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EXHIBIT 4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of this 17th day of May,
2001, by and among Manugistics Group, Inc., a Delaware corporation
("MANUGISTICS"), and XxxXxxxxxx.xxx, LLC, a Delaware limited liability company
("ONERELEASE LLC"), and XxxXxxxxxx.xxx, Inc., a Delaware corporation
("ONERELEASE INC.").
B A C K G R O U N D:
A. OneRelease LLC and its subsidiary, OneRelease Inc.
(collectively, the "SELLERS"), have entered into an Asset Purchase Agreement
dated as of May 17, 2001 (the "ASSET PURCHASE AGREEMENT") with Manugistics, Inc.
(the "PURCHASER"), pursuant to which the Sellers have agreed to sell to the
Purchaser substantially all of the assets of the Sellers. Unless otherwise
defined herein, all capitalized terms used in this Agreement shall have the
respective meanings assigned to such terms in the Asset Purchase Agreement.
B. Subject to the terms and conditions of the Asset Purchase
Agreement, the Purchaser has agreed that:
(i) on the Closing Date, the Purchaser will deliver to the
Sellers the Base Consideration, which shall consist of
shares of the common stock of Manugistics, par value
$0.002 per share ("MANUGISTICS COMMON STOCK"), and
(ii) on the Performance Payment Date, the Purchaser will
deliver to the Sellers the Performance Consideration,
which shall also consist of shares of Manugistics Common
Stock.
The shares of the Manugistics Common Stock comprising the Base Consideration are
herein referred to as the "BASE SHARES" and the shares of the Manugistics Common
Stock comprising the Performance Consideration are herein referred to as the
"PERFORMANCE SHARES." The Base Shares and the Performance Shares are herein
collectively referred to as the "SHARES."
C. Pursuant to Section 3(f) of the Asset Purchase Agreement, the
parties have agreed that Manugistics shall register all of the Shares with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
for resale by the Sellers or certain other holders under the terms and
conditions 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:
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(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) "COMMISSION" shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
(c) "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.
(d) "HOLDER" shall mean (i) one or both of the Sellers and (ii) any
Permitted Transferee.
(e) "NASDAQ" means The Nasdaq Stock Market or any market successor
thereto.
(f) "PERMITTED TRANSFER" means:
(i) a Transfer by OneRelease Inc. to OneRelease LLC or to
any other person who is a shareholder of record of
OneRelease Inc. on the date hereof;
(ii) a Transfer by OneRelease LLC to a holder of an equity
interest in OneRelease LLC (an "LLC HOLDER");
(iii) a Transfer by any LLC Holder to any general or limited
partner, member, retired partner or retired member of
LLC Holder (a "LLC HOLDER TRANSFEREE");
(iv) a Transfer by any LLC Holder or LLC Holder Transferee by
gift to his or her spouse, lineal descendants, spouses
of his or her lineal descendants, or as settlor of a
trust or trusts solely for the benefit of such Holder's
spouse and/or any of such other persons, and thereafter
any distribution by such trust to the beneficiaries of
such trust, provided, however, that any further Transfer
by any such transferee shall not be a Permitted
Transfer, except as set forth below in subclause (v); or
(v) a Transfer, in the event of the death of any LLC Holder
or transferee of a type referred to in (iii) or (iv),
above, to his or her (A) personal representatives (in
their capacities as such), (B) estate and/or (C) named
beneficiaries (including trusts of the type referred to
in (iv) above);
provided, however, that (A) each transferee shall, prior to and as a condition
precedent to the effectiveness of such Transfer of Registrable Securities to
such transferee, execute and deliver to Manugistics a valid and binding Adoption
Agreement in the form attached hereto as Exhibit A to the effect that such
transferee shall thereafter be deemed a Holder for the purposes of this
Agreement; and (B) such Transfer be effected in compliance with applicable
federal and state securities laws relating to the offer and sales of securities,
and prior to and as a condition of the effectiveness of such Transfer, the
transferor shall provide to Manugistics evidence of the compliance with such
laws as Manugistics shall reasonably request.
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(g) "PERMITTED TRANSFEREE" shall mean a transferee in a transaction
constituting a Permitted Transfer.
(h) "PERSON" means an individual, partnership, limited liability
company, corporation, trust or unincorporated organization or government or
agency or political subdivision thereof.
(i) "PROSPECTUS" shall mean (i) the preliminary prospectus included
in each Registration Statement filed prior to the time it becomes effective;
(ii) each form of prospectus first filed with the Commission pursuant to Rule
424(b); and (iii) all supplements thereto and amendments thereto which shall
have been declared effective by the Commission.
