EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement"), dated December
31, 2003, is entered into by and among COMMERCE ONE, INC., a Delaware
corporation (the "Company"), COMVEST INVESTMENT PARTNERS II LLC, a Delaware
limited liability company ("ComVest") and DCC VENTURES, LLC, a Nevada limited
liability company ("DCC" and together with "ComVest," the "Holders"), as a
material inducement for the Holders to purchase Notes having an aggregate
principal amount of Five Million Dollars ($5,000,000) (the "Notes") and related
warrants (the "Warrants") in accordance with the terms of that certain Note and
Warrant Purchase Agreement, dated on or about the date hereof (the "Purchase
Agreement"). All capitalized terms used but not defined herein shall have the
meanings ascribed thereto in the Purchase Agreement.
NOW, THEREFORE, the Company and the Holders hereby agree as follows:
1. Definitions. In addition to those terms defined elsewhere in this
Agreement, the following terms shall have the following meanings wherever used
in this Agreement:
"Act" shall mean the Securities Act of 1933, as amended, and any
successor statute from time to time.
"Common Stock" shall mean shares of common stock, part value $.0001
per share, of the Company.
"Conversion Registrable Securities" shall mean all shares of common
stock, par value $.0001 per share, of the Company (the "Common Stock") that are
issuable upon conversion of the Notes in accordance with their terms or any
shares issued in exchange therefor, or replacement thereof., from time to time.
"Costs and Expenses" shall mean all of the costs and expenses
relating to any subject Registration Statement, including but not limited to
registration, filing and qualification fees, reasonable blue sky expenses, costs
of listing any shares of Common Stock on any national securities exchange
automated quotation system, printing expenses, fees and disbursements of counsel
and accountants to the Company, and reasonable fees and disbursements of a
single counsel to the Holders (such fees and disbursements not to exceed $20,000
per Registration); provided, however, that underwriting discounts and
commissions attributable solely to the securities registered for the benefit of
Holders, fees and disbursements of any additional counsel to Holders, and all
other expenses attributable solely to Holders shall be borne by each subject
Holder.
"Excluded Registration Statement" shall mean a registration
statement relating solely to the registration of the sale of securities (i)
other than for cash, (ii) to participants in a Company stock plan or employee
benefit plan, agreement or arrangement, (iii) in a transaction
covered by Rule 145 under the Act or the resale of securities issued in such a
transaction, and (iv) issuable upon the conversion or exchange of debt
securities and/or upon the exercise of securities issued in connection with a
debt offering.
"Existing Registration Rights Agreements" shall mean, collectively
(i) the Registration Rights Agreement by and between the Company and BayStar
Capital II, L.P. ("Baystar"), dated July 10, 2003, (ii) the Investor Rights
Agreement by and between the Company and SAP AG, dated June 28, 2001 and (iii)
the Registration Rights Agreement by and among the Company, FordMotor Company
and General Motors Corporation, dated December 8, 2000.
"Registrable Securities" shall mean all Warrant Registrable
Securities and Conversion Registrable Securities, held from time to time by the
Holders; provided, however, that such Registrable Securities shall cease to be
Registrable Securities upon the occurrence of any of the following: (i) all such
Registrable Securities are sold pursuant to any registration statement filed by
the Company with the SEC, pursuant to Rule 144 promulgated under the Act or
pursuant to any other exemption from registration under the Act or (ii) they may
be sold, subject to any applicable volume limitations, in open market
transactions pursuant to any applicable exemption from the registration
requirements of the Act, including without limitation Rule 144(k) promulgated
thereunder (or any successor thereto).
"Registration" shall mean any registration or proposed registration
of Registrable Securities pursuant to a Registration Statement in respect to the
sale of any Registrable Securities.
"Registration Period" shall mean the period (i) beginning upon the
earlier of declaration of effectiveness of the Registration Statements provided
for in Section 2 hereof or declaration of effectiveness of any Registration
Statement provided for in Section 3 hereof that includes Registrable Securities
and (ii) ending on the earlier of the date that all Registrable Securities have
ceased to be Registrable Securities and the second anniversary of the date of
this Agreement.
