S> <C> <C>
Deferred tax assets:
Tax loss carryforwards................................ $ 644,300 $114,000
Miscellaneous reserves and credits.................... 6,700 200
Start-up costs........................................ 85,700 108,000
--------- --------
Total............................................... 736,700 222,200
Valuation allowance................................... (732,600) (220,900)
--------- --------
Net deferred asset.................................. $ 4,100 $ 1,300
========= ========
Deferred tax liabilities:
Fixed assets.......................................... $ 4,100 $ 1,300
Deferred tax liability................................ 4,100 1,300
--------- --------
Net deferred tax assets and (liability)............. $ -- $ --
========= ========
</TABLE>
F-33
<PAGE>
ACCIPITER, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
The Tax Reform Act of 1986 contains provisions which limit the ability to
utilize net operating loss carryforwards in the case of certain events
including significant changes in ownership interests. If the Company's NOL's
are limited, and the Company has taxable income which exceeds the permissible
yearly NOL, the Company would incur federal income tax liability even though
NOL's would be available in future years.
(3) Note payable
During December 1996, the holder of the preferred stock ("Investor")
advanced $250,000 in the form of a convertible note that accrued interest at
10%. The Investor advanced an additional $250,000 in 1997. The advances
totaling $500,000 were converted to 422,000 shares of Series A preferred stock
in 1997. Accrued interest of $3,485 was converted to 2,941 shares of Series A
preferred stock in 1997.
During May 1997, the Investor advanced the Company $300,000 in the form of a
convertible note that accrued interest at 10% and which was subsequently
converted to 218,500 shares of Series B preferred stock. Accrued interest of
$5,610 was converted to 4,086 shares of Series B preferred stock in 1997.
(4) Capital Structure
The Company is authorized to issue up 8,000,000 shares of $.01 par value
common stock and 4,250,000 shares of $.001 par value preferred stock, of which
1,735,299 shares have been designated as Series A convertible preferred stock
and 2,514,701 shares have been designated as Series B convertible preferred
stock.
Series A and B preferred stock ("preferred stock")
The significant terms of the preferred stock are as follows:
Dividends--The holders of the preferred stock are eligible to receive
dividends if and when declared by the Board of Directors of the Company. The
preferred stockholders' right to receive dividends is senior to that of common
stockholders.
Liquidation Preference--The holders of preferred stock are senior to the
common shareholders in the event of liquidation. The Series A preferred
stockholders are entitled to receive a liquidation preference of $0.50 per
preferred share. The Series B preferred stockholders are entitled to receive a
liquidation preference of $1.373 per preferred share.
Redemption and Conversion--Each share of preferred stock is convertible into
common stock at the rate of one common share to one preferred share. The
preferred stock is convertible upon the occurrence of an initial public
offering or at the option of the preferred stockholders. In the event the
preferred stock has not been redeemed or converted prior to July 1, 2002, the
shares are redeemable at the option of the stockholders, with one-third payable
on July 1, 2002, one-third payable on July 1, 2003, and one-third payable on
July 1, 2004, from legally available funds on a pro rata basis at the
liquidation preference.
Voting Rights--The holders of the preferred stock are generally entitled to
vote based on the number of common shares they would receive upon conversion.
Stock Options
On May 30, 1996, the Board of Directors adopted a stock option plan to
create an additional incentive for key employees, directors and consultants or
advisors. At December 31, 1997, 1,050,000 common shares were authorized for
issuance to be granted within 10 years of plan adoption. The
F-34
<PAGE>
ACCIPITER, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
Company issued incentive stock options to acquire 796,250 shares of common
stock to employees and nonqualified options to acquire 71,864 common shares to
a director during the period from adoption of the plan to December 31, 1997.
The exercise price for options issued through February 1997 was set at
$0.0667. The exercise price for options issued after February 1997 was set at
$0.1373. Exercise prices were estimated to approximate the market value of the
common stock on the date of issuance. Generally, the options provide that
after a six month waiting period, vesting occurs ratably each month over
forty-two months. At December 31, 1997, options for 143,481 shares were
vested. No options have been exercised as of December 31, 1997.
The Company accounts for its stock option plan in accordance with the
provisions of Accounting Principles Board ("APB") Opinion No. 25, Accounting
for Stock Issued to Employees, and related interpretations. As such,
compensation expense is recorded on the date of grant only if the current
market price of the underlying stock exceeds the exercise price.
SFAS No. 123, Accounting for Stock-Based Compensation, permits entities to
recognize compensation expense over the vesting period using the fair value of
all stock-based awards on the date of grant. Alternatively, SFAS No. 123 also
allows entities to continue to apply the provisions of APB Opinion No. 25 and
provide pro forma net income and earnings per share disclosures for employee
stock option grants made in 1996 and future years as if the fair-value-based
method defined in SFAS No. 123 had been applied. The Company has elected to
apply the provisions of APB Opinion No. 25.
The fair value of each option granted is estimated on the date of the grant
using the Black-Scholes option pricing model with the following assumptions
used for the grants in 1997 and 1996; dividend yield of 0%; expected
volatility of 0%; risk-free interest rate of 5.0% to 6.0%; and expected lives
of 10 years for each option. The pro forma disclosures have not been included
as the fair value of options granted for the year ended December 31, 1997 are
immaterial.
A summary of the status of the Company's stock plan as of December 1997 and
1996 and changes during the years then ended is presented below:
<TABLE>
<CAPTION>
Weighted Weighted
Average Average
1997 Exercise 1996 Exercise
Shares Price Shares Price
------- -------- ------- --------
<S> <C> <C> <C> <C>
At the beginning of the year......... 362,750 $ 0.0667 -- $ --
Granted.............................. 505,000 0.1273 362,750 0.0667
Exercised............................ -- -- -- --
Terminated........................... (12,000) 0.0667 -- --
------- -------- ------- --------
At the end of year................... 856,114 0.1024 362,750 0.0667
======= =======
Options exercisable at year-end...... 143,481 47
Weighted-average fair value of
options granted during the year..... $ 0.1273 $ 0.0667
</TABLE>
The following table summarizes the information about stock options
outstanding at December 31, 1997:
<TABLE>
<CAPTION>
Options Outstanding
---------------------------- Number of
Number Remaining options
Exercise price outstanding contractual life exercisable
-------------- ----------- ---------------- -----------
<S> <C> <C> <C>
$0.0667............................ 423,250 8.5--9.2 years 120,966
$0.1373............................ 432,864 9.2--10 years 22,515
------- -------
Total.............................. 856,114 143,481
======= =======
</TABLE>
F-35
<PAGE>
ACCIPITER, INC.
NOTES TO FINANCIAL STATEMENTS--(Continued)
Stock Warrants
In May 1996, the Company issued warrants to Investor for 63,300 shares of
Series A preferred stock at an initial exercise price of $1.184834 per share.
The warrants vested on May 31, 1997 and expire five years after the vesting
date, on May 31, 2002.
In December 1996, the Company issued warrants to Investor for 250,000
shares of Series A preferred stock at an initial exercise price of $.50 per
share. The warrants vested immediately and expire on December 6, 2006.
In February 1997, the Company entered into a license agreement with CNET, a
customer. In connection with this agreement, the Company issued warrants to
purchase 181,862 shares of common stock at an initial exercise price of $2.50
per share. Such warrants vest during the two years after the date of the
agreement pursuant to certain conditions. The warrants are exercisable for two
years after the vesting period. If the license agreement between the Company
and CNET is terminated, the right to exercise these warrants will terminate
after 60 days.
In June 1997, the Company entered into a consulting agreement with a
director of the Company. Pursuant to this agreement, the Company issued
warrants to purchase 60,000 shares of common stock at an initial exercise
price of $0.1373 per share. This warrant expires on June 12, 2002.
(5) Leases
The Company has operating leases for office facilities, equipment, and
furniture. Rent expense under these leases and other month-to-month
arrangements totaled $163,407 and $14,311 in 1997 and 1996, respectively.
The future minimum lease payments under the noncancellable lease agreements
are as follows:
<TABLE>
<S> <C>
1998.......................................................... $217,043
1999.......................................................... 125,693
2000.......................................................... 76,836
2001.......................................................... 16,429
--------
Total minimum lease payments.................................... $436,001
========
</TABLE>
(6) Subsequent Event
On March 11, the Company and CMGI entered into a letter agreement,
providing for the acquisition of the Company by CMGI. The transaction closed
on April 8, 1998. The agreement provides that the Company will be merged with
a newly created wholly-owned subsidiary of CMGI. It also provides that each
common share of the Company and stock equivalents determined on a fully-
diluted as-converted basis will be converted into the right to receive
$35,000,000 worth of CMGI common stock, price determined on March 2, 1998 as
$55.50 per share. If the price of common stock of CMGI fluctuates according to
the agreement at the acquisition date, the number of shares may vary
accordingly. The letter agreement provides that the acquisition is subject to
the execution of a definitive agreement and to the occurrence or waiver of
certain conditions.
(7) Related Party Transactions
As noted in note 4, the Company entered into a consulting agreement with a
director in June 1997. Payments under this agreement in 1997 totaled $42,000.
The agreement ended in early 1998.
F-36
<PAGE>
REPORT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors and Stockholders
Internet Profiles Corporation:
In our opinion, the accompanying balance sheets and the related statements of
operations, of stockholders' equity (deficit) and of cash flows present fairly,
in all material respects, the financial position of Internet Profiles
Corporation at December 31, 1998 and 1997 and the results of its operations and
cash flows for the years then ended, in conformity with generally accepted
accounting principles. These financial statements are the responsibility of the
Company's management; our responsibility is to express an opinion on these
financial statements based on our audits. We conducted our audits of these
statements in accordance with generally accepted auditing standards which
require that we plan and perform the audit to obtain reasonable assurance about
whether the financial statements are free of material misstatement. An audit
includes examining, on a test basis, evidence supporting the amounts and
disclosures in the financial statements, assessing the accounting principles
used and significant estimates made by management, and evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for the opinion expressed above.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. As discussed in Note 1 to the
financial statements, the Company has incurred recurring losses from operations
and has an accumulated deficit of $27,768,378 at December 31, 1998 that raise
substantial doubt as to its ability to continue as a going concern.
Management's plans in regard to those matters are also described in Note 1. The
financial statements do not include any adjustments that might result from the
outcome of this uncertainty.
PricewaterhouseCoopers LLP
San Jose, California
March 1, 1999
F-37
<PAGE>
INTERNET PROFILES CORPORATION
BALANCE SHEETS
December 31, 1998 and 1997 and March 31, 1999
<TABLE>
<CAPTION>
December 31,
------------------------ March 31,
1997 1998 1999
----------- ----------- -----------
(unaudited)
<S> <C> <C> <C>
Assets
Current assets:
Cash and cash equivalents.............. $ 5,641,857 $ 1,191,604 $ 410,578
Accounts receivable, net of allowance
of $232,655 and $308,586 as of
December 31, 1997 and 1998, and
$434,002 as of March 31, 1999,
respectively.......................... 680,785 778,693 799,417
Accounts receivable from corporate
partner and investor, net of allowance
of $47,074 and $50,000 as of December
31, 1997 and 1998, and $50,000 as of
March 31, 1999, respectively.......... 222,209 268,090 168,934
Prepaid expenses and other current
assets................................ 210,840 376,999 322,834
----------- ----------- -----------
Total current assets................... 6,755,691 2,615,386 1,701,763
Property and equipment, net............. 2,365,613 1,875,951 1,675,660
Other assets, net....................... 230,606 254,403 255,068
----------- ----------- -----------
Total assets........................... $9,351,910 $4,745,740 $3,632,491
=========== =========== ===========
Liabilities and Stockholders' Equity
(Deficit)
Current liabilities:
Current portion of capital lease and
loan obligation....................... $ 913,071 $ 3,065,221 $ 2,867,989
Accounts payable....................... 492,083 60,913 540,122
Accrued expenses....................... 513,589 821,799 1,044,659
Commission payable to corporate partner
and investor (Note 6)................. 259,688 236,454 97,926
Deferred revenue....................... 37,973 15,525 17,325
Current portion of license accrual..... 58,334 175,000 --
----------- ----------- -----------
Total current liabilities.............. 2,274,738 4,374,912 4,568,021
Capital lease and loan obligation, less
current portion........................ 884,973 533,762 465,318
License accrual, less current portion... 116,666 -- --
----------- ----------- -----------
Total liabilities...................... 3,276,377 4,908,674 5,033,339
Commitments (Note 6)
Stockholders' equity (deficit):
Convertible preferred stock, $0.001 par
value:
Authorized: 27,628,134 shares
Series A (liquidation value: $68,737):
Issued and outstanding: 1,140,350
shares as of December 31, 1997 and
1998, and March 31, 1999.............. 1,140 1,140 1,140
Series B (liquidation value: $679,542):
Issued and outstanding: 2,788,289
shares as of December 31, 1997 and
1998, and 2,889,639 shares as of March
31, 1999.............................. 2,788 2,788 2,889
Series C (liquidation value:
$4,113,184): Issued and outstanding:
2,168,586 shares as of December 31,
1997, 1998, and March 31, 1999........ 2,169 2,169 2,169
Series D (liquidation value:
$7,178,167): Issued and outstanding:
18,303,009 shares as of December 31,
1997, and 21,174,535 shares as of
December 31, 1998 and March 31, 1999.. 18,303 21,175 21,175
Common stock, $0.001 par value:
Authorized: 75,000,000 shares Issued
and outstanding: 2,383,475 shares as
of December 31, 1997, 4,553,463 shares
as of December 31, 1998, and 8,010,206
shares as of March 31, 1999........... 2,384 4,554 8,011
Notes receivable from stockholders (Note
7)..................................... -- (69,468) (206,338)
Additional paid-in capital.............. 25,899,443 27,643,086 27,895,046
Accumulated deficit..................... (19,850,694) (27,768,378) (29,124,940)
----------- ----------- -----------
Total stockholders' equity (deficit)... 6,075,533 (162,934) (1,400,848)
----------- ----------- -----------
Total liabilities and stockholder's
equity (deficit)...................... $ 9,351,910 $ 4,745,740 $ 3,632,491
=========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-38
<PAGE>
INTERNET PROFILES CORPORATION
STATEMENTS OF OPERATIONS
<TABLE>
<CAPTION>
For the years ended For three months ended
December 31, March 31,
------------------------ ------------------------
1997 1998 1998 1999
----------- ----------- ----------- -----------
(unaudited)
<S> <C> <C> <C> <C>
Revenues.................. $ 3,050,244 $ 4,557,754 $ 911,880 $ 1,701,312
Cost of revenues.......... 3,502,485 3,889,330 971,225 1,133,099
----------- ----------- ----------- -----------
Gross margin (loss)... (452,241) 668,424 (59,345) 568,213
Operating expenses:
Research and
development............ 2,631,864 2,890,819 519,486 639,063
General and
administrative......... 1,751,975 2,766,812 569,582 594,911
Sales and marketing..... 1,882,742 3,112,174 569,080 962,911
----------- ----------- ----------- -----------
Loss from operations.. (6,718,822) (8,101,381) (1,717,493) (1,628,672)
Interest income........... 78,043 125,935 62,125 3,562
Interest expense.......... (186,930) (127,238) (42,570) (26,916)
Other income (Note 9)..... -- 185,000 -- 295,464
----------- ----------- ----------- -----------
Net loss.............. $(6,827,709) $(7,917,684) $(1,697,938) $(1,356,562)
=========== =========== =========== ===========
Net loss per share--basic
and diluted.............. $ (3.38) $ (2.70) $ (0.17) $ (0.06)
=========== =========== =========== ===========
Shares used in computing
per share calculation--
basic and diluted........ 2,022,536 2,933,689 9,704,000 21,756,211
=========== =========== =========== ===========
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-39
<PAGE>
INTERNET PROFILES CORPORATION
STATEMENTS OF STOCKHOLDERS' EQUITY (DEFICIT)
for the years ended December 31, 1997 and 1998 and for the three months ended
March 31, 1999
<TABLE>
<CAPTION>
Convertible Prefered Stock
---------------------------------------------------------------------
Series A Series B Series C Series D Common Stock
---------------- ---------------- ---------------- ------------------ ----------------
Additional
Notes Paid-In
Shares Amount Shares Amount Shares Amount Shares Amount Shares Amount Receivable Capital
--------- ------ --------- ------ --------- ------ ---------- ------- --------- ------ ---------- -----------
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Balances,
December 31,
1996............. 1,140,350 $1,140 2,788,289 $2,788 2,168,586 $2,169 -- -- 1,634,417 $1,635 -- $19,464,091
Issuance of
Series D
preferred stock
for cash at
$0.339 per share
net of issuance
costs of
$59,921......... -- -- -- -- -- -- 18,303,009 $18,303 -- -- -- 6,126,496
Exercise of
options in
exchange for
cash............ -- -- -- -- -- -- -- -- 421,844 422 -- 63,772
Issuance of
common stock in
exchange for
technologies.... -- -- -- -- -- -- -- -- 327,214 327 -- 245,084
Net loss........ -- -- -- -- -- -- -- -- -- -- -- --
--------- ------ --------- ------ --------- ------ ---------- ------- --------- ------ --------- -----------
Balances,
December 31,
1997............. 1,140,350 1,140 2,788,289 2,788 2,168,586 2,169 18,303,009 18,303 2,383,475 2,384 -- 25,899,443
Issuance of
Series D
preferred stock
for cash at
$0.339 per
share, net of
issuance costs
of $14,473...... -- -- -- -- -- -- 2,871,526 2,872 -- -- -- 956,103
Exercise of
options in
exchange for
cash............ -- -- -- -- -- -- -- -- 111,295 111 -- 8,148
Issuance of non-
statutory
options to
employees....... -- -- -- -- -- -- -- -- -- -- -- 690,000
Issuance of
common stock in
connection with
exercise of
warrants........ -- -- -- -- -- -- -- -- 322,000 322 -- 2,898
Exercise of
options in
exchange for
promissory
notes........... -- -- -- -- -- -- -- -- 1,736,693 1,737 (69,468) 67,731
Issuance of
common stock
warrants........ -- -- -- -- -- -- -- -- -- -- -- 18,763
Net loss........ -- -- -- -- -- -- -- -- -- -- -- --
--------- ------ --------- ------ --------- ------ ---------- ------- --------- ------ --------- -----------
Balances,
December
31,1998.......... 1,140,350 1,140 2,788,289 2,788 2,168,586 2,169 21,174,535 21,175 4,553,463 4,554 (69,468) 27,643,086
Issuance of
preferred stock
in connection
with exercise of
warrants........ -- -- 101,350 101 -- -- -- -- -- -- -- 112,397
Exercise of
options in
exchange for
cash............ -- -- -- -- -- -- -- -- 35,000 35 -- 1,365
Exercise of
options in
exchange for
promissory
notes........... -- -- -- -- -- -- -- -- 3,421,743 3,422 (136,870) 133,448
Issuance of
common stock
warrants........ -- -- -- -- -- -- -- -- -- -- -- 4,750
Net loss........ -- -- -- -- -- -- -- -- -- -- -- --
--------- ------ --------- ------ --------- ------ ---------- ------- --------- ------ --------- -----------
Balances, March
31, 1999
(unaudited)...... 1,140,350 $1,140 2,889,639 $2,889 2,168,586 $2,169 21,174,535 $21,175 8,010,206 $8,011 $(206,338) $27,895,046
========= ====== ========= ====== ========= ====== ========== ======= ========= ====== ========= ===========
<CAPTION>
Accumulated
Deficit Total
------------- ------------
<S> <C> <C>
Balances,
December 31,
1996............. $(13,022,985) $ 6,448,838
Issuance of
Series D
preferred stock
for cash at
$0.339 per share
net of issuance
costs of
$59,921......... -- 6,144,799
Exercise of
options in
exchange for
cash............ -- 64,194
Issuance of
common stock in
exchange for
technologies.... -- 245,411
Net loss........ (6,827,709) (6,827,709)
------------- ------------
Balances,
December 31,
1997............. (19,850,694) 6,075,533
Issuance of
Series D
preferred stock
for cash at
$0.339 per
share, net of
issuance costs
of $14,473...... -- 958,975
Exercise of
options in
exchange for
cash............ -- 8,259
Issuance of non-
statutory
options to
employees....... -- 690,000
Issuance of
common stock in
connection with
exercise of
warrants........ -- 3,220
Exercise of
options in
exchange for
promissory
notes........... -- --
Issuance of
common stock
warrants........ -- 18,763
Net loss........ (7,917,684) (7,917,684)
------------- ------------
Balances,
December
31,1998.......... (27,768,378) (162,934)
Issuance of
preferred stock
in connection
with exercise of
warrants........ -- 112,498
Exercise of
options in
exchange for
cash............ -- 1,400
Exercise of
options in
exchange for
promissory
notes........... -- --
Issuance of
common stock
warrants........ -- 4,750
Net loss........ (1,356,562) (1,356,562)
------------- ------------
Balances, March
31, 1999
(unaudited)...... $(29,124,940) $(1,400,848)
============= ============
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-40
<PAGE>
INTERNET PROFILES CORPORATION
STATEMENTS OF CASH FLOWS
<TABLE>
<CAPTION>
For the years ended For the three months
December 31, ended March 31,
------------------------ ------------------------
1997 1998 1998 1999
----------- ----------- ----------- -----------
(unaudited)
<S> <C> <C> <C> <C>
Cash flows from operating
activities:
Net loss.................. $(6,827,709) $(7,917,684) $(1,697,938) $(1,356,562)
Adjustments to reconcile
net loss to net cash used
in operating activities:
Depreciation and
amortization............. 1,356,235 1,608,217 354,528 355,940
Fair value of common
stock warrants issued.... -- 18,763 -- 4,750
Common stock issued in
exchange for technology
or services.............. 245,411 -- -- --
Non-statutory stock
options issued to
employees................ -- 690,000 -- --
Provision for doubtful
accounts................. (2,271) 78,857 31,647 125,416
Changes in assets and
liabilities:
Accounts receivable...... (88,617) (176,765) (31,847) (146,140)
Accounts receivable from
corporate partner and
investor................ (106,430) (45,881) (96,712) 99,156
Prepaid expenses and
other current assets.... (68,399) (166,159) (118,600) 54,165
Other assets............. (222,606) (23,797) -- (5,667)
Accounts payable......... 141,104 (431,170) (131,132) 479,209
Accrued expenses......... (24,511) 308,210 285,376 222,860
Commission payable to
corporate partner and
investor................ 204,188 (23,234) 12,129 (138,528)
Deferred revenue......... 9,635 (22,448) (12,885) 1,800
License accrual.......... 175,000 -- -- (175,000)
----------- ----------- ----------- -----------
Net cash used in
operating activities... (5,208,970) (6,103,091) (1,405,434) (478,601)
----------- ----------- ----------- -----------
Cash flows from investing
activities:
Purchases of property and
equipment................ (532,073) (987,737) (207,932) (156,006)
Proceeds from disposal of
property and equipment... -- -- -- 5,359
----------- ----------- ----------- -----------
Net cash used in
investing activities... (532,073) (987,737) (207,932) (150,647)
----------- ----------- ----------- -----------
Cash flows from financing
activities:
Proceeds from issuance of
convertible debt......... -- 1,999,721 -- --
Proceeds from issuance of
Series D preferred
stock.................... 6,144,799 958,975 958,975 --
Proceeds from exercise of
options.................. 64,194 8,259 4,085 1,400
Proceeds from issuance of
common stock in
connection with the
exercise of warrants..... -- 3,220 -- 112,498
Principal borrowings on
capital lease............ -- 748,495 -- --
Payments on capital lease
and loan obligations..... (715,986) (1,078,095) (210,537) (265,676)
----------- ----------- ----------- -----------
Net cash provided by
financing activities... 5,493,007 2,640,575 752,523 (151,778)
----------- ----------- ----------- -----------
Net decrease in cash and
cash equivalents.......... (248,036) (4,450,253) (860,843) (781,026)
Cash and cash equivalents,
beginning of year......... 5,889,893 5,641,857 5,641,857 1,191,604
----------- ----------- ----------- -----------
Cash and cash equivalents,
end of year............... $ 5,641,857 $ 1,191,604 $ 4,781,014 $ 410,578
=========== =========== =========== ===========
Supplemental disclosure of
cash flow information:
Cash payments for
interest................. $ 189,430 $ 127,238 42,570 $ 26,916
Taxes paid................ $ 2,500 $ 2,138 $ -- $ 1,677
Proceeds from sale of
intellectual property.... $ -- $ 300,000
Supplemental schedule of
noncash financing
activities:
Acquisition of property
and equipment under
capital lease and loan... $ 309,472 $130,818 $ 119,538 $ --
Notes receivable from
stockholders............. $ -- $ 69,468 $ -- $ 136,870
</TABLE>
The accompanying notes are an integral part of these financial statements.
F-41
<PAGE>
INTERNET PROFILES CORPORATION
NOTES TO FINANCIAL STATEMENTS
1. Formation and Business of the Company and Basis of Presentation of the
Financial Statements
Internet Profiles Corporation (the "Company") was incorporated in California
on August 4, 1994 as a provider of software and services that help customers
analyze and obtain independent verification of Web site activity. The Nielsen
I/PRO Netline service provides an outsourced solution for comprehensive site
analysis and reporting directly to the customer's desktop. Nielsen I/PRO
I/Audit provides third party verification of web site traffic, validating a web
site as an advertising vehicle for media buyers. Customized measurement
services are also available, which provide a comprehensive and customized array
of measurement and analysis for E-Commerce, ad-supported and corporate
web sites.
The accompanying financial statements have been prepared assuming that the
Company will continue as a going concern. The Company has suffered recurring
losses from operations and at December 31, 1998, the Company had an accumulated
deficit of $27,768,378. The Company expects to incur further losses related to
its operations. The Company's operations are currently funded by proceeds from
the sale of convertible debt. In order to fund continuing operations, the
Company entered into a definitive purchase agreement as of March 1, 1999,
whereby the Company will be acquired by CMGI, Inc. (see Note 11).
2. Summary of Significant Accounting Policies
Use of estimates
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the financial
statements and the reported amounts of revenues and expenses during the
reporting period. Actual results could differ from those estimates.
Cash and cash equivalents
The Company considers all highly liquid investments purchased with an
original or remaining maturity of less than three months at the date of
purchase to be cash equivalents. Substantially all of its cash and cash
equivalents are custodied with one major financial institution.
Fair value of financial instruments
Carrying amounts of certain of the Company's financial instruments including
cash and cash equivalents, accounts receivable, accounts payable, accrued
expenses and other liabilities approximate fair value due to their short
maturities. Based upon borrowing rates currently available to the Company for
loans with similar terms, the carrying value of capital lease obligations
approximate fair value.
Revenue recognition
The Company generally recognizes revenue on its Netline product ratably over
the subscription period as the services are provided. The Company recognizes
revenue on its I/Audit product upon delivery of its Web site audit reports. The
Company provides an allowance for sales returns and doubtful accounts
receivable, where appropriate.
F-42
<PAGE>
INTERNET PROFILES CORPORATION
NOTES TO FINANCIAL STATEMENTS--(Continued)
Depreciation and amortization
Property and equipment are stated at cost and are depreciated on a
straight-line basis over the estimated useful lives, which are generally three
years. Software and marketing database licenses are carried at cost, which is
amortized on a straight-line basis over their estimated useful lives,
generally four years. Upon disposal, the assets and related accumulated
depreciation or amortization are removed from the Company's accounts and the
resulting gains or losses are reflected in the current operations.
Research and development costs
Research and development costs are charged to operations as incurred.
Software development costs are capitalized beginning when a product's
technological feasibility has been established and ending when a product is
available for general release to customers. To date, the establishment of
technological feasibility of the Company's products and general release have
substantially coincided, and as a result, the Company has not capitalized any
software development costs.
Reclassifications
Certain prior-year amounts have been reclassified to conform with the
current-year presentation.
Income taxes
The Company accounts for income taxes under Statement of Financial
Accounting Standards ("SFAS") No. 109, "Accounting for Income Taxes." Under
this method, deferred tax assets and liabilities are determined based on the
differences between the financial statement and tax bases of assets and
liabilities using enacted tax rates in effect for the year in which the
differences are expected to affect taxable income. Valuation allowances are
established when necessary to reduce deferred taxes to the amounts expected to
be realized.
Concentration of credit risk
Financial instruments which potentially subject the Company to
concentration of credit risk consist principally of cash and cash equivalents
and accounts receivable. Substantially all of its cash and cash equivalents
are custodied with one major financial institution. Deposits held with banks
may exceed the amount of insurance provided on such deposits. Generally these
deposits may be redeemed upon demand and therefore, bear minimal risk.
The Company performs Web site audit services to customers throughout the
United States. One customer, a corporate partner and investor, accounted for
23% of accounts receivable as of December 31, 1997 and 1998.
Certain risks and uncertainties
The Company's products and services are concentrated in a single segment in
the internet industry which is characterized by rapid technological advances,
changes in customer requirements and evolving regulatory requirements and
industry standards. The success of the Company depends on the management's
ability to anticipate or to respond quickly and adequately to technological
developments in its industry, changes in customer requirements or changes in
regulatory requirements or industry standards. Any significant delays in the
development or introduction of products or services could have a material
adverse effect on the Company's business and operating results.
F-43
<PAGE>
INTERNET PROFILES CORPORATION
NOTES TO FINANCIAL STATEMENTS--(Continued)
3. Property and Equipment
Property and equipment at December 31, 1997 and 1998 and March 31, 1999
consist of the following:
<TABLE>
<CAPTION>
December 31,
------------------------ March 31,
1997 1998 1999
----------- ----------- -----------
(unaudited)
<S> <C> <C> <C>
Computer and office equipment.......... $ 4,496,479 $ 4,381,655 $ 4,532,303
Furniture and fixtures................. 201,360 268,205 268,205
Leasehold improvements................. 13,507 299,020 299,020
----------- ----------- -----------
4,711,346 4,948,880 5,099,528
Less accumulated depreciation and
amortization.......................... (2,345,733) (3,072,929) (3,423,868)
----------- ----------- -----------
$ 2,365,613 $ 1,875,951 $ 1,675,660
=========== =========== ===========
</TABLE>
At December 31, 1997 and 1998 and March 31, 1999, equipment on capital
leases accounted for $2,339,710, $3,088,206 and $3,088,206, respectively, of
the computer and office equipment, and $1,258,313, $2,090,899 and $2,289,310,
respectively, of the accumulated depreciation and amortization.
4. Accrued Expenses
Accrued expenses at December 31, 1997 and 1998 and March 31, 1999 consist
of the following:
<TABLE>
<CAPTION>
December 31,
----------------- March 31,
1997 1998 1999
-------- -------- -----------
(unaudited)
<S> <C> <C> <C>
Accrued payroll and related expenses.............. $ 50,974 $ 50,635 $ 54,414
Accrued vacation.................................. 100,000 110,213 133,617
Professional fees payable......................... 96,102 89,490 77,236
Accrued bonuses................................... 103,000 269,558 365,058
Other accrued liabilities......................... 163,513 301,903 414,334
-------- -------- ----------
$513,589 $821,799 $1,044,659
======== ======== ==========
</TABLE>
F-44
<PAGE>
INTERNET PROFILES CORPORATION
NOTES TO FINANCIAL STATEMENTS--(Continued)
5. Capital Lease and Loan Obligations
The Company leases certain property and equipment under capital leases
which expire at various dates through November 2002. Future minimum lease
payments under these capital lease agreements are as follows:
<TABLE>
<CAPTION>
1998
---------
<S> <C>
1999............................................................ $ 584,481
2000............................................................ 312,917
2001............................................................ 239,112
2002............................................................ 21,362
---------
Total minimum lease payments.................................... 1,157,872
Less amount representing interest............................... 100,763
---------
Present value of minimum lease payments......................... 1,057,109
Less current portion............................................ 523,347
---------
$ 533,762
=========
</TABLE>
The Company also entered into a loan and security agreement for equipment
purchases with a financial institution under which the Company borrowed an
aggregate amount of $768,050. The equipment line consists of advances for the
acquisition of equipment through October 1997. The equipment loan bears
interest at the bank's prime rate plus 0.5% (9.00% and 8.25% at December 31,
1997 and 1998, respectively) and is payable in monthly installments ending
December 2000. The loan is secured by substantially all assets of the Company.