(j) "REGISTRABLE SECURITIES" shall mean (i) the 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 the Shares,
provided, however, that Registrable Securities shall not include (a) any Shares
prior to their issuance pursuant to the Asset Purchase Agreement or any right to
receive such Shares, (b) any Shares which have been sold to the public either
pursuant to a Registration Statement or pursuant to Rule 144, or which are
eligible for sale to the public pursuant to Rule 144, or (c) any Shares which
have been sold in any other transaction in which the transferor's rights under
this Agreement are not assigned.
(k) The terms "REGISTER," "REGISTERED" and "REGISTRATION" shall
refer to a registration effected by preparing and filing with the Commission 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 Commission.
(l) "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 in the preparation of any registration
statement, fees and disbursements of counsel for Manugistics and those of
Manugistics' other independent professional advisors and experts, reasonable
fees and disbursements of counsel for one counsel selected by Holders of a
majority of the issued and outstanding Shares that are Registrable Securities,
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),
expenses of any regular or special accounting services provided to Manugistics
or the Sellers incident to or required by any such registration, but shall not
include Selling Expenses.
(m) "REGISTRATION STATEMENTS" shall mean the registration statements
to be filed or filed by Manugistics with the Commission pursuant to the First
Registration and the Second Registration pursuant to Section 2 hereof (including
all (a) amendments and supplements to each of them, (b) each Prospectus
contained therein, and (c) all exhibits thereto or incorporated by reference
therein).
(n) "RULE 144" shall mean Rule 144 as promulgated by the Commission
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 Commission.
(o) "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and regulations thereunder, all as the same shall be in effect from
time to time.
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(p) "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.
(q) "TRANSACTION DOCUMENTS" shall mean this Agreement, the Asset
Purchase Agreement, and each of the other agreements and documents delivered
pursuant to or in connection with the Asset Purchase Agreement.
(r) "TRANSFER" means any sale, transfer, encumbrance, gift,
donation, assignment, pledge, hypothecation or other disposition of any
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 Closing Date and consistent with
the requirements of applicable law, but subject to subsection (c) below,
Manugistics shall effect (i) the registration for offer and resale under the
Securities Act of all of the Base Shares, and (ii) appropriate qualifications
(if any), required under applicable state "blue-sky" securities laws of such
jurisdictions as either Seller shall reasonably request in writing from time to
time (collectively, the "FIRST REGISTRATION"). In furtherance of the First
Registration, Manugistics shall file with the Commission within thirty (30) days
after the date of Closing, but subject to subsection (c) below, a registration
statement on an appropriate form (which form shall comply as to form in all
material respects with the requirements of the applicable form) (the "FIRST
REGISTRATION STATEMENT") under the Securities Act covering the Base Shares
and/or any other securities which then constitute Registrable Securities.
(b) As soon as practicable after the Performance Payment Date and
consistent with the requirements of applicable law, but subject to subsection
(c) below, Manugistics shall effect (i) the registration for offer and resale
under the Securities Act of all of the Performance Shares, and (ii) appropriate
qualifications (if any), required under applicable state "blue-sky" securities
laws of such jurisdictions as either Seller shall reasonably request in writing
from time to time (collectively, the "SECOND Registration"). In furtherance of
the Second Registration, Manugistics shall file with the Commission within
thirty (30) days after the Performance Payment Date, but subject to subsection
(c) below, a registration statement on an appropriate form (which form shall
comply as to form in all material respects with the requirements of the
applicable form) (the "SECOND REGISTRATION STATEMENT") under the Securities Act
covering the Performance Shares and/or any other securities which then
constitute Registrable Securities.
(c) Notwithstanding the foregoing, Manugistics shall not be obligated to
effect, or to take any action to effect, either the First Registration or the
Second Registration, or both, and may defer the filing of the respective
Registration Statements for only so long as is reasonably necessary, in the sole
discretion of the Board of Directors of Manugistics, if:
(i) in any particular jurisdiction, Manugistics would be
required to execute a general consent to service of
process in effecting such Registration, qualification,
or compliance, unless Manugistics is already subject to
service in such jurisdiction and except as may be
required by the Securities Act; or
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(ii) (A) in the good faith judgment of the Board of Directors
of Manugistics, such Registration would be seriously
detrimental to Manugistics and the Board of Directors of
Manugistics in its sole discretion concludes, as a
result, that it is essential to defer the filing of the
Registration Statement, and (B) Manugistics shall
furnish to the Sellers a certificate signed by the Chief
Executive Officer of Manugistics stating that, in the
good faith judgment of the Board of Directors of
Manugistics, it would be seriously detrimental to
Manugistics for such Registration Statement to be filed
in the near future and that it is, therefore, essential
to defer the filing of such Registration Statement;
provided, however, that any deferral of the filing of the Registration
Statements pursuant to subsection (ii) hereof shall not exceed sixty (60) days.
