Exhibit 4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made as of
this 14th day of December, 2001, by and among Manugistics Group, Inc., a
Delaware corporation ("MANUGISTICS GROUP"), and Information Resources, Inc., a
Delaware corporation ("IRI").
B A C K G R O U N D:
A. IRI has entered into a Settlement Agreement and Mutual Release
dated as of December 14th, 2001 (the "SETTLEMENT AGREEMENT") with Manugistics,
Inc., a wholly-owned subsidiary of Manugistics Group, pursuant to which the
parties have agreed to terminate all aspects of their claims arising out of or
relating in any way to the agreements executed by them as of March 7, 1997.
Unless otherwise defined herein, all capitalized terms used in this Agreement
shall have the respective meanings assigned to such terms in the Settlement
Agreement.
B. Subject to the terms and conditions of the Settlement Agreement,
Manugistics Group has agreed that, immediately following confirmation from the
SEC that the Registration Statement to be filed pursuant to Section 2 hereof has
been declared effective, Manugistics Group will deliver to IRI the number of
Manugistics Shares as determined under Section III.B of the Settlement
Agreement.
C. Pursuant to Section III.A of the Settlement Agreement, the
parties have agreed that Manugistics Group shall register the Manugistics Shares
with the SEC under the Securities Act for issuance and sale to IRI under the
terms, conditions and procedures set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants set forth herein, the parties hereto, intending to be
legally bound, agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the meanings
set forth below:
(a) "BUSINESS DAY" shall mean a day that is not a Saturday, a Sunday, or
a day on which banking institutions in New York, New York are required to be
closed.
(b) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder, all as the same shall be in
effect from time to time.
(c) "NASDAQ" shall mean The Nasdaq Stock Market or any market successor
thereto.
(d) "PERSON" shall mean an individual, partnership, limited liability
company, corporation, trust, any other legal entity, or unincorporated
organization or government or agency or political subdivision thereof.
(e) "PROSPECTUS" shall mean (i) the preliminary prospectus included in
the Registration Statement filed prior to the time it becomes effective; (ii)
the form of prospectus first filed with the SEC pursuant to Rule 424(b) under
the Securities Act; and (iii) all supplements and amendments thereto which shall
have been declared effective by the SEC.
(f) "REGISTRABLE SECURITIES" shall mean (i) the Manugistics Shares; and
(ii) any Manugistics Common Stock and any other security issued as a dividend or
other distribution with respect to or in exchange for or in replacement of any
of the Manugistics Shares, provided, however, that Registrable Securities shall
not include: (a) any Manugistics Shares prior to their issuance pursuant to the
Settlement Agreement or any right to receive any Manugistics Shares, (b) any
Manugistics Shares which have been sold to the public either pursuant to a
registration statement under the Securities Act or pursuant to Rule 144, or
which are eligible for sale to the public pursuant to Rule 144, or (c) any
Manugistics Shares which have been sold, transferred or otherwise disposed of in
any other transaction in which the transferor's rights under this Agreement are
not assigned or otherwise transferred.
(g) The terms "REGISTER," "REGISTERED" and "REGISTRATION" shall refer to
a registration effected by preparing and filing with the SEC a registration
statement in compliance with the Securities Act and applicable rules and
regulations thereunder, and the declaration or ordering of the effectiveness of
such registration statement by the SEC.
(h) "REGISTRATION EXPENSES" shall mean all expenses incurred in
effecting any registration pursuant to this Agreement, including all
registration, qualification and filing fees, reproduction and printing
expenses, expenses incurred by Manugistics Group in the preparation of any
registration statement, fees and disbursements of counsel for Manugistics Group
and those of Manugistics Group's other independent professional advisors and
experts, listing fees and other costs incurred in listing Registrable
Securities for trading on Nasdaq or on any stock exchange, blue sky fees and
expenses (if any), and expenses of any regular or special accounting services
provided to Manugistics Group incident to or required by any such registration,
but shall not include Selling Expenses (as that term is defined herein).
(i) "REGISTRATION STATEMENT" shall mean the registration statement to be
filed or filed by Manugistics Group with the SEC pursuant to Section 2 hereof
(including all (i) amendments and supplements thereto, (ii) the Prospectus
contained therein, (iii) all exhibits thereto, and (iv) all documents
incorporated by reference therein).