Future minimum payments under this loan agreement are as follows:
Year ended December 31,
<TABLE>
<S> <C>
1999............................................................ $ 306,013
2000............................................................ 283,341
---------
Minimum payments................................................ 589,354
Less amount representing interest............................... 47,201
---------
Present value of minimum payments............................... $ 542,153
=========
</TABLE>
The agreement in respect of the loan contains certain covenants related to
the Company's quick ratio, liquidity and profitability. Default on any
covenant may affect the commitment by the bank to continue to lend under the
agreement and, if not corrected, could accelerate the maturity of any
borrowings outstanding under the agreement. At December 31, 1998, and at
various dates throughout the year, the Company was not in compliance with
certain covenants. The Company has obtained waivers in respect of non-
compliance as of December 31, 1998. The Company was in default of certain
covenants subsequent to December 31, 1998, which if not corrected, could
accelerate the maturity of borrowings still outstanding. Therefore, all
balances outstanding at December 31, 1998 have been classified as current.
In November and December 1998, the Company obtained a series of bridge
loans totaling approximately $1,999,721 from a group of existing preferred
shareholders. The notes bear interest at an annual rate of 6% which accrues
daily and is added to the principal balance, with principal and
F-45
<PAGE>
INTERNET PROFILES CORPORATION
NOTES TO FINANCIAL STATEMENTS--(Continued)
interest to be repaid, in total, six months after the commencement of the note
term. On the sale or merger of the Company, the loans would have certain
repayment preferences involving either conversion of the notes to a new series
of preferred stock, or repayment of the loans prior to distribution of any
funds to holders of any class of Company preferred or common stock.
6. Commitments
The Company leases three facilities under noncancelable operating leases
expiring in September 1999 and July 2002. The Company is responsible for
certain taxes, maintenance costs and insurance under these leases. Future
minimum lease payments under the noncancelable operating leases are as follows:
<TABLE>
<S> <C>
1999........................................................... $ 547,603
2000........................................................... 435,612
2001........................................................... 435,612
2002........................................................... 254,107
----------
$1,672,934
==========
</TABLE>
Rent expense for the years ended December 31, 1997 and 1998, and for the
three months ended March 31, 1998 and 1999 was $702,434, $578,839, $251,555 and
$271,693 respectively.
In 1995 the Company entered into an agreement with a corporate partner and
investor for the sale and marketing of existing internet usage measurement and
analysis products and services developed by the Company. Under this agreement,
the Company is required to pay commissions on net revenues from products sold
in the US primarily through the efforts of this corporate partner, as well as
on products sold through the efforts of the Company. Revenues related to this
agreement from products sold primarily through the efforts of this corporate
partner for the years ended December 31, 1997 and 1998 totaled $390,995 and
$363,508, respectively. Commissions incurred relative to this agreement on
products sold through the efforts of the Company for the years ended December
31, 1997 and 1998 totaled $146,188 and $236,454 respectively. The agreement
expired in September 1998 and was extended for an additional year, and may
continue to be extended by the mutual agreement of the parties. As of December
31, 1997 and 1998 under this agreement, amounts payable to the corporate
partner totaled $259,688 and $236,454 respectively, and amounts receivable from
the corporate partner totaled $222,209 and $268,090, respectively.
In October 1997, the Company agreed to pay $175,000 to a software vendor for
a software license, payable in six monthly installments of $29,167 per month,
with the first such payment being due and payable upon the earlier of ten days
following the date upon which the vendor files a petition in bankruptcy, or 390
days from October 31, 1997. No payments related to this agreement were made
during the year ended December 31, 1998. During January 1999, the balance
outstanding on this agreement was paid in full to the software vendor.
7. Stockholders' Equity
Convertible Preferred Stock
Dividends
The holders of Series A, B, C and D preferred stock are entitled to
preferential noncumulative dividends at the rate of $0.0285, $0.111, $0.739 and
$0.0339 per share, respectively, if and when declared by the Board of
Directors. No dividends have been declared as of December 31, 1998 or 1997.
F-46
<PAGE>
INTERNET PROFILES CORPORATION
NOTES TO FINANCIAL STATEMENTS--(Continued)
Liquidation
Series D preferred stock will be entitled to receive in preference to the
holders of the Series A, B and C preferred stock and the common stock an amount
per share equal to $0.339. The maximum aggregate amount the holders of the
Series A, B and C preferred stock will be entitled to receive is $4,861,463.
The respective liquidation preferences of the Series A, B and C preferred stock
adjust annually on May of each year to provide the Series C preferred with an
annual increase in its liquidation preference amount of five percent. Any
assets remaining after the distribution to the Series A, B, C and D preferred
stock will be distributed pro-rata to the holders of the common stock.
Mergers
A merger, reorganization or sale of all or substantially all of the assets
of the Company in which more than 50% of the outstanding stock of the Company
is exchanged, shall be deemed to be a liquidation, dissolution or winding up.
Voting
The holders of each share of Series A, B, C and D preferred stock shall have
the right to one vote for each share of common stock into which such preferred
stock could then be converted, and with respect to such vote, such holder shall
have full voting rights and powers equal to the voting rights and powers of the
holders of common stock.
Conversion
Each share of Series A, B, C and D preferred stock, at the option of the
holder, may be converted into the number of fully paid and nonassessable shares
of common stock as is determined by dividing the conversion price per share in
effect for the preferred stock at the time of conversion into the per share
conversion value of such shares. The initial conversion price per share and the
per share conversion value of Series A, B, C and D preferred stock are $0.285,
$0.57, $2.47 and $0.339 per share, respectively. The initial conversion price
of preferred stock is subject to adjustment from time to time. The number of
shares into which a share of preferred stock is convertible is referred to as
the conversion rate of such series.
Conversion is automatic at its then effective conversion rate immediately
upon a closing of a firm commitment underwritten public offering pursuant to an
effective registration statement under the Securities Act of 1933, as amended,
covering the offer and sale of equity securities.
Common stock
The Company issued 1,000,000 shares of its common stock to the founders
under a stock purchase agreement. Each share of common stock is entitled to one
vote. The holders of common stock are also entitled to receive dividends
whenever funds are legally available and when declared by the Board of
Directors, subject to the prior rights of holders of all classes of stock
outstanding. As of December 31, 1998 and 1997, no dividends have been declared.
Stock issued in exchange for in-process technologies
In November 1997, the Company acquired the rights to certain technologies
which were previously held by two unrelated companies. In connection with the
purchase of these in-process technologies, the Company issued 216,000 and
111,214 shares of common stock at fair value of $162,000 and $83,411,
respectively. These amounts were immediately expensed to the statement of
operations as part of the expenses for research and development.
F-47
<PAGE>
INTERNET PROFILES CORPORATION
NOTES TO FINANCIAL STATEMENTS--(Continued)
Notes Receivable from Stockholders
Notes receivable from stockholders consist of the exercise of stock options
for notes. For a portion of the shares, exercise of the underlying option was
permitted before vesting under the related option plan had occurred. The notes
are full recourse promissory notes bearing interest at 6%, and are
collateralized by the stock issued upon exercise of the stock options. Interest
is payable in arrears, with both interest and principle being due and payable
on the fourth anniversary of the date of the making of the note. Should certain
circumstances occur, the Company has the right to repurchase any of the shares
related to the early exercise of unvested options described above.
Warrants
In November 1994, in connection with a sales and marketing agreement, the
Company issued a warrant valued at $97,229, to purchase 120,000 shares of
common stock with an exercise price of $1.67 per share. The warrant expired
during 1997.
In December 1995, in connection with a sales and marketing agreement, the
Company issued a warrant valued at $3,764, to purchase 644,000 shares of common
stock. Of the 644,000 shares, 322,000 of the shares have an exercise price of
$0.01 per share and 322,000 have an exercise price of $2.22 per share. The
warrants were exercisable immediately upon grant. During the year ended
December 31, 1998, 322,000 of the warrants were exercised at the exercise price
of $0.01 per share, and the remaining 322,000 expired.
In August 1995 and January 1996, in connection with a financing arrangement,
the Company issued warrants valued at $32,491 and $22,962, to purchase 60,810
and 40,540 shares of Series B preferred stock at an exercise price of $1.11 per
share. The warrants were exercisable immediately upon grant and will expire on
the earlier August 2005 and January 2006, respectively, or the fifth
anniversary of the closing date of the Company's initial public offering.
In March 1996, in connection with a financing arrangement, the Company
issued a warrant valued at $15,560, to purchase 4,330 shares of Series C
preferred stock at an exercise price of $7.39 per share. The warrant was
exercisable immediately upon grant and the warrant will expire in March 2001.
In April 1996, in connection with a financing arrangement, the Company
issued a warrant valued at $33,599, to purchase 9,472 shares of Series C
preferred stock at an exercise price of $7.39 per share. The warrant was
exercisable immediately upon grant and will expire at the earlier of April 2006
or the fifth anniversary of the closing date of the Company's initial public
offering.
In October 1996, in connection with a sales agreement, the Company issued a
warrant valued at $72,776, to purchase 75,000 shares of common stock at an
exercise price of $2.00 per share. The warrant was exercisable immediately upon
grant and will expire at the earlier of October 1999 or the closing date of the
Company's initial public offering.
In February, 1998, in connection with a financing arrangement, the company
issued a warrant valued at $41,000, to purchase 240,000 shares of Series D
preferred stock at an exercise price of $0.339 per share. The warrant was
exercisable immediately upon grant and will expire in February 2004.
In August 1998, in connection with a financing arrangement, the Company
issued a warrant valued at $28,033, to purchase 162,242 shares of Series D
preferred stock at an exercise price of $0.339 per share. The warrant was
exercisable immediately upon grant and will expire in August 2004.
F-48
<PAGE>
INTERNET PROFILES CORPORATION
NOTES TO FINANCIAL STATEMENTS--(Continued)
In connection with consulting agreements in September 1998, the Company
issued warrants valued at $2,648, to purchase 125,000 shares of common stock
with an exercise price of $0.04 per share. The warrant was exercisable
immediately upon grant and will expire in September 2004.
Stock Options
The Company has adopted the 1995 Stock Option Plan (the "Plan") under which
incentive stock options may be granted to employees and nonstatutory stock
options may be granted to employees and consultants. In December 1997, the
Company's Board of Directors increased the number of common stock shares
reserved for issuance under the 1995 Stock Option Plan to 10,030,095.
The Board of Directors may issue incentive stock options to employees and
nonstatutory stock options to consultants or employees. The Board of Directors
has the authority to determine to whom options will be granted, the number of
shares, the term and exercise price (which cannot be less than fair market
value at date of grant for incentive stock options or 85% of fair market value
for nonstatutory stock options). If an employee or person owns stock
representing more than 10% of the outstanding voting shares, the price of each
share shall be at least 110% of fair market value, as determined by the Board
of Directors. Stock options generally expire ten years from the date of grant.
Options granted under the Plan generally become exercisable starting one year
after the date of grant, with 25% of the shares subject to the option becoming
exercisable at that time and an additional 1/16 of such shares becoming
exercisable each quarter thereafter.
Activity under the Plan is as follows:
<TABLE>
<CAPTION>
Outstanding Options
--------------------------------------------
Weighted
Average
Number of Exercise Aggregate Exercise
Shares Price Price Price
---------- ----------- ---------- --------
<S> <C> <C> <C> <C>
Balances, January 1, 1997........ 2,056,210 $0.01-$1.50 $1,161,874 $0.57
Options granted................ 1,286,311 $0.04-$1.50 992,518 $0.77
Options exercised.............. (421,844) $0.01-$1.50 (65,329) $0.15
Options canceled............... (1,203,503) $0.01-$1.50 (815,664) $0.68
---------- ----------
Balances, December 31, 1997...... 1,717,174 $0.01-$1.50 1,273,399 $0.74
Options granted................ 10,134,031 $0.04 405,361 $0.04
Options exercised.............. (1,847,988) $0.04-$0.75 (77,727) $0.04
Options canceled............... (2,047,672) $0.04-$1.50 (811,712) $0.40
---------- ----------
Balances, December 31, 1998...... 7,955,545 $0.01-$1.50 789,321 $0.11
Options granted................ 46,500 $0.04 1,860 $0.04
Options exercised.............. (3,456,743) $0.04-$0.75 (138,270) $0.04
Options canceled............... (460,416) $0.04-$1.50 (89,146) $0.20
---------- ----------
Balances, March 31, 1999
(unaudited)..................... 4,084,886 $0.01-$1.50 $ 563,765 $0.20
========== ==========
</TABLE>
F-49
<PAGE>
INTERNET PROFILES CORPORATION
NOTES TO FINANCIAL STATEMENTS--(Continued)
The following table summarizes information with respect to stock options
outstanding at December 31, 1998:
<TABLE>
<CAPTION>
December 31, 1998
----------------------------------------------------------------------------------
Options
Options Outstanding Exercisable
-------------------------------------------- -----------
Weighted
Average
Remaining
Exercise Number Contractual Number
Prices Outstanding Life (years) Exercisable
-------- ----------- ----------- -----------
<S> <C> <C> <C>
$0.01 60,000 6.3 55,624
$0.04 7,322,575 9.7 5,073,020
$0.11 81,500 7.0 60,717
$0.75 314,470 8.4 128,868
$1.00 29,000 7.4 18,125
$1.50 148,000 8.0 128,873
--------- --- ---------
7,955,545 9.4 5,465,227
========= === =========
</TABLE>
Pro forma stock-based compensation
During October 1995, the Financial Accounting Standards Board issued
Statement No. 123 ("SFAS No. 123"), "Accounting for Stock-Based Compensation,"
which establishes a fair value based method of accounting for stock-based
compensation plans. The Company has chosen to continue to account for employee
stock options under APB Opinion No. 25, "Accounting for Stock Issued to
Employees" with disclosure of pro forma information concerning its stock option
plan in accordance with SFAS No. 123. The following disclosures are provided
pursuant to SFAS No. 123:
Fair value of each option grant is estimated on the date of the grant using
the Black-Scholes option pricing model with the following weighted average
assumptions used for grants in 1997 and 1998.
<TABLE>
<CAPTION>
1997 1998
-------------------- --------------------
Weighted Weighted
Shares average Shares average
outstanding years outstanding years
----------- -------- ----------- --------
<S> <C> <C> <C> <C>
Options granted at $0.01 per share... 60,000 7.27 60,000 6.27
Options granted at $0.04 per share... 66,500 9.93 7,322,575 9.70
Options granted at $0.11 per share... 100,000 8.02 81,500 7.03
Options granted at $0.75 per share... 1,283,011 9.29 314,470 8.38
Options granted at $1.00 per share... 44,000 8.35 29,000 7.35
Options granted at $1.50 per share... 169,000 8.95 148,000 8.03
</TABLE>
The risk free interest rate for 1997 and 1998 were 6.36% and 5.42%,
respectively. The weighted average fair value of those options granted in 1997
and 1998 was $0.77 and $0.04, respectively.
F-50
<PAGE>
INTERNET PROFILES CORPORATION
NOTES TO FINANCIAL STATEMENTS--(Continued)
The following pro forma loss information has been prepared following the
provisions of SFAS No. 123:
<TABLE>
<CAPTION>
Years ended December 31,
-------------------------
1997 1998
------------ ------------
<S> <C> <C>
Net loss--pro
forma............ $ 6,880,503 $ 7,948,894
</TABLE>
The above pro forma effects on income may not be representative of the effects
on net income for future years as option grants typically vest over several
years and additional options are generally granted each year.
8. Income Taxes
The primary components of the net deferred tax asset as of December 31,
1997 and 1998 are:
<TABLE>
<CAPTION>
December 31,
-----------------------
1997 1998
---------- -----------
<S> <C> <C>
Net operating loss carryforwards -federal and state... $7,658,836 $10,105,689
Depreciable assets.................................... 194,836 229,659
Reserves and allowances............................... 476,021 390,858
Other temporary differences, net...................... (569,511) (565,662)
---------- -----------
7,760,182 10,160,544
Valuation allowance................................... (7,760,182) (10,160,544)
---------- -----------
Net deferred tax asset.............................. $ -- $ --
========== ===========
</TABLE>
Due to the uncertainty surrounding the realization of the favorable tax
attributes in future tax returns, the Company has placed a valuation allowance
against its otherwise recognizable net deferred tax asset. The valuation
allowance increased by $2,616,592 in 1997 and $2,400,362 in 1998.
As of December 31, 1998, the Company has net operating loss carryforwards
of approximately $25,071,000 and $17,891,000 for federal and California state
tax purposes, respectively. Such carryforwards expire in varying amounts
through the year 2018 if not used before such time to offset future taxable
income or tax liabilities.
Due to changes in the Company's ownership, the amount of net operating loss
carryforwards available to offset future federal and state taxable income or
tax may be limited by Internal Revenue Code (IRC) Section 382. The amount of
such limitation, if any, has not been determined.
9. Sale of Technology
In October 1998, the Company sold the rights to one of its internet
properties in exchange for cash proceeds of $160,000 and certain limited
future advertising rights valued at $25,000, resulting in a gain of $185,000.
10. Employee Benefit Plan
Essentially all Company employees are covered by a Company-sponsored 401(k)
plan, which qualifies under Section 401(k) of the Internal Revenue Code of
1986, as amended. Each eligible
F-51
<PAGE>
INTERNET PROFILES CORPORATION
NOTES TO FINANCIAL STATEMENTS--(Continued)
employee may elect to contribute to the plan, through payroll deductions, up to
15% of compensation, subject to certain limitations. The Company, at its
discretion, may make additional contributions. No such additional contributions
were made during the years ended December 31, 1997 or 1998.
11. Subsequent Events
In February 1999, the Company transferred its rights to certain technologies
used in measuring and reporting the results of advertising campaigns in
exchange for cash proceeds of $300,000. This amount is subject to increase if
certain performance goals are met during 1999. The entire purchase price was
recorded as a gain, as, in compliance with its normal accounting policies, the
Company had previously expensed all costs associated with the development of
this technology.
On March 1, 1999, the Company signed a binding letter of intent to be
acquired by CMGI, Inc. and Engage Technologies, Inc. Upon signing of a
definitive purchase agreement, the Company will become a wholly owned
subsidiary of Engage Technologies, Inc., which is in turn a majority owned
subsidiary of CMGI, Inc. A portion of the purchase price will be used to retire
certain liabilities, including the outstanding balance on a loan and security
agreement with a financial institution, attorney and broker fees related to the
transaction, and certain other commitments. Approximately 10% of the remaining
purchase price will be used to retire a portion of the outstanding common stock
of the Company. The remainder, in the form of various forms of equity vehicles
available to CMGI, Inc., will be used to retire the balance of the Company's
common and preferred stock.
F-52
<PAGE>
ENGAGE TECHNOLOGIES, INC.
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL DATA
The unaudited pro forma combined condensed statements of operations of the
Company for the year ended July 31, 1998 and the nine months ended April 30,
1999 give pro forma effect to:
. the Accipiter acquisition;
. the I/PRO acquisition; and
. the related financing of the acquisitions above as if each had occurred
as of August 1, 1997.
The results of operations of the Company for the fiscal year ended July 31,
1998 have been combined with the results of operations of Accipiter, Inc. for
the period August 1, 1997 through March 31, 1998 (the results of operations of
Accipiter for the period April 1, 1998 through July 31, 1998 are included in
the consolidated statement of operations of the Company), and the results of
operations of I/PRO for the twelve months ended September 30, 1998. In
addition, the results of operations for the Company for the nine months ended
April 30, 1999 have been combined with the results of operations of I/PRO for
the eight months ended March 31, 1999 (the results of operations of I/PRO for
April 1999 are included In the Consolidated Statement of Operations of the
Company. The results of operations of I/PRO for August 1998 through September
1998 have been included in both unaudited pro forma combined condensed
statements of operations presented.
The Company has accounted for its acquisitions under the purchase method of
accounting. The total cost of businesses acquired including related fees and
expenses is allocated to the underlying tangible and intangible assets acquired
and liabilities assumed based on their respective fair values.
The unaudited pro forma financial data are not necessarily indicative of the
results of operations or financial position of the Company had the transactions
assumed therein occurred, nor are they necessarily indicative of the results of
operations which may be expected to occur in the future. Furthermore, the
unaudited pro forma financial data are based upon assumptions that the Company
believes are reasonable and should be read in conjunction with the financial
statements and the accompanying notes included elsewhere in this prospectus.
F-53
<PAGE>
ENGAGE TECHNOLOGIES, INC.
UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
For the year ended July 31, 1998 and the nine months ended April 30, 1999
<TABLE>
<CAPTION>
Year Ended July 31, 1998 Nine Months Ended April 30, 1999
--------------------------------------------------- -----------------------------------------
Pro Forma Pro Forma
---------------------- ----------------------
Engage I/PRO Accipiter Adjustments Total Engage I/PRO Adjustments Total
-------- ------- --------- ----------- -------- -------- ------- ----------- --------
(in thousands, except per share data)
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
Revenue:
Product revenue........ $ 1,945 $ 3,973 $ 965 $ -- $ 6,883 $ 7,794 $ 3,902 $ -- $ 11,696
Services and support
revenue............... 272 -- 193 -- 465 1,203 -- -- 1,203
-------- ------- ------- ------ -------- -------- ------- ------ --------
Total revenue........... 2,217 3,973 1,158 -- 7,348 8,997 3,902 -- 12,899
-------- ------- ------- ------ -------- -------- ------- ------ --------
Cost of revenue:
Cost of product
revenue............... 185 3,849 36 813 (c) 4,883 1,327 2,658 400 (c) 4,385
Cost of services and
support revenue....... 2,053 -- 215 2,268 4,299 -- -- 4,299
-------- ------- ------- ------ -------- -------- ------- ------ --------
Total cost of revenue... 2,238 3,849 251 813 7,151 5,626 2,658 400 8,684
-------- ------- ------- ------ -------- -------- ------- ------ --------
Gross (loss) margin..... (21) 124 907 (813) 197 3,371 1,244 (400) 4,215
-------- ------- ------- ------ -------- -------- ------- ------ --------
Operating expenses:
In-process research and
development........... 9,200 -- -- (9,200)(a) -- 4,500 -- (4,500)(a) --
Research and
development........... 5,859 3,565 534 9,958 5,816 1,775 -- 7,591
Selling and marketing.. 4,015 2,694 796 7,505 6,614 2,499 -- 9,113
General and
administrative........ 1,993 1,959 1,164 5,116 2,409 2,323 -- 4,732
Amortization of
goodwill and other
intangibles........... 1,391 -- -- 7,748 (b) 9,139 3,543 -- 3,312 (b) 6,855
Stock compensation..... 426 -- -- 520 (e) 946 657 -- -- 657
-------- ------- ------- ------ -------- -------- ------- ------ --------
Total operating
expenses............... 22,884 8,218 2,494 (932) 32,664 23,539 6,597 (1,188) 28,948
-------- ------- ------- ------ -------- -------- ------- ------ --------
Loss from operations.... (22,905) (8,094) (1,587) 119 (32,467) (20,168) (5,353) 788 (24,733)
Gain on sale of product
rights................. 9,240 185 -- -- 9,425 -- -- -- --
Equity in loss of joint
venture................ -- -- -- -- -- (417) -- -- (417)
Other income (expense),
net.................... (172) (32) 30 67 (d) (107) (585) 428 33 (d) (124)
-------- ------- ------- ------ -------- -------- ------- ------ --------
Net (loss) income....... $(13,837) $(7,941) $(1,557) $ 186 $(23,149) $(21,170) $(4,925) $ 821 $(25,274)
======== ======= ======= ====== ======== ======== ======= ====== ========
Pro forma basic and
diluted net loss per
share.................. $ (.83) $ (.64) $ (.62) $ (.65)
======== ======== ======== ========
Pro forma weighted
average number of basic
and diluted shares
outstanding............ 16,750 36,128 34,210 39,134
======== ======== ======== ========
</TABLE>
F-54
<PAGE>
NOTES TO PRO FORMA CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
Year ended July 31, 1998 and the nine months ended April 30, 1999
(a) Adjustment to in-process research and development reflects the elimination
of $9,200 expensed to in-process research and development related to the
acquisition of Accipiter in April, 1998 and $4,500 related to the
acquisition of I/PRO in April 1999.
(b) Reflects additional goodwill and other intangible asset amortization
expense related to the acquisition of Accipiter and I/PRO. For both
Accipiter and I/PRO, (a) goodwill is being amortized over five years and
the employee workforce is being amortized over two years, (b) the tradename
is being amortized over two years for Accipiter and five years for I/PRO,
all using the straight-line method as follows:
<TABLE>
<CAPTION>
Amortization of goodwill
and other intangibles: Accipiter I/PRO
- ------------------------ ------------------------------ ------------------------------
Goodwill Workforce Trade Name Goodwill Workforce Trade Name Total
-------- --------- ---------- -------- --------- ---------- -------
<S> <C> <C> <C> <C> <C> <C> <C>
Purchase price allocat-
ed..................... $20,158 $ 200 $ 80 $22,288 $ 420 $1,500 $44,646
Amortization period, in
months................. 60 24 24 60 24 60
Amortization expense per
month.................. $ 336 $ 8 $ 3 $ 371 $ 18 $ 25 $ 762
Year ended July 31,
1998:
Pro forma expense to be
recognized............. $ 4,031 $ 100 $ 40 $ 4,458 $ 210 $ 300 $ 9,139
Actual expenses recog-
nized.................. (1,345) (33) (13) -- -- -- (1,391)
------- ------ ------ ------- ------ ------ -------
Pro forma adjustment to
amortization of good-
will and other intangi-
bles................... $ 2,686 $ 67 $ 27 $ 4,458 $ 210 $ 300 $ 7,748
======= ====== ====== ======= ====== ====== =======
Nine months ended
April 30, 1999:
Pro forma expense to be
recognized............. $ 3,024 $ 75 $ 30 $ 3,343 $ 158 $ 225 $ 6,855
Actual expenses recog-
nized.................. (3,024) (75) (30) (371) (18) (25) (3,543)
------- ------ ------ ------- ------ ------ -------
Pro forma adjustment to
amortization of good-
will and other intangi-
bles................... $ -- $ -- $ -- $ 2,972 $ 140 $ 200 $ 3,312
======= ====== ====== ======= ====== ====== =======
</TABLE>
(c) Reflects additional amortization expense of developed technology acquired
in the purchase of Accipiter and I/PRO. Developed technology is being
amortized over five years using the straight-line method as follows:
<TABLE>
<CAPTION>
Cost of product revenue: Accipiter I/PRO Total
- ------------------------ --------- ------ ------
<S> <C> <C> <C>
Purchase price allocated to developed technology..... $1,600 $3,000 $4,600
Amortization period, in months....................... 60 60
Amortization expense per month....................... $ 27 $ 50 $ 77
Year ended July 31, 1998:
Pro forma expense to be recognized................... $ 320 $ 600 $ 920
Actual expenses recognized........................... (107) -- (107)
------ ------ ------
Pro forma adjustment to cost of product revenue...... $ 213 $ 600 $ 813
====== ====== ======
Nine months ended April 30, 1999:
Pro forma expense to be recognized................... $ 240 $ 450 $ 690
Actual expenses recognized........................... (240) (50) (290)
------ ------ ------
Pro forma adjustment to cost of product revenue...... $ -- $ 400 $ 400
====== ====== ======
</TABLE>
(d) Reflects a reduction in interest expense related to I/PRO borrowings that
would have been settled by I/PRO had the acquisition been consummated at
the beginning of the periods presented. This calculation was made based on
actual amounts expensed by I/PRO in the related periods.
(e) Reflects additional amortization expense of deferred compensation recorded
in the purchase of Accipiter. Deferred compensation is being amortized over
two years using the straight-line method.
F-55
<PAGE>
UNDERWRITING
Engage and the underwriters named below have entered into an underwriting
agreement that sets out the parties' agreement about the terms and conditions
of this offering. Subject to the conditions in the underwriting agreement, each
underwriter has severally agreed to purchase the number of shares indicated in
the following table. Goldman, Sachs & Co., Hambrecht & Quist LLC and Bear,
Stearns & Co. Inc. are the representatives of the underwriters.
<TABLE>
<CAPTION>
Underwriters Number of Shares
------------ ----------------
<S> <C>
Goldman, Sachs & Co......................................
Hambrecht & Quist LLC....................................
Bear, Stearns & Co. Inc..................................
---------
Total..................................................
=========
</TABLE>
---------------------
If the underwriters sell more shares than the total number set forth in the
table above, the underwriters have an option to buy up to an additional 900,000
shares from Engage to cover such sales. They may exercise that option for 30
days. If any shares are purchased pursuant to this option, the underwriters
will severally purchase shares in approximately the same proportion as set
forth in the table above.
Engage will sell the shares to the underwriters at a per share price of $ ,
which represents a $ discount from the initial public offering price set forth
on the cover page of this prospectus. This discount is the underwriters'
compensation. The following table shows the per share and total underwriting
discounts that the underwriters will receive in the offering. These amounts are
shown assuming both no exercise and full exercise of the underwriters' option
to purchase additional shares.
Underwriters' Compensation
-------------------------
<TABLE>
<CAPTION>
No Exercise Full Exercise
----------- -------------
<S> <C> <C>
Per Share............................................. $ $
Total................................................. $ $
</TABLE>
Shares sold by the underwriters to the public will initially be offered at
the initial public offering price set forth on the cover of this prospectus.
Any shares sold by the underwriters to securities dealers may be sold at a
discount of up to $ per share from the initial public offering price. Any
such securities dealers may resell any shares purchased from the underwriters
to other brokers or dealers at a discount of up to $ per share from the
initial public offering price. If all the shares are not sold at the initial
public offering price, the representatives may change the offering price and
the other selling terms.
Engage and its directors, officers and persons beneficially owning more than
% of its common stock have agreed with the underwriters not to dispose of or
hedge any of their common stock or securities convertible into or exchangeable
for shares of common stock during the period from the date of this prospectus
continuing through the date 180 days after the date of this prospectus, except
with the prior written consent of the representatives. This agreement does not
apply to gifts or transfers to affiliates or transactions under any existing
employee benefit plans. Please see "Shares Eligible for Future Sale" for a
discussion of various transfer restrictions.
An aggregate of 300,000 shares of common stock offered by this prospectus
have been reserved for purchase from the underwriters through a directed share
program by customers, suppliers, distributors and other of Engage's business
partners. An aggregate of 300,000 shares of common stock offered by this
prospectus have been reserved for purchase from the underwriters through a
directed share program by employees of Engage. An aggregate of 600,000 shares
of common stock offered by this prospectus have
U-1
<PAGE>
been reserved for purchase from the underwriters through a directed share
program by United States shareholders of CMGI, who hold more than 100 shares of
CMGI stock as of June 15, 1999 and who have access to the Internet and a
personal e-mail address. Such sales will be at the initial public offering
price. There can be no assurance that any of the reserved shares will be so
purchased. The number of shares available for sale to the general public in the
offering will be reduced by the number of reserved shares sold. Any reserved
shares not purchased will be offered to the general public on the same basis as
the other shares offered by this prospectus.
Prior to this offering, there has been no public market for the shares. The
initial public offering price will be negotiated among Engage and the
representatives. Engage and the representatives expect that the primary factors
they will consider in determining the initial public offering price of the
shares, in addition to prevailing market conditions, will be Engage's
historical performance, estimates of the business potential and earnings
prospects of Engage, an assessment of Engage's management and the consideration
of the above factors in relation to market valuation of companies in related
businesses.
Engage's common stock has been approved for quotation on the Nasdaq National
Market under the symbol "ENGA".
In connection with this offering, the underwriters may purchase and sell
shares of common stock in the open market. These transactions may include short
sales, stabilizing transactions and purchases to cover positions created by
short sales. Short sales involve the sale by the underwriters of a greater
number of shares than they are required to purchase in this offering.
Stabilizing transactions consist of certain bids or purchases made for the
purpose of preventing or retarding a decline in the market price of the common
stock while this offering is in progress.
The underwriters also may impose a penalty bid. This occurs when a
particular underwriter repays to the underwriters a portion of the underwriting
discount received by it because the representatives have repurchased shares
sold by or for the account of such underwriter in stabilizing or short covering
transactions.
These activities by the underwriters may stabilize, maintain or otherwise
affect the market price of the common stock. As a result, the price of the
common stock may be higher than the price that otherwise might exist in the
open market. If these activities are commenced, they may be discontinued by the
underwriters at any time. These transactions may be effected on the Nasdaq
National Market, in the over-the-counter market or otherwise.
The underwriters do not expect sales to discretionary accounts to exceed
five percent of the total number of shares offered.
Engage estimates that its share of the total expenses of this offering,
excluding underwriting discounts and commissions, will be approximately
$1,275,000.
