EXHIBIT 10.3
EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
June 14, 2000, by and between Commerce One, Inc., a Delaware corporation (the
"Company") and SAP Aktiengesellschaft, a stock corporation organized under
the laws of the Federal Republic of Germany ("SAP AG").
WHEREAS, subject to the terms and conditions of the Share Purchase
Agreement, of even date herewith, by and between the Company and SAP AG (the
"Share Purchase Agreement"), the Company has sold shares of its common stock
(the "Shares") to SAP AG; and
WHEREAS, subject to the terms and conditions set forth herein, the
Company has agreed to grant certain registration rights to SAP AG with
respect to the Shares.
NOW, THEREFORE, in consideration of the promises, mutual covenants and
conditions herein contained, and of other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms
shall have the following respective meanings:
"1933 Act" means the Securities Act of 1933, as amended.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"Eligible Period" means the period (a) commencing on the earlier of (i)
the second anniversary of the date of this Agreement and (ii) the Transfer
Restriction Termination Date and (b) terminating on the fifth anniversary of
the date of this Agreement.
"Existing Registration Rights Agreement" means the Fifth Amended and
Restated Registration Rights Agreement, dated February 9, 2000, by and among
the Company and certain of its stockholders.
"XX Xxxxxx" means General Motors Corporation and any affiliate of
General Motors Corporation, or any assignee or transferee that possesses
registration rights pursuant to the GM Registration Rights Agreement.
"GM Registration Rights Agreement" means the Registration Rights
Agreement, dated January 24, 2000, by and among the Company, General Motors
Corporation and certain other parties.
"Holders" shall have the meaning ascribed to it in the Existing
Registration Rights Agreement.
"Register," "registered," and "registration" refers to a registration
effected by preparing and filing a registration statement or similar document
in compliance with the 1933 Act, and the declaration or ordering of
effectiveness of such registration statement or document.
"Registrable Shares" means the shares of common stock of the Company
issued or issuable to the Stockholder in accordance with the terms and
conditions of the Share Purchase Agreement, and any securities of the Company
issued as a dividend on or other distribution with respect to, or in exchange
for or replacement of, such common stock.
"Registration Statement" means any registration statement described in
Sections 2.1 or 2.2 of this Agreement.
"Rule 144" means Rule 144 promulgated under the 1933 Act.
"Standstill Agreement" shall mean that Standstill and Stock Restriction
Agreement, of even date herewith, by and between the Company and SAP AG.
"Stockholder" shall mean SAP AG or any assignee or transferee to which
SAP AG's rights and obligations under this Agreement have been assigned
pursuant to Section 11.5.
"SEC" means the Securities and Exchange Commission.
"Transfer Restriction Termination Date" shall have the meaning as
ascribed to it in the Standstill Agreement.
2. REGISTRATION RIGHTS.
2.1 DEMAND REGISTRATION.
(a) If at any time during the Eligible Period the
Stockholder requests in writing (the "Stockholder Demand") that the Company
file a registration statement on Form S-3 (or any successor form to Form S-3)
for a public offering of shares of the Registrable Shares the Company shall,
subject to Section 4.1, file such Registration Statement with the SEC within
forty-five (45) days after its receipt of such request. The Company shall
use commercially reasonable efforts to cause such Registration Statement to
be declared effective as soon thereafter as practicable and keep such
registration statement effective until the Stockholder notifies the Company
in writing that the Company is no longer required to keep such Registration
Statement effective. In no event, however, shall the Company be required to
(i) effect more than two (2) registrations pursuant to this section or (ii)
keep one or more registration statements filed pursuant to this section
effective for more than an aggregate of one hundred twenty (120) days. In
the event the registration is proposed to be part of a firm commitment
underwritten public offering, the substantive provisions of Section 2.3 shall
be applicable to each such registration initiated under this Section 2.1 and
the piggyback registration rights of Holders and GM Holders (to the extent
provided for, in the Existing Registration Rights Agreement and the GM
Registration Rights Agreement) shall be applicable to a registration effected
pursuant to this Section 2.1.