(j) "RULE 144" shall mean Rule 144 under the Securities Act, as such
rule may be amended from time to time, or any similar successor rule that may
be promulgated by the SEC.
(k) "SELLING EXPENSES" shall mean all brokerage fees, selling
commissions and underwriting discounts (if any), and stock transfer taxes
applicable to the sale of Registrable Securities.
(l) "TRANSACTION DOCUMENTS" shall mean this Agreement, the Settlement
Agreement, and each of the other agreements and documents delivered pursuant to
or in connection with the Settlement Agreement.
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(m) "TRANSFER" shall mean any sale, transfer, encumbrance, gift,
donation, assignment, pledge, hypothecation or other disposition of any
Registrable Securities or any interest therein, whether voluntary or
involuntary, including, but not limited to, any disposition by operation of law,
by court order, by judicial process or by foreclosure, levy or attachment.
2. REGISTRATION.
(a) As soon as practicable after the date of this Agreement and
consistent with the requirements of applicable law, but subject to subsection
(b) below and to the requirements of Sections 4 and 5 of this Agreement,
Manugistics Group shall effect (i) the registration for issuance and sale under
the Securities Act to IRI of all of the Manugistics Shares, and (ii) appropriate
qualifications (if any), required under applicable state "blue-sky" securities
laws of such jurisdictions as IRI shall reasonably request in writing from time
to time (collectively, the "REGISTRATION"). In furtherance of the Registration,
but subject to subsection (b) below and to the requirements of Sections 4 and 5
of this Agreement, Manugistics Group shall file with the SEC not later than
January 17, 2002, the Registration Statement (which shall comply as to form in
all material respects with the requirements of the appropriate form) covering
the Manugistics Shares and/or any other securities which then constitute
Registrable Securities.
(b) Notwithstanding the foregoing, Manugistics Group shall not be
obligated to effect, or to take any action to effect, the Registration (with
respect to clause 2(b)(i)), and may defer the filing or effectiveness of the
Registration Statement for only so long as is reasonably necessary (with respect
to clause 2(b)(ii)), in the sole discretion of the Board of Directors of
Manugistics Group, if:
(i) in any particular jurisdiction, Manugistics Group would be
required to execute a general consent to service of process
in effecting such Registration, qualification, or
compliance, unless Manugistics Group is already subject to
service in such jurisdiction and except as may be required
by the Securities Act; or
(ii) (A) in the good faith judgment of the Board of Directors
of Manugistics Group, such Registration would be
detrimental to Manugistics Group and the Board of Directors
of Manugistics Group in its sole discretion concludes, as a
result, that it is essential to defer the filing or
effectiveness of the Registration Statement, and (B)
Manugistics Group shall furnish to IRI a certificate signed
by the Chief Executive Officer of Manugistics Group stating
that, in the good faith judgment of the Board of Directors
of Manugistics Group, it would be detrimental to
Manugistics Group for such Registration Statement to be
filed or to be declared effective, as applicable, in the
near future and that it is, therefore, essential to defer
the filing or effectiveness of such Registration Statement;
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provided, however, that any deferral of the filing or effectiveness of the
Registration Statement pursuant to subsection (ii) hereof shall not exceed sixty
(60) days.
(c) The Registration Expenses shall be borne by Manugistics Group and
the Selling Expenses shall be borne by IRI.