"Registration Statement" shall mean any registration statement filed
or to be filed by the Company with the SEC.
"SEC" shall mean the United States Securities and Exchange
Commission, or any successor agency or agencies performing the functions
thereof.
"Warrant Registrable Securities" shall mean the shares of Common
Stock issuable upon exercise of the Warrants or any shares issued in exchange
for or replacement thereof, from time to time.
2. Initial Registration. (a) The Company shall file a Registration
Statement on such form as the Company shall reasonably determine to be
appropriate in respect of all of the Registrable Securities within thirty (30)
days (the "Filing Date") following the date hereof and shall use its reasonable
best efforts to cause such Registration Statement to become effective as soon as
practicable thereafter, but in no event later than four (4) months following the
date hereof (the "Effective Date"). Subject to any Grace Period (as defined in
Section 3(c) hereof),
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the Company shall keep such Registration Statement effective until the end of
the Registration Period, prepare and file any necessary amendments and
supplements to such Registration Statement and the prospectus contained therein
during the Registration Period, and comply with the provisions of the Act with
respect to the disposition of all Registrable Securities covered by such
Registration Statement during the Registration Period.
(b) Alternatively, in the event the Company reasonably expects that
the Registration Statement on Form S-3 (File No. 333-108144) (the "Existing
Registration Statement") shall be declared effective prior to the date that the
Registration Statement contemplated bySection 2(a) above is required to be
declared effective, then the Company shall use its reasonable best efforts to
include all of the Registrable Securities in the Existing Registration Statement
if consented to by Baystar (which consent the Company will use its reasonable
best efforts to obtain) and if inclusion of such Registrable Securities would
not otherwise unreasonably delay the effectiveness of the Existing Registration
Statement. Any such Existing Registration Statement shall otherwise be subject
to the same requirements and same Registration Period as any Registration
Statement required to be filed in accordance with Section 2(a). If the Company
determines in good faith that it is unable to register all of the Registrable
Securities pursuant to the Existing Registration Statement (but may register
some of such securities pursuant to the Existing Registration Statement), the
Company shall so notify (the "Partial Registration Notice") the Holders as soon
as practicable. The Partial Registration Notice shall set forth the number of
Registrable Shares the Company will be able to include in the Existing
Registration Statement, if any. Within three (3) days following receipt of such
notice, the Holders shall notify the Company as to whether it has elected to
include that number of Registrable Securities covered by the Partial
Registration Notice and the Company shall use reasonable best efforts to include
such Registrable Securities in the Existing Registration Statement. If less than
all of the Registrable Securities are covered by the Existing Registration
Statementor if the Existing Registration Statement is unlikely to be filed or
declared effective prior to the Registration Statement required to be filed in
accordance with Section 2(a) above, then the Company shall register all of the
Registrable Securities in accordance with Section 2(a) above.
3. Piggyback Rights. (a) In addition to the foregoing and subject to
the provisions of this Agreement, in the event that the Company shall at any
time after the date hereof (and prior to the date of either Registration
Statement provided for in Section 2 hereof is declared effective by the SEC)
propose to file a Registration Statement (other than (i) an Excluded
Registration Statement or (ii) a Registration Statement required to be filed
with respect to any of the Existing Registration Rights Agreements, unless the
inclusion of the Registrable Securities in such Registration Statement has been
agreed an consented to by the holder of the Existing Registration Rights (which
consent the Company shall use its reasonable best efforts to obtain)), then the
Company shall give to each Holder written notice (the "Registration Notice") of
the proposed filing of such Registration Statement not less than twenty (20)
days prior to such filing, and shall, subject to the limitations provided in
this Section 3, include in such Registration Statement all or a portion of the
Registrable Securities (owned by each Holder, as and to the extent that such
Holder may request same to be so included by means of written notice given to
the Company within twenty (20) days after the Company's giving of the
Registration Notice. Each Holder shall be permitted to withdraw all or any part
of its Registrable Securities from a Registration Statement by written notice to
the Company given at any time prior to the effective
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date of the Registration Statement. In the event of the inclusion of all or a
portion of the Registrable Securities pursuant to this Section 3, the Company
shall bear all of the Costs and Expenses of such registration; provided,
however, that each Holder shall pay, pro rata based upon the number of its
Registrable Securities included therein, the underwriters' discounts,
commissions and compensation attributable solely to the inclusion of such
Registrable Securities in the overall public offering.