Engage has agreed to indemnify the several underwriters against liabilities,
including liabilities under the Securities Act of 1933.
U-2
<PAGE>
[Engage logo]
<PAGE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
No dealer, salesperson or other person is authorized to give any
information or to represent anything not contained in this prospectus. You
must not rely on any unauthorized information or representations. This
prospectus is an offer to sell only the shares offered hereby, but only under
circumstances and in jurisdictions where it is lawful to do so. The
information contained in this prospectus is current only as of its date.
--------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Prospectus Summary....................................................... 3
Risk Factors............................................................. 7
Use of Proceeds.......................................................... 16
Dividend Policy.......................................................... 16
Capitalization .......................................................... 17
Dilution................................................................. 18
Selected Consolidated Financial Data..................................... 19
Management's Discussion and Analysis of Financial Condition and Results
of Operations........................................................... 20
Business................................................................. 32
Management............................................................... 50
Transactions and Relationship Between Engage and CMGI.................... 56
Security Ownership of Principal Stockholder and Management............... 59
Description of Capital Stock............................................. 61
Shares Eligible for Future Sale.......................................... 63
Validity of Common Stock................................................. 64
Experts.................................................................. 64
Available Information.................................................... 65
Index to Financial Statements............................................ F-1
Underwriting............................................................. U-1
</TABLE>
--------------
Through and including , 1999 (the 25th day after the date of this
prospectus), all dealers effecting transactions in these securities, whether
or not participating in this offering, may be required to deliver a
prospectus. This is in addition to a dealer's obligation to deliver a
prospectus when acting as an underwriter and with respect to an unsold
allotment or subscription.
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
6,000,000 Shares
Engage Technologies, Inc.
Common Stock
--------------
[ENGAGE LOGO APPEARS HERE]
--------------
Goldman, Sachs & Co.
Hambrecht & Quist
Bear, Stearns & Co. Inc.
Representatives of the Underwriters
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
Estimated expenses (other than underwriting discounts and commissions) payable
in connection with the sale of the Common Stock offered hereby are as follows:
<TABLE>
<S> <C>
SEC registration fee............................................. $ 21,100
NASD filing fee.................................................. 8,090
Nasdaq National Market listing fee............................... 75,000
Printing and engraving expenses.................................. 200,000
Legal fees and expenses.......................................... 400,000
Accounting fees and expenses..................................... 225,000
Directors and officers insurance................................. 250,000
Blue Sky fees and expenses (including legal fees)................ 15,000
Transfer agent and registrar fees and expenses................... 17,000
Miscellaneous.................................................... 63,810
----------
Total.......................................................... $1,275,000
==========
</TABLE>
Engage will bear all expenses shown above.
Item 14. Indemnification of Directors and Officers.
The Delaware General Corporation Law and Engage's charter and by-laws provide
for indemnification of Engage's directors and officers for liabilities and
expenses that they may incur in such capacities. In general, directors and
officers are indemnified with respect to actions taken in good faith in a
manner reasonably believed to be in, or not opposed to, the best interests of
Engage and, with respect to any criminal action or proceeding, actions that the
indemnitee had no reasonable cause to believe were unlawful. Reference is made
to Engage's charter and by-laws filed as Exhibits 3.1 and 3.4 hereto,
respectively.
The Underwriting Agreement provides that the underwriters are obligated, under
some circumstances, to indemnify directors, officers and controlling persons of
Engage against some liabilities, including liabilities under the Securities Act
of 1933, as amended (the "Securities Act"). Reference is made to the form of
Underwriting Agreement filed as Exhibit 1.1 hereto.
Item 15. Recent Sales of Unregistered Securities.
In the three fiscal years preceding the filing of this registration statement,
Engage has issued the following securities that were not registered under the
Securities Act:
(a) Issuance of Capital Stock.
In July 1998, Engage issued 700,000 shares of its Series A convertible
preferred stock to CMGI pursuant to the Merger Agreement between Engage and
Accipiter. In April 1998, Engage issued 800,000 shares of its Series A
convertible preferred stock to CMGI in exchange for (i) cancellation of
$8,000,000 of intercompany debt and (ii) shares of common stock of Engage
previously held by CMGI. CMGI currently owns 1,500,000 shares of Engage's
Series A convertible preferred stock at an average purchase price of $2.67 per
share. Every one share of Series A Preferred Stock will convert into 20 shares
of common stock upon the consummation of this offering. These shares were
issued pursuant to Section 4(2) under the Securities Act.
II-1
<PAGE>
In August 1998, Engage issued 238,597 shares of its Series B convertible
preferred stock to Sumitomo Corporation and Sumitomo Corporation of America at
a purchase price of $8.38 per share, for an aggregate consideration of
$2,000,000. Upon closing of the offering, the 238,597 outstanding shares of
Series B preferred stock will convert into 477,194 shares of common stock.
These shares were issued pursuant to Rule 506 under the Securities Act.
Engage issued a secured demand note to CMGI, dated February 1, 1999, in the
aggregate amount of $9,347,451, which is convertible into 164,371 shares of
Engage's Series C convertible preferred stock. Every one share of Series C
convertible preferred stock will convert into 20 shares of common stock upon
the consummation of this offering. These shares were issued pursuant to
Section 4(2) under the Securities Act.
In April 1999, Engage acquired I/PRO. As part of the acquisition, Engage
issued to I/PRO stockholders 1,010,184 shares of Engage common stock in
exchange for I/PRO common stock. These shares were issued pursuant to Rule 506
under the Securities Act.
In April 1999, Engage agreed to issue to CMGI, in cancellation of $22,086,307
of indebtedness incurred by Engage to acquire I/PRO, 218,460 shares of Series
C convertible preferred stock. These shares were issued pursuant to Section
4(2) under the Securities Act.
In June 1999, Engage agreed to issue to CMGI, in cancellation of $5,531,871 of
indebtedness incurred by Engage, 30,733 shares of Series C convertible
preferred stock. These shares were issued pursuant to Section 4(2) under the
Securities Act.
(b) Grants and Exercises of Stock Options.
As of April 30, 1999, Engage had granted options to purchase an aggregate of
6,467,794 shares of common stock under the 1995 Equity Incentive Plan
exercisable at a weighted average exercise price of $2.16 per share. From
August 1, 1995 to April 30, 1998, Engage issued 215,140 shares of common stock
for an aggregate purchase price of $31,682 pursuant to exercise of employee
options. These options and shares were issued pursuant to Rule 701 under the
Securities Act.
No underwriters were involved in the foregoing sales of securities. Such sales
were made in reliance upon an exemption from the registration provisions of
the Securities Act set forth in Section 4(2) thereof relative to sales by an
issuer not involving any public offering or the rules and regulations
thereunder, or, in the case of options to purchase Common Stock, Rule 701
under the Securities Act. All of the foregoing securities are deemed
restricted securities for purposes of the Securities Act.
Item 16. Exhibits and Financial Statement Schedules.
(a) Exhibits:
<TABLE>
<CAPTION>
Exhibit No. Exhibit
----------- -------
<C> <S>
1.1** Form of Underwriting Agreement.
3.1 Amended and Restated Certificate of Incorporation.
3.2 Form of Second Amended and Restated Certificate of Incorporation.
3.4** By-laws.
3.5 Form of Amended and Restated By-laws.
4.1* Specimen Certificate for shares of Common Stock.
4.2** Description of Capital Stock (contained in the Certificate of
Incorporation filed as Exhibit 3.1).
5.1* Opinion of Hale and Dorr LLP.
10.1** 1995 Equity Incentive Plan.
10.2** 1999 Employee Stock Purchase Plan.
10.3 1999 Stock Option Plan for Non-Employee Directors.
10.4**+ Letter Agreement by and among Engage, CMGI and Red Brick Systems,
Inc., dated October 6, 1998.
</TABLE>
II-2
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Exhibit
----------- -------
<C> <S>
10.5**+ Letter Agreement by and among Engage, NaviSite Internet Services
Corporation and ServerCast Communications, L.L.C., dated September
16, 1998.
10.6** Series B Convertible Preferred Stock Purchase Agreement by and
among Engage, Sumitomo Corporation and Sumitomo Corporation of
America, dated July 31, 1998.
10.7**+ License Agreement between Engage and Engage Technologies Japan,
Inc., dated July 31, 1998.
10.8**+ International Reseller Agreement between Engage and Engage
Technologies Japan, Inc., dated July 31, 1998.
10.9**+ Amended and Restated Software License Agreement by and between Red
Brick Systems, Inc. and Engage, dated July 31, 1998.
10.10**+ DSS Server Software License Agreement by and between Engage,
including its parent company CMGI and CMGI's majority-owned
subsidiaries, dated July 31, 1998.
10.11**+ Exclusive Strategic Alliance Agreement between Engage and AdSmart
Corporation and Cross Beam Networks Corporation, dated January 7,
1998.
10.12**+ Services and License Agreement between Lycos, Inc. and Engage,
dated October 29, 1997.
10.13**+ Sales and Marketing Agreement by and between Internet Profiles
Corporation and the Nielsen Media Research division of A. C.
Nielsen Company, dated September 5, 1995.
10.14** Capital & Counties plc and Engage Technologies Limited underlease,
dated April 27, 1999.
10.15** Anthony & Co. Office Lease between Milkson Associates, LLC and
Accipiter, Inc., dated April 9, 1997.
10.16** Amendment to Lease Agreement between Milkson Associates, LLC and
Accipiter, Inc., dated November 5, 1997.
10.17** Form of Director Indemnification Agreement.
10.18** Form of Investor Rights Agreement by and among Engage and CMGI.
10.19 Form of Facilities and Administrative Support Agreement between
Engage and CMGI.
10.20** Separation Agreement by and between CMGI and Chris Evans, dated
May 3, 1999.
10.21** Consulting, Invention and Non-Disclosure Agreement between Engage
and Chris Evans, dated May 3, 1999 (filed as Exhibit A to Exhibit
10.20).
10.22** Inter-Company Agreement between CMGI and Engage, dated April 7,
1999.
10.23** Secured Convertible Demand Note issued by Engage to CMGI, dated as
of
February 1, 1999.
10.24** Security Agreement by and between Engage and CMGI, dated as of May
3, 1999.
10.25** Intellectual Property Security Agreement by and between Engage and
CMGI, dated as of May 3, 1999.
10.26** Stock Purchase Agreement among, Engage, CMGI, Internet Profiles
Corporation and the stockholders of Internet Profiles Corporation
listed on Schedule 1 attached thereto, dated April 7, 1999.
10.27** Form of Tax Allocation Agreement by and among CMGI and Engage.
21.1** Subsidiaries.
23.1* Consent of Hale and Dorr LLP (contained in Exhibit 5.1).
23.2 Consent of KPMG LLP.
23.3 Consent of KPMG LLP (Accipiter).
23.4 Consent of PricewaterhouseCoopers LLP.
24.1** Power of Attorney of Paul L. Schaut, Stephen A. Royal, David S.
Wetherell, Edward A. Bennett, Christopher A. Evans, Andrew J.
Hajducky III and Craig D. Goldman.
24.2 Power of Attorney of Fredric D. Rosen.
27.1** Financial Data Schedule.
</TABLE>
- --------
*To be filed by amendment.
**Previously filed.
+ Confidential materials omitted and filed separately with the Securities and
Exchange Commission.
II-3
<PAGE>
(b) Financial Statement Schedules.
Schedule II--Valuation and Qualifying Accounts
All other schedules for which provision is made in the applicable accounting
regulations of the Securities and Exchange Commission are not required under
the related instructions or are inapplicable, and therefore have been omitted.
Item 17. Undertakings.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers and controlling persons of the registrant
pursuant to the provisions described in Item 14 above, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes (1) to provide to the underwriters
at the closing specified in the underwriting agreement, certificates in such
denominations and registered in such names as required by the underwriters to
permit prompt delivery to each purchaser; (2) that for purposes of determining
any liability under the Securities Act, the information omitted from the form
of prospectus filed as part of this registration statement in reliance upon
Rule 430A and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be
deemed to be part of this registration statement as of the time it was declared
effective; and (3) that for the purpose of determining any liability under the
Securities Act, each post-effective amendment that contains a form of
prospectus shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
II-4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Amendment No. 2 to the Registration Statement
to be signed on its behalf by the undersigned, thereunto duly authorized, in
Andover, Massachusetts on June 25, 1999.
Engage Technologies, Inc.
*
By: _________________________________
Paul L. Schaut
Chief Executive Officer,
President and Director
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, this Amendment
No. 2 to the Registration Statement has been signed by the following persons
in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title(s) Date
--------- -------- ----
<S> <C> <C>
* Chief Executive Officer, June 25, 1999
______________________________________ President and Director
Paul L. Schaut (Principal Executive
Officer)
/s/ Stephen A. Royal Chief Financial Officer June 25, 1999
______________________________________ and Treasurer (Principal
Stephen A. Royal Financial and Accounting
Officer)
* Chairman of the Board of June 25, 1999
______________________________________ Directors
David S. Wetherell
* Director June 25, 1999
______________________________________
Edward A. Bennett
* Director June 25, 1999
______________________________________
Christopher A. Evans
* Director June 25, 1999
______________________________________
Andrew J. Hajducky, III
* Director June 25, 1999
______________________________________
Craig D. Goldman
* Director June 25, 1999
______________________________________
Fredric D. Rosen
</TABLE>
*By: /s/ Stephen A. Royal
-----------------------------
Stephen A. Royal
Attorney-in-Fact
II-5
<PAGE>
Schedule II
ENGAGE TECHNOLOGIES
VALUATION AND QUALIFYING ACCOUNTS
for the years ended July 31, 1996, 1997 and 1998 and
the nine months ended April 30, 1999
(in thousands)
<TABLE>
<CAPTION>
Additions
----------------
Balance at Charged to Deductions Balance
Beginning Costs and From at End
Description of Year Expenses Other Reserves of Year
- ----------- ---------- ---------- ----- ---------- -------
<S> <C> <C> <C> <C> <C>
Year ended July 31, 1996:
Allowance for doubtful ac-
counts.................... $ -- -- -- -- $ --
Year ended July 31, 1997:
Allowance for doubtful ac-
counts.................... $ -- -- -- -- $ --
Year ended July 31, 1998:
Allowance for doubtful ac-
counts.................... $ -- 240 120 (1) -- $360
Nine months ended April 30,
1999:
Allowance for doubtful ac-
counts.................... $360 175 454 (2) (49) $940
</TABLE>
- --------
(1) Represents allowance for doubtful accounts of Accipiter, Inc. as of
April 1, 1998.
(2) Represents allowance for doubtful accounts of I/PRO as of April 1,
1999.
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit No. Exhibit
----------- -------
<C> <S>
1.1** Form of Underwriting Agreement.
3.1 Amended and Restated Certificate of Incorporation.
3.2 Form of Second Amended and Restated Certificate of Incorporation.
3.4** By-laws.
3.5 Form of Amended and Restated By-laws.
4.1* Specimen Certificate for shares of Common Stock.
4.2** Description of Capital Stock (contained in the Certificate of
Incorporation filed as Exhibit 3.1).
5.1* Opinion of Hale and Dorr LLP.
10.1** 1995 Equity Incentive Plan.
10.2** 1999 Employee Stock Purchase Plan.
10.3 1999 Stock Option Plan for Non-Employee Directors.
10.4**+ Letter Agreement by and among Engage, CMGI and Red Brick Systems,
Inc., dated October 6, 1998.
10.5**+ Letter Agreement by and among Engage, NaviSite Internet Services
Corporation and ServerCast Communications, L.L.C., dated September
16, 1998.
10.6** Series B Convertible Preferred Stock Purchase Agreement by and
among Engage, Sumitomo Corporation and Sumitomo Corporation of
America, dated July 31, 1998.
10.7**+ License Agreement between Engage and Engage Technologies Japan,
Inc., dated July 31, 1998.
10.8**+ International Reseller Agreement between Engage and Engage
Technologies Japan, Inc., dated July 31, 1998.
10.9**+ Amended and Restated Software License Agreement by and between Red
Brick Systems, Inc. and Engage, dated July 31, 1998.
10.10**+ DSS Server Software License Agreement by and between Engage,
including its parent company CMGI and CMGI's majority-owned
subsidiaries, dated July 31, 1998.
10.11**+ Exclusive Strategic Alliance Agreement between Engage and AdSmart
Corporation and Cross Beam Networks Corporation, dated January 7,
1998.
10.12**+ Services and License Agreement between Lycos, Inc. and Engage,
dated October 29, 1997.
10.13**+ Sales and Marketing Agreement by and between Internet Profiles
Corporation and the Nielsen Media Research division of A. C.
Nielsen Company, dated September 5, 1995.
10.14** Capital & Counties plc and Engage Technologies Limited underlease,
dated April 27, 1999.
10.15** Anthony & Co. Office Lease between Milkson Associates, LLC and
Accipiter, Inc., dated April 9, 1997.
10.16** Amendment to Lease Agreement between Milkson Associates, LLC and
Accipiter, Inc., dated November 5, 1997.
10.17** Form of Director Indemnification Agreement.
10.18** Form of Investor Rights Agreement by and among Engage and CMGI.
10.19 Form of Facilities and Administrative Support Agreement between
Engage and CMGI.
10.20** Separation Agreement by and between CMGI and Chris Evans, dated
May 3, 1999.
10.21** Consulting, Invention and Non-Disclosure Agreement between Engage
and Chris Evans, dated May 3, 1999 (filed as Exhibit A to Exhibit
10.20).
10.22** Inter-Company Agreement between CMGI and Engage, dated April 7,
1999.
10.23** Secured Convertible Demand Note issued by Engage to CMGI, dated as
of
February 1, 1999.
10.24** Security Agreement by and between Engage and CMGI, dated as of May
3, 1999.
10.25** Intellectual Property Security Agreement by and between Engage and
CMGI, dated as of May 3, 1999.
10.26** Stock Purchase Agreement among, Engage, CMGI, Internet Profiles
Corporation and the stockholders of Internet Profiles Corporation
listed on Schedule 1 attached thereto, dated April 7, 1999.
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
Exhibit No. Exhibit
----------- -------
<C> <S>
10.27** Form of Tax Allocation Agreement by and among CMGI and Engage.
21.1** Subsidiaries.
23.1* Consent of Hale and Dorr LLP (contained in Exhibit 5.1).
23.2 Consent of KPMG LLP.
23.3 Consent of KPMG LLP (Accipiter).
23.4 Consent of PricewaterhouseCoopers LLP.
24.1** Power of Attorney of Paul L. Schaut, Stephen A. Royal, David S.
Wetherell, Edward A. Bennett, Christopher A. Evans, Andrew J.
Hajducky, III and Craig D. Goldman.
24.2 Power of Attorney of Fredric D. Rosen.
27.1** Financial Data Schedule.
</TABLE>
- --------
*To be filed by amendment.
**Previously filed.
+ Confidential materials omitted and filed separately with the Securities and
Exchange Commission.
<PAGE>
EXHIBIT 3.1
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
ENGAGE TECHNOLOGIES, INC.
ENGAGE TECHNOLOGIES, INC. (the "Corporation" or the "Company") a
corporation organized and existing under and by virtue of the Delaware General
Corporation Law, does hereby certify that the board of Directors of the
Corporation, by unanimous written consent of all of the Directors of the
Corporation dated April 3, 1998, approved and adopted, pursuant to Section 242
of the Delaware General Corporation Law, this Amended and Restated Certificate
of Incorporation, which restates, integrates and amends the Certificate of
Incorporation of the Corporation in its entirety pursuant to Section 245 of the
Delaware General Corporation Law. The Corporation further certifies that the
stockholders of the Corporation, by written consent dated April 3, 1998,
approved and adopted this Amended and Restated Certificate of Incorporation,
pursuant to Sections 242 and 245 of the Delaware General Corporation Law.
Written notice of the adoption of this Amended and Restated Certificate of
Incorporation has been given as provided by Section 228 of the General
Corporation Law of the State of Delaware to every stockholder entitled to such
notice. The Certificate of Incorporation of the Corporation, as amended to
date, was originally filed with the Secretary of State of Delaware on July 18,
1995 under the name CMG Direct Interactive, Inc. The full text of the Amended
and Restated Certificate of Incorporation is set forth below.
FIRST: the name of the Corporation is Engage Technologies, Inc.
------
SECOND: The address of the Corporation's registered office in the State of
-------
Delaware is 1013 Center Road, Wilmington, Delaware 19805, Country of New Castle,
State of Delaware. The name of its registered agent at such address is The
Prentice-Hall Corporation System, Inc.
THIRD: The purpose of the Corporation is to engage in any lawful act or
------
activity for which corporations may be organized under the General Corporation
Law of the Sate of Delaware.
FOURTH: The aggregate number of shares of all classes of stock which the
-------
Corporation is authorized to issue is twenty five million (25,000,000) shares,
of which five million (5,000,000) shall be shares of Preferred Stock, par value
$0.01 per share (the "Preferred Stock"), and twenty million (20,000,000) shall
be shares of Common Stock, par value $0.01 per share (the "Common Stock").
<PAGE>
Any and all such shares issued for which the full consideration has been
paid or delivered shall be deemed fully paid stock and the holder of such shares
shall not be liable for any further call or assessment or any other payment
thereon.
No holder of any of the shares of any class of stock of the Corporation,
whether now or hereafter authorized or issued, shall be entitled as of right to
purchase or subscribe for (i) any unissued stock of any class whatsoever of
stock of the Corporation, or (ii) any new or additional shares of any class
whatsoever of stock of the Corporation to be issued by reason of any increase of
the authorized stock of the Corporation, or of any class of such stock, or (iii)
bonds, certificates of indebtedness, debentures or other securities convertible
into stock of any class of the Corporation or carrying any right to purchase
stock of any class of the Corporation, but any such unissued stock, or
additionally authorized issue of any stock, or other securities convertible into
stock of the Corporation may be issued and disposed of pursuant to a resolution
or resolutions of the Board of Directors to such persons, firms, corporations,
associations or other entities and upon such terms as may be deemed advisable by
the Board of Directors in the exercise of its sole discretion.
Section 1. Common Stock.
-------------
The powers, preferences, rights, qualifications, limitations and
restrictions relating to the Common Stock are as follows:
(a) The Common Stock is junior to the Preferred Stock and is subject to all
the powers, rights, privileges, preferences and priorities of the Preferred
Stock designated herein or in any resolution or resolutions adopted by the Board
of Directors pursuant to authority expressly vested in it by the provisions of
Section 2 of this Article FOURTH.
(b) The Common Stock shall have voting rights for the election of directors
and for all other purposes (subject to the powers, rights, privileges,
preferences and priorities of the Preferred Stock as provided above), each
holder of Common Stock being entitled to one vote for each share thereof held by
such holder, except as otherwise required by law.
Section 2. Preferred Stock
---------------
The Board of Directors is expressly authorized to provide for the issuance
of all or any part of the shares of the Preferred Stock in one or more classes
or series, and to fix for each such class or series such voting powers, full or
limited or fractional, or no voting powers, and such distinctive designations,
preferences and relative, participating, optional or other special rights, and
such qualifications, limitations or restrictions thereof, as shall be stated and
expressed in the resolution or resolutions adopted by the Board of Directors in
its sole discretion providing for the
- 2 -
<PAGE>
issuance of such class or series and as may be permitted by the Delaware General
Corporation Law, including, without limitation, the authority to determine with
respect to the shares of any such class or series (i) whether such shares shall
be redeemable, and, if so, the terms and conditions of such redemption, whether
for cash, property or rights, including securities of any other corporation, and
whether at the option of either the Corporation or the holder or both, including
the date or dates or the event or events upon or after which they shall be
redeemable, and the amount per share payable in case of redemption, which amount
may vary under different conditions and at different redemption dates; (ii)
whether such shares shall be entitled to receive dividends (which maybe
cumulative or noncumulative) at such rates, on such conditions, and at such
times, and payable in preference to, or in such relation to, the dividends
payable on any other class or classes or any other series; (iii) the rights of
such shares in the event of voluntary or involuntary liquidation, dissolution or
winding up of the Corporation, and the relative rights of priority, if any, of
payment of such shares; (iv) whether such shares shall be convertible into, or
exchangeable for, shares of any other class or classes of stock, or of any other
series of the same or any other class or classes of stock, whether at the option
either of the Corporation or the holder or both, and, if so, the terms and
conditions of such conversion, including provision for adjustment of the
conversion rate in such events as the Board of Directors shall determine; (v)
whether the class or series shall have a sinking fund for the redemption or
purchase of such shares, and, if so, the terms and amount of each sinking fund;
(vi) provisions as to any other voting, optional, and/or special or relative
rights, powers, priorities, preferences, limitations, or restrictions; and (vii)
the number of shares and designation of such class or series.
FIFTH: The Corporation is to have perpetual existence.
------
SIXTH: Election of Directors need not be by written ballot unless the by-
------
laws of the Corporation so provide.
SEVENTH: The Board of Directors of the corporation is expressly authorized
--------
to adopt, amend or repeal the by-laws of the Corporation.
EIGHTH: A director shall not be personally liable to the Corporation or
-------
its stockholders for monetary damages for breach of fiduciary duty as a
director, except to the extent that the elimination or limitation of liability
is not permitted under the Delaware General Corporation Law as in effect when
such liability is determined. No amendment or repeal of this provision shall
deprive a director of the benefits hereof with respect to any act or omission
occurring prior to such amendment or repeal.
NINTH: The Corporation reserved the right to amend, alter, change or
------
repeal any provision contained in this Amended and Restated Certificate of
Incorporation, in
- 3 -
<PAGE>
the manner now or hereafter prescribed by statute, and all rights conferred upon
stockholders herein are granted subject to this reservation.
This Amended and Restated Certificate of Incorporation was duly adopted in
accordance with the applicable provisions of Sections 242, 245 and 228 of the
Delaware General Corporation Law.
IN WITNESS WHEREOF, Engage Technologies, Inc. has caused its corporation
seal to be affixed hereto and this Certificate to be signed by Paul L. Schaut,
its President, and attested by William Williams II, its Assistant Secretary,
this 3rd day of April, 1998.
ENGAGE TECHNOLOGIES, INC.
By: /s/ Paul L. Schaut
--------------------------
Paul L. Schaut
President
ATTEST
By: /s/ William Williams
--------------------
William Williams II
Assistant Secretary
[Corporate Seal]
- 4 -
<PAGE>
CERTIFICATE OF DESIGNATION OF
SERIES A CONVERTIBLE PREFERRED STOCK
Engage Technologies, Inc., a Delaware corporation (the "Corporation" or the
"Company"), pursuant to authority conferred on the Board of Directors of the
Corporation by the Amended and Restated Certificate of Incorporation of the
corporation and in accordance with the provisions of Section 151 of the General
Corporation Law of the Sate of Delaware, certifies that the Board of Directors
of the corporation, by unanimous consent dated April 3, 1998, has duly adopted
the following resolution providing for the establishment and issuance of a
series of Preferred Stock to be designated "Series A Convertible Preferred
Stock" and to consist of eight hundred thousand (800,000) shares as follows:
RESOLVED: That, pursuant to the authority expressly granted and vested in
the Board of Directors of this Corporation in accordance with
the provisions of its Amended and Restated Certificate of
Incorporation, a series of Preferred Stock of the Corporation
hereby is established, consisting of eight hundred thousand
(8000,000) shares, to be designated "Series A Convertible
Preferred Stock" (hereafter "Series A Preferred Stock"), the
Board of Directors be and hereby is authorized to issue such
shares of Series A Preferred Stock from time to time and for
such consideration and on such terms as the Board of Directors
shall determine; and subject to the limitations provided by law
and by the Corporation's Amended and Restate Certificate of
Incorporation, the powers, designations, preferences and
relative, participating, optional or other special rights,
powers or priorities of, and the qualifications, limitations or
restrictions upon, the Series A Preferred Stock shall be as
follows:
1. Designation. This series of Preferred Stock par value $0.01 per
-----------
share, shall be designated the "Series A Convertible Preferred Stock"
(hereinafter "Series A Preferred Stock").
2. Dividends.
---------
(a) The holders of shares of Series A Preferred Stock shall be
entitled to receive, out of funds legally available therefor, dividends computed
at a rate of 7% or $0.70 per share per annum (or a proportional part thereof for
a portion of a year and all subject to appropriate adjustment in the event of
any stock dividend, stock split, combination or other similar recapitalization
affecting such shares) commencing as of February 1, 1998, payable when, as and
if declared by the Board of Directors of the Corporation. The right to receive
dividends on Series A Preferred Stock shall be
<PAGE>
noncumulative, and no right to receive dividends shall accrue by reason for the
fact that no dividends have been declared on the Series A Preferred Stock in any
or every prior year.
(b) The Corporation shall not declare or pay any distributions on
shares of Common Stock until the holders of shares of Series A Preferred Stock
then outstanding shall have first received a distribution at the rate specified
in paragraph (a) of this Section 2 calculated on a cumulative basis from the
date of issuance of said stock compounded annually as of any anniversary of the
date of issuance of such shares.
(c) For purposes of this Section 2, unless the context requires
otherwise, "distribution" shall mean the transfer of cash or property without
consideration, whether by way of dividend or otherwise, payable other than in
Common Stock or other securities of the Corporation, or the purchase or
redemption of shares of the Corporation (other than repurchases of Common Stock
help by employees or directors of, or consultants to, the Corporation pursuant
to agreements providing for such repurchase and other than redemptions in
liquidation or dissolution of the Corporation) for cash or property, including
any such transfer, purchase or redemption by a subsidiary of the Corporation.
3. Liquidation, Dissolution or Winding Up.
--------------------------------------
(a) In the event of any liquidation, dissolution or winding up of the
Company, and provided that the amount available for distribution to holders of
the Series A Preferred Stock pursuant to this Section 3 is less than $10.00 per
share plus a dividend computed at a rate of 7% or $0.70 per share per annum,
compounded annually as of February 1, 1998 (such amount to be equitably adjusted
whenever there shall occur a stock split, combination, reclassification or other
similar event as provided in Section 5(e)(ii) hereof), whether voluntary or
involuntary, the entire assets of the Company available for such distribution
shall be distributed ratably among the holders of the Series A Preferred Stock.
(b) In the event of any liquidation, dissolution or winding up of the
Company, and provided that the amount available for distribution to holders of
the Series A Preferred Stock pursuant to this Section 3 is at least $10.00 per
share plus a dividend computed at a rate of 7% or $0.70 per share per annum,
compounded annually as of February 1, 1998 (such amount to be equitably adjusted
whenever there shall occur a stock split, combination, reclassification or other
similar event as provided in Section 5(e)(ii) hereof), whether voluntary or
involuntary, holders of each share of Series A Preferred Stock shall be entitled
to be paid first out of the assets of the Company available for distribution to
holders of the Company's capital stock of all classes, whether such assets are
capital, surplus, or earnings, before any sums shall be paid or any assets
distributed among the holders of any other class of capital
- 2 -
<PAGE>
stock, an amount equal to $10.00 per share of Series A Preferred Stock plus a
dividend computed at a rate of 7% or $0.70 per share per annum, compounded
annually as of February 1, 1998. After the payment of the preferential amount
required to be paid to the holders of the Series A Preferred Stock, upon the
liquidation, dissolution or winding up of the Corporation, the holders of shares
of the Corporation's Common Stock shall be entitled to receive the remaining
assets and funds of the Corporation available for distribution to its
stockholders.
(c) A consolidation or merger of the Company or a sale of all or
substantially all of the assets of the Company shall be regarded as a
liquidation, dissolution or winding up of the affairs of the Company within the
meaning of this Section 3; provided, however, that each holder of Series A
Preferred Stock shall have the right to elect the benefits of the provisions of
Section 5(h) hereof in lieu of receiving payment in liquidation, dissolution or
winding up of the Company pursuant to this Section 3. Each holder of Series A
Preferred Stock shall notify the Company in advance of its election to obtain
the benefits of this Section 3(c) or of Section 5(b), which notification shall
be given not later than a date specified in writing to each holder by the
Company to be at least five (5) days prior to the effective date of such
consolidation, merger or sale. If a holder fails to make any election, he shall
be deemed to have elected the benefits of this Section 3(c).
(d) Whenever the distribution provided for herein shall be paid in
property other than cash, the value of such distribution shall be the fair
market value of such property as determined in good faith by the Board of
Directors of the Company.