(d) All Registration Expenses shall be borne by Manugistics and all
Selling Expenses shall be borne by the Sellers or the other Holders.
3. REGISTRATION PROCEDURES.
Manugistics shall, at its own expense:
(a) notify each Holder as to: (i) the initial filing of each
Registration Statement; (ii) the receipt of any comments thereon from the
Commission; (iii) any request from the Commission or any state regulatory
authority for amendment of each 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 effectiveness of each Registration Statement or any post-effective amendment
thereto; and (vi) the issuance by the Commission or any state regulatory
authority of any stop order suspending the effectiveness of either Registration
Statement or the use of any Prospectus or the institution of any proceedings for
that purpose;
(b) use reasonable best efforts to cause each Registration Statement to
be declared effective by the Commission 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) keep the First Registration effective from the effective date
thereof to and including the first to occur of: (i) one year from the Closing
Date; or (ii) the date on which each Holder has completed the distribution of
Registrable Securities described in the First Registration Statement (the "FIRST
APPLICABLE PERIOD");
(d) keep the Second Registration effective from the effective date
thereof to and including the first to occur of: (i) one year from the
Performance Payment Date; or (ii) the date on which each Holder has completed
the distribution of Registrable Securities described in the Second Registration
Statement (the "SECOND APPLICABLE PERIOD" and, together with the First
Applicable Period, the "APPLICABLE PERIODS");
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(e) promptly prepare and file with the Commission such amendments and
supplements to each Registration Statement and the prospectus used in connection
with such Registration Statement as shall be necessary to comply with the
provisions of the Securities Act with respect to the disposition 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 Commission as promptly as permitted by the Commission,
provided, however, Manugistics shall not be obligated to file more than two
post-effective amendments or supplements to each Registration Statement and the
prospectus used in connection with such Registration Statement solely to amend
the list of selling stockholders therein to reflect Permitted Transfers. Such
amendments or supplements, if any, shall be prepared and filed only after
receipt by Manugistics of written instruction from OneRelease LLC, or, if
OneRelease LLC no longer exists, from Xxx Xxxxxxxxx and Xxxx Xxxxxxx and shall
be filed as soon as reasonably practicable after receipt of such instruction;
(f) furnish to each Holder: (i) such number of Prospectuses and other
documents incident thereto, including any amendment of or supplement to the
Prospectus, as each Holder may reasonably request (for dissemination or
otherwise) from time to time; (ii) two signed copies of each Registration
Statement and all amendments thereto, including all exhibits filed therewith;
and (iii) such number of conformed copies of each Registration Statement
(including such number of copies of the exhibits filed therewith as may
reasonably be requested), including documents incorporated by reference therein,
as each Holder may reasonably request from time to time;
(g) promptly notify each Holder of Registrable Securities covered by
either 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 the
Sellers or any Holder promptly prepare and furnish as
soon as practicable to each Holder 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 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 the light of the
circumstances then existing;
(ii) if, during an Applicable Period, the representations and
warranties of Manugistics contained in this Agreement or
in the Asset Purchase Agreement cease to be true and
correct in any material respect;
(iii) if Manugistics 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
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(iv) that, in Manugistics' reasonable determination, a
post-effective amendment to such Registration Statement
would be appropriate;
(h) Manugistics shall provide one copy of each notice or document given
or furnished to each Holder pursuant to Section 3(a), (f) and (g), above,
concurrently with the provision thereof or as promptly thereafter as practicable
to legal counsel designated by the Sellers (or, if both Sellers no longer exist,
by Holders of a majority of the issued and outstanding Shares that are
Registrable Securities) in a written notice given to Manugistics;
(i) list the Registrable Securities registered pursuant to this
Agreement on Nasdaq and any securities exchange on which Manugistics Common
Stock is then listed;
(j) 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 each 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
(k) make every reasonable effort to obtain the withdrawal or removal of
any order suspending the effectiveness of either Registration Statement as
promptly as practicable under the circumstances.
4. INFORMATION BY SELLERS.
(a) Each Holder shall furnish to Manugistics such information regarding
such Holder, the Registrable Securities held by such Holder and the sale or
other Transfer thereof proposed by such Holder as Manugistics may request in
writing and as shall be reasonably required in connection with the Registration.
(b) Any Holder who does not timely provide any of the information
required to be furnished to Manugistics under Section 4(a) hereof shall not be
eligible to be named as a selling stockholder in any Registration Statement.