(b) Notwithstanding anything to the contrary contained herein, the
Company's obligation to include any Registrable Securities in a Registration
Statement filed under this Section 3 shall be subject to the following further
conditions:
(i) The distribution for the account of the Holders shall be
underwritten by the same underwriters (if any) who are underwriting the
distribution of the securities for the account of the Company and/or
any other persons whose securities are covered by such Registration
Statement, if any, and the Holders shall enter into an agreement with
such underwriters containing customary indemnification and other
provisions;
(ii) If, in connection with an underwritten public offering
pursuant to a Registration Statement, the purchase agreement to be
entered into with the managing underwriters contains or requires
restrictions upon the sale of securities of the Company by any of the
Company, its officers, directors or other principal stockholders, other
than the securities which are to be included in the proposed
distribution, then such restrictions shall likewise be binding upon the
Holders, and if requested by the Company the Holders shall enter into a
written agreement to that effect; and (iii) If, in connection with an
underwritten public offering pursuant to a Registration Statement, the
managing underwriter(s) thereof shall advise the Company in writing
that the securities to be included in such Registration will not
include all of the Registrable Securities requested to be so included
(but which shall not refer to any securities held by or to be newly
issued by the Company), then the Company will promptly furnish each
Holder of Registrable Securities covered by such Registration Statement
with a copy of such written statement and may require, by written
notice to each such Holder accompanying such written statement, that
the distribution of all or a specified portion of such Registrable
Securities be excluded from such distribution; and, in case of an
exclusion of only a portion of the Registrable Securities proposed to
be included, the Registrable Securities to be included shall (i) first
be allocated to the Company, (ii) then to the holders of registration
rights unbder the Existing Registration Rights Agreements in accordance
with the terms and conditions of such agreements, and (iii) then, to
the Holders in proportion to the respective number of Registrable
Securities so requested to be registered pursuant to such Registration
Statement by all such Holders (or in such other proportions as such
Holders may agree), prior to inclusion of any other securities.
(c) Each Holder shall furnish in writing to the Company all
information concerning such Holder and its holdings of securities of the Company
and its affiliates as shall be required in connection with the preparation,
filing, amendment and supplementation of any Registration Statement covering any
of such Holder's Registrable Securities.
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4. Blackout Periods. The Company may suspend the Holders' sale or
transfer of Registrable Securities under a Registration Statement if the Company
shall furnish to the Holders a certificate (the "Grace Period Notice") signed by
the Chief Executive Officer of the Company stating that in the good faith
judgment of the Board of Directors of the Company it would be seriously
detrimental to the Company or its stockholders for such sales or transfers not
to be suspended (a "Grace Period"); provided, however, that the Company shall
not so suspend the Holders unless it similarly suspends the sale or transfer of
securities by any other holder of securities of the Company whose securities are
covered by the same or another Registration Statement (expressly including the
holders of securities under the Existing Registration Rights Agreements). In
such event, the Company's obligations under this Agreement to seek to have a
Registration Statement declared effective or kept effective shall be suspended
for a Grace Period not to exceed thirty (30) consecutive days during any ninety
(90)-day period; provided, however, that the Company may not exercise this right
for more than seventy-five (75) days in any one year period (an "Allowable Grace
Period"); provided, further, however, that the Company may not exercise this
right unless it also suspends the effectiveness of any other Registration
Statement (expressly including the Existing Registration Statement or any other
Registration Statement of the Company with respect to the securities of the
Company covered by the Existing Registration Rights Agreements) for the same
amount of time. Subject to the similar suspension of all other holders of
securities of the Company whose securities are covered by the same or another
Registration Statement, each Holder agrees that, upon receipt of any notice from
the Company of a Grace Period Notice, such Holder shall immediately discontinue
disposition of its Registrable Securities pursuant to any Registration
Statement(s) covering such Registrable Securities until such Holder's receipt of
the copies of the supplemented or amended prospectus contemplated by Section
4(e) hereof or receipt of notice from the Company that no such supplement or
amendment is required. During any Grace Period during which the Registrable
Securities are suspended from trading, then no other Registration Statements
shall be declared effective. Similarly, during any Grace Period during which the
effectiveness of any Registration Statement covering the Registrable Securities
is suspended, then trading under any other Registration Statement shall be
similarly suspended.