4. Voting Power. Except as otherwise expressly provided in Section 8
------------
hereof, or as required by law, each holder of Series A Preferred Stock shall be
entitled to vote on all matters and shall be entitled to that number of votes
equal to the largest number of whole shares of Common Stock into which such
holder's shares of Series A Preferred Stock could be converted, pursuant to the
provisions of Section 5 hereof (taking into account all accrued and unpaid
dividends, if any, with respect to such Series A Preferred Stock), at the record
date for the determination of shareholders entitled to vote on such matter or,
if no such record date is established, at the date such vote is taken or any
written consent of shareholders is solicited. Except as otherwise expressly
provided herein or as required by law, the holders of shares of Series A
Preferred Stock and of Common Stock shall be entitled to vote together as a
class on all matters.
5. Conversion Rights. The holders of the Series A Preferred Stock shall
-----------------
have the following conversion rights:
(a) General. Subject to and in compliance with the provisions of this
-------
Section 5, any shares of the Series A Preferred Stock, may, at the option of the
holder,
- 3 -
<PAGE>
be converted at any time or from time to time into fully-paid and non-
assessable shares (calculated as to each conversion to the largest whole share)
of Common Stock. The number of shares of Common Stock to which a holder of
Series A Preferred Stock shall be entitled upon conversion shall be the product
obtained by multiplying the Applicable Conversion Rate (determined as provided
in Section 5(c) by the number of shares of Series A Preferred Stock being
converted. Upon conversion of their shares of Series A Preferred Stock into
shares of Common Stock, holders of shares of Series A Preferred Stock shall also
have the option to have all declared but unpaid dividends on such shares of
Series A Preferred Stock converted into shares of Common Stock. the number of
shares of Common Stock to be received upon the conversion of such declared but
unpaid dividends shall be computed by multiplying the number of shares of Series
A Preferred Stock which could have been purchased with such declared but unpaid
dividends, assuming a Series A Preferred Stock purchase price of $10.00 per
share, by the Applicable Conversion Rate in effect at the time of such
conversion.
(b) Conversion Following Underwritten Public Offering.
-------------------------------------------------
(i) All outstanding shares of Series A Preferred Stock shall, upon the
closing of an underwritten public offering pursuant to an effective registration
statement under the Securities Act of 1933, as amended, covering the offering
and sale of Common Stock for the account of the Company in which the Common
Stock is sold at a price to the public of not less than the amount per share
which would be equal to $10.00 per share plus a dividend computed at a rate of
7% or $0.70 per share per annum, compounded annually as of February 1, 1998
(such amount to be equitably adjusted whenever there shall occur a stock split,
combination, reclassification or other similar event affecting the Common Stock)
and in which the aggregate gross proceeds (before deduction of any underwriting
discounts, commissions or expenses) received by the Company from such public
offering, shall equal or exceed Fifteen Million Dollars ($15,0000,000), be
converted automatically into the number of shares of Common Stock to which a
holder of Series A Preferred Stock shall be entitled upon conversion pursuant to
Section 5(a) hereof without any further action by such holders and whether or
not the certificates representing such shares are surrendered to the Company or
its transfer agent for the Common Stock.
(ii) Upon the occurrence of the conversion specified in Section
5(b)(i), the holders of such Series A Preferred Stock shall surrender the
certificates representing such shares at the office of the Company or of its
transfer agent for the Common Stock. Thereupon, there shall be issued and
delivered to each such holder a certificate or certificates for the number of
shares of Common Stock into which the shares of the Series A Preferred Stock
surrendered were convertible on the date on which such conversion occurred. The
Company shall not be obligated to issue certificates evidencing the shares of
Common Stock issuable upon such
- 4 -
<PAGE>
conversion unless certificates evidencing such shares of the Series A Preferred
Stock being converted are either delivered to the Company or any such transfer
agent or the holder notifies the Company or any such transfer agent that such
certificates have been lost, stolen or destroyed and executes an agreement
satisfactory to the Company to indemnify the Company from any loss incurred by
it in connection therewith. In addition, the Company may, if the Board of
Directors deems it reasonably necessary, require the holder to post a bond in
connection with such indemnity agreement.
(c) Applicable Conversion Rate. The conversion rate in effect at any
--------------------------
time (the "Applicable Conversion Rate") shall be the quotient obtained by
dividing (i) $10.00 by (ii) the Applicable Conversion Value, calculated as
provided in Section 5(d).
(d) Applicable Conversion Value. The Applicable Conversion Value in
---------------------------
effect from time to time, except as adjusted in accordance with Section 5(e)
hereof, shall be $1.00 as of the date of this Certificate of Series A
Convertible Preferred Stock.
(e) Adjustments to Applicable Conversion Value.
------------------------------------------
(i) Upon Sales of Common Stock. If the Company shall, while
--------------------------
there are any shares of Series A Preferred Stock outstanding, issue or sell
shares of its Common Stock without consideration or at a price per share less
than the Applicable Conversion Value in effect immediately prior to such
issuance or sale, then in each such case such Applicable Conversion Value upon
each such issuance or sale, except as hereinafter provided, shall be adjusted to
an amount determined by multiplying such Applicable Conversion Value by a
fraction:
(A) the numerator of which shall be (a) the number of
shares of Common Stock outstanding immediately prior to the issuance of
such additional shares of Common Stock, calculated on a fully diluted basis
assuming exercise or conversion of all securities exercisable for or
convertible into Common Stock, whether or not such exercise or conversion
is unvested or otherwise conditional, plus (b) the number of shares of
Common Stock which the net aggregate consideration received by the
Corporation for the total number of such additional shares of Common Stock
so issued would purchase at the Applicable conversion Value, and
(B) the denominator of which shall be (a) the number of
shares of Common Stock outstanding immediately prior to the issuance of
such additional shares of Common Stock, calculated on a fully diluted basis
assuming exercise or
- 5 -
<PAGE>
conversion of all securities exercisable for or convertible into Common
Stock, whether or not such exercise or conversion is unvested or otherwise
conditional, plus (b) the number of such additional shares of Common Stock
so issued or deemed issued.
The Corporation's issuance of up to an aggregate of two million (2,000,000)
shares of Common Stock (such amount to be equitably adjusted whenever there
shall occur a stock split, combination, reclassification or other similar event
affecting the Common Stock), or options exercisable therefor, pursuant to any
stock purchase or stock option plan or other individual or group incentive
program of any kind approved by the Board of Directors to the Corporation's
officers, directors, employees or consultants shall not be deemed an issuance of
additional shares of Common Stock and shall have no effect on the calculations
contemplated by this Section 5(e).
For the purposes of this Section 5(e), the issuance of any warrants,
options, subscriptions or purchase rights with respect to shares of Common Stock
and the issuance of any securities convertible into or exchangeable for shares
of Common Stock (or the issuance of any warrants, options or any rights with
respect to such convertible or exchangeable securities) whether or not such
conversion or exchange is conditional, shall be deemed an issuance at such time
of such Common Stock if the Net Consideration Per Share (as hereinafter
determined) which may be received by the Company for such Common Stock shall be
less than the Applicable Conversion Value at the time of such issuance. Any
obligation, agreement or undertaking to issue warrants, options, subscriptions
or purchase rights at any time in the future shall be deemed to be an issuance
at any time such obligation, agreement or undertaking is made or arises. No
adjustment of the Applicable Conversion Value shall be made under this Section
5(e) upon the issuance of any shares of Common Stock which are issued pursuant
to the exercise of any warrants, options, subscriptions or purchase rights or
pursuant to the exercise of any conversion or exchange rights in any convertible
securities if any adjustment shall previously have been made upon the issuance
of any such warrants, options or subscriptions or purchase rights or upon the
issuance of any convertible securities (or upon the issuance of any warrants,
options or any rights therefor) as above provided. Any adjustment of the
Applicable Conversion Value with respect to this paragraph which relates to
warrants, potions, subscriptions or purchase rights with respect to shares of
Common Stock shall be disregarded if, as, and when all of such warrants,
options, subscriptions or purchase rights expire or are cancelled without being
exercised, so that the Applicable Conversion Value effective immediately upon
such cancellation or expiration shall be equal to the Applicable Conversion
Value in effect at the time of the issuance of the expired or cancelled
warrants, options, subscriptions or purchase rights, with such additional
adjustments as would have been made to that Applicable Conversion Value had the
expired or cancelled warrants, options, subscriptions or purchase rights not
been issued. For purposes of this paragraph, the "Net
- 6 -
<PAGE>
Consideration Per Share" which may be received by the Company shall be
determined as follows:
(A) The "Net Consideration Per Share" shall mean the
amount equal to the total amount of consideration, if any, received by the
Company for the issuance of such warrants, options, subscriptions or other
purchase rights or convertible or exchangeable securities, plus the minimum
amount of consideration, if any, payable to the Company upon exercise,
conversion or exchange thereof, divided by the aggregate number of shares
of Common Stock that would be issued if all such warrants, options,
subscriptions or other purchase rights or convertible or exchangeable
securities were exercised, exchanged or converted.
(B) The "Net Consideration Per Share" which may be
received by the Company shall be determined in each instance as of the date
of issuance of warrants, options, subscriptions or other purchase rights or
convertible or exchangeable securities without giving effect to any
possible future price adjustments or rate adjustments which may be
applicable with respect to such warrants, options, subscriptions or other
purchase rights or convertible or exchangeable securities.
For purposes of this Section 5(e), if a part or all of the consideration
received by the Company in connection with the issuance of shares of the Common
Stock or the issuance of any of the securities described in this Section 5(e)
consists of property other than cash, the Company at its expense will promptly
cause independent public accountants of recognized standing selected by the
Company to value such property, whereupon such value shall be given to such
consideration and shall be recorded on the books of the Company with respect to
receipt of such property.
This Section 5(e)(i) shall not apply under any of the circumstances which
would constitute an Extraordinary Common Stock Event (as hereinafter defined in
Section 5(e)(ii)).
(ii) Upon an Extraordinary Common Stock Event. Upon the
----------------------------------------
happening of an Extraordinary Common Stock Event (as hereinafter defined), the
Applicable Conversion Value shall, simultaneously with the happening of such
Extraordinary Common Stock Event, be adjusted by multiplying the then effective
Applicable Conversion Value by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to such
Extraordinary Common Stock Event and the denominator of which shall be the
- 7 -
<PAGE>
number of shares of Common Stock outstanding immediately after such
Extraordinary Common Stock event, and the product so obtained shall thereafter
be the Applicable Conversion Value. The Applicable Conversion value, as so
adjusted, shall be readjusted in the same manner upon the happening of any
successive Extraordinary Common Stock Event or Events.
"Extraordinary Common Stock Event" shall mean (i) the issue of additional
shares of Common Stock as a dividend or other distribution on outstanding shares
of Common Stock, (ii) the subdivision of outstanding shares of Common Stock into
a greater number of shares of Common Stock, or (iii) the combination of
outstanding shares of the Common Stock into a smaller number of shares of Common
Stock.
(f) Dividends. In the event the Company shall make or issue, or fix a
---------
record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in securities of the Company
other than shares of Common Stock or in assets (excluding cash dividends or
distributions), then and in each such event provisions shall be made so that the
holders of Series A Preferred Stock shall receive upon conversion thereof in
addition to the number of shares of Common Stock receivable thereupon, the
number of securities or such other assets of the Company which they would have
received had their Series A Preferred Stock been converted into Common Stock on
the date of such event and had they thereafter, during the period from the date
of such event to and including the Conversion Date (as that term is hereafter
defined in Section 5(j)), retained such securities or such other assets
receivable by them as aforesaid during such period, giving application to all
adjustments called for during such period under this Section 5 with respect to
the rights of the holders of the Series A Preferred Stock.
(g) Recapitalization or Reclassification. If the Common Stock
------------------------------------
issuable upon the conversion of the Series A Preferred Stock shall be changed
into the same or a different number of shares of any class or classes of stock
of the Corporation, whether by recapitalization, reclassification or otherwise
(other than a subdivision or combination of shares or stock dividend provided
for elsewhere in this Section 5, or a reorganization, merger, consolidation or
sale of assets provided for elsewhere in this Section 5), then and in each such
event the holder of each share of Series A Preferred Stock shall have the right
thereafter to convert such share into the kind and amount of shares of stock and
other securities and property receivable upon such reorganization,
reclassification or other change by holders of the number of shares of Common
Stock into which such share of Series A Preferred Stock might have been
converted (taking into account all accrued and unpaid dividends and interest
with respect to such Series A Preferred Stock) immediately prior to such
reorganization, reclassification or change, all subject to further adjustment as
provided herein.
- 8 -
<PAGE>
(h) Capitalization Reorganization, Merger or Sale of Assets. If at
-------------------------------------------------------
any time or from time to time there shall be a capital reorganization of the
Common Stock (other than a subdivision, combination, reclassification or
exchange of shares provided for elsewhere in this Section 5) or a merger or
consolidation of the Company with or into another corporation or entity, or the
sale of all or substantially all of the Company's properties and assets to any
other person or persons, then, as a part of such reorganization, merger,
consolidation or sale, provision shall be made so that the holders of the Series
A Preferred Stock shall thereafter be entitled to receive upon conversion of the
Series A Preferred Stock, the number of shares of stock or other securities or
property of the Company, or of the successor corporation or entity resulting
from such merger, consolidation or sale, to which a holder of Common Stock
issuable upon conversion would have been entitled on such capital
reorganization, merger, consolidation, or sale. In any such case, appropriate
adjustment shall be made in the application of the provisions of this Section 5
with respect to the rights of the holders of the Series A Preferred Stock after
the reorganization, merger, consolidation or sale to the end that the provisions
of this Section 5 (including adjustment of the Applicable Conversion Value then
in effect and the number of shares purchasable upon conversion of the Series A
Preferred Stock) shall be applicable after that event in as nearly equivalent a
manner as may be practicable.
Each holder of Series A Preferred Stock upon the occurrence of a capital
reorganization, merger or consolidation of the Company, or the sale of all or
substantially all its assets and properties as such events are more fully set
forth in the first paragraph of this Section 5(h), shall have the option of
electing treatment of his shares of Series A Preferred Stock under either this
Section 5(h) or Section 3(b) hereof, notice of which election shall be submitted
in writing to the Company at its principal offices no later than five (5) days
before the effective date of such event.
(i) Accountant's Certificate as to Adjustments. In each case of an
------------------------------------------
adjustment or readjustment of the Applicable Conversion Rate, the Company will
furnish each holder of Series A Preferred Stock with a certificate, prepared by
its chief financial officer showing such adjustment or readjustment, and stating
in detail the facts upon which such adjustment or readjustment is based. Upon
the request of any holder, the Company will cause its independent public
accountants to confirm the accuracy of such adjustment or readjustment.
(j) Exercise of Conversion Privilege. To exercise his conversion
--------------------------------
privilege, a holder of Series A Preferred Stock shall surrender the certificate
or certificates representing the shares being converted to the Company at its
principal office, and shall give written notice to the Company at that office
that such holder elects to convert such shares. Such notice shall also state
the name or names (with address or addresses) in which the certificate or
certificates for shares of Common Stock issuable upon such conversion shall be
issued. The certificate or certificates for
- 9 -
<PAGE>
shares of Series A Preferred Stock surrendered for conversion shall be
accompanied by proper assignment thereof to the Company or in blank. The date
when such written notice is received by the Company, together with the
certificate or certificates representing the shares of Series A Preferred Stock
being converted, shall be the "Conversion Date." As promptly as practicable
after the conversion Date, the Company shall issue and shall deliver to the
holder of the shares of Series A Preferred Stock being converted, or on its
written order, such certificate or certificates as it may request for the number
of whole shares of Common Stock issuable upon the conversion of such shares of
Series A Preferred Stock in accordance with the provisions of this Section 5,
cash in the amount of all unpaid dividends on such shares of Series A Preferred
Stock, up to and including the Conversion Date, unless conversion of such unpaid
dividends into Common Stock has been elected, and cash, as provided in Section
5(k), in respect of any fraction of a share of Common Stock issuable upon such
conversion. Such conversion shall be deemed to have been effected immediately
prior to the close of business on the Conversion Date, and at such time the
rights of the holder as holder of the converted shares of Series A Preferred
Stock shall cease and the person or persons in whose name or names any
certificate or certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become the holder or holders of record
of the shares of Common Stock represented thereby.
(k) Cash in Lieu of Fractional Shares. No fractional shares of Common
---------------------------------
Stock or scrip representing fractional shares shall be issued upon the
conversion of shares of Series A Preferred Stock. Instead of any fractional
shares of Common Stock which would otherwise be issuable upon conversion of
Series A Preferred Stock, the Company shall pay to the holder of the shares of
Series A Preferred Stock which were converted a cash adjustment in respect of
such fractional shares in an amount equal to the same fraction of the market
price per share of the Common Stock (as determined in a reasonable manner
prescribed by the Board of Directors) at the close of business on the Conversion
Date. The determination as to whether or not any fractional shares are issuable
shall be based upon the total number of shares of Series A Preferred Stock being
converted at any one time by any holder thereof, not upon each share of Series A
Preferred Stock being converted.
(l) Partial Conversion. In the event some but not all of the shares
------------------
of Series A Preferred Stock represented by a certificate or certificates
surrendered by a holder are converted, the Company shall execute and deliver to
or on the order of the holder, at the expense of the Company, a new certificate
representing the number of shares of Series A Preferred Stock which were not
converted.
(m) Reservation of Common Stock. The Company shall at all times
---------------------------
reserve and keep available out of its authorized but unissued shares of Common
Stock, solely for the purpose of effecting the conversion of the shares of the
Series A Preferred Stock, such number of its shares of Common Stock as shall
from time to
- 10 -
<PAGE>
time be sufficient to effect the conversion of all outstanding shares of the
Series A Preferred Stock and all unpaid dividends thereon, and if at any time
the number of authorized but unissued shares of Common Stock shall not be
sufficient to effect the conversion of all then outstanding shares of the Series
A Preferred Stock and all unpaid dividends thereon, the Company shall take such
corporate action as may be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for such
purpose.
6. Redemption.
----------
(a) At the written election of a majority in interest of the holders
of Series A Preferred Stock on or before March 1, 2005, beginning on August 1,
2005 and on the first day of July in each year thereafter (the "Redemption
Date"), the Company shall redeem twenty-five percent (25%) of all of the
outstanding shares of Series A Preferred Stock; provided, however, that the
Company's redemption option shall be reduced by the number of shares of Series A
Preferred Stock that have been converted prior to any such Redemption Date, and
such reduction shall apply first to the Redemption Date immediately following
such conversion and thereafter any balance shall apply to any Subsequent
Redemption Dates. The redemption price for each share of Series A Preferred
Stock redeemed pursuant to this Section 6 shall be $10.00 per share plus a
dividend computed at a rate of 7% or $0.70 per share per annum, compounded
annually as of February 1, 1998 (the "Redemption Price"). Each redemption of
Series A Preferred Stock shall be made so that the number of shares of Series A
Preferred Stock held by each holder whose shares are being redeemed shall be
reduced in an amount which shall bear the same ratio to the total number of
shares of Series A Preferred Stock being redeemed as all such shares then held
by such registered owner bears to the aggregate number of shares of Series A
Preferred Stock then outstanding and held by all registered owners whose shares
are being redeemed.
(b) The Redemption Price set forth in this Section 6 shall be subject
to equitable adjustment whenever there shall occur a stock split, combination,
reclassification or other similar event involving the Series A Preferred Stock.
(c) At least thirty (30) days before any Redemption Date pursuant to
Section 6(a), written notice (hereinafter referred to as the "Redemption
Notice") shall be mailed, postage prepaid, to each holder of record of the
Series A Preferred Stock which is to be redeemed, at its address shown on the
records of the Company; provided, however, that the giving of such Redemption
Notice shall not affect the conversion rights of such holder pursuant to Section
5 hereof; provided, further, that the Company's failure to give such Redemption
Notice shall in no way affect its obligation to redeem the shares of Series A
Preferred Stock as provided in Section 6(a) hereof. The Redemption Notice shall
contain the following information:
- 11 -
<PAGE>
(i) The number of shares of Series A Preferred Stock held by
the holder which shall be redeemed by the Company and the total number of shares
of Series A Preferred Stock held by all holders to be so redeemed,
(ii) The Redemption Date and the applicable Redemption Price,
and
(iii) That the holder is to surrender to the Company, at the
place designated therein, its certificate or certificates representing the
shares of Series A Preferred Stock to be redeemed.
(d) Each holder of shares of Series A Preferred Stock to be redeemed
shall surrender the certificate or certificates representing such shares to the
Company at the place designated in the Redemption Notice, and thereupon the
applicable Redemption Price for such shares as set forth in this Section 6 shall
be paid to the order of the person whose name appears on such certificate or
certificates and each surrendered certificate shall be cancelled and retired.
(e) If any shares of Series A Preferred Stock are not redeemed solely
because a holder fails to surrender the certificate or certificates representing
such shares pursuant to Section 6(d) hereof, then, from and after the Redemption
Date, such shares of Series A Preferred Stock thereupon subject to redemption
shall not be entitled to any further accrual of any dividends pursuant to
Section 2 hereof or to the conversion provisions set forth in Section 5 hereof,
unless the company otherwise specifically agrees in writing.
7. No Reissuance of Series A Preferred Stock. No share or shares of
-----------------------------------------
Series A Preferred Stock acquired by the Company by reason of redemption,
purchase, conversion or otherwise shall be reissued, and all such shares shall
be cancelled, retired and eliminated from the shares which the Company shall be
authorized to issue. The Company may from time to time take such appropriate
corporate action as may be necessary to reduce the authorized number of shares
of the Series A Preferred Stock accordingly.
8. Restrictions and Limitations.
----------------------------
(a) Except as expressly provided herein or as required by law, neither
the Company nor any subsidiary of the Company (which shall mean any corporation
or trust of which the Company directly or indirectly owns at the time all of the
outstanding shares of every class of such corporation or trust other than
directors' qualifying shares) shall, without the vote or written consent by the
holders of at least a majority of the then outstanding shares of the Series A
Preferred Stock voting together, each share of Series A Preferred Stock to be
entitled to one vote in each instance for each share of Common Stock into which
such Preferred Stock is then convertible:
- 12 -
<PAGE>
(i) Redeem, purchase or otherwise acquire for value or (pay
in, to or set aside for a sinking fund for such purpose), any share or shares of
Series A Preferred Sock other than pursuant to the redemption provisions
contained elsewhere herein;
(ii) Authorize or issue, or obligate itself to authorize or
issue, any other equity security senior to or on a parity with the Series A
Preferred Stock as to liquidation preferences, conversion rights, redemption
rights, dividend rights, voting rights or otherwise;
(iii) Effect any sale, lease, assignment, transfer or other
conveyance of all or substantially all of the assets of the Company or any
subsidiary thereof, or any consolidation or merger involving the company or any
subsidiary thereof, or any reclassification or other change of stock, or any
recapitalization or any dissolution, liquidation or winding up of the Company;
(iv) Effect any bank borrowings in excess of an aggregate
amount of Two Hundred Fifty Thousand Dollars ($250,000) U.S.;
(v) Effect any merger by the Company with or into any business
entity or any acquisition by the Company of any assets or business having a fair
market value in excess of One Million Dollars ($1,000,000) U.S.; or
(vi) Amend its Amended and Restated Certificate of
Incorporation, if such amendment would change any of the rights, preferences,
privileges of or limitations provided for herein for the benefit of any shares
of Series A Preferred Stock.
9. No Dilution or Impairment. Except as provided in Section 8 above, the
-------------------------
Company will not, by amendment of its Amended and Restated Certificate of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of the
Series A Preferred Stock set forth herein, but will at all times in good faith
assist in the carrying out of all such terms and in the taking of all such
actions as may be necessary or appropriate in order to protect the rights of the
holders of the Series A Preferred Stock against dilution or other impairment.
Without limiting the generality of the foregoing, the Company (a) will not
increase the par value of any shares of stock receivable on the conversion of
the Series A Preferred Stock above the amount payable therefor on such
conversion, (b) will take all such action as may be necessary or appropriate in
order that the Company may validly and legally issue fully paid
- 13 -
<PAGE>
and non-assessable shares of stock on the conversion of all Series A Preferred
Stock from time to time outstanding and all accrued and unpaid dividends
thereon, and (c) will not transfer all or substantially all of its properties
and assets to any other person (corporate or otherwise), or consolidate with or
merge into any other person or permit any such person to consolidate with or
merge into the Company (if the Company is not the surviving person), unless such
other person shall expressly assume in writing and will be bound by all the
terms of the Series A Preferred Stock set forth herein.
10. Notices of Record Date. In the event of
----------------------
(a) any taking by the Company of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, or
(b) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the company, any merger or
consolidation of the Company, or any transfer of all or substantially all of the
assets of the Company to any other corporation, or any other entity or person,
or
(c) any voluntary or involuntary dissolution, liquidation or winding
up of the Company.
then and in each such event the Company shall mail or cause to be mailed to each
holder of Series A Preferred Stock a notice specifying (i) the date on which any
such record is to be taken for the purpose of such dividend, distribution or
right and a description of such dividend, distribution or right, (ii) the date
on which any such reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding up is expected to
become effective, (iii) the time, if any, that is to be fixed, as to when the
holders of record of Common Stock (or other securities) shall be entitled to
exchange their shares of Common Stock (or other securities) for securities or
other property deliverable upon such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding up. Such notice shall be mailed at least twenty (20) days prior to the
date specified in such notice on which such action is to be taken.
This Certificate of Designation was duly adopted in accordance with the
applicable provisions of Section 151 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, Engage Technologies, Inc., has caused its corporation
seal to be affixed hereto and this Certificate to be signed by Paul L. Schaut,
its
- 14 -
<PAGE>
President, and attested by William Williams II, its Assistant Secretary,
this 3rd day of April, 1998.
ENGAGE TECHNOLOGIES, INC.
By: /s/ Paul L. Schaut
-------------------------
Paul L. Schaut, President
ATTEST
By: /s/ William Williams
--------------------
William Williams II, Assistant Secretary
[Corporate Seal]
- 15 -
<PAGE>
CERTIFICATE OF INCREASE IN SHARES
DESIGNATED AS SERIES A PREFERRED STOCK
Pursuant to Section 151(g) of the General Corporation Law
of the State of Delaware
Engage Technologies, inc., a Delaware corporation (the "Corporation" or the
"Company"), pursuant to authority conferred on the Board of Directors of the
Corporation by the Amended and Restated Certificate of Incorporation of the
Corporation and in accordance with the provisions of Section 151 of the General
Corporation Law of the State of Delaware, certifies that the Board of Directors
of the Corporation, by unanimous consent dated July 31, 1998, has duly adopted
the following resolution providing for the increase in the number of shares of
Preferred Stock to be designated "Series A Preferred Stock" from eight Hundred
Thousand (800,000) shares to One Million Five Hundred Thousand (1,500,000)
shares as follows:
RESOLVED: That pursuant to, and to the extent of, the authority expressly
vested in the Board of Directors of the Corporation by the Restated
Certificate of Incorporation of the Corporation, as amended, the
Board of Directors does hereby adopt a resolution increasing the
number of shares of the Corporation's Preferred Stock designated
"Series A Preferred Stock" (the "Series A Preferred Stock") by Seven
Hundred Thousand (700,000) shares to a total of One Million Five
Hundred Thousand (1,500,000) shares, which number of shares may be
decreased (but not below the number of shares then outstanding) from
time to time by the Board of Directors of the Corporation.
This Certificate of Designation was duly adopted in accordance with the
applicable provisions of Section 151 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, Engage Technologies, Inc., has caused its corporation
seal to be affixed hereto and this Certificate to be signed by Paul L. Schaut,
its President, and attested by William Williams II, its Assistant Secretary,
this 1st day of August, 1998.
ENGAGE TECHNOLOGIES, INC.
By: /s/ Paul L. Schaut
-------------------------
Paul L. Schaut, President
ATTEST
By: /s/ William Williams
----------------------------------------
William Williams II, Assistant Secretary
[Corporate Seal]
<PAGE>
CERTIFICATE OF DESIGNATION OF
SERIES B CONVERTIBLE PREFERRED STOCK
Engage Technologies, Inc., a Delaware corporation (the "Corporation" or the
"Company"), pursuant to authority conferred on the Board of Directors of the
Corporation by the Amended and Restated Certificate of Incorporation of the
Corporation and in accordance with the provisions of Section 151 of the General
Corporation Law of the State of Delaware, certifies that the Board of Directors
of the Corporation, by unanimous consent dated July 31, 1998, has duly adopted
the following resolution providing for the establishment and issuance of a
series of Preferred Stock to be designated "Series B Convertible Preferred
Stock" and to consist of two hundred thirty-eight thousand five hundred ninety-
seven (238,597) shares as follows:
RESOLVED: That, pursuant to the authority expressly granted and vested in the
Board of Directors of this Corporation in accordance with the
provisions of its Amended and Restated Certificate of Incorporation,
a series of Preferred Stock of the Corporation hereby is established,
consisting of two hundred thirty-eight thousand five hundred ninety-
seven (238,597) shares, to be designated "Series B Convertible
Preferred Stock" (hereafter "Series B Preferred Stock"), the Board of
Directors be and hereby is authorized to issue such shares of Series
B Preferred Stock from time to time and for such consideration and on
such terms as the Board of Directors shall determine; and subject to
the limitations provided by law and by the Corporation's Amended and
Restated Certificate of Incorporation, the powers, designations,
preferences and relative, participating, optional or other special
rights, powers or priorities of, and the qualifications, limitations
or restrictions upon, the Series B Preferred Stock shall be as
follows:
1. Designation. This series of Preferred Stock, par value $0.01 per
-----------
share, shall be designated the "Series B Convertible Preferred Stock"
(hereinafter "Series B Preferred Stock").
2. Liquidation, Dissolution or Winding Up.
--------------------------------------
(a) In the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, the holders of shares of Series A
Preferred Stock then outstanding shall be entitled to be paid out of the assets
of the Corporation available for distribution to its stockholders, after and
subject to the payment in full of all amounts required to be distributed to the
holders of any other class or series of stock of the Corporation ranking on
liquidation prior and in preference to the Series A Preferred Stock, but before
any payment shall be made to the holders of Series B Preferred Stock, Common
Stock or any other class or series of stock ranking on liquidation junior to the
Series A Preferred Stock, by reason of their
<PAGE>
ownership thereof, an amount equal to $10.00 per share (subject to appropriate
adjustment in the event of any stock dividend, stock split, combination or other
similar recapitalization affecting such shares), plus any accrued but unpaid
dividends with respect thereto. If upon any such liquidation, dissolution or
winding up of the Corporation, the remaining assets of the Corporation available
for distribution to its stockholders shall be insufficient to pay the holders of
shares of Series A Preferred Stock the full amount to which they shall be
entitled, the holders of shares of Series A Preferred Stock and any class or
series of stock ranking on liquidation on a parity with the Series A Preferred
Stock shall share ratably in any distribution of the remaining assets and funds
of the Corporation in proportion to the respective amounts which would otherwise
be payable in respect of the shares held by them upon such distribution if all
amounts payable on or with respect to such shares were paid in full.
(b) After the payment of all preferential amounts required to be paid
to the holders of Series A Preferred Stock and any other class or series of
stock of the Corporation ranking on liquidation senior to the Series B Preferred
Stock, but before any payment shall be made to the holders of Common Stock or
any other class or series of stock ranking on liquidation junior to the Series B
Preferred Stock upon the liquidation, dissolution or winding up of the
Corporation, the holders of shares of Series B Preferred Stock then outstanding
shall be entitled to be paid out of the assets of the Corporation available for
distribution to its stockholders, by reason of their ownership thereof, an
amount equal to $8.3823 per share (subject to appropriate adjustment in the
event of any stock dividend, stock split, combination or other similar
recapitalization affecting such shares). If upon any such liquidation,
dissolution or winding up of the Corporation, the remaining assets of the
Corporation available for distribution to its stockholders shall be insufficient
to pay the holders of shares of Series B Preferred Stock the full amount to
which they shall be entitled, the holders of shares of Series B Preferred Stock
and any class or series of stock ranking on liquidation on a parity with the
Series B Preferred Stock shall share ratably in any distribution of the
remaining assets and funds of the Corporation in proportion to the respective
amounts which would otherwise be payable in respect of the shares held by them
upon such distribution if all amounts payable on or with respect to such shares
were paid in full.
(c) After the payment of all preferential amounts required to be paid
to the holders of Series A Preferred Stock, Series B Preferred Stock and any
other class or series of stock ranking on liquidation senior to the Common
Stock, upon the dissolution, liquidation or winding up of the Corporation, the
holders of shares of Common Stock then outstanding shall be entitled to receive,
on a pro-rata basis the remaining funds and assets of the Corporation available
for distribution to its stockholders.