3. REGISTRATION PROCEDURES.
Manugistics Group shall, at its own expense:
(a) promptly notify IRI as to: (i) the initial filing of the
Registration Statement; (ii) the receipt of any comments thereon from the SEC
or of any communication from the SEC staff that it does not intend to review
the Registration Statement; (iii) any request from the SEC or any state
regulatory authority for amendment of the Registration Statement or for
supplement to any Prospectus or for any additional information in connection
therewith; (iv) the filing of each amendment thereto, including any
post-effective amendment; (v) the formal request for and the effectiveness of
the Registration Statement or any post-effective amendment thereto; and (vi)
the issuance by the SEC or any state regulatory authority of any stop order
suspending the effectiveness of the Registration Statement or the use of any
Prospectus or the institution of any proceedings for that purpose;
(b) subject to Section 2(b) and Section 3(c) of this Agreement and to
the requirements of Sections 4 and 5 of this Agreement, use reasonable best
efforts to cause the Registration Statement to be declared effective by the SEC
as soon as practicable after its filing and to prevent the issuance of any stop
order preventing or suspending the use of any Prospectus and to obtain as soon
as possible the lifting or withdrawal thereof, if issued;
(c) subject to Section 2(b) hereof, use reasonable best efforts to cause
the Registration Statement to be declared effective on a day other than a
Thursday, Friday or on a day other than one that precedes a day that the Nasdaq
National Market is closed; provided, however, that this Section 3(c) shall not
apply in connection with the dates for the effectiveness of the Registration
Statement specified in Sections III.C and III.D of the Settlement Agreement;
(d) promptly prepare and file with the SEC such amendments and
supplements to the Registration Statement and the Prospectus as shall be
necessary to comply with the provisions of the Securities Act with respect to
the disposition to IRI of all securities covered by such Registration Statement
and thereafter use its reasonable best efforts to cause any such post-effective
amendment to be declared effective by the SEC as promptly as permitted by the
SEC;
(e) furnish to IRI: (i) such number of Prospectuses and other documents
incident thereto, including any amendment of or supplement to the Prospectus, as
IRI may reasonably request from time to time; and (ii) such number of conformed
copies of the Registration Statement (including such number of copies of the
exhibits filed therewith as may reasonably be requested), including documents
incorporated by reference therein, as IRI may reasonably request from time to
time;
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(f) promptly notify IRI, as a holder of Registrable Securities covered
by the Registration Statement at any time:
(i) when a prospectus relating thereto is required to be
delivered under the Securities Act of the happening of
any event or the failure of any event to occur or the
discovery of any facts as a result of which the
Prospectus included in such Registration Statement, as
then in effect, includes any untrue statement of a
material fact or omits to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading or incomplete in the light of the
circumstances then existing, and, at the request of IRI,
promptly prepare and furnish as soon as practicable to
IRI a reasonable number of copies of a supplement to or
an amendment of such Prospectus as may be necessary so
that, as thereafter delivered to the purchaser(s) of
such Manugistics Shares, such Prospectus shall not
include any untrue statement of a material fact or omit
to state a material fact required to be stated therein
or necessary to make the statements therein not
misleading or incomplete in light of the circumstances
then existing;
(ii) if the representations and warranties of Manugistics Group
contained in this Agreement cease to be true and correct
in any material respect;
(iii) if Manugistics Group receives any notification of the
issuance of a stop order or the suspension of the
Registration or qualification of the Registrable
Securities in any jurisdiction or the initiation of any
proceeding for such purpose; and
(iv) if, in Manugistics Group's reasonable determination, a
post-effective amendment to the Registration Statement
would be appropriate;
(g) provide one copy of each notice or document given or furnished to
IRI pursuant to Section 3(a), (e) and (f), above, concurrently with the
provision thereof or as promptly thereafter as practicable to legal counsel
designated by IRI in a written notice given to Manugistics Group;
(h) list the Registrable Securities registered pursuant to this
Agreement on Nasdaq and any securities exchange on which Manugistics Group
Common Stock is then listed;
(i) make generally available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at least
twelve (12) months, but not more than eighteen (18) months, beginning with the
first month after the effective date of the Registration Statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act); and
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(j) make reasonable effort to obtain the withdrawal or removal of any
order suspending the effectiveness of the Registration Statement as promptly as
practicable under the circumstances.
4. INFORMATION BY IRI.
(a) IRI shall furnish to Manugistics Group on a timely basis such
information regarding IRI, the Registrable Securities held by IRI and the sale
thereof proposed by IRI as Manugistics Group may request in writing and as shall
be reasonably required in connection with the Registration or under the
Settlement Agreement.
(b) IRI shall furnish to Manugistics Group such certificates and
documents confirming, as of the effective date of the Registration Statement,
the information provided by IRI to Manugistics Group pursuant to Section 4(a)
hereof and the performance of the covenants made herein by IRI and such related
matters as Manugistics Group shall have reasonably requested in writing.