5. Registration Procedures. In the case of each Registration effected
by the Company in which Registrable Securities are to be sold for the account of
any Holder, the Company will use its good faith reasonable efforts to:
(a) furnish to counsel selected by each such Holder copies of all
Registration Statements or prospectuses or any amendments or supplements thereto
proposed to be filed with the SEC, which documents will be subject to review by
such counsel before filing solely with regard to any information contained
therein which pertains to the subject Holder;
(b) prepare and file with the SEC such amendments and supplements to
such Registration Statement and the prospectus used in connection therewith as
may be necessary to keep such Registration Statement effective during the
Registration Period (or, with respect to Registration Statement filed in
accordance with Section 3 hereof, for such shorter or longer period covered
thereby) and to comply with the provisions of the Act with respect to the
disposition of all securities covered by such Registration Statement during such
period;
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(c) furnish to each such Holder such number of copies of such
Registration Statement, each amendment and supplement thereto, the prospectus
included in such Registration Statement (including each preliminary prospectus)
and such other documents as the Holder may reasonably require in order to
facilitate the disposition of the Registrable Securities held by the Holder;
(d) register or qualify such Registrable Securities under such other
securities or blue sky laws of such states as may be reasonably required and do
any and all other acts and things which may be reasonably necessary or advisable
to enable each subject Holder to consummate the disposition of the Registrable
Securities in such jurisdictions (provided that the Company will not be required
to (i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this subparagraph, (ii) subject itself
to taxation in any such jurisdiction, or (iii) consent to general service of
process in any such jurisdiction);
(e) notify each such Holder, at any time when a prospectus relating
to a Registration Statement is required to be delivered under the Act, of the
happening of any event as a result of which the prospectus included in a
Registration Statement contains an untrue statement of a material fact or omits
to state any fact necessary to make the statements therein not materially
misleading, and prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchaser(s) of Registrable Securities, such
prospectus will not contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein not materially
misleading; and
(f) effective not later than the effectiveness of the subject
Registration Statement, cause all subject Registrable Securities to be listed
for trading on each national securities exchange or or automated quotation
system on which the Common Stock is then listed.
6. Indemnification by the Company.
(a) In the event that the Company has used its reasonable best
efforts and has otherwise acted in good faith to effect the registration of the
Registrable Securities in accordance with Section 2 hereof but the SEC has
failed to declare effective any such Registration Statement by the Effective
Date, then the Company shall pay the Holders a cash payment in the aggregate
amount of One Thousand Dollars ($1,000) for each day after the Effective Date
during which such Registration Statement has not been declared effective by the
SEC. Such amount shall be paid to the Holders on a pro rata basis. Such payment
shall be due on the earlier of (i) three (3) days following the date on which
such Registration Statement is declared effective or (ii) the last day of any
calendar month during which such delay is or continues to be incurred. In the
event the Company otherwise materially breaches or materially fails to perform,
as applicable, any representation, warranty or covenant contained in this
Agreement, the Company shall indemnify each Holder from and against any claim,
loss, cost, charge or liability of any kind, including amounts paid in
settlement and reasonable attorneys' fees, which may be incurred by the Holder
as a result of the any such failure or breach,with such indemnification to be
made within thirty (30) days of receipt of written request therefor.