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(b) Notwithstanding the foregoing, the Company shall not be
obligated to take any action pursuant to subparagraph (a):
(i) if the Company, within ten (10) days of the
receipt of the Stockholder Demand, gives notice of its BONA FIDE intention to
effect the filing of a registration statement with the SEC within forty-five
(45) days of receipt of such demand (other than a registration relating
primarily to the sale of securities to participants in a Company stock plan
of employee benefit plan, a transaction covered by Rule 145 under the 1933
Act or the resale of securities issued in such a transaction, a registration
in which the only stock being registered is Common Stock issuable upon
conversion or exchange of debt securities which are also being registered,
any registration on any form which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Shares, or a registration initiated
under Section 2.1 or 2.2 of the GM Registration Rights Agreement) PROVIDED,
HOWEVER, that if such registration statement is not filed by the Company
within 45 days of receipt of such Stockholder Demand and declared effective
by the Commission with 120 days after the Company's receipt of such
Stockholder Demand, the Company shall be obligated to cause such Registrable
Shares of the Stockholder to be registered in accordance with the provisions
of this Section 2.1 provided that the Company is actively employing in good
faith all reasonable efforts to cause such registration statement to become
effective;
(ii) during the period starting with the Company's
date of filing of, and ending on the date ninety (90) days immediately
following, the effective date of any registration statement pertaining to
securities of the Company, which registration was either filed as a result of
the exercise by Stockholder of its rights pursuant to Section 2.1 hereof or
was subject to Section 2.2 hereof.
2.2 PIGGYBACK REGISTRATION.
(a) If at any time during the Eligible Period, the Company
proposes to register (for its own account, on behalf of its existing
stockholders, or a combination of the foregoing) any of its common stock
under the 1933 Act in connection with a public offering of such common stock
solely for cash (other than a registration relating primarily to the sale of
securities to participants in a Company stock plan of employee benefit plan,
a transaction covered by Rule 145 under the 1933 Act or the resale of
securities issued in such a transaction (including the planned registration
in July 2000 of the resale of up to 2,460,000 shares of common stock issued
in connection with Company's acquisitions of Commerce Bid and Mergent
Systems), a registration in which the only stock being registered is Common
Stock issuable upon conversion or exchange of debt securities which are also
being registered, any registration on any form which does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Registrable Shares or a
registration initiated under Section 2.1 or 2.2 of the GM Registration Rights
Agreement) the Company shall, at such time, give the Stockholder notice of
such registration. Upon the written request of the Stockholder, given within
ten (10) days after notice has been given by the Company in accordance with
Section 11.1, the Company shall, subject
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to Section 2.3, cause to be registered under the 1933 Act all of the
Registrable Shares that the Stockholder has requested to be registered.
(b) In the event that any registration is initiated
pursuant to Sections 2.1 or 2.2 of the GM Registration Rights Agreement, the
Company shall, upon written notice from the Stockholder of its desire to
"piggyback" on such registration statement, seek written consent from the GM
Holders to permit such "piggyback" on the registration statement by the
Stockholder in accordance with the terms of this Agreement.
2.3 UNDERWRITING REQUIREMENTS.
(a) In connection with any underwritten public offering,
the Company shall not be required to include any of the Stockholder
Registrable Shares in such underwriting unless the Stockholder accepts the
terms of the underwriting as agreed upon between the Company and the
underwriters for the offering (which underwriters shall be selected by the
Company).
(b) If the total amount of securities, including
Registrable Shares, requested to be included in an underwritten public
offering exceeds the amount of securities that the underwriters determine in
their sole discretion is compatible with the success of the offering, then
the Company shall be required to include in the offering only that number of
such securities, including Registrable Shares, which the underwriters
determine in their sole discretion will not jeopardize the success of the
offering. In such event, the Company may reduce the number of Registrable
Shares to be included in the offering prior to reducing or excluding the
shares proposed to be offered by the Company, the holders of registration
rights under the Existing Registration Rights Agreement and the holders of
registration rights under the GM Registration Rights Agreement.