5. RESTRICTIONS ON TRANSFER.
(a) Prior to the effective date of the Registration Statement, IRI shall
not make or effect any Transfer, directly or indirectly, of any of the
Manugistics Shares or of its right to receive such Manugistics Shares, except as
expressly permitted under Section 8(h) of this Agreement.
(b) IRI shall promptly notify Manugistics Group if it shall have become
an "affiliate" of Manugistics Group within the meaning of Rule 144(a).
(c) IRI has not taken and will not take, directly or indirectly, any
action designed to cause or result in, or which has constituted or might
reasonably be expected to constitute, the manipulation or stabilization of the
price of Manugistics Common Stock or of any other securities of Manugistics
Group.
6. INDEMNIFICATION WITH RESPECT TO SECURITIES MATTERS.
(a) Manugistics Group will indemnify IRI, each of its officers and
directors and each person controlling IRI within the meaning of Section 15 of
the Securities Act with respect to the Registration effected pursuant to Section
2 of this Agreement, against all expenses, claims, losses, damages and
liabilities (or actions, proceedings, judgments or settlements in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in each Registration Statement,
Prospectus or offering circular incident to any such Registration, or based on
any omission (or alleged omission) to state therein a material fact required to
be stated therein or necessary to make the statement therein not misleading, or
any violation (or alleged violation) by Manugistics Group of the Securities Act,
the Exchange Act, any other federal or state securities laws, or any rule or
regulation thereunder applicable to Manugistics Group and relating to action or
inaction required of Manugistics Group in connection with any such Registration,
and will reimburse IRI, its officers, directors and each Person controlling IRI
for any legal and any other expenses reasonably incurred in connection
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with investigating and defending or settling any such claim, loss, damage,
liability, or action; provided, however, that Manugistics Group will not be
liable in any such case to the extent that any such expense, claim, loss, damage
or liability, arises out of or is based on any untrue statement or omission
based upon written information furnished to Manugistics Group by or on behalf of
IRI specifically for use therein. It is agreed that the indemnity agreement
contained in this Section 6 shall not apply to amounts paid in settlement of any
such expense, claim, loss, damage, liability, or action if such settlement is
effected without the consent of Manugistics Group (which consent shall not be
unreasonably withheld).
(b) IRI will indemnify Manugistics Group, Manugistics, Inc., each of
their respective directors and officers and each person who respectively
controls Manugistics Group or Manugistics, Inc., within the meaning of Section
15 of the Securities Act, against all expenses, claims, losses, damages and
liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
the Registration Statement, Prospectus or offering circular incident to the
Registration or any omission (or alleged omission) to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, 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 or offering circular in
reliance upon and in conformity with written information furnished to
Manugistics Group by or on behalf of IRI, whether by IRI or otherwise,
specifically for use therein, and will reimburse Manugistics Group, Manugistics,
Inc. and each of their respective directors and officers and each person
controlling any of them for any legal or any other expenses reasonably incurred
in connection with investigating or defending any such expense, 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 or offering
circular in reliance upon and in conformity with written information furnished
to Manugistics Group by or on behalf of IRI, whether by IRI or otherwise,
specifically for use therein; provided, however, that the obligations of IRI
hereunder shall not apply to amounts paid in settlement of any such expense,
claim, loss, damage, or liability (or action in respect thereof) if such
settlement is effected without the consent of IRI (which consent shall not be
unreasonably withheld). The maximum liability of IRI for indemnity pursuant to
this Section 6(b) shall not exceed the net proceeds that IRI realized from the
sale of Manugistics Shares or, if IRI has not yet sold all of the Manugistics
Shares to which it is or may be entitled to receive at the time that
indemnification is required pursuant to this Agreement, then IRI's maximum
liability hereunder shall be the value of the Manugistics Shares beneficially
held by IRI (or to which IRI may become entitled) measured by the greater of the
closing price of Manugistics Common Stock on Nasdaq or other market or exchange
on which Manugistics Common Stock is traded (i) on the date the Manugistics
Shares are delivered to IRI pursuant to Section III.B of the Settlement
Agreement; or (ii) such closing price on the date of the demand for indemnity,
or, if not so traded, by a fair market value standard reasonably approved by the
then current Board of Directors of Manugistics Group.