(d) With respect to the Series B Preferred Stock, a merger or
consolidation of the Corporation into or with another corporation in which the
holders of the outstanding capital stock of the Corporation immediately prior to
such
<PAGE>
merger or consolidation do not hold a majority of the outstanding capital
stock of the surviving corporation, or the sale of all or substantially all the
assets of the Corporation, shall be deemed to be a liquidation, dissolution or
winding up of the Corporation for purposes of this Section 2 unless the holder
of at least 51% of the then outstanding shares of Series B Preferred Stock elect
to have such events not deemed to be a liquidation, dissolution or winding up of
the Corporation by giving written notice thereof to the Corporation at least ten
(10) days before the effective date of such event. If such notice is given, the
provisions of Subsection 4(h) below shall apply. Whenever the distribution
provided for herein shall be paid in property other than cash, the value of such
distribution shall be the fair market value of such property as determined in
good faith by the Board of Directors of the Corporation.
3. Voting Power. Except as otherwise expressly provided herein or as
------------
required by law, each holder of Series B Preferred Stock shall be entitled to
vote on all matters and shall be entitled to that number of votes equal to the
largest number of whole shares of Common Stock into which such holders shares of
Series B Preferred Stock could be converted, pursuant to the provisions of
Section 4 hereof (taking into account all declared but unpaid dividends, if any,
with respect to such Series B Preferred Stock), at the record date for the
determination of stockholders entitled to vote on such matter or, if no such
record date is established, at the date such vote is taken or any written
consent of stockholders is solicited. Except as otherwise expressly provided
herein or as required by law, the holders of shares of Series A Preferred Stock,
Series B Preferred Stock and of Common Stock shall be entitled to vote together
as a class on all matters.
4. Conversion Rights. The holders of the Series B Preferred Stock shall
-----------------
have the following conversion rights:
(a) General. Subject to and in compliance with the provisions of this
-------
Section 4, any shares of the Series B Preferred Stock, may, at the option of the
holder, be converted at any time or from time to time into fully-paid and non-
assessable shares (calculated as to each conversion to the largest whole share)
of Common Stock. The number of shares of Common Stock to which a holder of
Series B Preferred Stock shall be entitled upon conversion shall be the product
obtained by multiplying the Applicable Conversion Rate (determined as provided
in Section 4(c)) by the number of shares of Series B Preferred Stock being
converted. Upon conversion of their shares of Series B Preferred Stock into
shares of Common Stock, holders of shares of Series B Preferred Stock shall also
have the option to have all declared but unpaid dividends on such shares of
Series B Preferred Stock converted into shares of Common Stock. The number of
shares of Common Stock to be received upon the conversion of such declared but
unpaid dividends shall be computed by multiplying the number of shares of Series
B Preferred Stock which could have been purchased with such declared but unpaid
dividends, assuming a Series B Preferred Stock purchase price of $8.3823 per
share, by the Applicable Conversion Rate in effect at the time of such
conversion.
<PAGE>
(b) Conversion Following Underwritten Public Offering.
-------------------------------------------------
(i) All outstanding shares of Series B Preferred Stock shall, upon the
closing of an underwritten public offering pursuant to an effective registration
statement under the Securities Act of 1933 as amended, covering the offering and
sale of Common Stock for the account of the Company in which the Common Stock is
sold at a price to the public of not less than the amount per share which would
be equal to $10.70 per share (such amount to be equitably adjusted whenever
there shall occur a stock split combination, reclassification or other similar
event affecting the Common Stock) and in which the aggregate gross proceeds
(before deduction of any underwriting discounts, commissions or expenses)
received by the Company from such public offering, shall equal or exceed Fifteen
Million Dollars ($15,000,000), be converted automatically into the number of
shares of Common Stock to which a holder of Series B Preferred Stock shall be
entitled upon conversion pursuant to Section 4(a) hereof without any further
action by such holders and whether or not the certificates representing such
shares are surrendered to the Company or its transfer agent for the Common
Stock.
(ii) Upon the occurrence of the conversion specified in Section
4(b)(i), the holders of such Series B Preferred Stock shall surrender the
certificates representing such shares at the office of the Company or of its
transfer agent for the Common Stock. Thereupon, there shall be issued and
delivered to each such holder a certificate or certificates for the number of
shares of Common Stock into which the shares of the Series B Preferred Stock
surrendered were convertible on the date on which such conversion occurred. The
Company shall not be obligated to issue certificates evidencing the shares of
Common Stock issuable upon such conversion unless certificates evidencing such
shares of the Series B Preferred Stock being converted are either delivered to
the Company or any such transfer agent or the holder notifies the Company or any
such transfer agent that such certificates have been lost, stolen or destroyed
and executes an agreement satisfactory to the Company to indemnify the Company
from any loss incurred by it in connection therewith. In addition, the Company
may, if the Board of Directors deems it reasonably necessary, require the holder
to post a bond in connection with such indemnity agreement.
(c) Applicable Conversion Rate. The conversion rate in effect at any
--------------------------
time (the "Applicable Conversion Rate") shall be the quotient obtained by
dividing (i) $8.3823 by (ii) the Applicable Conversion Value, calculated as
provided in Section 4(d).
(d) Applicable Conversion Value. The Applicable Conversion Value in
---------------------------
effect from time to time, except as adjusted in accordance with Section 4(e)
hereof, shall be $8.3823 as of the date of this Certificate of Series B
Convertible Preferred Stock.
<PAGE>
(e) Adjustments to Applicable Conversion Value.
------------------------------------------
(i) Upon Sales of Common Stock. If the Company shall, while
--------------------------
there are any shares of Series B Preferred Stock outstanding, issue or sell
shares of its Common Stock without consideration or at a price per share less
than the Applicable Conversion Value in effect immediately prior to such
issuance or sale, then in each such case such Applicable Conversion Value upon
each such issuance or sale, except as hereinafter provided, shall be adjusted to
an amount equal to a fraction:
(A) the numerator of which shall be (a) the Applicable
Conversion Value prior to the issuance multiplied by the number of shares
of Common Stock outstanding immediately prior to the issuance of such
additional shares of Common Stock, calculated on a fully diluted basis
assuming exercise or conversion of all securities exercisable for or
convertible into Common Stock, whether or not such exercise or conversion
is unvested or otherwise conditional, plus (b) the price per share of such
additional shares of Common Stock multiplied by number of such additional
shares of Common Stock so issued or deemed issued, and
(B) the denominator of which shall be (a) the number of
shares of Common Stock outstanding immediately prior to the issuance of
such additional shares of Common Stock, calculated on a fully diluted basis
assuming exercise or conversion of all securities exercisable for or
convertible into Common Stock, whether or not such exercise or conversion
is unvested or otherwise conditional, plus (b) the number of such
additional shares of Common stock so issued or deemed issued.
The Corporation's issuance of shares of Common Stock, or options exercisable
therefor, pursuant to any stock purchase or stock option plan or other
individual or group incentive program of any kind approved by the Board of
Directors to the Corporation's officers, directors, employees or consultants
shall not be deemed an issuance of additional shares of Common Stock and shall
have no effect on the calculations contemplated by this Section 4(e).
For the purposes of this Section 4(e), the issuance of any warrants,
options, subscriptions or purchase rights with respect to shares of Common Stock
and the issuance of any securities convertible into or exchangeable for shares
of Common Stock (or the issuance of any warrants, options or any rights with
respect to such convertible or exchangeable securities) whether or not such
conversion or exchange is conditional, shall be deemed an issuance at such time
of such Common Stock if the Net Consideration Per Share (as hereinafter
determined) which may be received by the Company for such Common Stock shall be
less than the Applicable Conversion
<PAGE>
Value at the time of such issuance. Any obligation, agreement or undertaking to
issue warrants, options, subscriptions or purchase rights at any time in the
future shall be deemed to be an issuance at any time such obligation, agreement
or undertaking is made or arises. No adjustment of the Applicable Conversion
Value shall be made under this Section 4(e) upon the issuance of any shares of
Common Stock which are issued pursuant to the exercise of any warrants, options
subscriptions or purchase rights or pursuant to the exercise of any conversion
or exchange rights in any convertible securities if any adjustment shall
previously have been made upon the issuance of any such warrants, options or
subscriptions or purchase rights or upon the issuance of any convertible
securities (or upon the issuance of any warrants, options or any rights
therefor) as above provided. Any adjustment of the Applicable Conversion Value
with respect to this paragraph which relates to warrants, options, subscriptions
or purchase rights with respect to shares of Common Stock shall be disregarded
if, as, and when all of such warrants, options, subscriptions or purchase rights
expire or are canceled without being exercised, so that the Applicable
Conversion Value effective immediately upon such cancellation or expiration
shall be equal to the Applicable Conversion Value in effect at the time of the
issuance of the expired or canceled warrants, options, subscriptions or purchase
rights, with such additional adjustments as would have been made to that
Applicable Conversion Value had the expired or canceled warrants, options,
subscriptions or purchase rights not been issued. For purposes of this
paragraph, the "Net Consideration Per Share" which may be received by the
Company shall be determined as follows:
(A) The "Net Consideration Per Share" shall mean the amount
equal to the total amount of consideration, if any, received by
the Company for the issuance of such warrants, options,
subscriptions or other purchase rights or convertible or
exchangeable securities, plus the minimum amount of
consideration, if any, payable to the Company upon exercise,
conversion or exchange thereof, divided by the aggregate number
of shares of Common Stock that would be issued if all such
warrants, options, subscriptions or other purchase rights or
convertible or exchangeable securities were exercised, exchanged
or converted.
(B) The "Net Consideration Per Share" which may be received
by the Company shall be determined in each instance as of the
date of issuance of warrants, options, subscriptions or other
purchase rights or convertible or exchangeable securities without
giving effect to any possible future price adjustments or rate
adjustments which may be applicable with respect to such
warrants, options, subscriptions or other purchase rights or
convertible or exchangeable securities.
<PAGE>
For purposes of this Section 4(e), if a part or all of the consideration
received by the Company in connection with the issuance of shares of the Common
Stock or the issuance of any of the securities described in this Section 4(e)
consists of property other than cash, the Company at its expense will promptly
cause independent public accountants of recognized standing selected by the
Company to value such property, whereupon such value shall be given to such
consideration and shall be recorded on the books of the Company with respect to
receipt of such property.
This Section 4(e)(i) shall not apply under any of the circumstances which
would constitute an Extraordinary Common Stock Event (as hereinafter defined in
Section 4(e)(ii)).
(ii) Upon an Extraordinary Common Stock Event. Upon the
----------------------------------------
happening of an Extraordinary Common Stock Event (as hereinafter defined), the
Applicable Conversion Value shall, simultaneously with the happening of such
Extraordinary Common Stock Event, be adjusted by multiplying the then effective
Applicable Conversion Value by a fraction, the numerator of which shall be the
number of shares of Common Stock outstanding immediately prior to such
Extraordinary Common Stock Event and the denominator of which shall be the
number of shares of Common Stock outstanding immediately after such
Extraordinary Common Stock event, and the product so obtained shall thereafter
be the Applicable Conversion Value. The Applicable Conversion Value, as so
adjusted, shall be readjusted in the same manner upon the happening of any
successive Extraordinary Common Stock Event or Events.
"Extraordinary Common Stock Event" shall mean (i) the issue of additional
shares of Common Stock as a dividend or other distribution on outstanding shares
of Common Stock, (ii) the subdivision of outstanding shares of Common Stock into
a greater number of shares of Common Stock, or (iii) the combination of
outstanding shares of the Common Stock into a smaller number of shares of Common
Stock.
(f) Dividends. In the event the Company shall make or issue, or fix a
---------
record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in securities of the Company
other than shares of Common Stock or in assets (excluding cash dividends or
distributions), then and in each such event provisions shall be made so that the
holders of Series B Preferred Stock shall receive upon conversion thereof in
addition to the number of shares of Common Stock receivable thereupon the number
of securities or such other assets of the Company which they would have received
had their Series B Preferred Stock been converted into Common Stock on the date
of such event and had they thereafter, during the period from the date of such
event to and including the Conversion Date (as that term is hereafter defined in
Section 4(j)), retained such securities or such other assets receivable by them
as aforesaid during such period, giving application to all adjustments called
for during such period under this Section 4 with respect to the rights of the
holders of the Series B Preferred Stock.
<PAGE>
(g) Recapitalization or Reclassification. If the Common Stock
------------------------------------
issuable upon the conversion of the Series B Preferred Stock shall be changed
into the same or a different number of shares of any class or classes of stock
of the Corporation, whether by recapitalization, reclassification or otherwise
(other than a subdivision or combination of shares or stock dividend provided
for elsewhere in this Section 4, or a reorganization, merger, consolidation or
sale of assets provided for elsewhere in this Section 4), then and in each such
event the holder of each share of Series B Preferred Stock shall have the right
thereafter to convert such share into the kind and amount of shares of stock and
other securities and property receivable upon such reorganization,
reclassification or other change by holders of the number of shares of Common
Stock into which such share of Series B Preferred Stock might have been
converted (taking into account all declared and unpaid dividends and interest
with respect to such Series B Preferred Stock) immediately prior to such
reorganization, reclassification or change, all subject to further adjustment as
provided herein.
(h) Capital Reorganization, Merger or Sale of Assets. If at any time
------------------------------------------------
or from time to time there shall be a capital reorganization of the Common Stock
(other than a subdivision, combination, reclassification or exchange of shares
provided for elsewhere in this Section 4) or a merger or consolidation of the
Company with or into another corporation or entity, or the sale of all or
substantially all of the Company's properties and assets to any other person or
persons, then, as a part of such reorganization, merger, consolidation or sale,
provision shall be made so that the holders of the Series B Preferred Stock
shall thereafter be entitled to receive upon conversion of the Series B
Preferred Stock the number of shares of stock or other securities or property of
the Company, or of the successor corporation or entity resulting from such
merger, consolidation or sale, to which such holders would be entitled if they
were holders of the number of shares of Common Stock they were entitled to
receive on conversion of the Series B Preferred Stock held by them immediately
prior to such capital reorganization, merger consolidation, or sale. In any
such case, appropriate adjustment shall be made in the application of the
provisions of this Section 4 with respect to the rights of the holders of the
Series B Preferred Stock after the reorganization, merger, consolidation or sale
to the end that the provisions of this Section 4 (including adjustment of the
Applicable Conversion Value then in effect and the number of shares purchasable
upon conversion of the Series B Preferred Stock) shall be applicable after that
event in as nearly equivalent a manner as may be practicable.
Each holder of Series B Preferred Stock upon the occurrence of a capital
reorganization, merger or consolidation of the Company, or the sale of all or
substantially all its assets and properties as such events are more fully set
forth in the first paragraph of this Section 4(h), shall have the option of
electing treatment of his shares of Series B Preferred Stock under either this
Section 4(h) or Section 2(d) hereof, notice of which election shall be submitted
in writing to the Company at its principal offices no later than five (5) days
before the effective date of such event.
<PAGE>
(i) Accountant's Certificate as to Adjustments. In each case of an
------------------------------------------
adjustment or readjustment of the Applicable Conversion Rate, the Company will
furnish each holder of Series B Preferred Stock with a certificate, prepared by
its chief financial officer showing such adjustment or readjustment, and stating
in detail the facts upon which such adjustment or readjustment is based. Upon
the request of any holder, the Company will cause its independent public
accountants to confirm the accuracy of such adjustment or readjustment.
(j) Exercise of Conversion Privilege. To exercise his conversion
--------------------------------
privilege, a holder of Series B Preferred Stock shall surrender the certificate
or certificates representing the shares being converted to the Company at its
principal office, and shall give written notice to the Company at that office
that such holder elects to convert such shares. Such notice shall also state
the name or names (with address or addresses) in which the certificate or
certificates for shares of Common Stock issuable upon such conversion shall be
issued. The certificate or certificates for shares of Series B Preferred Stock
surrendered for conversion shall be accompanied by proper assignment thereof to
the Company or in blank. The date when such written notice is received by the
Company, together with the certificate or certificates representing the shares
of Series B Preferred Stock being converted, shall be the "Conversion Date". As
promptly as practicable after the Conversion Date, the Company shall issue and
shall deliver to the holder of the shares of Series B Preferred Stock being
converted, or on its written order, such certificate or certificates as it may
request for the number of whole shares of Common Stock issuable upon the
conversion of such shares of Series B Preferred Stock in accordance with the
provisions of this Section 4, cash in the amount of all unpaid dividends on such
shares of Series B Preferred Stock, up to and including the Conversion Date,
unless conversion of such unpaid dividends into Common Stock has been elected
and cash, as provided in Section 4(k), in respect of any fraction of a share of
Common Stock issuable upon such conversion. Such conversion shall be deemed to
have been effected immediately prior to the close of business on the Conversion
Date, and at such time the rights of the holder as holder of the converted
shares of Series B Preferred Stock shall cease and the person or persons in
whose name or names any certificate or certificates for shares of Common Stock
shall be issuable upon such conversion shall be deemed to have become the holder
or holders of record of the shares of Common Stock represented thereby.
(k) Cash in Lieu of Fractional Shares. No fractional shares of Common
---------------------------------
Stock or scrip representing fractional shares shall be issued upon the
conversion of shares of Series B Preferred Stock. Instead of any fractional
shares of Common Stock which would otherwise be issuable upon conversion of
Series B Preferred Stock, the Company shall pay to the holder of the shares of
Series B Preferred Stock which were converted a cash adjustment in respect of
such fractional shares in an amount equal to the same fraction of the market
price per share of the Common Stock (as determined in a reasonable manner
prescribed by the Board of Directors) at the close of business on the Conversion
Date. The determination as to whether or not any fractional shares are issuable
shall be based upon the total
<PAGE>
number of shares of Series B preferred Stock being converted at any one time by
any holder thereof, not upon each share of Series B Preferred Stock being
converted.
(l) Partial Conversion. In the event some but not all of the shares
------------------
of Series B Preferred Stock represented by a certificate or certificates
surrendered by a holder are converted, the Company shall execute and deliver to
or on the order of the holder, at the expense of the Company, a new certificate
representing the number of shares of Series B Preferred Stock which were not
converted.
(m) Reservation of Common Stock. The Company shall at all times
---------------------------
reserve and keep available out of its authorized but unissued shares of Common
Stock, solely for the purpose of effecting the conversion of the shares of the
Series B Preferred Stock, such number of its shares of Common Stock as shall
from time to time be sufficient to effect the conversion of all outstanding
shares of the Series B Preferred Stock and all unpaid dividends thereon, and if
at any time the number of authorized but unissued shares of Common Stock shall
not be sufficient to effect the conversion of all then outstanding shares of the
Series B Preferred Stock and all unpaid dividends thereon, the Company shall
take such corporate action as may be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be sufficient
for such purpose.
5. No Reissuance of Series B Preferred Stock. No share or shares of
-----------------------------------------
Series B Preferred Stock acquired by the Company by reason of purchase or
conversion shall be reissued, and all such shares shall be canceled, retired and
eliminated from the shares which the Company shall be authorized to issue. The
Company may from time to time take such appropriate corporate action as may be
necessary to reduce the authorized number of shares of the Series B Preferred
Stock accordingly; provided, that this provision shall not be construed to
permit the amendment of this Certificate of Designation with respect to any
matter other than the number of shares of Series B Stock authorized for
issuance, except with the consent of the holders of a majority in interest of
the issued and outstanding Series B Preferred Stock.
6. No Dilution or Impairment. The Company will not, by amendment of its
-------------------------
Amended and Restated Certificate of Incorporation or through any reorganization,
transfer of assets, consolidation, merger, dissolution, issue or sale of
securities or any other voluntary action, avoid or seek to avoid the observance
or performance of any of the terms of the Series B Preferred Stock set forth
herein, but will at all times in good faith assist in the carrying out of all
such terms and in the taking of all such actions as may be necessary or
appropriate in order to protect the rights of the holders of the Series B
Preferred Stock against dilution or other impairment. Without limiting the
generality of the foregoing, the Company (a) will not increase the par value of
any shares of stock receivable on the conversion of the Series B Preferred Stock
above the amount payable therefor on such conversion, (b) will take all such
action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and non-assessable shares of stock on the
conversion of all Series B Preferred Stock from time to time outstanding and all
accrued and unpaid
<PAGE>
dividends thereon, and (c) will not transfer all or substantially all of its
properties and assets to any other person (corporate or otherwise), or
consolidate with or merge into any other person or permit any such person to
consolidate with or merge into the Company (if the Company is not the surviving
person), unless such other person shall expressly assume in writing and will be
bound by all the terms of the Series B Preferred Stock set forth herein.
7. Notices of Record Date. In the event of
----------------------
(a) any taking by the Company of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, or
(b) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company, any merger or
consolidation of the Company, or any transfer of all or substantially all of the
assets of the Company to any other corporation or any other entity or person, or
(c) any voluntary or involuntary dissolution, liquidation or winding
up of the Company,
then and in each such event the Company shall mail or cause to be mailed to each
holder of Series B Preferred Stock a notice specifying (i) the date on which any
such record is to be taken for the purpose of such dividend, distribution or
right and a description of such dividend, distribution or right, (ii) the date
on which any such reorganization, reclassification, recapitalization, transfer,
consolidation, merger, dissolution, liquidation or winding up is expected to
become effective, (iii) the time, if any, that is to be fixed, as to when the
holders of record of Common Stock (or other securities) shall be entitled to
exchange their shares of Common Stock (or other securities) for securities or
other property deliverable upon such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding up. Such notice shall be mailed at least twenty (20) days prior to the
date specified in such notice on which such action is to be taken.
This Certificate of Designation was duly adopted in accordance with the
applicable provisions of Section 151 of the Delaware General Corporation Law.
<PAGE>
IN WITNESS WHEREOF, Engage Technologies, Inc., has caused its corporation
seal to be affixed hereto and this Certificate to be signed by Paul L. Schaut,
its President, and attested by William Williams II, its Assistant Secretary,
this 1st day of August, 1998.
ENGAGE TECHNOLOGIES, INC.
By: /s/ Paul L. Schaut
-------------------------
Paul L. Schaut, President
ATTEST
By: /s/ William Williams
----------------------------------------
William Williams II, Assistant Secretary
[Corporate Seal]
<PAGE>
AUTHENTICATION:
DATE:
CERTIFICATE OF MERGER
of
ACCIPITER, INC.
into
ENGAGE TECHNOLOGIES, INC.
(the surviving corporation)
Pursuant to Section 251 of the General
Corporation Law of the State of Delaware
Engage Technologies, Inc. (hereinafter called the "Corporation"), organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware, does hereby certify:
FIRST: That the name and state of incorporation of each of the constituent
corporations of the Merger is as follows:
Name State of Incorporation
- ---- ----------------------
Engage Technologies, Inc. Delaware
Accipiter, Inc. Delaware
SECOND: That an Agreement and Plan of Merger between the parties to the
Merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of Section
251 of the General Corporation Law of the State of Delaware.
THIRD: That the surviving corporation of the Merger is Engage
Technologies, Inc.
FOURTH: The Certificate of Incorporation of Engage Technologies, Inc.
shall become the Certificate of Incorporation of the surviving corporation.
<PAGE>
FIFTH: That the executed Agreement and Plan of Merger is on file at the
principal place of business of the surviving corporation. The address of the
principal place of business of the surviving corporation is 100 Brickstone
Square, 1st Floor, Andover, Massachusetts 01810.
SIXTH: That a copy of the Agreement and Plan of Merger will be furnished
by the surviving corporation, on request and without costs, to any stockholder
of any constituent corporation.
IN WITNESS WHEREOF, Engage Technologies, Inc. has caused this Certificate
to be signed by its authorized officer, with effect as of the 6th day of August,
1998.
ENGAGE TECHNOLOGIES, INC.
By: /s/ Paul L. Schaut
------------------------
Paul L. Schaut, President
ATTEST
By: /s/ William Williams
----------------------------------------
William Williams II, Assistant Secretary
[Corporate Seal]
<PAGE>
CERTIFICATE OF MERGER
of
ACCIPITER, INC.
into
ENGAGE TECHNOLOGIES, INC.
(the surviving corporation)
Pursuant to Section 251 of the General
Corporation Law of the State of Delaware
Engage Technologies, Inc. (hereinafter called the "Corporation"), organized
and existing under and by virtue of the General Corporation Law of the State of
Delaware, does hereby certify:
FIRST: That the name and state of incorporation of each of the constituent
corporations of the Merger is as follows:
Name State of Incorporation
- ---- ----------------------
Engage Technologies, Inc. Delaware
Accipiter, Inc. Delaware
SECOND: That an Agreement and Plan of Merger between the parties to the
Merger has been approved, adopted, certified, executed and acknowledged by each
of the constituent corporations in accordance with the requirements of Section
251 of the General Corporation Law of the State of Delaware.
THIRD: that the surviving corporation of the Merger is Engage
Technologies, Inc.
FOURTH: The Certificate of Incorporation of Engage Technologies, Inc.
shall become the Certificate of Incorporation of the surviving corporation.
FIFTH: That the executed Agreement and Plan of Merger is on file at the
principal place of business of the surviving corporation. The address of the
principal place of business of the surviving corporation is 100 Brickstone
Square, 1st Floor, Andover, Massachusetts 01810.
SIXTH: That a copy of the Agreement and Plan of Merger will be furnished
by the surviving corporation, on request and without costs, to any stockholder
of any constituent corporation.
<PAGE>
IN WITNESS WHEREOF, Engage Technologies, Inc. has caused this Certificate
to be signed by its authorized officer, with effect as of the 6th day of August,
1998.
ENGAGE TECHNOLOGIES, INC.
By: /s/ Paul L. Schaut
-------------------------
Paul L. Schaut, President
ATTEST
By: /s/ William Williams
----------------------------------------
William Williams II, Assistant Secretary
[Corporate Seal]
<PAGE>
CERTIFICATE OF AMENDMENT OF
RESTATED CERTIFICATE OF INCORPORATION OF
ENGAGE TECHNOLOGIES, INC.
It is hereby certified that:
1. The name of the corporation is Engage Technologies, Inc. (the
"Corporation").
2. The Corporation's Restated Certificate of Incorporation is hereby amended
by striking out the first paragraph of Article 4 thereof and by
substituting the following replacement paragraph:
"The aggregate number of shares of all classes of stock which the
Corporation is authorized to issue is thirty five million (35,000,000)
shares, of which five million (5,000,000) shall be shares of Preferred
Stock, par value $0.01 per share (the "Preferred Stock"), and thirty
million (30,000,000) shall be shares of Common Stock, par value $0.01 per
share (the "Common Stock")."
3. This Certificate of Amendment was duly adopted in accordance with the
applicable provisions of Sections 242 and 228 of the Delaware General
Corporation Law.
Signed and attested to on March 24, 1999.
/s/ Paul L. Schaut
---------------------
Paul L. Schaut
President
ATTEST:
/s/ Michael K. Baker
- -----------------------
Michael K. Baker
Secretary
<PAGE>
CERTIFICATE OF DESIGNATION OF
SERIES C CONVERTIBLE PREFERRED STOCK
Engage Technologies, Inc., a Delaware corporation (the "Company"), pursuant
to authority conferred on the Board of Directors of the Company by the
Certificate of Incorporation of the Company, as amended to date, and in
accordance with the provisions of Section 151 of the General Corporation Law of
the State of Delaware, certifies that the Board of Directors of the Company, at
a meeting duly held on May 5, 1999, has duly adopted the following resolution
providing for the establishment and issuance of a series of Preferred Stock to
be designated "Series C Convertible Preferred Stock" and to consist of two
million (2,000,000) shares as follows:
RESOLVED: That, pursuant to the authority expressly granted and vested in
the Board of Directors of the Company in accordance with the
provisions of Section 151 of the General Corporation Law of
the State of Delaware and its Amended and Restated
Certificate of Incorporation, a series of Preferred Stock of
the Company hereby is established, consisting of two million
(2,000,000) shares to be designated "Series C Convertible
Preferred Stock" (hereinafter "Series C Preferred Stock");
the Board of Directors be and hereby is authorized to issue
such shares of Series C Preferred Stock from time to time
and for such consideration and on such terms as the Board of
Directors shall determine; and subject to the limitations
provided by law and by the Amended and Restated Certificate
of Incorporation, the powers, designations, preferences and
relative, participating, optional or other special rights
of, and the qualifications, limitations or restrictions
upon, the Series C Preferred Stock shall be as follows:
1. Designation. This series of Preferred Stock, par value $0.01 per
-----------
share, shall be designated the "Series C Convertible Preferred Stock"
(hereinafter "Series C Preferred Stock").
2. Dividends.
---------
(a) The holders of shares of Series C Preferred Stock shall be
entitled to receive, out of funds legally available therefor, dividends computed
at a rate of 7% of the Applicable Purchase Price (as defined in Section 3(a)
below) per share per annum (or a proportional part thereof for a portion of a
year and all subject to appropriate adjustment in the event of any stock
dividend, stock split, combination or other similar recapitalization affecting
such shares) commencing as of the date the particular shares of Series C
Preferred Stock are issued (the "Applicable Issue Date"), payable when, as and
if declared by the Board of Directors of the Company. The right to receive
dividends on Series C Preferred Stock shall be non-cumulative, and no right to
receive dividends shall accrue by reason of the fact that no dividends have been
declared on the Series C Preferred Stock in any or every prior year.
38
<PAGE>
(b) The Company shall not declare or pay any distributions on shares
of Common Stock until the holders of shares of Series C Preferred Stock then
outstanding shall have first received a distribution at the rate specified in
paragraph (a) of this Section 2 calculated on a cumulative basis from the date
of issuance of said stock compounded annually as of any anniversary of the date
of issuance of such shares.
(c) For purposes of this Section 2, unless the context requires
otherwise, "distribution" shall mean the transfer of cash or property without
consideration, whether by way of dividend or otherwise, payable other than in
Common Stock or other securities of the Company, or the purchase or redemption
of shares of the Company (other than repurchases of Common Stock held by
employees or directors of, or consultants to, the Company pursuant to agreements
providing for such repurchase and other than redemptions in liquidation or
dissolution of the Company) for cash or property, including any such transfer,
purchase or redemption by a subsidiary of the Company.
3. Liquidation, Dissolution or Winding Up.
--------------------------------------
(a) In the event of any liquidation, dissolution or winding up of the
Company, and provided that the amount available for distribution to each holder
of the Series C Preferred Stock pursuant to this Section 3 is less than the
Applicable Purchase Price (as defined below) per share plus a dividend computed
at a rate of 7% per share per annum, compounded annually beginning as of the
Applicable Issue Date (such amount to be equitably adjusted whenever there shall
occur a stock split, combination, reclassification or other similar event as
provided in Section 5(e)(ii) hereof), whether voluntary or involuntary, the
entire assets of the Company available for such distribution shall, after
satisfaction of all payment obligations under the Company's Series A Preferred
Stock, be distributed ratably among the holders of the Series C Preferred Stock.
The "Applicable Purchase Price" for each share of Series C Preferred Stock shall
be the price paid for such share on the Applicable Issue Date.
It is expressly contemplated that separate tranches of shares of Series C
Preferred Stock issued on different dates will have different Applicable
Purchase Prices.
(b) In the event of any liquidation, dissolution or winding up of the
Company, and provided that the amount available for distribution to each holder
of the Series C Preferred Stock pursuant to this Section 3 is at least equal to
the Applicable Purchase Price per share plus a dividend computed at a rate of 7%
of the Applicable Purchase Price for each such share per annum, compounded
annually as of the Applicable Issue Date (such amount to be equitably adjusted
whenever there shall occur a stock split, combination, reclassification or other
similar event as provided in Section 5(e)(ii) hereof), whether voluntary or
involuntary, holders of each share of Series C Preferred Stock shall, after
satisfaction of all payment obligations under the Company's Series A Preferred
Stock, be entitled to be paid first out of the assets of the Company available
for distribution to holders of the Company's capital stock of all classes,
whether such assets are capital, surplus, or earnings, before any sums shall be
paid or any assets distributed among the holders of any other class of capital
stock, an amount equal to the Applicable Purchase Price for each share of Series
C Preferred Stock plus a dividend computed at a rate of 7% per share per annum,
compounded annually as of the Applicable Issue Date. After the
39
<PAGE>
payment of the preferential amount required to be paid to the holders of the
Series C Preferred Stock, upon the liquidation, dissolution or winding up of the
Company, the holders of shares of the Company's Common Stock shall be entitled
to receive the remaining assets and funds of the Company available for
distribution to its stockholders.