3. FURTHER OBLIGATIONS OF THE COMPANY AFTER REGISTRATION.
3.1 BLUE SKY COMPLIANCE. The Company shall, as soon as
reasonably possible after the effectiveness of a Registration Statement, use
its best efforts to register and qualify the Registrable Shares covered by
the Registration Statement under such other securities or "blue sky" laws of
such jurisdictions as shall be reasonably requested by the Stockholder,
provided that the Company shall not be required in connection therewith or as
a condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions unless the Company is
already subject to service in such jurisdiction and except as may be required
by the 1933 Act.
3.2 FURNISHING OF PROSPECTUS. With respect to a Registration
Statement filed pursuant to Sections 2.1 or 2.2, the Company shall furnish to
the Stockholder copies of any preliminary prospectus and, as soon as
reasonably possible after the effectiveness of the Registration Statement,
furnish to the Stockholder such numbers of copies of a final prospectus in
conformity with the requirements of the 1933 Act, and such other documents as
the Stockholder may reasonably request, in order to facilitate the resale or
other disposition of Registrable Shares owned by it.
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3.3 AMENDMENTS. With respect to a Registration Statement filed
pursuant to Section 2.1 or 2.2 of this Agreement, and, subject to Section 4.1
of this Agreement, the Company shall prepare and file with the SEC such
amendments to the Registration Statement and amendments or supplements to the
prospectus contained therein as may be necessary to keep such Registration
Statement effective and such Registration Statement and prospectus accurate
and complete for the entire period for which the Registration Statement
remains effective.
3.4 NOTICES. The Company shall:
(a) Notify the Stockholder, promptly after it shall receive
notice thereof, of the date and time when any Registration Statement and each
post-effective amendment thereto has become effective;
(b) Notify the Stockholder promptly of any request by the
SEC for the amending or supplementing of any Registration Statement or
prospectus or for additional information;
(c) Notify the Stockholder, at any time when a prospectus
relating to the Registrable Shares is required to be delivered under the
Securities Act, of any event which would cause any such prospectus or any
other prospectus as then in effect to include an untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and, subject to
Section 4.1, promptly prepare and file with the SEC, and promptly notify the
Stockholder of the filing of, such amendments or supplements to any
Registration Statement or prospectus as may be necessary to correct any such
statements or omissions;
(d) Notify Stockholder, promptly after it shall receive
notice of the issuance of any stop order by the SEC suspending the
effectiveness of any Registration Statement or the initiation or threatening
of any proceeding for that purpose and, subject to Section 4.1, promptly use
commercially reasonable efforts to prevent the issuance of any stop order or
to obtain its withdrawal if such stop order should be issued.
4. CONDITIONS AND LIMITATIONS ON REGISTRATION RIGHTS. The registration
rights granted by this Agreement are subject to the following additional
conditions and limitations:
4.1 DELAYS AND SUSPENSION. The Company may delay the filing of,
or suspend or delay the effectiveness of a Registration Statement for up to
thirty (30) days, if the Company shall furnish to the Stockholder a
certificate signed by the Chief Executive Officer of the Company stating that
in the good faith judgment of the Board of Directors it would be seriously
detrimental to the Company or its stockholders for such a registration
statement to be filed or declared effective or for an effective registration
statement not to be suspended. In such event, the Company's obligation under
this Agreement to file a registration statement, seek effectiveness of a
registration statement or keep such registration statement effective shall be
deferred for a period not to exceed sixty (60) days from the receipt of the
request to file such registration by the Stockholder, provided that the
Company may not exercise this right of deferral for an aggregate of in excess
of seventy-five (75)
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days in any one year period. If the Company suspends the effectiveness of a
Registration Statement, the Company will promptly deliver notice to the
Stockholder of such suspension and will again deliver notice to the
Stockholder when such suspension is no longer necessary. The duration for
which the Company is required to keep a Registration Statement effective
shall be extended by an additional number of days equal to the length of any
suspension period.