(c) Each party entitled to indemnification under this Section 6 (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 such claim or
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any litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at its own expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement to the extent such
failure is not prejudicial. 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 that does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such Indemnified Party of a release from all liability in respect to such
claim or litigation. Each Indemnified Party shall furnish such information
regarding itself or the claim in question as an Indemnifying Party may
reasonably request in writing and as shall be reasonably required in connection
with the defense of such claim or litigation resulting therefrom.
(d) If the indemnification provided for in this Section 6 is held by a
court of competent jurisdiction to be unavailable to or insufficient to hold
harmless an Indemnified Party with respect to any loss, liability, claim,
damage, or expense (or actions or proceedings in respect thereof) referred to
therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability, claim, damage, or expense
(or actions or proceedings in respect thereof) 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 hand, in connection with the
statement or omission that resulted in such loss, liability, claim, damage, or
expense (or actions or proceedings in respect thereof), as well as any other
relevant equitable considerations, provided however, that in no event shall any
contribution by IRI under this Section 6(d) exceed the net proceeds that IRI
realized from the sale of Manugistics Shares or, if IRI has not yet sold all of
the Manugistics Shares to which it is or may be entitled to receive at the time
that indemnification is required pursuant to this Agreement, then IRI's maximum
liability hereunder shall be the value of the Manugistics Shares beneficially
held by IRI (or to which IRI may become entitled) measured by the greater of the
closing price of Manugistics Common Stock on Nasdaq or other market or exchange
on which Manugistics Common Stock is traded (i) on the date the Manugistics
Shares are delivered to IRI pursuant to Section III.B of the Settlement
Agreement or (ii) on the date of the demand for indemnity, or, if not so traded,
by a fair market value standard reasonably approved by the then current Board of
Directors of Manugistics Group; provided further, however, that no Person guilty
of fraudulent misrepresentation (within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person that was not
guilty of such fraudulent misrepresentation. The relative fault of the
Indemnifying Party and of the Indemnified Party shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission of 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.
(e) The obligations of each party to indemnify and hold harmless the
other party and each other Person entitled to indemnity as an Indemnified Party
under Sections 6(a) and 6(b) are independent of any provision of the Settlement
Agreement and the right of each party and each
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such other Person to be indemnified under Sections 6(a) and 6(b), above, shall
not be limited by or otherwise subject to any provision of the Settlement
Agreement.
(f) The obligations of Manugistics Group and IRI under this Section 6
shall survive the delivery of the Manugistics Shares or any other Registrable
Securities to IRI pursuant to the Transaction Documents.
7. REPORTING REQUIREMENTS.
Manugistics Group agrees that:
(a) during the period from the date of this Agreement to and including
the date on which the Registration Statement shall be declared effective, for so
long as Manugistics Group is subject to the reporting requirements of Section 13
or 15 of the Exchange Act, Manugistics Group will use its best efforts to file
in a timely manner the reports required to be filed by it under the Securities
Act and Section 13(a) or 15(d) of the Exchange Act;
(b) if Manugistics Group shall cease to be so required to file such
reports, it will, upon the request of IRI, take such further action that is
reasonable under the circumstances, including, without limitation, the provision
of current public information as required by Rule 144(c) (or any similar
successor provision), to enable IRI to sell its Registrable Securities pursuant
to Rule 144; and
(c) it will periodically furnish to IRI forthwith upon written request a
written statement by Manugistics Group as to its compliance with the reporting
requirements of the Securities Act, the Exchange Act and/or Rule 144, as
appropriate.
8. MISCELLANEOUS.
(a) Benefits Non-transferable. Subject to Section 8(h) of this
Agreement, notwithstanding anything to the contrary contained elsewhere in this
Agreement or in any other Transaction Document, the obligation of Manugistics
Group to effect the Registration is solely for the benefit of IRI.
(b) Governing Law. This Agreement shall be governed by and interpreted
and enforced in accordance with the laws of the State of Delaware as applied to
contracts made and fully performed therein.
(c) Section Headings. All section headings are for convenience only and
shall in no way modify or restrict any of the terms or provisions hereof.