(c) A consolidation or merger of the Company or a sale of all or
substantially all of the assets of the Company shall be regarded as a
liquidation, dissolution or winding up of the affairs of the Company within the
meaning of this Section 3; provided, however, that each holder of Series C
Preferred Stock shall have the right to elect the benefits of the provisions of
Section 5(h) hereof in lieu of receiving payment in liquidation, dissolution or
winding up of the Company pursuant to this Section 3. Each holder of Series C
Preferred Stock shall notify the Company in advance of its election to obtain
the benefits of this Section 3(c) or of Section 5(h), which notification shall
be given not later than a date specified in writing to each holder by the
Company to be at least five (5) days prior to the effective date of such
consolidation, merger or sale. If a holder fails to make any election, he shall
be deemed to have elected the benefits of this Section 3(c).
(d) Whenever the distribution provided for herein shall be paid in
property other than cash, the value of such distribution shall be the fair
market value of such property as determined in good faith by the Board of
Directors of the Company.
4. Voting Power. Except as otherwise expressly provided in Section 7
------------
hereof, or as required by law, each holder of Series C Preferred Stock shall be
entitled to vote on all matters and shall be entitled to that number of votes
equal to the largest number of whole shares of Common Stock into which such
holder's shares of Series C Preferred Stock could be converted, pursuant to the
provisions of Section 5 hereof (taking into account all declared and unpaid
dividends, if any, with respect to such Series C Preferred Stock), at the record
date for the determination of shareholders entitled to vote on such matter or,
if no such record date is established, at the date such vote is taken or any
written consent of shareholders is solicited. Except as otherwise expressly
provided herein or as required by law, the holders of shares of Series C
Preferred Stock and of Common Stock shall be entitled to vote together as a
class on all matters.
5. Conversion Rights. The holders of the Series C Preferred Stock shall
-----------------
have the following conversion rights:
(a) General. Subject to and in compliance with the provisions of
-------
this Section 5, any shares of the Series C Preferred Stock, may, at the option
of the holder, be converted at any time or from time to time into fully-paid and
non-assessable shares (calculated as to each conversion to the largest whole
share) of Common Stock. The number of shares of Common Stock to which a holder
of Series C Preferred Stock shall be entitled upon conversion shall be
calculated by adding together each product obtained by multiplying the
Applicable Conversion Rate (determined as provided in Section 5(c)) for each
tranche of Series C Preferred Stock held by such holder by the number of shares
of each tranche of Series C Preferred Stock having such particular Applicable
Purchase Price being converted. Upon conversion of their shares of Series C
Preferred Stock into shares of Common Stock, holders of shares of Series C
Preferred Stock shall also have the option to have all declared but unpaid
dividends on such shares of Series C Preferred Stock converted into shares of
Common Stock. The number of shares of Common Stock to be received upon the
conversion of such declared but unpaid dividends shall, for each tranche of
Series C Preferred Stock, be computed by multiplying the number of shares of
Series C
40
<PAGE>
Preferred Stock which could have been purchased with such declared but unpaid
dividends, assuming a Series C Preferred Stock purchase price equal to the
Applicable Purchase Price per share, by the Applicable Conversion Rate in effect
for such tranche at the time of such conversion.
(b) Conversion Following Underwritten Public Offering.
(i) All outstanding shares of Series C Preferred Stock shall, upon
the closing of an underwritten public offering pursuant to an effective
registration statement under the Securities Act of 1933, as amended, covering
the offering and sale of Common Stock for the account of the Company in which
the Common Stock is sold at a price to the public of not less than an amount per
share to be calculated as follows: (A) the aggregate sum of the Applicable
Purchase Price for each tranche of Series C Preferred Stock multiplied by the
number of shares issued in such tranche plus a dividend computed at a rate of 7%
per share per annum, compounded annually as of the Applicable Issue Date (such
amount to be equitably adjusted whenever there shall occur a stock split,
combination, reclassification or other similar event affecting the Common Stock)
divided by (B) the total number of shares of Series C Preferred Stock issued and
outstanding, and in which the aggregate gross proceeds (before deduction of any
underwriting discounts, commissions or expenses) received by the Company from
such public offering, shall equal or exceed Fifteen Million Dollars
($15,000,000), be converted automatically into the number of shares of Common
Stock to which a holder of Series C Preferred Stock shall be entitled upon
conversion pursuant to Section 5(a) hereof without any further action by such
holders and whether or not the certificates representing such shares are
surrendered to the Company or its transfer agent for the Common Stock.
(ii) Upon the occurrence of the conversion specified in Section
5(b)(i), the holders of such Series C Preferred Stock shall surrender the
certificates representing such shares at the office of the Company or of its
transfer agent for the Common Stock. Thereupon, there shall be issued and
delivered to each such holder a certificate or certificates for the number of
shares of Common Stock into which the shares of the Series C Preferred Stock
surrendered were convertible on the date on which such conversion occurred. The
Company shall not be obligated to issue certificates evidencing the shares of
Common Stock issuable upon such conversion unless certificates evidencing such
shares of the Series C Preferred Stock being converted are either delivered to
the Company or any such transfer agent or the holder notifies the Company or any
such transfer agent that such certificates have been lost, stolen or destroyed
and executes an agreement satisfactory to the Company to indemnify the Company
from any loss incurred by it in connection therewith. In addition, the Company
may, if the Board of Directors deems it reasonably necessary, require the holder
to post a bond in connection with such indemnity agreement.
(c) Applicable Conversion Rate. The conversion rate in effect at any
--------------------------
time (the "Applicable Conversion Rate") shall be the quotient obtained by
dividing (i) the Applicable Purchase Price by (ii) the Applicable Conversion
Value, calculated as provided in Section 5(d).
41
<PAGE>
(d) Applicable Conversion Value. The Applicable Conversion Value in
---------------------------
effect from time to time, except as subsequently adjusted in accordance with
Section 5(e) hereof, shall be equal to the quotient obtained by dividing (i) the
Applicable Purchase Price by (ii) ten (10).
(e) Adjustments to Applicable Conversion Value.
(i) Upon Sales of Common Stock. If the Company shall, while there
--------------------------
are any shares of Series C Preferred Stock outstanding, issue or sell shares of
its Common Stock without consideration or at a price per share less than the
Applicable Conversion Value for any tranche of Series C Preferred Stock in
effect immediately prior to such issuance or sale, then in each such case such
Applicable Conversion Value for such tranche of Series C Preferred Stock upon
each such issuance or sale, except as hereinafter provided, shall be adjusted to
an amount determined by multiplying such Applicable Conversion Value by a
fraction:
(A) the numerator of which shall be (a) the number of shares of
Common Stock outstanding immediately prior to the issuance of such
additional shares of Common Stock, calculated on a fully diluted basis
assuming exercise or conversion of all securities exercisable for or
convertible into Common Stock, whether or not such exercise or conversion
is unvested or otherwise conditional, plus (b) the number of shares of
Common Stock which the net aggregate consideration received by the Company
for the total number of such additional shares of Common Stock so issued
would purchase at the Applicable Conversion Value for such tranche, and
(B) the denominator of which shall be (a) the number of shares
of Common Stock outstanding immediately prior to the issuance of such
additional shares of Common Stock, calculated on a fully diluted basis
assuming exercise or conversion of all securities exercisable for or
convertible into Common Stock, whether or not such exercise or conversion
is unvested or otherwise conditional, plus (b) the number of such
additional shares of Common Stock so issued or deemed issued.
The Company's issuance of up to an aggregate of 3,544,737 shares of Common Stock
or such greater number if approved by a majority of the Board of Directors (such
amount to be equitably adjusted whenever there shall occur a stock split,
combination, reclassification or other similar event affecting the Common
Stock), or options exercisable therefor, pursuant to any stock purchase or stock
option plan or other individual or group incentive program of any kind approved
by the Board of Directors to the Company's officers, directors, employees or
consultants shall have no effect on the calculations contemplated by this
Section 5(e).
(C) For the purposes of this Section 5(e), with respect to each
tranche of Series C Preferred Stock, the issuance of any warrants, options,
subscriptions or purchase rights with respect to shares of
42
<PAGE>
Common Stock and the issuance of any securities convertible into or
exchangeable for shares of Common Stock (or the issuance of any warrants,
options or any rights with respect to such convertible or exchangeable
securities) whether or not such conversion or exchange is conditional,
shall be deemed an issuance at such time of such Common Stock. Any
obligation, agreement or undertaking to issue warrants, options,
subscriptions or purchase rights at any time in the future shall be deemed
to be an issuance at any time such obligation, agreement or undertaking is
made or arises. No adjustment of the Applicable Conversion Value for any
such tranche shall be made under this Section 5(e) upon the issuance of any
shares of Common Stock which are issued pursuant to the exercise of any
warrants, options, subscriptions or purchase rights or pursuant to the
exercise of any conversion or exchange rights in any convertible securities
if any adjustment shall previously have been made upon the issuance of any
such warrants, options or subscriptions or purchase rights or upon the
issuance of any convertible securities (or upon the issuance of any
warrants, options or any rights therefor) as above provided. Any adjustment
of the Applicable Conversion Value with respect to this paragraph for any
tranche of Series C Preferred Stock which relates to warrants, options,
subscriptions or purchase rights with respect to shares of Common Stock
shall be disregarded if, as, and when all of such warrants, options,
subscriptions or purchase rights expire or are canceled without being
exercised, so that the Applicable Conversion Value for such tranche
effective immediately upon such cancellation or expiration shall be equal
to the Applicable Conversion Value for such tranche in effect at the time
of the issuance of the expired or canceled warrants, options, subscriptions
or purchase rights, with such additional adjustments as would have been
made to that Applicable Conversion Value had the expired or canceled
warrants, options, subscriptions or purchase rights not been issued.
For purposes of this Section 5(e), if a part or all of the consideration
received by the Company in connection with the issuance of shares of the Common
Stock or the issuance of any of the securities described in this Section 5(e)
consists of property other than cash, the Company at its expense will promptly
cause independent public accountants of recognized standing selected by the
Company to value such property, whereupon such value shall be given to such
consideration and shall be recorded on the books of the Company with respect to
receipt of such property.
This Section 5(e)(i) shall not apply under any of the circumstances which
would constitute an Extraordinary Common Stock Event (as hereinafter defined in
Section 5(e)(ii)).
(ii) Extraordinary Common Stock Event. Upon the happening of an
--------------------------------
Extraordinary Common Stock Event (as hereinafter defined), the Applicable
Conversion Value
43
<PAGE>
for each tranche of Series C Preferred Stock shall, simultaneously with the
happening of such Extraordinary Common Stock Event, be adjusted by multiplying
the then effective Applicable Conversion Value for such tranche by a fraction,
the numerator of which shall be the number of shares of Common Stock outstanding
immediately prior to such Extraordinary Common Stock Event and the denominator
of which shall be the number of shares of Common Stock outstanding immediately
after such Extraordinary Common Stock event, and the product so obtained shall
thereafter be the Applicable Conversion Value for such tranche. The Applicable
Conversion Value for such tranche, as so adjusted, shall be readjusted in the
same manner upon the happening of any successive Extraordinary Common Stock
Event or Events.
"Extraordinary Common Stock Event" shall mean (i) the issue of additional
shares of Common Stock as a dividend or other distribution on outstanding shares
of Common Stock, (ii) the subdivision of outstanding shares of Common Stock into
a greater number of shares of Common Stock, or (iii) the combination of
outstanding shares of the Common Stock into a smaller number of shares of Common
Stock.
(f) Dividends. In the event the Company shall make or issue, or fix
---------
a record date for the determination of holders of Common Stock entitled to
receive, a dividend or other distribution payable in securities of the Company
other than shares of Common Stock or in assets (excluding cash dividends or
distributions), then and in each such event provisions shall be made so that the
holders of Series C Preferred Stock shall receive upon conversion thereof in
addition to the number of shares of Common Stock receivable thereupon, the
number of securities or such other assets of the Company which they would have
received had their Series C Preferred Stock been converted into Common Stock on
the date of such event and had they thereafter, during the period from the date
of such event to and including the Conversion Date (as that term is hereafter
defined in Section 5(j)), retained such securities or such other assets
receivable by them as aforesaid during such period, giving application to all
adjustments called for during such period under this Section 5 with respect to
the rights of the holders of the Series C Preferred Stock.
(g) Recapitalization or Reclassification. If the Common Stock
------------------------------------
issuable upon the conversion of the Series C Preferred Stock shall be changed
into the same or a different number of shares of any class or classes of stock
of the Company, whether by recapitalization, reclassification or otherwise
(other than a subdivision or combination of shares or stock dividend provided
for elsewhere in this Section 5, or a reorganization, merger, consolidation or
sale of assets provided for elsewhere in this Section 5), then and in each such
event the holder of each share of Series C Preferred Stock shall have the right
thereafter to convert such share into the kind and amount of shares of stock and
other securities and property receivable upon such reorganization,
reclassification or other change by holders of the number of shares of Common
Stock into which such share of Series C Preferred Stock might have been
converted (taking into account all accrued and unpaid dividends and interest
with respect to such Series C Preferred Stock) immediately prior to such
reorganization, reclassification or change, all subject to further adjustment as
provided herein.
(h) Capital Reorganization, Merger or Sale of Assets. If at any time
------------------------------------------------
or from time to time there shall be a capital reorganization of the Common Stock
(other than a subdivision, combination, reclassification or exchange of shares
provided for elsewhere in this
44
<PAGE>
Section 5) or a merger or consolidation of the Company with or into another
corporation or entity, or the sale of all or substantially all of the Company's
properties and assets to any other person or persons, then, as a part of such
reorganization, merger, consolidation or sale, provision shall be made so that
each holder of the Series C Preferred Stock shall thereafter be entitled to
receive upon conversion of such holder's shares of Series C Preferred Stock, the
number of shares of stock or other securities or property of the Company, or of
the successor corporation or entity resulting from such merger, consolidation or
sale, to which a holder of Common Stock issuable upon conversion would have been
entitled on such capital reorganization, merger, consolidation, or sale. In any
such case, appropriate adjustment shall be made in the application of the
provisions of this Section 5 with respect to the rights of the holders of the
Series C Preferred Stock after the reorganization, merger, consolidation or sale
to the end that the provisions of this Section 5 (including adjustment of the
Applicable Conversion Value then in effect and the number of shares purchasable
upon conversion of each tranche of Series C Preferred Stock) shall be applicable
after that event in as nearly equivalent a manner as may be practicable.
Each holder of Series C Preferred Stock upon the occurrence of a capital
reorganization, merger or consolidation of the Company, or the sale of all or
substantially all its assets and properties as such events are more fully set
forth in the first paragraph of this Section 5(h), shall have the option of
electing treatment of his shares of Series C Preferred Stock under either this
Section 5(h) or Section 3(b) hereof, notice of which election shall be submitted
in writing to the Company at its principal offices no later than five (5) days
before the effective date of such event.
(i) Accountant's Certificate as to Adjustments. In each case of an
------------------------------------------
adjustment or readjustment of the Applicable Conversion Rate, the Company will
furnish each holder of Series C Preferred Stock with a certificate, prepared by
its chief financial officer showing such adjustment or readjustment, and stating
in detail the facts upon which such adjustment or readjustment is based. Upon
the request of any holder, the Company will cause its independent public
accountants to confirm the accuracy of such adjustment or readjustment.
(j) Exercise of Conversion Privilege. To exercise his conversion
--------------------------------
privilege, a holder of Series C Preferred Stock shall surrender the certificate
or certificates representing the shares being converted to the Company at its
principal office, and shall give written notice to the Company at such office
that such holder elects to convert such shares. Such notice shall also state the
name or names (with address or addresses) in which the certificate or
certificates for shares of Common Stock issuable upon such conversion shall be
issued. The certificate or certificates for shares of Series C Preferred Stock
surrendered for conversion shall be accompanied by proper assignment thereof to
the Company or in blank. The date when such written notice is received by the
Company, together with the certificate or certificates representing the shares
of Series C Preferred Stock being converted, shall be the "Conversion Date". As
promptly as practicable after the Conversion Date, the Company shall issue and
shall deliver to the holder of the shares of Series C Preferred Stock being
converted, or on its written order, such certificate or certificates as it may
request for the number of whole shares of Common Stock issuable upon the
conversion of such shares of Series C Preferred Stock in accordance with the
provisions of this Section 5, cash in the amount of all declared but unpaid
dividends on such shares of Series C Preferred Stock, up to and including the
Conversion Date,
45
<PAGE>
unless conversion of such declared but unpaid dividends into Common Stock has
been elected, and cash, as provided in Section 5(k), in respect of any fraction
of a share of Common Stock issuable upon such conversion. Such conversion shall
be deemed to have been effected immediately prior to the close of business on
the Conversion Date, and at such time the rights of the holder as holder of the
converted shares of Series C Preferred Stock shall cease and the person or
persons in whose name or names any certificate or certificates for shares of
Common Stock shall be issuable upon such conversion shall be deemed to have
become the holder or holders of record of the shares of Common Stock represented
thereby.
(k) Cash in Lieu of Fractional Shares. No fractional shares of
---------------------------------
Common Stock or scrip representing fractional shares shall be issued upon the
conversion of shares of Series C Preferred Stock. Instead of any fractional
shares of Common Stock which would otherwise be issuable upon conversion of
Series C Preferred Stock, the Company shall pay to the holder of the shares of
Series C Preferred Stock which were converted a cash adjustment in respect of
such fractional shares in an amount equal to the same fraction of the market
price per share of the Common Stock (as determined in a reasonable manner
prescribed by the Board of Directors) at the close of business on the Conversion
Date. The determination as to whether or not any fractional shares are issuable
shall be based upon the total number of shares of Series C Preferred Stock being
converted at any one time by any holder thereof, not upon each share of Series C
Preferred Stock being converted.
(l) Partial Conversion. In the event some but not all of the shares
------------------
of Series C Preferred Stock represented by a certificate or certificates
surrendered by a holder are converted, the Company shall execute and deliver to
or on the order of the holder, at the expense of the Company, a new certificate
representing the number of shares of Series C Preferred Stock which were not
converted.
(m) Reservation of Common Stock. The Company shall at all times
---------------------------
reserve and keep available out of its authorized but unissued shares of Common
Stock, solely for the purpose of effecting the conversion of the shares of the
Series C Preferred Stock, such number of its shares of Common Stock as shall
from time to time be sufficient to effect the conversion of all outstanding
shares of the Series C Preferred Stock and all unpaid dividends thereon, and if
at any time the number of authorized but unissued shares of Common Stock shall
not be sufficient to effect the conversion of all then outstanding shares of the
Series C Preferred Stock and all unpaid dividends thereon, the Company shall
take such corporate action as may be necessary to increase its authorized but
unissued shares of Common Stock to such number of shares as shall be sufficient
for such purpose.
6. No Reissuance of Series C Preferred Stock. No share or shares of
-----------------------------------------
Series C Preferred Stock acquired by the Company by reason of redemption,
purchase, conversion or otherwise shall be reissued, and all such shares shall
be canceled, retired and eliminated from the shares which the Company shall be
authorized to issue. The Company may from time to time take such appropriate
corporate action as may be necessary to reduce the authorized number of shares
of the Series C Preferred Stock accordingly.
46
<PAGE>
7. Restrictions and Limitations.
----------------------------
(a) Except as expressly provided herein or as required by law,
neither the Company nor any subsidiary of the Company (which shall mean any
corporation or trust of which the Company directly or indirectly owns at the
time all of the outstanding shares of every class of such corporation or trust
other than directors' qualifying shares) shall, without the vote or written
consent by the holders of at least a majority of the then outstanding shares of
the Series C Preferred Stock voting together, each share of Series C Preferred
Stock to be entitled to one vote in each instance for each share of Common Stock
into which such Preferred Stock is then convertible:
(i) Redeem, purchase or otherwise acquire for value or (pay in, to
or set aside for a sinking fund for such purpose), any share or shares of Series
C Preferred Stock;
(ii) Authorize or issue, or obligate itself to authorize or issue,
any other equity security senior to or on a parity with the Series C Preferred
Stock as to liquidation preferences, conversion rights, redemption rights,
dividend rights, voting rights or otherwise;
(iii) Effect any sale, lease, assignment, transfer or other
conveyance of all or substantially all of the assets of the Company or any
subsidiary thereof, or any consolidation or merger involving the Company or any
subsidiary thereof, or any reclassification or other change of stock, or any
recapitalization or any dissolution, liquidation or winding up of the Company;
(iv) Effect any merger by the Company with or into any business
entity or any acquisition by the Company of any assets or business having a fair
market value in excess of One Million Dollars ($1,000,000) U.S.; or
(v) Amend its Amended and Restated Certificate of Incorporation, if
such amendment would change any of the rights, preferences, privileges of or
limitations provided for herein for the benefit of any shares of Series C
Preferred Stock.
8. No Dilution or Impairment. Except as provided in Section 7 above, the
-------------------------
Company will not, by amendment of its Amended and Restated Certificate of
Incorporation or through any reorganization, transfer of assets, consolidation,
merger, dissolution, issue or sale of securities or any other voluntary action,
avoid or seek to avoid the observance or performance of any of the terms of the
Series C Preferred Stock set forth herein, but will at all times in good faith
assist in the carrying out of all such terms and in the taking of all such
actions as may be necessary or appropriate in order to protect the rights of the
holders of the Series C Preferred Stock against dilution or other impairment.
Without limiting the generality of the foregoing, the Company (a) will not
increase the par value of any shares of stock receivable on the conversion of
the Series C Preferred Stock above the amount payable therefor on such
conversion, (b) will take all such action as may be necessary or appropriate in
order that the Company may validly and legally issue fully paid and non-
assessable shares of stock on the conversion of all Series C Preferred Stock
from time to time outstanding and all accrued and unpaid dividends thereon, and
(c) will not transfer all or substantially all of its properties and assets to
any other person (corporate or otherwise), or consolidate with or merge into any
other person or permit any such
47
<PAGE>
person to consolidate with or merge into the Company (if the Company is not the
surviving person), unless such other person shall expressly assume in writing
and will be bound by all the terms of the Series C Preferred Stock set forth
herein.
9. Notices of Record Date. In the event of
----------------------
(a) any taking by the Company of a record of the holders of any class
of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right, or
(b) any capital reorganization of the Company, any reclassification or
recapitalization of the capital stock of the Company, any merger or
consolidation of the Company, or any transfer of all or substantially all of the
assets of the Company to any other corporation, or any other entity or person,
or
(c) any voluntary or involuntary dissolution, liquidation or winding
up of the Company, then and in each such event the Company shall mail or cause
to be mailed to each holder of Series C Preferred Stock a notice specifying (i)
the date on which any such record is to be taken for the purpose of such
dividend, distribution or right and a description of such dividend, distribution
or right, (ii) the date on which any such reorganization, reclassification,
recapitalization, transfer, consolidation, merger, dissolution, liquidation or
winding up is expected to become effective, (iii) the time, if any, that is to
be fixed, as to when the holders of record of Common Stock (or other securities)
shall be entitled to exchange their shares of Common Stock (or other securities)
for securities or other property deliverable upon such reorganization,
reclassification, recapitalization, transfer, consolidation, merger,
dissolution, liquidation or winding up. Such notice shall be mailed at least
twenty (20) days prior to the date specified in such notice on which such action
is to be taken.
This Certificate of Designation was duly adopted in accordance with the
applicable provisions of Section 151 of the Delaware General Corporation Law.
48
<PAGE>
IN WITNESS WHEREOF, Engage Technologies, Inc. has caused this Certificate
of Designation of Series C Convertible Preferred Stock to be signed by Paul L.
Schaut, its President, this 5th day of May, 1999.
By: /s/ Paul L. Schaut
---------------------------
Paul L. Schaut, President
49
<PAGE>
EXHIBIT 3.2
SECOND AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ENGAGE TECHNOLOGIES, INC.
Engage Technologies, Inc., a corporation organized and existing under and
by virtue of the General Corporation Law of the State of Delaware, does hereby
certify as follows:
1. The Corporation filed its original Certificate of Incorporation with
the Secretary of the State of Delaware on July 18, 1995.
2. At a duly called meeting of the Board of Directors of the Corporation
at which a quorum was present at all times, a resolution was duly adopted,
pursuant to Sections 242 and 245 of the General Corporation Law of the State of
Delaware, setting forth an Amended and Restated Certificate of Incorporation of
the Corporation and declaring said Amended and Restated Certificate of
Incorporation advisable. The stockholders of the Corporation duly approved said
proposed Amended and Restated Certificate of Incorporation by written consent in
accordance with Sections 228, 242 and 245 of the General Corporation Law of the
State of Delaware. The resolution setting forth the Amended and Restated
Certificate of Incorporation is as follows:
RESOLVED: That the Certificate of Incorporation of the Corporation, be and
- --------
hereby is amended and restated in its entirety so that the same
shall read as follows:
FIRST. The name of the Corporation is:
Engage Technologies, Inc.
SECOND. The address of its registered office in the State of Delaware is
1013 Centre Road, in the City of Wilmington, County of New Castle. The name of
its registered agent at such address is The Prentice-Hall Corporation.
THIRD. The nature of the business or purposes to be conducted or promoted
by the Corporation is as follows:
To engage in any lawful act or activity for which corporations may be
organized under the General Corporation Law of Delaware.
<PAGE>
FOURTH: The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 155,000,000 shares, consisting of
(i) 150,000,000 shares of Common Stock, $.01 par value per share ("Common
Stock"), and (ii) 5,000,000 shares of Preferred Stock, $.01 par value per share
("Preferred Stock").
The following is a statement of the designations and the powers, privileges
and rights, and the qualifications, limitations or restrictions thereof in
respect of each class of capital stock of the Corporation.
A. COMMON STOCK.
------------
1. General. The voting, dividend and liquidation rights of the holders
-------
of the Common Stock are subject to and qualified by the rights of the holders of
the Preferred Stock of any series as may be designated by the Board of Directors
upon any issuance of the Preferred Stock of any series.
2. Voting. The holders of the Common Stock are entitled to one vote for
------
each share held at all meetings of stockholders. There shall be no cumulative
voting.
The number of authorized shares of Common Stock may be increased or
decreased (but not below the number of shares thereof then outstanding) by the
affirmative vote of the holders of a majority of the stock of the Corporation
entitled to vote, irrespective of the provisions of Section 242(b)(2) of the
General Corporation Law of Delaware.
3. Dividends. Dividends may be declared and paid on the Common Stock
---------
from funds lawfully available therefor as and when determined by the Board of
Directors and subject to any preferential dividend rights of any then
outstanding Preferred Stock.
4. Liquidation. Upon the dissolution or liquidation of the Corporation,
-----------
whether voluntary or involuntary, holders of Common Stock will be entitled to
receive all assets of the Corporation available for distribution to its
stockholders, subject to any preferential rights of any then outstanding
Preferred Stock.
B. PREFERRED STOCK.
---------------
Preferred Stock may be issued from time to time in one or more series, each
of such series to have such terms as stated or expressed herein and in the
resolution or resolutions providing for the issue of such series adopted by the
Board of Directors of the Corporation as hereinafter provided. Any shares of
Preferred Stock which may be redeemed, purchased or acquired by the Corporation
may be reissued except as otherwise provided by law. Different series of
Preferred Stock shall not be construed
2
<PAGE>
to constitute different classes of shares for the purposes of voting by classes
unless expressly provided.
Authority is hereby expressly granted to the Board of Directors from time
to time to issue the Preferred Stock in one or more series, and in connection
with the creation of any such series, by resolution or resolutions providing for
the issue of the shares thereof, to determine and fix such voting powers, full
or limited, or no voting powers, and such designations, preferences and relative
participating, optional or other special rights, and qualifications, limitations
or restrictions thereof, including without limitation thereof, dividend rights,
conversion rights, redemption privileges and liquidation preferences, as shall
be stated and expressed in such resolutions, all to the full extent now or
hereafter permitted by the General Corporation Law of Delaware. Without
limiting the generality of the foregoing, the resolutions providing for issuance
of any series of Preferred Stock may provide that such series shall be superior
or rank equally or be junior to the Preferred Stock of any other series to the
extent permitted by law. Except as otherwise provided in this Certificate of
Incorporation, no vote of the holders of the Preferred Stock or Common Stock
shall be a prerequisite to the designation or issuance of any shares of any
series of the Preferred Stock authorized by and complying with the conditions of
this Certificate of Incorporation, the right to have such vote being expressly
waived by all present and future holders of the capital stock of the
Corporation.
FIFTH. The Corporation shall have a perpetual existence.
SIXTH. Election of directors need not be by written ballot, except as and
to the extent provided in the By-Laws of the Corporation.
SEVENTH. Whenever a compromise or arrangement is proposed between this
corporation and its creditors or any class of them and/or between this
corporation and its stockholders or any class of them, any court of equitable
jurisdiction within the State of Delaware may, on the application in a summary
way of this corporation or of any creditor or stockholder thereof, or on the
application of any receiver or receivers appointed for this corporation under
the provisions of section 291 of Title 8 of the Delaware Code or on the
application of trustees in dissolution or of any receiver or receivers appointed
for this corporation under the provisions of section 279 of Title 8 of the
Delaware Code order a meeting of the creditors or class of creditors, and/or of
the stockholders or class of stockholders of this corporation, as the case may
be, to be summoned in such manner as the said court directs. If a majority in
number representing three-fourths in value of the creditors or class of
creditors, and/or of the stockholders or class of stockholders of this
corporation, as the case may be, agree to any compromise or arrangement and to
any reorganization of this corporation as consequence of such compromise or
arrangement, the said compromise or arrangement and the said reorganization
shall, if sanctioned by the court to which the said application has been made,
be binding on all the creditors or
3
<PAGE>
class of creditors, and/or on all the stockholders or class of stockholders, of
this corporation, as the case may be, and also on this corporation.
EIGHTH. Except to the extent that the General Corporation Law of Delaware
prohibits the elimination or limitation of liability of directors for breaches
of fiduciary duty, no director of the Corporation shall be personally liable to
the Corporation or its stockholders for monetary damages for any breach of
fiduciary duty as a director, notwithstanding any provision of law imposing such
liability. No amendment to or repeal of this provision shall apply to or have
any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment.
NINTH. 1. Actions, Suits and Proceedings Other than by or in the Right of
---------------------------------------------------------------
the Corporation. The Corporation shall indemnify each person who was or is a
- ---------------
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation), by
reason of the fact that he is or was, or has agreed to become, a director or
officer of the Corporation, or is or was serving, or has agreed to serve, at the
request of the Corporation, as a director, officer, partner, employee or trustee
of, or in a similar capacity with, another corporation, partnership, joint
venture, trust or other enterprise (including any employee benefit plan) (all
such persons being referred to hereafter as an "Indemnitee"), or by reason of
any action alleged to have been taken or omitted in such capacity, against all
expenses (including attorneys' fees), judgments, fines and amounts paid in
settlement actually and reasonably incurred by him or on his behalf in
connection with such action, suit or proceeding and any appeal therefrom, if he
acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe his conduct
was unlawful. The termination of any action, suit or proceeding by judgment,
order, settlement, conviction or upon a plea of nolo contendere or its
---- ----------
equivalent, shall not, of itself, create a presumption that the person did not
act in good faith and in a manner which he reasonably believed to be in, or not
opposed to, the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had reasonable cause to believe that his conduct
was unlawful.
2. Actions or Suits by or in the Right of the Corporation. The
------------------------------------------------------
Corporation shall indemnify any Indemnitee who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the Corporation to procure a judgment in its favor by
reason of the fact that he is or was, or has agreed to become, a director or
officer of the Corporation, or is or was serving, or has agreed to serve, at the
request of the Corporation, as a director, officer, partner, employee or trustee
of, or in a similar capacity with, another corporation, partnership, joint
venture, trust or other enterprise (including any employee benefit
4
<PAGE>
plan), or by reason of any action alleged to have been taken or omitted in such
capacity, against all expenses (including attorneys' fees) and, to the extent
permitted by law, amounts paid in settlement actually and reasonably incurred by
him or on his behalf in connection with such action, suit or proceeding and any
appeal therefrom, if he acted in good faith and in a manner he reasonably
believed to be in, or not opposed to, the best interests of the Corporation,
except that no indemnification shall be made in respect of any claim, issue or
matter as to which such person shall have been adjudged to be liable to the
Corporation unless and only to the extent that the Court of Chancery of Delaware
shall determine upon application that, despite the adjudication of such
liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses (including
attorneys' fees) which the Court of Chancery of Delaware shall deem proper.