(b) The Company shall indemnify and hold harmless each Holder, any
underwriter (as defined in the Act) for any Holder, each officer and director of
a Holder, legal counsel and accountants for a Holder, and each person, if any,
who controls a Holder or such underwriter
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within the meaning of the Act, against any expenses, costs, claims, damages or
liabilities, including amounts paid in settlement (and reasonable attorney's
fees) (collectively, the "Losses"), to which such Holder or any other such
indemnified person becomes subject, under the Act or any rule or regulation
thereunder, insofar as such Losses(or related actions (i) are caused by any
untrue statement or alleged untrue statement of any material fact contained in
any preliminary prospectus (if used prior to the effective date of the
Registration Statement), or contained, on the effective date thereof, in any
Registration Statement of which Registrable Securities were the subject, the
prospectus contained therein, any amendment or supplement thereto, or (ii) arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, or (iii) arise out of any violation by the Company of
the Act or any rule or regulation thereunder applicable to the Company and
relating to actions or omissions otherwise required of the Company in connection
with such Registration Statement. The Company shall reimburse each Holder and
any such other indemnified person for any legal or other expenses reasonably
incurred by such Holder or such other indemnified person in connection with
investigating, defending or settling any such Loss; provided, however, that the
Company shall not be liable to any such persons in any such case to the extent
that any such Loss arises out of or is based upon any untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information furnished to the Company in writing by such
person expressly for inclusion in any of the foregoing documents. This indemnity
shall not apply to amounts paid in settlement of any such Loss if such
settlement is effected without the consent of the Company.
7. Indemnification by the Holders. Each Holder shall indemnify and hold
harmless the Company, each of its directors, each of its officers who has signed
a Registration Statement, legal counsel and accountants for the Company, each
person (if any) who controls the Company within the meaning of the Act and any
underwriter (as defined in the Act) for the Company, against any Losses to which
the Company or any other such indemnified person may become subject under the
Act or any rule or regulation thereunder or otherwise to the extent that such
Losses (or related actions) (i) are caused solely by any untrue statement or
alleged untrue statement of any material fact contained in any preliminary
prospectus (if used prior to the effective date of the Registration Statement),
or contained, on the effective date thereof, in any Registration Statement of
which such Holder's Registrable Securities were the subject, the prospectus
contained therein, any amendment or supplement thereto, or (ii) arise out of or
are based solely upon the 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 was made in reliance upon and in conformity with information furnished
to the Company by such Holder, in writing, expressly for inclusion in any of the
foregoing documents; provided, however, that the aggregate liability of any
Holder shall not be greater than the net proceeds received by such Holder upon
the sale of the Registrable Securities giving rise to such indemnification
obligation. This indemnity shall not apply to amounts paid in settlement of any
such Loss or related action if such settlement is effected without the consent
of the subject Holder.
8. Additional Provisions.
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(a) Each Holder and each other person indemnified pursuant to
Section 6 above shall, in the event that it receives notice of the commencement
of any action against it which is based upon an alleged act or omission which,
if proven, would result in the Company's having to indemnify it pursuant to
Section 6 above, promptly notify the Company, in writing, of the commencement of
such action and permit the Company, if the Company so notifies such Holder or
other indemnified person within thirty (30) days after receipt by the Company of
notice of the commencement of the action, to participate in and to assume the
defense of such action with counsel reasonably satisfactory to such Holder;
provided, however, that such Holder or other indemnified person shall be
entitled to retain its own counsel at its own expense. The omission to notify
the Company promptly of the commencement of any such action shall not relieve
the Company of any liability to indemnify such Holder or such other indemnified
person, as the case may be, under Section 6 above, except to the extent that the
Company shall suffer any loss by reason of such failure to give notice, and
shall not relieve the Company of any other liabilities which it may have under
this or any other agreement.