(d) Interpretation. The masculine (or neuter) pronoun and the singular
number shall include the masculine, feminine and neuter genders and the singular
and plural numbers. All references in the singular or plural shall be deemed to
have been made, respectively, in the plural or singular number as well, as the
context may require.
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(e) Counterparts. This Agreement may be executed in two or more
counterparts, including, without limitation, execution by facsimile, each of
which shall be deemed an original, and all of which when taken together shall be
deemed to be one and the same instrument. It shall not be necessary in making
proof of this Agreement or any counterpart hereof to produce or account for any
of the other counterparts.
(f) Amendments and Waivers. The provisions of this Agreement, including
provisions of this Section 8(f), may not be amended, modified or supplemented,
otherwise than with the prior written consent of Manugistics Group and IRI.
(g) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered first
class mail, telex, telecopier, or any courier guaranteeing overnight delivery:
(i) if to IRI, initially at its address as set forth in the Settlement
Agreement, and thereafter at such other address, notice of which is given in
accordance with the provisions of this Section 8(g), and (ii) if to Manugistics
Group, initially at its address as set forth in the Settlement Agreement, and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 8(g).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five (5) Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
(h) Successors and Assigns. IRI may assign, transfer or otherwise
dispose of its rights and obligations under this Agreement (i) only in
connection with: (A) the sale of all or substantially all of the assets of IRI;
or (B) a consolidation or merger of IRI with another corporation or entity, the
consummation of which would result in the stockholders of IRI immediately
before the occurrence of the consolidation or merger owning, in the aggregate,
fifty percent or less of the voting power of the surviving entity; or (ii) by
operation of law or by order or decree of a court or administrative authority
of competent jurisdiction. Nothing in this Agreement shall be deemed to permit
any assignment, transfer or other disposition of Registrable Securities in
violation of the terms of this Agreement, the Settlement Agreement or
applicable law. If any transferee of IRI shall acquire Registrable Securities,
in any manner, whether by operation of law or otherwise, such Registrable
Securities shall be held subject to all of the terms of this Agreement, and by
taking and holding such Registrable Securities, such Person shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof. Subject to Section 8(a) and this Section 8(h),
this Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties hereto.
(i) Consent to Jurisdiction and Service. Every dispute arising from or
relating to this Agreement shall be tried by the court without a jury only in
the state or federal courts situated in Delaware. IRI and Manugistics Group
consent to venue in those courts, and agree that those courts shall have
personal jurisdiction over them in any such action. In any such action or
proceeding, the parties hereby absolutely and irrevocably waive personal service
of any summons, complaint, declaration or other process and hereby absolutely
and irrevocably agree
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that the service thereof may be made by certified or registered first-class mail
directed to such parties at their respective addresses in accordance with
Section 8(g) hereof.
(j) Severability. If any term or provision of this Agreement or the
application thereof to any Person or circumstance shall, to any extent, be held
invalid or unenforceable by any court of competent jurisdiction, the remainder
of this Agreement or the application of any such term or provision to Persons or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Agreement
shall be valid and enforceable to the fullest extent permitted by law. If any
provision contained in this Agreement shall for any reason be held to be
excessively broad as to duration, scope, activity or subject, it shall be
construed by limiting and reducing it, so as to be valid and enforceable to the
extent compatible with the applicable law or the determination by a court of
competent jurisdiction.
(k) Integration. This Agreement together with the Settlement Agreement
embodies the entire agreement among the parties with respect to its subject
matter. There are no restrictions, promises, representation, warranties,
covenants or undertakings other than those expressly set forth in this Agreement
and/or the Settlement Agreement. This Agreement and the Settlement Agreement
supersede any and all previous understandings, agreements, representations or
discussion, written or oral, among the parties. In the event of a conflict
between or among the provisions of this Agreement and the Settlement Agreement,
the Settlement Agreement shall control.
IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have duly executed this Registration Rights Agreement on the date first
above written.
MANUGISTICS GROUP, INC.
By: /s/ Xxxxxxxx Xxxxxx
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Name: Xxxxxxxx Xxxxxx
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Title: Executive Vice President & Chief Financial Officer
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INFORMATION RESOURCES, INC.
By: /s/ Xxxxxx X. Xxxx
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Name: Xxxxxx X. Xxxx
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Title: Secretary
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