4.2 AMENDED OR SUPPLEMENTED PROSPECTUS. The Stockholder agrees
that, upon receipt of any notice from the Company described in Section 4.1
hereof that suspends an effective registration statement, the Stockholder
shall forthwith discontinue disposition of Registrable Shares until such
Stockholder's receipt of copies of a supplemented or amended prospectus from
the Company, or until it is advised in writing by the Company that the use of
the prospectus may be resumed, and has received copies of any additional or
supplemental filings which are incorporated by reference in the prospectus.
If so directed by the Company, the Stockholder will deliver to the Company
all copies of the prospectus covering such Registrable Shares current at the
time of receipt of such notice of suspension.
5. INDEMNIFICATION.
5.1 The Company will indemnify the Stockholder, each of its
officers, directors and partners, legal counsel, agents and each person
controlling the Stockholder within the meaning of Section 15 of the 1933 Act,
with respect to which registration, qualification or compliance has been
effected pursuant to this Agreement, and each underwriter, if any, and each
person who controls any underwriter within the meaning of Section 15 of the
1933 Act, against all expenses, claims, losses, damages and liabilities (or
actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation, (commenced or threatened), arising out of or
based on any untrue statement (or alleged untrue statement) of a material
fact contained in any registration statement, pro-spectus, or other document,
or any amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission)
to state therein a material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading, or any violation by the Company of the 1933
Act, the 1934 Act, and any state securities laws or any rule, regulation or
qualification promulgated thereunder, and the Company will reimburse the
Stockholder, each of its officers, directors, and partners, legal counsel,
agents and each person controlling the Stockholder, each such underwriter and
each person who controls any such underwriter, for any legal and any other
expenses reasonably incurred, in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action, PROVIDED,
HOWEVER, that the Company will not be liable in any such case to the extent
that any such claim, loss, damage, liability or expense arises out of or is
based on any untrue statement or omission or alleged untrue statement or
omission, made in reliance upon and in conformity with written information
furnished to the Company by the Stockholder, controlling person or
underwriter expressly for use therein.
The foregoing indemnity is subject to the condition that,
insofar as it relates to any such untrue statement, alleged untrue statement,
omission or alleged omission made in a preliminary prospectus on file with
the SEC at the time the registration statement becomes effective
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or the amended prospectus filed with the SEC pursuant to Rule 424(b), as
amended from time to time (the "Final Prospectus"), such indemnity shall not
inure to the benefit of: (a) the Stockholder (i) if a copy of the Final
Prospectus was not furnished by the Stockholder to the person asserting the
loss, liability, claim or damage at or prior to the time such action as
required by the 1933 Act and such Final Prospectus would have cured the
defect giving rise to the loss, liability, claim or damage or (ii) to the
extent that such untrue statement, alleged untrue statement, omission or
alleged omission is made in reliance upon and in conformity with written
information furnished to the Company by the Stockholder expressly for use
therein, or (b) any underwriter (i) if a copy of the Final Prospectus was not
furnished to the person asserting the loss, liability, claim or damage at or
prior to the time such action as required by the 1933 Act and the Final
Prospectus would have cured the defect giving rise to the loss, liability,
claim or damage or (ii) to the extent that such untrue statement, alleged
untrue statement, omission or alleged omission is made in reliance on and in
conformity with written information furnished to the Company by the
underwriter for use therein.
5.2 The Stockholder will, if Registrable Shares held by the
Stockholder are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers, each underwriter, if any, of the Company's
securities covered by such a registration statement, each person who controls
the Company or such underwriter within the meaning of Section 15 of the 1933
Act, against all expenses, claims, losses, damages and liabilities (or
actions in respect thereof), including any of the foregoing incurred in
settlement of any litigation (commenced or threatened), arising out of or
based on any untrue statement (or alleged untrue statement) of a material
fact contained in any such registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereto, incident
to such registration, qualification or compliance, or any omission (or
alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and, severally, and
not jointly, will reimburse the Company, such directors, officers, persons,
underwriters or control persons for any legal and any other expenses
reasonably incurred, in connection with investigating or defending any such
claim, loss, damage, liability or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the Company by the
Stockholder expressly for use therein. Notwithstanding the foregoing, the
liability of the Stockholder under this Section 5 shall be limited to an
amount equal to the net proceeds received by the Stockholder from the sale of
shares in such registration.