3. Indemnification for Expenses of Successful Party. Notwithstanding the
------------------------------------------------
other provisions of this Article, to the extent that an Indemnitee has been
successful, on the merits or otherwise, in defense of any action, suit or
proceeding referred to in Sections 1 and 2 of this Article, or in defense of any
claim, issue or matter therein, or on appeal from any such action, suit or
proceeding, he shall be indemnified against all expenses (including attorneys'
fees) actually and reasonably incurred by him or on his behalf in connection
therewith. Without limiting the foregoing, if any action, suit or proceeding is
disposed of, on the merits or otherwise (including a disposition without
prejudice), without (i) the disposition being adverse to the Indemnitee, (ii) an
adjudication that the Indemnitee was liable to the Corporation, (iii) a plea of
guilty or nolo contendere by the Indemnitee, (iv) an adjudication that the
---- ----------
Indemnitee did not act in good faith and in a manner he reasonably believed to
be in or not-opposed to the best interests of the Corporation, and (v) with
respect to any criminal proceeding, an adjudication that the Indemnitee had
reasonable cause to believe his conduct was unlawful, the Indemnitee shall be
considered for the purposes hereof to have been wholly successful with respect
thereto.
4. Notification and Defense of Claim. As a condition precedent to his
---------------------------------
right to be indemnified, the Indemnitee must notify the Corporation in writing
as soon as practicable of any action, suit, proceeding or investigation
involving him for which indemnity will or could be sought. With respect to any
action, suit, proceeding or investigation of which the Corporation is so
notified, the Corporation will be entitled to participate therein at its own
expense and/or to assume the defense thereof at its own expense, with legal
counsel reasonably acceptable to the Indemnitee. After notice from the
Corporation to the Indemnitee of its election so to assume such defense, the
Corporation shall not be liable to the Indemnitee for any legal or other
expenses subsequently incurred by the Indemnitee in connection with such claim,
other than as provided below in this Section 4. The Indemnitee shall have the
right to employ his own counsel in connection with such claim, but the fees and
expenses of such counsel incurred after notice from the Corporation of its
assumption of the
5
<PAGE>
defense thereof shall be at the expense of the Indemnitee unless (i) the
employment of counsel by the Indemnitee has been authorized by the Corporation,
(ii) counsel to the Indemnitee shall have reasonably concluded that there may be
a conflict of interest or position on any significant issue between the
Corporation and the Indemnitee in the conduct of the defense of such action or
(iii) the Corporation shall not in fact have employed counsel to assume the
defense of such action, in each of which cases the fees and expenses of counsel
for the Indemnitee shall be at the expense of the Corporation, except as
otherwise expressly provided by this Article. The Corporation shall not be
entitled, without the consent of the Indemnitee, to assume the defense of any
claim brought by or in the right of the Corporation or as to which counsel for
the Indemnitee shall have reasonably made the conclusion provided for in clause
(ii) above. The Corporation shall not be required to indemnify the Indemnitee
under this Article for any amounts paid in settlement of any Proceeding effected
without its written consent. The Corporation shall not settle any Proceeding in
any manner which would impose any penalty or limitation on Indemnitee without
Indemnitee's written consent. Neither the Corporation nor the Indemnitee will
unreasonably withhold their consent to any proposed settlement.
5. Advance of Expenses. Subject to the provisions of Section 6 below, in
-------------------
the event that the Corporation does not assume the defense pursuant to Section 4
of this Article of any action, suit, proceeding or investigation of which the
Corporation receives notice under this Article, any expenses (including
attorneys' fees) incurred by an Indemnitee in defending a civil or criminal
action, suit, proceeding or investigation or any appeal therefrom shall be paid
by the Corporation in advance of the final disposition of such matter; provided,
--------
however, that the payment of such expenses incurred by an Indemnitee in advance
- -------
of the final disposition of such matter shall be made only upon receipt of an
undertaking by or on behalf of the Indemnitee to repay all amounts so advanced
in the event that it shall ultimately be determined that the Indemnitee is not
entitled to be indemnified by the Corporation as authorized in this Article; and
further provided that no such advancement of expenses shall be made if it is
- ------- --------
determined that (i) the Indemnitee did not act in good faith and in a manner he
reasonably believes to be in, or not opposed to, the best interests of the
Corporation, or (ii) with respect to any criminal action or proceeding, the
Indemnitee had reasonable cause to believe his conduct was unlawful. Such
undertaking shall be accepted without reference to the financial ability of the
Indemnitee to make such repayment.
6. Procedure for Indemnification. In order to obtain indemnification or
-----------------------------
advancement of expenses pursuant to Section 1, 2, 3 or 5 of this Article, the
Indemnitee shall submit to the Corporation a written request, including in such
request such documentation and information as is reasonably available to the
Indemnitee and is reasonably necessary to determine whether and to what extent
the Indemnitee is entitled to indemnification or advancement of expenses. Any
such indemnification or advancement of expenses, unless ordered by a court shall
be
6
<PAGE>
made, with respect to requests under Section 1, 2 or 5, only as authorized in
the specific case upon a determination by the Corporation that the
indemnification of the Indemnitee is proper because the Indemnitee has met the
applicable standard of conduct set forth in Section 1, 2 or 5, as the case may
be. Such determination shall be made in each instance (a) by a majority vote of
the directors of the Corporation consisting of persons who are not at that time
parties to the action, suit or proceeding in question ("disinterested
directors"), whether or not a quorum, (b) by a majority vote of a committee of
disinterested directors designated by majority vote of disinterested directors,
whether or not a quorum, (c), if there are no disinterested directors, or if
disinterested directors so direct, by independent legal counsel (who may, to the
extent permitted by law, be regular legal counsel to the Corporation) in a
written opinion, or (d) by the stockholders of the Corporation.
7. Remedies. The right to indemnification or advances as granted by this
--------
Article shall be enforceable by the Indemnitee in any court of competent
jurisdiction. Neither the failure of the Corporation to have made a
determination prior to the commencement of such action that indemnification is
proper in the circumstances because the Indemnitee has met the applicable
standard of conduct, nor an actual determination by the Corporation pursuant to
Section 6 that the Indemnitee has not met such applicable standard of conduct,
shall be a defense to the action or create a presumption that the Indemnitee has
not met the applicable standard of conduct. The Indemnitee's expenses (including
attorneys' fees) incurred in connection with successfully establishing his right
to indemnification, in whole or in part, in any such proceeding shall also be
indemnified by the Corporation.
8. Limitations. Notwithstanding anything to the contrary in this
-----------
Article, except as set forth in Section 7 above, the Corporation shall not
indemnify an Indemnitee seeking indemnification in connection with a proceeding
(or part thereof) initiated by the Indemnitee unless the initiation thereof was
approved by the Board of Directors of the Corporation. Notwithstanding anything
to the contrary in this Article, the Corporation shall not indemnify an
Indemnitee to the extent such Indemnitee is reimbursed from the proceeds of
insurance, and in the event the Corporation makes any indemnification payments
to an Indemnitee and such Indemnitee is subsequently reimbursed from the
proceeds of insurance, such Indemnitee shall promptly refund such
indemnification payments to the Corporation to the extent of such insurance
reimbursement.
9. Subsequent Amendment. No amendment, termination or repeal of this
--------------------
Article or of the relevant provisions of the General Corporation Law of Delaware
or any other applicable laws shall affect or diminish in any way the rights of
any Indemnitee to indemnification under the provisions hereof with respect to
any action, suit, proceeding or investigation arising out of or relating to any
actions, transactions or facts occurring prior to the final adoption of such
amendment, termination or repeal.
7
<PAGE>
10. Other Rights. The indemnification and advancement of expenses
------------
provided by this Article shall not be deemed exclusive of any other rights to
which an Indemnitee seeking indemnification or advancement of expenses may be
entitled under any law (common or statutory), agreement or vote of stockholders
or disinterested directors or otherwise, both as to action in his official
capacity and as to action in any other capacity while holding office for the
Corporation, and shall continue as to an Indemnitee who has ceased to be a
director or officer, and shall inure to the benefit of the estate, heirs,
executors and administrators of the Indemnitee. Nothing contained in this
Article shall be deemed to prohibit, and the Corporation is specifically
authorized to enter into, agreements with officers and directors providing
indemnification rights and procedures different from those set forth in this
Article. In addition, the Corporation may, to the extent authorized from time
to time by its Board of Directors, grant indemnification rights to other
employees or agents of the Corporation or other persons serving the Corporation
and such rights may be equivalent to, or greater or less than, those set forth
in this Article.
11. Partial Indemnification. If an Indemnitee is entitled under any
-----------------------
provision of this Article to indemnification by the Corporation for some or a
portion of the expenses (including attorneys' fees), judgments, fines or amounts
paid in settlement actually and reasonably incurred by him or on his behalf in
connection with any action, suit, proceeding or investigation and any appeal
therefrom but not, however, for the total amount thereof, the Corporation shall
nevertheless indemnify the Indemnitee for the portion of such expenses
(including attorneys' fees), judgments, fines or amounts paid in settlement to
which the Indemnitee is entitled.
12. Insurance. The Corporation may purchase and maintain insurance, at
---------
its expense, to protect itself and any director, officer, employee or agent of
the Corporation or another corporation, partnership, joint venture, trust or
other enterprise (including any employee benefit plan) against any expense,
liability or loss incurred by him in any such capacity, or arising out of his
status as such, whether or not the Corporation would have the power to indemnify
such person against such expense, liability or loss under the General
Corporation Law of Delaware.
13. Savings Clause. If this Article or any portion hereof shall be
--------------
invalidated on any ground by any court of competent jurisdiction, then the
Corporation shall nevertheless indemnify each Indemnitee as to any expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement in
connection with any action, suit, proceeding or investigation, whether civil,
criminal or administrative, including an action by or in the right of the
Corporation, to the fullest extent permitted by any applicable portion of this
Article that shall not have been invalidated and to the fullest extent permitted
by applicable law.
8
<PAGE>
14. Definitions. Terms used herein and defined in Section 145(h) and
-----------
Section 145(i) of the General Corporation Law of Delaware shall have the
respective meanings assigned to such terms in such Section 145(h) and Section
145(i).
TENTH. Except as otherwise provided herein, the Corporation reserves the
right to amend, alter, change or repeal any provision contained in this
Certificate of Incorporation, in the manner now or hereafter prescribed by
statute and this Certificate of Incorporation, and all rights conferred upon
stockholders herein are granted subject to this reservation.
ELEVENTH: Special meetings of stockholders may be called at any time by
only the Chairman of the Board of Directors, the President, the Board of
Directors or the holders of at least 40% of the votes which all stockholders
would be entitled to cast in any annual election of directors. Business
transacted at any special meeting of stockholders shall be limited to matters
relating to the purpose or purposes stated in the notice of meeting.
TWELFTH: In furtherance and not in limitation of the powers conferred upon
it by the laws of the State of Delaware, the Board of Directors shall have the
power to adopt, amend, alter or repeal the Corporation's By-Laws. The
affirmative vote of a majority of the directors present at any regular or
special meeting of the Board of Directors at which a quorum is present shall be
required to adopt, amend, alter or repeal the Corporation's By-Laws. The
Corporation's By-Laws also may be adopted, amended, altered or repealed by the
affirmative vote of the holders of at least a majority of the votes which all of
the stockholders would be entitled to cast in any annual election of directors.
THIRTEENTH: The Corporation hereby elects not to be governed by Section
203 of the Delaware General Corporation Law.
IN WITNESS WHEREOF, the Corporation has caused its corporate seal to be
affixed hereto and this Certificate of Incorporation to be signed by its
President this _____ day of ______________, 1999.
ENGAGE TECHNOLOGIES, INC.
By:_________________________________________
Paul L. Schaut, President
9
<PAGE>
EXHIBIT 3.5
AMENDED AND RESTATED BY-LAWS
OF
ENGAGE TECHNOLOGIES, INC.
ARTICLE I. - Stockholders
-------------------------
1. Place of Meetings. All meetings of stockholders shall be held at such
-----------------
place within or without the State of Delaware as may be designated from time to
time by the Board of Directors, the Chairman of the Board or the President or,
if not so designated, at the registered office of the corporation.
2. Annual Meeting. The annual meeting of stockholders for the election
--------------
of directors and for the transaction of such other business as may properly be
brought before the meeting shall be held on a date to be fixed by the Board of
Directors, the Chairman of the Board or the President (which date shall not be a
legal holiday in the place where the meeting is to be held) at the time and
place to be fixed by the Board of Directors, the Chairman of the Board or the
President and stated in the notice of the meeting. If no annual meeting is held
in accordance with the foregoing provisions, the Board of Directors shall cause
the meeting to be held as soon thereafter as is convenient. If no annual
meeting is held in accordance with the foregoing provisions, a special meeting
may be held in lieu of the annual meeting, and any action taken at that special
meeting shall have the same effect as if it had been taken at the annual
meeting, and in such case all references in these By-Laws to the annual meeting
of the stockholders shall be deemed to refer to such special meeting.
3. Special Meetings. Special meetings of stockholders may be called at
----------------
any time only by the Chairman of the Board, the President, the Board of
Directors or the holders of at least 40% of the votes which all stockholders
would be entitled to cast in any annual election of directors. Business
transacted at any special meeting of stockholders shall be limited to matters
relating to the purpose or purposes stated in the notice of meeting.
4. Notice of Meetings. Except as otherwise provided by law, written
------------------
notice of each meeting of stockholders, whether annual or special, shall be
given not less than 10 nor more than 60 days before the date of the meeting to
each stockholder entitled to vote at such meeting. The notices of all meetings
shall state the place, date and hour of the meeting. The notice of a special
meeting shall state, in addition, the purpose or purposes for which the meeting
is called. If mailed, notice is given when
<PAGE>
deposited in the United States mail, postage prepaid, directed to the
stockholder at his address as it appears on the records of the corporation.
5. Voting List. The officer who has charge of the stock ledger of the
-----------
corporation shall prepare, at least 10 days before every meeting of
stockholders, a complete list of the stockholders entitled to vote at the
meeting, arranged in alphabetical order, and showing the address of each
stockholder and the number of shares registered in the name of each stockholder.
Such list shall be open to the examination of any stockholder, for any purpose
germane to the meeting, during ordinary business hours, for a period of at least
10 days prior to the meeting, at a place within the city where the meeting is to
be held. The list shall also be produced and kept at the time and place of the
meeting during the whole time of the meeting, and may be inspected by any
stockholder who is present.
6. Quorum. Except as otherwise provided by law, the Certificate of
------
Incorporation or these By-Laws, the holders of a majority of the shares of the
capital stock of the corporation issued and outstanding and entitled to vote at
the meeting, present in person or represented by proxy, shall constitute a
quorum for the transaction of business.
7. Adjournments. Any meeting of stockholders may be adjourned to any
------------
other time and to any other place at which a meeting of stockholders may be held
under these By-Laws by the stockholders present or represented at the meeting
and entitled to vote, although less than a quorum, or, if no stockholder is
present, by any officer entitled to preside at or to act as Secretary of such
meeting. It shall not be necessary to notify any stockholder of any adjournment
of less than 30 days if the time and place of the adjourned meeting are
announced at the meeting at which adjournment is taken, unless after the
adjournment a new record date is fixed for the adjourned meeting. At the
adjourned meeting, the corporation may transact any business which might have
been transacted at the original meeting.
8. Voting and Proxies. Each stockholder shall have one vote for each
------------------
share of stock entitled to vote held of record by such stockholder and a
proportionate vote for each fractional share so held, unless otherwise provided
by law, the Certificate of Incorporation or these By-Laws. Each stockholder of
record entitled to vote at a meeting of stockholders may vote in person or may
authorize another person or persons to vote or act for him by proxy executed in
writing (or in such other manner permitted by the Delaware General Corporation
Law) by the stockholder or his authorized agent and delivered to the Secretary
of the corporation. No such proxy shall be voted or acted upon after three
years from the date of its execution, unless the proxy expressly provides for a
longer period.
9. Action at Meeting. When a quorum is present at any meeting, the
-----------------
holders of a majority of the stock present or represented and voting on a matter
(or if
-2-
<PAGE>
there are two or more classes of stock entitled to vote as separate classes,
then in the case of each such class, the holders of a majority of the stock of
that class present or represented and voting on a matter) shall decide any
matter to be voted upon by the stockholders at such meeting, except when a
different vote is required by express provision of law, the Certificate of
Incorporation or these By-Laws. Any election by stockholders shall be determined
by a plurality of the votes cast by the stockholders entitled to vote at the
election.
10. Nomination of Directors. Only persons who are nominated in accordance
-----------------------
with the following procedures shall be eligible for election as directors.
Nomination for election to the Board of Directors of the corporation at a
meeting of stockholders may be made (i) by or at the direction of the Board of
Directors or (ii) by any stockholder of the corporation entitled to vote for the
election of directors at such meeting who complies with the notice procedures
set forth in this Section 10.
To be timely, a stockholder's notice must be received by the Secretary at
the principal executive offices of the corporation as follows: (a) in the case
of an election of directors at an annual meeting of stockholders, not less than
60 days nor more than 90 days prior to the first anniversary of the preceding
year's annual meeting; provided, however, that (i) in the event that the date of
the annual meeting is advanced by more than 20 days, or delayed by more than 60
days, from such anniversary date, to be timely, a stockholder's notice must be
so received not earlier than the ninetieth day prior to such annual meeting and
not later than the close of business on the later of (A) the sixtieth day prior
to such annual meeting and (B) the tenth day following the day on which notice
of the date of such annual meeting was mailed or public disclosure of the date
of such annual meeting was made, whichever first occurs, or (ii) with respect to
the annual meeting of stockholders of the corporation to be held in the year
1999, to be timely, a stockholder's notice must be so received not earlier than
the ninetieth day prior to such annual meeting and not later than the close of
business on the tenth day following the day on which notice of the date of such
annual meeting was mailed or public disclosure of the date of such annual
meeting was made, whichever first occurs; or (b) in the case of an election of
directors at a special meeting of stockholders, not earlier than the ninetieth
day prior to such special meeting and not later than the close of business on
the later of (i) the sixtieth day prior to such special meeting and (ii) the
tenth day following the day on which notice of the date of such special meeting
was mailed or public disclosure of the date of such special meeting was made,
whichever first occurs.
The stockholder's notice to the Secretary shall set forth (a) as to each
proposed nominee (i) the name, age, business address and, if known, residence
address of each such nominee, (ii) the principal occupation or employment of
each such nominee, (iii) the number of shares of stock of the corporation which
are beneficially owned by each such nominee, and (iv) any other information
concerning the nominee that must be disclosed as to nominees in proxy
solicitations pursuant to Regulation 14A under
-3-
<PAGE>
the Securities Exchange Act of 1934, as amended (including such person's written
consent to be named as a nominee and to serve as a director if elected); (b) as
to the stockholder giving the notice (i) the name and address, as they appear on
the corporation's books, of such stockholder and (ii) the class and number of
shares of the corporation which are beneficially owned by such stockholder; and
(c) as to the beneficial owner, if any, on whose behalf the nomination is being
made (i) the name and address of such beneficial owner and (ii) the class and
number of shares of the corporation which are beneficially owned by such person.
In addition, to be effective, the stockholder's notice must be accompanied by
the written consent of the proposed nominee to serve as a director if elected.
The corporation may require any proposed nominee to furnish such other
information as may reasonably be required by the corporation to determine the
eligibility of such proposed nominee to serve as a director of the corporation.
The chairman of the meeting may, if the facts warrant, determine and
declare to the meeting that a nomination was not made in accordance with the
foregoing procedure, and if he should so determine, he shall so declare to the
meeting and the defective nomination shall be disregarded.
11. Notice of Business at Annual Meetings. At any annual meeting of the
-------------------------------------
stockholders, only such business shall be conducted as shall have been properly
brought before the meeting. To be properly brought before an annual meeting,
business must be (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board of Directors, (b) otherwise
brought before the meeting by or at the direction of the Board of Directors, or
(c) otherwise properly brought before an annual meeting by a stockholder. For
business to be properly brought before an annual meeting by a stockholder, (i)
if such business relates to the election of directors of the corporation, the
procedures in Section 10 of Article I must be complied with and (ii) if such
business relates to any other matter, the stockholder must have given timely
notice thereof in writing to the Secretary in accordance with the procedures set
forth in this Section 11.
To be timely, a stockholder's notice must be received by the Secretary at
the principal executive offices of the corporation not less than 60 days nor
more than 90 days prior to the first anniversary of the preceding year's annual
meeting; provided, however, that (i) in the event that the date of the annual
meeting is advanced by more than 20 days, or delayed by more than 60 days, from
such anniversary date, to be timely, a stockholder's notice must be so received
not earlier than the ninetieth day prior to such annual meeting and not later
than the close of business on the later of (A) the sixtieth day prior to such
annual meeting and (B) the tenth day following the day on which notice of the
date of such annual meeting was mailed or public disclosure of the date of such
annual meeting was made, whichever first occurs, or (ii) with respect to the
annual meeting of stockholders of the corporation to be held in the year 1999,
to be timely, a stockholder's notice must be so received not earlier
-4-
<PAGE>
than the ninetieth day prior to such annual meeting and not later than the close
of business on the later of (A) the sixtieth day prior to such annual meeting
and (B) the tenth day following the day on which notice of the date of such
annual meeting was mailed or public disclosure of the date of such annual
meeting was made, whichever first occurs.
The stockholder's notice to the Secretary shall set forth as to each matter
the stockholder proposes to bring before the annual meeting (a) a brief
description of the business desired to be brought before the annual meeting and
the reasons for conducting such business at the annual meeting, (b) the name and
address, as they appear on the corporation's books, of the stockholder proposing
such business, and the name and address of the beneficial owner, if any, on
whose behalf the proposal is made, (c) the class and number of shares of the
corporation which are beneficially owned by the stockholder and beneficial
owner, if any, and (d) any material interest of the stockholder or such
beneficial owner, if any, in such business. Notwithstanding anything in these
By-Laws to the contrary, no business shall be conducted at any annual meeting of
stockholders except in accordance with the procedures set forth in this Section
11; provided that any stockholder proposal which complies with Rule 14a-8 of the
proxy rules (or any successor provision) promulgated under the Securities
Exchange Act of 1934, as amended, and is to be included in the corporation's
proxy statement for an annual meeting of stockholders shall be deemed to comply
with the requirements of this Section 11.
The chairman of the meeting shall, if the facts warrant, determine and
declare to the meeting that business was not properly brought before the meeting
in accordance with the provisions of this Section 11, and if he should so
determine, the chairman shall so declare to the meeting that any such business
not properly brought before the meeting shall not be transacted.
12. Organization. The Chairman of the Board, or in his absence the Vice
------------
Chairman of the Board, or the President, in the order named, shall call meetings
of the stockholders to order, and shall act as chairman of such meeting,
provided, however, that the Board of Directors may appoint any officer or
- --------
stockholder to act as chairman of any meeting in the absence of the Chairman of
the Board. The Secretary of the corporation shall act as secretary at all
meetings of the stockholders; but in the absence of the Secretary at any meeting
of the stockholders, the presiding officer may appoint any person to act as
secretary of the meeting.
ARTICLE II. - Directors
-----------------------
1. General Powers. The business and affairs of the corporation shall be
--------------
managed by or under the direction of a Board of Directors, who may exercise all
of the powers of the corporation except as otherwise provided by law, the
Certificate of
-5-
<PAGE>
Incorporation or these By-Laws. In the event of a vacancy in the Board of
Directors, the remaining directors, except as otherwise provided by law, may
exercise the powers of the full Board until the vacancy is filled.
2. Number; Election and Qualification. The number of directors which
----------------------------------
shall constitute the whole Board of Directors shall be determined by resolution
of the Board of Directors or by the holders of a majority of the votes entitled
to be cast by all stockholders in any annual election of directors. The number
of directors may be decreased at any time and from time to time by a majority of
the directors then in office or by the holders of a majority of the votes
entitled to be cast by all stockholders in any annual election of directors, but
only to eliminate vacancies existing by reason of the death, resignation,
removal or expiration of the term of one or more directors. The directors shall
be elected at the annual meeting of stockholders by such stockholders as have
the right to vote on such election. Directors need not be stockholders of the
corporation.
3. Enlargement of the Board. The number of directors may be increased at
------------------------
any time and from time to time by the stockholders or by a majority of the
directors then in office.
4. Tenure. Each director shall hold office until the next annual meeting
------
and until his successor is elected and qualified, or until his earlier death,
resignation or removal.
5. Quorum; Action at Meeting. A majority of the directors at any time in
-------------------------
office shall constitute a quorum for the transaction of business. In the event
one or more of the directors shall be disqualified to vote at any meeting, then
the required quorum shall be reduced by one for each director so disqualified,
provided that in no case shall less than one-third (1/3) of the number of
directors fixed pursuant to Section 2 above constitute a quorum. If at any
meeting of the Board of Directors there shall be less than such a quorum, a
majority of those present may adjourn the meeting from time to time. Every act
or decision done or made by a majority of the directors present at a meeting
duly held at which a quorum is present shall be regarded as the act of the Board
of Directors unless a greater number is required by law, by the Certificate of
Incorporation or these By-Laws.
6. Removal. Directors of the corporation may be removed, with or without
-------
cause, by the holders of at least a majority of the votes entitled to be cast in
any annual election of directors.
7. Vacancies. Any vacancy in the Board of Directors, however occurring,
---------
including a vacancy resulting from an enlargement of the Board, shall be filled
either by the holders of at least a majority of the votes which all of the
stockholders would be entitled to cast in any election of directors or by a vote
of a majority of the
-6-
<PAGE>
directors then in office, although less than a quorum or by the sole remaining
director.
8. Resignation. Any director may resign by delivering his written
-----------
resignation to the corporation at its principal office or to the Chairman of the
Board or Secretary. Such resignation shall be effective upon receipt unless it
is specified to be effective at some other time or upon the happening of some
other event.
9. Regular Meetings. Regular meetings of the Board of Directors may be
----------------
held without notice at such time and place, either within or without the State
of Delaware, as shall be determined from time to time by the Board of Directors;
provided that any director who is absent when such a determination is made shall
be given notice of the determination. A regular meeting of the Board of
Directors may be held without notice immediately after and at the same place as
the annual meeting of stockholders.
10. Special Meetings. Special meetings of the Board of Directors may be
----------------
held at any time and place, within or without the State of Delaware, designated
in a call by the Chairman of the Board, President, two or more directors, or by
one director in the event that there is only a single director in office.
11. Notice of Special Meetings. Notice of any special meeting of
--------------------------
directors shall be given to each director by the Secretary or by the officer or
one of the directors calling the meeting. Notice shall be duly given to each
director (i) by giving notice to such director in person or by telephone at
least 24 hours in advance of the meeting, (ii) by sending a telegram, telecopy,
telex or electronic mail, or delivering written notice by hand, to his last
known business, home or electronic mail address at least 24 hours in advance of
the meeting, or (iii) by mailing written notice to his last known business or
home address at least 72 hours in advance of the meeting. A notice or waiver of
notice of a meeting of the Board of Directors need not specify the purposes of
the meeting.
12. Meetings by Telephone Conference Calls. Directors or any members of
--------------------------------------
any committee designated by the directors may participate in a meeting of the
Board of Directors or such committee by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other, and participation by such means shall constitute
presence in person at such meeting.
13. Action by Consent. Any action required or permitted to be taken at
-----------------
any meeting of the Board of Directors or of any committee of the Board of
Directors may be taken without a meeting, if all members of the Board or
committee, as the case may be, consent to the action in writing, and the written
consents are filed with the minutes of proceedings of the Board or committee.
-7-
<PAGE>
14. Committees. The Board of Directors may designate one or more
----------
committees, each committee to consist of one or more of the directors of the
corporation. The Board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any
meeting of the committee. In the absence or disqualification of a member of a
committee, the member or members of the committee present at any meeting and not
disqualified from voting, whether or not he or they constitute a quorum, may
unanimously appoint another member of the Board of Directors to act at the
meeting in the place of any such absent or disqualified member. Any such
committee, to the extent provided in the resolution of the Board of Directors
and subject to the provisions of the General Corporation Law of the State of
Delaware, shall have and may exercise all the powers and authority of the Board
of Directors in the management of the business and affairs of the corporation
and may authorize the seal of the corporation to be affixed to all papers which
may require it. Each such committee shall keep minutes and make such reports as
the Board of Directors may from time to time request. Except as the Board of
Directors may otherwise determine, any committee may make rules for the conduct
of its business, but unless otherwise provided by the directors or in such
rules, its business shall be conducted as nearly as possible in the same manner
as is provided in these By-Laws for the Board of Directors.
15. Compensation of Directors. Directors may be paid such compensation
-------------------------
for their services and such reimbursement for expenses of attendance at meetings
as the Board of Directors may from time to time determine. No such payment
shall preclude any director from serving the corporation or any of its parent or
subsidiary corporations in any other capacity and receiving compensation for
such service.
ARTICLE III - Officers
----------------------
1. Enumeration. The officers of the corporation shall consist of a
-----------
President, a Secretary, a Treasurer and such other officers with such other
titles as the Board of Directors shall determine, including a Chairman of the
Board, a Vice Chairman of the Board, and one or more Vice Presidents, Assistant
Treasurers, and Assistant Secretaries. The Board of Directors may appoint such
other officers as it may deem appropriate.
2. Election. The President, Treasurer and Secretary shall be elected
--------
annually by the Board of Directors at its first meeting following the annual
meeting of stockholders. Other officers may be appointed by the Board of
Directors at such meeting or at any other meeting.
3. Qualification. No officer need be a stockholder. Any two or more
-------------
offices may be held by the same person.
-8-
<PAGE>
4. Tenure. Except as otherwise provided by law, by the Certificate of
------
Incorporation or by these By-Laws, each officer shall hold office until his
successor is elected and qualified, unless a different term is specified in the
vote choosing or appointing him, or until his earlier death, resignation or
removal.
5. Resignation and Removal. Any officer may resign by delivering his or
-----------------------
her written resignation to the corporation at its principal office or to the
Chairman of the Board, President or Secretary. Such resignation shall be
effective upon receipt unless it is specified to be effective at some other time
or upon the happening of some other event.
Any officer may be removed at any time, with or without cause, by vote of a
majority of the entire number of directors then in office.
Except as the Board of Directors may otherwise determine, no officer who
resigns or is removed shall have any right to any compensation as an officer for
any period following his resignation or removal, or any right to damages on
account of such removal, whether his compensation be by the month or by the year
or otherwise, unless such compensation is expressly provided in a duly
authorized written agreement with the corporation.
6. Vacancies. The Board of Directors may fill any vacancy occurring in
---------
any office for any reason and may, in its discretion, leave unfilled for such
period as it may determine any offices other than those of President, Treasurer
and Secretary. Each such successor shall hold office for the unexpired term of
his predecessor and until his successor is elected and qualified, or until his
earlier death, resignation or removal.
7. Chairman of the Board and Vice Chairman of the Board. The Board of
----------------------------------------------------
Directors may appoint a Chairman of the Board and may designate the Chairman of
the Board as Chief Executive Officer. If the Board of Directors appoints a
Chairman of the Board, he shall perform such duties and possess such powers as
are assigned to him by the Board of Directors. Unless otherwise provided by the
Board of Directors, he shall preside at all meetings of the stockholders, and if
he is a director, at all meetings of the Board of Directors. If the Board of
Directors appoints a Vice Chairman of the Board, he shall, in the absence or
disability of the Chairman of the Board, perform the duties and exercise the
powers of the Chairman of the Board and shall perform such other duties and
possess such other powers as may from time to time be vested in him or her by
the Board of Directors. The person designated as the Chief Executive Officer of
the Company shall, subject to the direction of the Board of Directors, have
general charge and supervision of the business of the corporation.
8. President. Unless the Board of Directors has designated the Chairman
---------
of the Board or another officer as Chief Executive Officer, the President shall
be the
-9-
<PAGE>
Chief Executive Officer of the corporation. The President shall perform such
other duties and shall have such other powers as the Chief Executive Officer or
the Board of Directors may from time to time prescribe.