(b) The Company and each other person indemnified pursuant to
Section 7 above shall, in the event that it receives notice of the commencement
of any action against it which is based upon an alleged act or omission which,
if proven, would result in any Holder having to indemnify it pursuant to Section
7 above, promptly notify such Holder or other indemnified person, in writing, of
the commencement of such action and permit such Holder, if such Holder so
notifies the Company within thirty (30) days after receipt by such Holder of
notice of the commencement of the action, to participate in and to assume the
defense of such action with counsel reasonably satisfactory to the Company;
provided, however, that the Company or other indemnified person shall be
entitled to retain its own counsel at the Company's expense. The omission to
notify any Holder promptly of the commencement of any such action shall not
relieve such Holder of liability to indemnify the Company or such other
indemnified person, as the case may be, under Section 6 above, except to the
extent that the subject Holder shall suffer any loss by reason of such failure
to give notice, and shall not relieve such Holder of any other liabilities which
it may have under this or any other agreement.
(c) 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 defense of
such claim and litigation resulting therefrom.
(d) If a court of competent jurisdiction determines that the
foregoing indemnity provided under Sections 6 and 7 above is unavailable, or is
insufficient to hold harmless an indemnified party, then the indemnifying party
shall contribute to the amount paid or payable by the indemnified party as a
result of such losses, claims, damages, liabilities or expenses (A) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other, or
(B) if the allocation provided by clause (A) above is not permitted by
applicable law, or provides a lesser sum to the indemnified party
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than the amount hereinafter calculated, in such proportion as is appropriate to
reflect not only the relative benefits received by the indemnifying party on the
one hand and the indemnified party on the other, but also the relative fault of
the indemnifying party and the indemnified party, as well as any other relevant
equitable considerations. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
9. Notices. All notices, requests, demands and other communications
required or permitted under this Agreement shall be given in accordance with
Section 14(e) of the Purchase Agreement.
10. Waiver and Amendment. No waiver, amendment or modification of this
Agreement or of any provision hereof shall be valid unless evidenced by a
writing duly executed by the Company and Holder in accordance with Section 9 of
the Security Agreement. No waiver of any default hereunder shall be deemed a
waiver of any other, prior or subsequent default hereunder.
11. Governing Law. This Agreement shall be governed by, construed under
and interpreted and enforced in accordance with laws of the State of Delaware,
without giving effect to principles of choice of law. Any action or proceeding
arising out of or relating to this Agreement shall be commenced in a federal or
state court having competent jurisdiction in the State of New York, and for the
purpose of any such action or proceeding, each of the parties and any assignees
thereof submits to the personal jurisdiction of the State of New York. The
parties hereby irrevocably consent to the exclusive personal jurisdiction of any
state or federal court for New York County in the State of New York or the
Southern District of New York. The parties hereby waive any objection to venue
and any objection based on a more convenient form in any action instituted under
this Agreement.
12. Captions. The captions and Section headings used in this Agreement
are for convenience only, and shall not affect the construction or
interpretation of this Agreement or any of the provisions hereof.
13. Entire Agreement. This Agreement constitutes the sole and entire
agreement and understanding between the parties hereto as to the subject matter
hereof, and supersedes all prior discussions, agreements and understandings of
every kind and nature between them as to such subject matter.
14. No Third Party Beneficiaries. Except as expressly provided herein,
this Agreement is not intended to confer upon any person any rights or remedies
hereunder.
15. Assignment. The Holders may transfer or assign their respective
rights and obligations hereunder only in accordance with Section 14(a) of the
Purchase This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns.
16. Term. This Agreement shall terminate upon the expiration of the
Registration Period; provided, however, that the parties' rights and obligations
under Sections 6 and 7 shall survive any termination of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
30th day of December, 2003.
COMMERCE ONE, INC.
By /s/Xxxx X. Xxxxxxx
-------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
COMVEST INVESTMENT PARTNERS II LLC
By:/s/Xxxxxx Blue
-------------------------------
Name: Xxxxxx Blue
Title: President
DCC VENTURES, LLC
By:/s/Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Secretary and Treasurer