5.3 Each party entitled to indemnification under this Section 5
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified
Party has actual knowledge of any claim as to which indemnity may be sought,
and shall permit the Indemnifying Party to assume the defense of any such
claim or any litigation resulting therefrom, provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be approved by the Indemnified Party (whose approval shall
not unreasonably be withheld), and the Indemnified Party may participate in
such defense at such party's expense, and provided further that the failure
of any Indemnified Party to give notice as
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provided herein shall not relieve the Indemnifying Party of its obligations
under this Agreement, unless the failure to give such notice is materially
prejudicial to an Indemnifying Party's ability to defend such action, and
provided further that an Indemnified Party shall have the right to retain its
own counsel, with the fees and expenses of such counsel to be paid by the
Indemnifying Party, if representation of such Indemnified Party by the
counsel retained by the Indemnifying Party would be inappropriate due to
actual or potential differing interests between such Indemnified Party and
any other party represented by such counsel in such proceeding. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an
unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect to such claim or
litigation.
5.4 If the indemnification provided for in this Section 5 is held
by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any losses, claims, damages or liabilities referred to
herein, the Indemnifying Party, in lieu of indemnifying such Indemnified
Party thereunder, shall to the extent permitted by applicable law contribute
to the amount paid or payable by such Indemnified Party as a result of such
loss, claim, damage or liability in such proportion as is appropriate to
reflect the relative fault of the Indemnifying Party on the one hand and of
the Indemnified Party on the other in connection with the violation(s) that
resulted in such loss, claim, damage or liability, as well as any other
relevant equitable considerations. The relative fault of the Indemnifying
Party and of the Indemnified Party shall be determined by a court of law by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact relates
to information supplied by the Indemnifying Party or by the Indemnified Party
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission; provided, that
in no event shall any contribution by the Stockholder hereunder exceed the
net proceeds from the offering received by the Stockholder.
5.5 The obligations of the Company and the Stockholder under this
Section 5 shall survive completion of any offering of Registrable Securities
in a registration statement and the termination of this Agreement.
6. INFORMATION FROM STOCKHOLDER. It shall be a condition precedent to
the obligations of the Company to take any action pursuant to this Agreement
with respect to the Registrable Shares of the Stockholder that the
Stockholder shall furnish to the Company such information regarding itself,
the Registrable Shares held by it, and the intended method of disposition of
such securities, as shall be required to effect the registration of the
Registrable Shares.
7. EXPENSES OF REGISTRATION. The Company shall pay all registration,
filing and qualification fees (including SEC filing fees and the listing fees
of the Nasdaq Stock Market or any stock exchange on which the Company
securities are traded) attributable to the Registrable Shares registered
under this Agreement, and any legal, accounting or other professional fees or
expenses incurred by the Company. The Stockholder shall pay all underwriting
discounts, selling commissions
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and stock transfer taxes, if any, attributable to the sale of such securities
registered by the Stockholder and any legal, accounting or other professional
fees incurred by the Stockholder.
8. REPORTS UNDER THE SECURITIES EXCHANGE ACT. The Company agrees to
file with the SEC in a timely manner all reports and other documents and
information required of the Company under the 1934 Act, and take such other
actions as may be necessary to assure the availability of Form S-3 for use in
connection with the registration rights provided in this Agreement and Rule
144 for use in connection with resales of the Registrable Shares.
9. RULE 144. In the event that all of the Stockholder's Registrable
Shares may, under Rule 144, be resold or otherwise disposed of in a ninety
(90) day period without registration under the 1933 Act, the registration
rights granted under this Agreement to such Stockholder and the obligations
of the Company hereunder (other than its obligations under Sections 5 and 8
and this Section 9) to such Stockholder, shall automatically terminate in
their entirety and be of no further force and effect whatsoever without any
further action on the part of the Company or the Stockholder.