9. Vice Presidents. Any Vice President shall perform such duties and
---------------
possess such powers as the Board of Directors or the Chief Executive Officer may
from time to time prescribe. In the event of the absence, inability or refusal
to act of the Chief Executive Officer, then, in the order determined by the
Board of Directors, the President (if he is not the Chief Executive Officer) and
the Vice President (or if there shall be more than one, the Vice Presidents)
shall perform the duties of the Chief Executive Officer and when so performing
shall have all the powers of and be subject to all the restrictions upon the
Chief Executive Officer. The Board of Directors may assign to any Vice
President the title of Executive Vice President, Senior Vice President or any
other title selected by the Board of Directors.
10. Secretary and Assistant Secretaries. The Secretary shall perform such
-----------------------------------
duties and shall have such powers as the Board of Directors or the Chief
Executive Officer may from time to time prescribe. In addition, the Secretary
shall perform such duties and have such powers as are incident to the office of
the secretary, including without limitation the duty and power to give notices
of all meetings of stockholders and special meetings of the Board of Directors,
to attend all meetings of stockholders and the Board of Directors and keep a
record of the proceedings, to maintain a stock ledger and prepare lists of
stockholders and their addresses as required, to be custodian of corporate
records and the corporate seal and to affix and attest to the same on documents.
Any Assistant Secretary shall perform such duties and possess such powers
as the Board of Directors, the Chief Executive Officer or the Secretary may from
time to time prescribe. In the event of the absence, inability or refusal to
act of the Secretary, the Assistant Secretary (or if there shall be more than
one, the Assistant Secretaries in the order determined by the Board of
Directors) shall perform the duties and exercise the powers of the Secretary.
In the absence of the Secretary or any Assistant Secretary at any meeting
of stockholders or directors, the person presiding at the meeting shall
designate a temporary secretary to keep a record of the meeting.
11. Treasurer and Assistant Treasurers. The Treasurer shall perform such
----------------------------------
duties and shall have such powers as may from time to time be assigned to him or
her by the Board of Directors or the Chief Executive Officer. In addition, the
Treasurer shall perform such duties and have such powers as are incident to the
office of treasurer, including without limitation the duty and power to keep and
be responsible for all funds and securities of the corporation, to deposit funds
of the corporation in depositories selected in accordance with these By-Laws, to
disburse
-10-
<PAGE>
such funds as ordered by the Board of Directors, to make proper accounts of such
funds, and to render as required by the Board of Directors statements of all
such transactions and of the financial condition of the corporation.
The Assistant Treasurers shall perform such duties and possess such powers
as the Board of Directors, the Chief Executive Officer or the Treasurer may from
time to time prescribe. In the event of the absence, inability or refusal to
act of the Treasurer, the Assistant Treasurer (or if there shall be more than
one, the Assistant Treasurers in the order determined by the Board of Directors)
shall perform the duties and exercise the powers of the Treasurer.
12. Salaries. Officers of the corporation shall be entitled to such
--------
salaries, compensation or reimbursement as shall be fixed or allowed from time
to time by the Board of Directors.
Article IV. - Capital Stock
---------------------------
1. Issuance of Stock. Unless otherwise voted by the stockholders and
-----------------
subject to the provisions of the Certificate of Incorporation, the whole or any
part of any unissued balance of the authorized capital stock of the corporation
or the whole or any part of any unissued balance of the authorized capital stock
of the corporation held in its treasury may be issued, sold, transferred or
otherwise disposed of by vote of the Board of Directors in such manner, for such
consideration and on such terms as the Board of Directors may determine.
2. Certificates of Stock. Every holder of stock of the corporation shall
---------------------
be entitled to have a certificate, in such form as may be prescribed by law and
by the Board of Directors, certifying the number and class of shares owned by
him or her in the corporation. Each such certificate shall be signed by, or in
the name of the corporation by, the Chairman or Vice Chairman, if any, of the
Board of Directors, or the President or a Vice President, and the Treasurer or
any Assistant Treasurer, or the Secretary or an Assistant Secretary of the
corporation. Any or all of the signatures on the certificate may be a
facsimile.
Each certificate for shares of stock which are subject to any restriction
on transfer pursuant to the Certificate of Incorporation, the By-Laws,
applicable securities laws or any agreement among any number of stockholders or
among such holders and the corporation shall have conspicuously noted on the
face or back of the certificate either the full text of the restriction or a
statement of the existence of such restriction.
3. Transfers. Except as otherwise established by rules and regulations
---------
adopted by the Board of Directors, and subject to applicable law, shares of
stock may be transferred on the books of the corporation by the surrender to the
corporation or
-11-
<PAGE>
its transfer agent of the certificate representing such shares properly endorsed
or accompanied by a written assignment or power of attorney properly executed,
and with such proof of authority or the authenticity of signature as the
corporation or its transfer agent may reasonably require. Except as may be
otherwise required by law, by the Certificate of Incorporation or by these By-
Laws, the corporation shall be entitled to treat the record holder of stock as
shown on its books as the owner of such stock for all purposes, including the
payment of dividends and the right to vote with respect to such stock,
regardless of any transfer, pledge or other disposition of such stock until the
shares have been transferred on the books of the corporation in accordance with
the requirements of these By-Laws.
4. Lost, Stolen or Destroyed Certificates. The corporation may issue a
--------------------------------------
new certificate of stock in place of any previously issued certificate alleged
to have been lost, stolen, or destroyed, upon such terms and conditions as the
Board of Directors may prescribe, including the presentation of reasonable
evidence of such loss, theft or destruction and the giving of such indemnity as
the Board of Directors may require for the protection of the corporation or any
transfer agent or registrar.
5. Record Date. The Board of Directors may fix in advance a date as a
-----------
record date for the determination of the stockholders entitled to notice of or
to vote at any meeting of stockholders, or entitled to receive payment of any
dividend or other distribution or allotment of any rights in respect of any
change, conversion or exchange of stock, or for the purpose of any other lawful
action. Such record date shall not be more than 60 nor less than 10 days before
the date of such meeting, nor more than 60 days prior to any other action to
which such record date relates.
If no record date is fixed, the record date for determining stockholders
entitled to notice of or to vote at a meeting of stockholders shall be at the
close of business on the day before the day on which notice is given, or, if
notice is waived, at the close of business on the day before the day on which
the meeting is held. The record date for determining stockholders for any other
purpose shall be at the close of business on the day on which the Board of
Directors adopts the resolution relating to such purpose.
A determination of stockholders of record entitled to notice of or to vote
at a meeting of stockholders shall apply to any adjournment of the meeting;
provided, however, that the Board of Directors may fix a new record date for the
adjourned meeting.
ARTICLE V. - General Provisions
-------------------------------
1. Fiscal Year. Except as from time to time otherwise designated by the
-----------
Board of Directors, the fiscal year of the corporation shall begin on the first
day of August of each year and end on the last day of July in each year.
-12-
<PAGE>
2. Corporate Seal. The corporate seal shall be in such form as shall be
--------------
approved by the Board of Directors.
3. Waiver of Notice. Whenever any notice whatsoever is required to be
----------------
given by law, by the Certificate of Incorporation or by these By-Laws, a waiver
of such notice either in writing signed by the person entitled to such notice or
such person's duly authorized attorney, or by telecopy or any other available
method, whether before, at or after the time stated in such waiver, or the
appearance of such person or persons at such meeting in person or by proxy,
shall be deemed equivalent to such notice.
4. Voting of Securities. Except as the directors may otherwise
--------------------
designate, the Chairman of the Board or Treasurer may waive notice of, and act
as, or appoint any person or persons to act as, proxy or attorney-in-fact for
this corporation (with or without power of substitution) at any meeting of
stockholders or shareholders of any other corporation or organization, the
securities of which may be held by this corporation.
5. Evidence of Authority. A certificate by the Secretary, or an
---------------------
Assistant Secretary, or a temporary Secretary, as to any action taken by the
stockholders, directors, a committee or any officer or representative of the
corporation shall as to all persons who rely on the certificate in good faith be
conclusive evidence of such action.
6. Certificate of Incorporation. All references in these By-Laws to the
----------------------------
Certificate of Incorporation shall be deemed to refer to the Amended and
Restated Certificate of Incorporation of the corporation, as amended and in
effect from time to time.
7. Transactions with Interested Parties. No contract or transaction
------------------------------------
between the corporation and one or more of the directors or officers, or between
the corporation and any other corporation, partnership, association, or other
organization in which one or more of the directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the director or officer is present at or
participates in the meeting of the Board of Directors or a committee of the
Board of Directors which authorizes the contract or transaction or solely
because his or their votes are counted for such purpose, if:
a. The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the Board of
Directors or the committee, and the Board or committee in good faith
authorizes the contract or transaction by the affirmative votes of a
majority of the disinterested directors, even though the disinterested
directors be less than a quorum;
-13-
<PAGE>
b. The material facts as to his relationship or interest and as to
the contract or transaction are disclosed or are known to the stockholders
entitled to vote thereon, and the contract or transaction is specifically
approved in good faith by vote of the stockholders; or
c. The contract or transaction is fair as to the corporation as of
the time it is authorized, approved or ratified, by the Board of Directors,
a committee of the Board of Directors, or the stockholders.
Common or interested directors may be counted in determining the presence
of a quorum at a meeting of the Board of Directors or of a committee which
authorizes the contract or transaction.
8. Severability. Any determination that any provision of these By-Laws
------------
is for any reason inapplicable, illegal or ineffective shall not affect or
invalidate any other provision of these By-Laws.
9. Pronouns. All pronouns used in these By-Laws shall be deemed to refer
--------
to the masculine, feminine or neuter, singular or plural, as the identity of the
person or persons may require.
ARTICLE VI. - Amendments
------------------------
These By-Laws may be altered, amended or repealed, in whole or in part, or
new By-Laws may be adopted by the Board of Directors or by the stockholders as
provided in the Certificate of Incorporation.
-14-
<PAGE>
EXHIBIT 10.3
ENGAGE TECHNOLOGIES, INC.
1999 STOCK OPTION PLAN FOR NON-EMPLOYEE DIRECTORS
1. Purpose.
-------
The purpose of this 1999 Stock Option Plan for Non-Employee Directors (the
"Plan") of Engage Technologies, Inc. (the "Company") is to encourage ownership
in the Company by non-employee directors of the Company whose continued services
are considered essential to the Company's future progress and to provide them
with a further incentive to remain as directors of the Company.
2. Administration.
--------------
The Board of Directors shall supervise and administer the Plan. All
questions concerning interpretation of the Plan or any options granted under it
shall be resolved by the Board of Directors and such resolution shall be final
and binding upon all persons having an interest in the Plan. The Board of
Directors may, to the full extent permitted by or consistent with applicable
laws or regulations, delegate any or all of its powers under the Plan to a
committee appointed by the Board of Directors, and if a committee is so
appointed, all references to the Board of Directors in the Plan shall mean and
relate to such committee.
3. Eligibility.
-----------
There shall be eligible to receive options under the Plan each director of
the Company who: (i) is not an employee of the Company or any of its
subsidiaries or affiliates, and (ii) is not an affiliate, as such term is
defined in Rule 144(a)(1) promulgated under the Securities Act of 1993, as now
in force or hereafter amended, of an institutional investor that owns shares of
Common Stock of the Company (an "Affiliated Director").
4. Stock Subject to the Plan.
-------------------------
(a) The maximum number of shares of the Company's Common Stock, par value
$.01 per share ("Common Stock"), which may be issued under the Plan shall be
250,000 shares (after giving effect to the two-for-one stock split approved by
the Board of Directors on June 11, 1999), subject to adjustment as provided in
Section 7.
(b) If any outstanding option under the Plan for any reason expires or is
terminated without having been exercised in full, the shares covered by the
unexercised portion of such option shall again become available for issuance
pursuant to the Plan.
<PAGE>
(c) All options granted under the Plan shall be non-statutory options not
entitled to special tax treatment under Section 422 of the Internal Revenue Code
of 1986, as amended.
5. Terms, Conditions and Form of Options.
-------------------------------------
Each option granted under the Plan shall be evidenced by a written
agreement in such form as the Board of Directors shall from time to time
approve, which agreements shall comply with and be subject to the following
terms and conditions:
(a) Initial and Annual Grants. The Board of Directors shall from time to
-------------------------
time determine the amounts of any options granted to directors upon their
election to the Board of Directors and any subsequent options granted hereunder.
(b) Option Exercise Price. The option exercise price per share for each
---------------------
option granted under the Plan shall equal (i) the closing price on any national
securities exchange on which the Common Stock is listed, (ii) the closing price
of the Common Stock on the Nasdaq National Market or (iii) the average of the
closing bid and asked prices in the over-the-counter market, whichever is
applicable, as published in The Wall Street Journal, on the date of grant. If
-----------------------
no sales of Common Stock were made on the date of grant, the price of the Common
Stock for purposes of clauses (i) and (ii) above shall be the reported price for
the next preceding day on which sales were made.
(c) Transferability of Options. Except as the Board may otherwise
--------------------------
determine or provide in an option granted under the Plan, any option granted
under the Plan to an optionee shall not be transferable by the optionee other
than by will or the laws of descent and distribution or pursuant to a qualified
domestic relations order as defined by the Code or Title I of the Employee
Retirement Income Security Act, or the rules thereunder, and shall be
exercisable during the optionee's lifetime only by the optionee or the
optionee's guardian or legal representative. References to an optionee, to the
extent relevant in the context, shall include references to authorized
transferees.
(d) Time and Month of Exercise.
--------------------------
(i) Vesting. Each option granted under the Plan shall vest on such
-------
terms as shall be approved by the Board of Directors.
(ii) Termination. Each option shall terminate, and may no longer be
-----------
exercised, on the earlier of (i) the date ten years after the date of grant of
such option or (ii) six months after the date on which the optionee ceases to
serve as a director of the Company (or 12 months if such cessation is due to the
death of such director). Each option may be exercised during the six or 12 month
period set forth in clause
-2-
<PAGE>
(ii) above only to the extent it was exercisable at the time of the optionee's
cessation of service as a director.
(iii) Acceleration Upon Acquisition Event. Each then outstanding
-----------------------------------
option granted under the Plan shall immediately become exercisable in full upon
the occurrence of an Acquisition Event (as defined in Section 8) with respect to
the Company.
(iv) Exercise Procedure. An option may be exercised in whole or in
------------------
part, to the extent it is then exercisable, only by written notice to the
Company at its principal office accompanied by (i) payment in cash or by check
of the full exercise price for the shares as to which it is exercised, (ii)
delivery of outstanding shares of Common Stock (which have been outstanding for
at least six months) having a fair market value on the last business day
preceding the date of exercise equal to the option exercise price, (iii) an
irrevocable undertaking by a creditworthy broker to deliver promptly to the
Company sufficient funds to pay the exercise price or delivery of irrevocable
instructions to a creditworthy broker to deliver promptly to the Company cash or
a check sufficient to pay the exercise price, or (iv) any combination of the
foregoing.
(v) Exercise by Representative Following Death of Director. An
------------------------------------------------------
optionee, by written notice to the Company, may designate one or more persons
(and from time to time change such designation), including his or her legal
representative, who, by reason of the optionee's death, shall acquire the right
to exercise all or a portion of the option. If the person or persons so
designated wish to exercise any portion of the option, they must do so within
the term of the option as provided herein. Any exercise by a representative
shall be subject to the provisions of the Plan.
6. Limitation of Rights.
--------------------
(a) No Right to Continue as a Director. Neither the Plan, nor the
----------------------------------
granting of an option nor any other action taken pursuant to the Plan, shall
constitute or be evidence of any agreement or understanding, express or implied,
that the Company will retain the optionee as a director for any period of time.
(b) No Stockholders' Rights for Options. An optionee shall have no rights
-----------------------------------
as a stockholder with respect to the shares covered by his or her option until
the date of the issuance to him or her of a stock certificate therefor, and no
adjustment will be made for dividends or other rights (except as provided in
Section 7) for which the record date is prior to the date such certificate is
issued.
(c) Compliance with Securities Laws. Each option shall be subject to the
-------------------------------
requirement that if, at any time, counsel to the Company shall determine that
the
-3-
<PAGE>
listing, registration or qualification of the shares subject to such option upon
any securities exchange or under any state or federal law, or the consent or
approval of any governmental or regulatory body, or the disclosure of non-public
information or the satisfaction of any other condition is necessary as a
condition of, or in connection with, the issuance or purchase of shares
thereunder, such option may not be exercised, in whole or in part, unless such
listing, registration, qualification, consent or approval, or satisfaction of
such condition shall have been effected or obtained on conditions acceptable to
the Board of Directors. Nothing herein shall be deemed to require the Company to
apply for or to obtain such listing, registration or qualification, or to
satisfy such condition.
7. Adjustment Provisions for Mergers, Recapitalizations and Related
----------------------------------------------------------------
Transactions.
- ------------
If, through or as a result of any merger, consolidation, reorganization,
recapitalization, reclassification, stock dividend, stock split, reverse stock
split, or other similar transaction, (i) the outstanding shares of Common Stock
are exchanged for a different number or kind of securities of the Company or of
another entity, or (ii) additional shares or new or different shares or other
securities of the Company or of another entity are distributed with respect to
such shares of Common Stock, the Board of Directors shall make an appropriate
and proportionate adjustment in (x) the maximum number and kind of shares
reserved for issuance under the Plan, (y) the number and kind of shares or other
securities subject to then outstanding options under the Plan, and (z) the price
for each share subject to any then outstanding options under the Plan (without
changing the aggregate purchase price for such options), to the end that each
option shall be exercisable, for the same aggregate exercise price, for such
securities as such optionholder would have held immediately following such event
if he had exercised such option immediately prior to such event. No fractional
shares will be issued under the Plan on account of any such adjustments.
8. Acquisition Event.
-----------------
For purposes of the Plan, an "Acquisition Event" shall be deemed to have
occurred only if any of the following events occurs: (i) any merger or
consolidation which results in the voting securities of the Company outstanding
immediately prior thereto representing immediately thereafter (either by
remaining outstanding or by being converted into voting securities of the
surviving or acquiring entity) less than a majority of the combined voting power
of the voting securities of the Company or such surviving or acquiring entity
outstanding immediately after such merger or consolidation; (ii) any sale of all
or substantially all of the assets of the Company; or (iii) the complete
liquidation of the Company.
-4-
<PAGE>
9. Termination and Amendment of the Plan.
-------------------------------------
The Board of Directors may suspend or terminate the Plan or amend it in any
respect whatsoever.
Adopted by the Board of Directors on
June 11, 1999
Approved by the stockholders as of
_____________ ___, 1999
-5-
<PAGE>
Exhibit 10.19
-------------
FACILITIES AND ADMINISTRATIVE SUPPORT AGREEMENT
-----------------------------------------------
THIS ADMINISTRATIVE SUPPORT AGREEMENT dated as of ____________, 1999 is
made between CMGI, Inc. ("CMGI"), a Delaware corporation, and Engage
Technologies, Inc. ("Engage"), a Delaware corporation.
Preliminary Statement
---------------------
Engage desires to obtain administrative and other services from CMGI and
CMGI is willing to furnish or make such services available to Engage.
By this Agreement, CMGI and Engage desire to set forth the basis for CMGI's
provision of services of the type referred to herein.
Agreements
----------
IT IS MUTUALLY agreed by CMGI and Engage (collectively the "Parties") as
follows:
1. Provision of Services. Beginning on the date of this Agreement, CMGI will
---------------------
provide or otherwise make available to Engage those CMGI supplied services and
third-party supplied services paid for by CMGI (collectively the "Services") on
the basis set forth on Schedule A and Schedule B attached hereto and consistent
---------- ----------
with the parties' practices as of the date hereof. It is understood that the
parties intend to enter into negotiations as soon as practicable regarding a
sublease for premises located at 100 Brickstone Square, Andover, Massachusetts
01810 and that upon execution by both parties of a mutually agreed upon
sublease, such sublease shall supercede that portion of this Agreement relating
to rent and related services as set forth on Schedule A.
----------
2. Billing and Payment. CMGI shall submit monthly invoices to Engage for the
-------------------
Services, and Engage shall make payment within 30 days after its receipt of such
invoices. Each invoice shall be itemized by the service provided.
3. Term and Termination. The initial term of this Agreement shall begin on the
--------------------
date of this Agreement and continue for a period of one year. This Agreement
shall automatically renew at the end of the initial term for successive one-year
periods unless terminated or modified in accordance with the following
provisions:
(a) Entire Agreement. Either party may elect not to renew this Agreement,
----------------
except for the services set forth on Schedule A, upon 180 days' written notice
----------
to the other party prior to the expiration of the initial term or any renewal
period.
<PAGE>
(b) Individual Services. Either party may terminate an individual service
-------------------
or services, except for the services set forth on Schedule A, upon 90 days'
----------
written notice to the other party.
(c) Rent and Related Services. Either party may terminate those services
-------------------------
set forth on Schedule A upon twelve months' written notice to the other party
----------
prior to the expiration of the end of the initial term or any renewal period.
(d) Material Breach. Either party may terminate this Agreement in the
---------------
event of a material breach of this Agreement by the other party that is not
cured within thirty days of written notice thereof from the other party.
(e) Automatic Termination. This Agreement, other than the services set
---------------------
forth on Schedule A, shall automatically terminate upon the date on which the
----------
ownership by CMGI of the outstanding voting capital stock of Engage shall first
be less than fifty percent (50%) of the then outstanding voting capital stock of
Engage.
4. Limitation on Liability. Neither party shall be liable to the other for
-----------------------
any amount in excess of the amount invoiced to Engage for the twelve-month
period preceding any event giving rise to liability. Neither party shall be
liable to the other for consequential damages except for those arising out of
intentional misconduct or gross negligence.
5. Force Majeure. CMGI shall be excused for failure to provide the Services
-------------
hereunder to the extent that such failure is directly or indirectly caused by an
occurrence commonly known as force majeure, including, without limitation,
-------------
delays arising out of acts of God, acts or orders of a government, agency or
instrumentality thereof (whether of fact or law), acts of public enemy, riots,
embargoes, strikes or other concerted acts of workers (whether of CMGI or other
persons), casualties or accidents, delivery of materials, transportation or
shortage of cars, trucks, fuel, power, labor or materials, or any other causes,
circumstances or contingencies within or without the United States of America,
which are beyond the control of CMGI; provided, however, that CMGI shall use its
-------- -------
best efforts to resume provision of the Services as soon as possible.
Notwithstanding any events operating to excuse the performance by CMGI, this
Agreement shall continue in full force for the remainder of its term and any
renewals thereof.
6. Notices. All notices, billings, requests, demands, approvals, consents and
-------
other communications which are required or may be given under this Agreement
shall be in writing and will be deemed to have been duly given if delivered
personally or sent by registered or certified mail, return receipt requested,
postage prepaid to the parties at their respective addresses set forth below:
<PAGE>
If to Engage: If to CMGI:
Engage Technologies, Inc. CMGI, Inc.
100 Brickstone Square 100 Brickstone Square
Andover, MA 01810 Andover, MA 01810
Attn: Chief Financial Officer Attn: Chief Financial Officer
7. No Assignment. This Agreement shall not be assignable except with the
-------------
prior written consent of the other party to this Agreement.
8. Applicable Law. This Agreement shall be governed by and construed in
--------------
accordance under the laws of the Commonwealth of Massachusetts applicable to
contracts made and to be performed therein.
9. Amendments. This Agreement and all attachments hereto constitute the
----------
entire agreement between the parties and supercede all prior negotiations,
undertakings, representations and agreements, if any, of the parties hereto.
This Agreement may not be amended orally but may be amended only by a written
instrument signed by all of the parties hereto.
10. Waivers. The failure of either party to require strict performance by the
-------
other party of any provision in this Agreement will not waive or diminish that
party's right to demand strict performance thereafter of that or any other
provision hereof.
11. Paragraph Titles. The paragraph titles used in this Agreement are for
----------------
convenience of reference only and will not be considered in the interpretation
or construction of any of the provisions thereof.
[Remainder of page intentionally left blank.]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
CMGI, INC. ENGAGE TECHNOLOGIES, INC.
By:____________________________ By:_____________________________
Name:_________________________ Name:__________________________
Title:__________________________ Title:___________________________
<PAGE>
Schedule A
----------
Rent and Related Services
-------------------------
<TABLE>
<CAPTION>
- -----------------------------------------------------------------------------------------------------------
Services Provided by CMGI to Engage Allocation of Cost to Engage
----------------------------------- ----------------------------
- -----------------------------------------------------------------------------------------------------------
<S> <C>
1. Brickstone Square Rent. Provision of space Allocated based on headcount for Engage
----------------------
located at the Andover Premises (approximately divided by headcount for the CMGI Companies
28,000 square feet). located at the Andover Premises.
- -----------------------------------------------------------------------------------------------------------
2. Facilities. Salary, fringe benefits, payroll Allocated based on: (a) percentage of time that
----------
taxes for the entire facility department. the facilities department devotes to the Andover
Premises, and (b) headcount for Engage divided
by headcount for the CMGI Companies located
at the Andover Premises.
- -----------------------------------------------------------------------------------------------------------
3. Mass Electric. Utilities provided by Allocated based on headcount for Engage
-------------
Massachusetts Electric. divided by headcount for the CMGI Companies
located at the Andover Premises.
- -----------------------------------------------------------------------------------------------------------
4. Office Cleaning/ Plant Maintenance. Allocated based on headcount for Engage
----------------------------------
divided by headcount for the CMGI Companies
located at the Andover Premises.
- -----------------------------------------------------------------------------------------------------------
</TABLE>
Defined Terms:
- -------------
Andover Premises - those premises located at 100 Brickstone Square, Andover,
MA 01810 leased by CMGI.
CMGI Companies - those companies which are controlled by CMGI or in which
CMGI holds an equity interest.
headcount - the number of employees employed by a particular company
on the last day of a given month.
<PAGE>
Schedule B
----------
Provision of Other Services
---------------------------
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------
Services Provided by CMGI to Engage Allocation of Cost to Engage
----------------------------------- ----------------------------
- -------------------------------------------------------------------------------------------------------
<S> <C>
1. CMG Europe. All overhead costs for CMGI's Engage is charged 50% of all costs associated
----------
European office of Marcus Bicknell, his assistant with the European office.
and acountant.
- -------------------------------------------------------------------------------------------------------
2. Internet Marketing. Salary, fringe benefits Engage is one of six CMGI Internet companies
------------------
and taxes for Bill White and his assistant (both and absorbs 1/6 of total costs.
at CMGI).
- -------------------------------------------------------------------------------------------------------
3. Internet Development. Salary, fringe benefits Engage is one of six CMGI Internet companies
--------------------
and taxes for Dave Andonian and his assistant and absorbs 1/6 of total costs.
(both at CMGI).
- -------------------------------------------------------------------------------------------------------
4. Medical. Monthly medical insurance Allocated based on the number of employees at
-------
premium. Engage enrolled in the medical insurance plan
divided by the number of employees at the
CMGI Companies enrolled in the medical
insurance plan, offset by amounts withheld from
employees' pay.
- -------------------------------------------------------------------------------------------------------
5. Dental. Monthly dental insurance premium. Allocated based on the number of employees at
------
Engage enrolled in the dental insurance plan
divided by the number of employees at the
CMGI Companies enrolled in the dental
insurance plan, offset by amounts withheld
from employees' pay.
- -------------------------------------------------------------------------------------------------------
6. Life and Long-term Disability. Monthly Allocated based on headcount for Engage
-----------------------------
insurance premium. divided by headcount for the CMGI Companies
located at the Andover Premises. (All
employees of the CMGI Companies receive life
and long-term disability insurance.)
- -------------------------------------------------------------------------------------------------------
7. Federal Express/ United Parcel Service. CMGI's Accounts Payable department codes
--------------------------------------
each individual charge based on the identity of
the sender.
- -------------------------------------------------------------------------------------------------------
8. Pepsi/ Poland Springs. Allocated based on headcount for Engage
---------------------
divided by headcount for the CMGI Companies
located at the Andover Premises.
- -------------------------------------------------------------------------------------------------------
9. Telephone. Provision of common, modem, Modem, fax and 800 lines are charged to Engage
---------
fax and 800 lines. or the individual employee who is designated to
that particular line. Common inbound and
outbound lines are allocated based on headcount
for Engage divided by headcount for the CMGI
Companies located at the Andover Premises.
- -------------------------------------------------------------------------------------------------------
10. MobilComm/ Pagenet/ Skytel/ Cellular Charged back to the person or department
------------------------------------
One. which is assigned that particular pager or cell
---
phone.
- -------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
<TABLE>
- -------------------------------------------------------------------------------------------------------
<S> <C>
11. Maxout Fitness. Fitness club membership. Allocated based on the number of employees at
--------------
Engage who belong to the fitness club. The cost
is offset by the fitness club dues that are
withheld from the paycheck of each employee
who is a member of the fitness club.
- -------------------------------------------------------------------------------------------------------
12. Legal Services. To the extent that legal fees and expenses of
--------------
Engage are paid for by CMGI, such fees and
expenses will be allocated based upon the actual
use of the legal services.
- -------------------------------------------------------------------------------------------------------
13. KPMG. Preparation of yearly income tax To the extent that legal fees and expenses of
----
returns. Engage are paid for by CMGI, such fees and
expenses will be allocated based upon the actual
use of KPMG services.
- -------------------------------------------------------------------------------------------------------
14. Funding Flex Spending. Charged for amounts reimbursed to an
---------------------
employee through the flexible spending account
on a person by person basis.
- -------------------------------------------------------------------------------------------------------
15. The TPA Fees. Administration of the Allocated based on number of employees at
------------
flexible spending program. Engage enrolled in the program divided by the
number of employees at the CMGI Companies
enrolled in the program.
- -------------------------------------------------------------------------------------------------------
16. 401K and 401K Match Funding. Engage credits the 401K contribution and 401K
---------------------------
matching contribution each month from its
payroll entry to a 401K withholding account.
Upon funding the 401K, CMGI charges back the
funds to Engage. Engage then charges those
funds to the 401K withholdings account. There
is usually a lag time of 15 days to 30 days for
funding the 401K.
- -------------------------------------------------------------------------------------------------------
</TABLE>
Defined Terms:
- -------------
Andover Premises - those premises located at 100 Brickstone Square, Andover,
MA 01810 leased by CMGI.
CMGI Companies - those companies that are controlled by CMGI or in which
CMGI holds an equity interest.
headcount - the number of employees employed by a particular company on
the last day of a given month.
7
<PAGE>
Exhibit 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Engage Technologies, Inc.:
We consent to the use of our report included herein and to the references to
our firm under the headings "Selected Financial Data" and "Experts" in the
prospectus.
/s/ KPMG LLP
KPMG LLP
Boston, Massachusetts
June 25, 1999
<PAGE>
Exhibit 23.3
CONSENT OF INDEPENDENT ACCOUNTANTS
The Board of Directors
Accipiter, Inc.:
We consent to the inclusion of our report on Accipiter, Inc. dated March 26,
1998 in the prospectus constituting part of this Registration Statement on
Form S-1 of Engage Technologies, Inc. and to the reference to our firm under
the heading "Experts" in the prospectus.
/s/ KPMG LLP
KPMG LLP
Raleigh, North Carolina
June 25, 1999
<PAGE>
Exhibit 23.4
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the use in the prospectus constituting part of this
Registration Statement on Form S-1 of Engage Technologies, Inc. of our report
dated March 1, 1999 relating to the financial statements of Internet Profiles
Corporation, a California corporation, which appears in such prospectus. We
also consent to the reference to us under the heading "Experts" in such
prospectus.
/s/ PricewaterhouseCoopers LLP
PricewaterhouseCoopers LLP
San Jose, California
June 25, 1999
<PAGE>
Exhibit 24.2
------------
POWER OF ATTORNEY
I, Fredric D. Rosen, a director of Engage Technologies, Inc., hereby
constitute and appoint Paul L. Schaut and Stephen A. Royal, and each of them
singly, my true and lawful attorneys, with full power to them and each of them
singly, to sign for me in my name in the capacity indicated below, any
registration statement related to the offering that is to be effective upon
filing pursuant to Rule 462(b) under the Securities Act of 1933 (a "462(b)
Registration Statement"), any and all amendments and exhibits to this
registration statement or any 462(b) Registration Statement, and any and all
applications and other documents to be filed with the Securities and Exchange
Commission pertaining to the registration of the securities covered hereby or
thereby, and generally to do all things in my name and on my behalf in such
capacity to enable Engage Technologies, Inc. to comply with the provisions of
the Securities Act of 1933 and all requirements of the Securities and Exchange
Commission.
/s/ Fredric D. Rosen
-----------------------------------
Fredric D. Rosen
Title: Director
Date: 6/17/99
------------------------------