10. MARKET STAND-OFF. The Stockholder agrees that, upon the request of
the underwriters managing any underwritten public offering of the Company's
securities in connection with an effective registration statement under the
1933 Act, it will not offer, pledge, sell, contract to sell, sell any option
or contract to purchase, purchase any option or contract to sell, grant any
option, right or warrant to purchase, or otherwise transfer or dispose of,
directly or indirectly, the Registrable Shares other than those included in
the registration, without the prior written consent of such underwriters, for
such period of time, not to exceed ninety (90) days (or such lesser period as
executive officers or directors of the Company are so restricted with respect
to the transfer of shares of common stock of the Company held by them) after
the effective date of the registration statement relating thereto, provided
that such registration was filed as a result of the exercise by Stockholder
of its rights pursuant to Section 2.1 hereof or was subject to Section 2.2
hereof. The Stockholder agrees that, if requested by the underwriters for
such an offering, it will enter into a lock-up agreement directly with the
underwriters on substantially the same terms and conditions as described
above. The Stockholder agrees that the Company may instruct its transfer
agent to place stop-transfer notations in its records to enforce the
provisions of this Section 10.
11. MISCELLANEOUS.
11.1 NOTICES. All notices and other communications required or
permitted hereunder shall be made in the manner and to addresses set forth in
the Share Purchase Agreement.
11.2 INTERPRETATION. The words "include," "includes" and
"including" when used herein shall be deemed in each case to be followed by
the words "without limitation." The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
11.3 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or
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more counterparts have been signed by each of the parties and delivered to
the other party, it being understood that all parties need not sign the same
counterpart.
11.4 ENTIRE AGREEMENT. This Agreement and the documents and
instruments and other agreements among the parties hereto referenced herein:
(a) constitute the entire agreement among the parties with respect to the
subject matter hereof and supersede all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof; and (b) are not intended to confer upon any other person any rights
or remedies hereunder.
11.5 ASSIGNMENT. Stockholder may transfer or assign its rights
and obligations hereunder together with any Registrable Shares transferred or
assigned in accordance with the terms of the Standstill Agreement to any
Affiliate of Stockholder, as long as such transferee or assignee of the
Registrable Shares executes and delivers a counterpart copy of this Agreement
thereby agreeing to be bound by the terms and provisions set forth herein.
Except as permitted herein, any assignment of rights or delegation of duties
under this Agreement by a party without the prior written consent of the
other parties, if such consent is required hereby, shall be void ab initio.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns.
11.6 SEVERABILITY. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further
agree to replace such void or unenforceable provision of this Agreement with
a valid and enforceable provision that will achieve, to the extent possible,
the economic, business and other purposes of such void or unenforceable
provision.
11.7 CERTAIN COMPANY REPRESENTATIONS. This Agreement has been
duly authorized by all necessary action by the Company, and the Company's
execution, delivery and performance of this Agreement does not violate any
other agreement or instrument to which it is currently a party. As of the
date hereof, the Company has not granted registration rights to any holder of
its securities except pursuant to this Agreement, the Existing Registration
Rights Agreement that grants registration rights to certain stockholders of
the Company with respect to 18,908,320 shares of common stock and the GM
Registration Rights Agreement that grants to GM and one of its affiliates
registration rights with respect to 28,800,000 shares of common stock. The
Company hereby agrees not to grant any registration rights that materially
impair the registration rights granted to the Stockholder hereunder.
11.8 ATTORNEYS' FEES. In any action at law or suit in equity in
relation to this Agreement, the prevailing party in such action or suit shall
be entitled to receive a reasonable sum for its attorneys' fees and all other
reasonable costs and expenses incurred in such action or suit.
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11.9 GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflicts
of laws thereof.
11.10 TERM. Except as expressly provided herein, the rights and
obligations hereunder shall terminate five (5) years from the date of this
Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
COMMERCE ONE, INC.
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: Senior Vice President, Corporate
Development and General Counsel
SAP AG
By: /s/ Prof. Dr. Xxxxxxx Xxxxxxxxx
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Name: Prof. Dr. Xxxxxxx Xxxxxxxxx
Title: Member of the Executive Board
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Prokurist
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