(c) Each Holder shall furnish to Manugistics such certificates and
documents confirming, as of the effective date of the Registration Statement,
the information provided by such Holder to Manugistics pursuant to Section 4(a)
hereof and the performance of the covenants made herein by such Holder and such
related matters as Manugistics shall have reasonably requested in writing.
5. RESTRICTIONS ON TRANSFER
(a) Prior to the effective date of the First Registration Statement,
neither Seller shall make or effect any Transfer (other than Permitted
Transfers), directly or indirectly, of any of the Base Shares or of its right to
receive such shares. Prior to the effective date of the Second Registration
Statement, no Holder shall make or effect any Transfer (other than a Permitted
Transfer), directly or indirectly, of any of the Performance Shares or of its
right to receive such shares.
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(b) Subsequent to the effectiveness of each Registration Statement, no
Holder shall make or effect any Transfer of Registrable Securities except: (i)
Permitted Transfers; (ii) Transfers pursuant to the Prospectus and as provided
under the caption "Plan of Distribution" therein; and (iii) Transfers in
accordance with Rule 144(k); provided, however, that if, for any reason, the
First Registration Statement shall not have become effective prior to the first
anniversary of the Closing Date, Transfers of Registrable Securities that
constitute Base Shares may be effected in accordance with Rule 144; and
provided, further however, that if, for any reason, the Second Registration
Statement shall not have become effective prior to the first anniversary of the
Performance Payment Date, Transfers of Registrable Securities that constitute
Performance Shares may be effected in accordance with Rule 144; and provided,
further, however that if either Registration Statement shall become effective
but the Prospectus shall thereafter become unusable to effect sales of
Registrable Securities during the Applicable Period due to the entry of a stop
order, the filing of a post-effective amendment which has not been declared
effective or for any other reason, then Transfers of the Registrable Securities
to which such Registration Statement pertains may be effected pursuant to the
provisions of Rule 144.
(c) Each Holder shall promptly notify Manugistics of each Permitted
Transfer of Registrable Securities made or effected by such Holder, but in no
event later than three Business Days after such Transfer. The Holder shall
specify the name, address and tax identification number of each transferee,
together with the amount of Registrable Securities transferred to such
transferee.
(d) Each Holder shall promptly notify each of Manugistics if it shall
have become an "affiliate" of Manugistics within the meaning of Rule 144(a).
(e) Each Holder 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.
6. INDEMNIFICATION WITH RESPECT TO SECURITIES MATTERS.
(a) Manugistics will indemnify each Holder, each of its officers,
directors or partners and each person controlling such Holder within the meaning
of Section 15 of the Securities Act with respect to which Registration has been
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 of the
Securities Act, the Exchange Act, any other federal or state securities laws, or
any rule or regulation thereunder applicable to Manugistics and relating to
action or inaction required of Manugistics in connection with any such
Registration, and will reimburse each such Holder, its officers, directors or
partners and each person controlling such Holder for any legal and any other
expenses reasonably incurred in connection with investigating and defending or
settling any such claim, loss, damage, liability, or action; provided, however,
that Manugistics will not be liable in any such case to the extent that any such
claim, loss, damage,
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liability, or expense arises out of or is based on any untrue statement or
omission based upon written information furnished to Manugistics by or on behalf
of such Holder 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 loss, claim, damage, liability, or action if such
settlement is effected without the consent of Manugistics (which consent shall
not be unreasonably withheld).
(b) Each Holder, severally and not jointly, will indemnify Manugistics,
each of its directors, officers or partners and each person who controls
Manugistics within the meaning of Section 15 of the Securities Act, each other
Holder, and each of their respective officers, directors or partners and each
person controlling such other Holder, against all 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
each Registration Statement, Prospectus or offering circular incident to such
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 by or on behalf of the Holder, whether by the Sellers or otherwise,
specifically for use therein, and will reimburse Manugistics and such other
Holders, directors, officers or partners, and control persons for any legal or
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 or offering circular in reliance upon and in conformity
with written information furnished to Manugistics by or on behalf of the Holder,
whether by the Sellers or otherwise, specifically for use therein; provided,
however, that the obligations of such Holder hereunder shall not apply to
amounts paid in settlement of any such claims, losses, damages, or liabilities
(or actions in respect thereof) if such settlement is effected without the
consent of such Holder (which consent shall not be unreasonably withheld). The
maximum liability of any Holder for indemnity pursuant to this Section 6(b)
shall not exceed the net proceeds that such Holder realized from the sale of its
Shares pursuant to each Prospectus or, if the Holder has not yet sold all of the
Shares to which it is or may be entitled to receive pursuant to the Prospectuses
at the time that indemnification is required pursuant to this Agreement then the
Holder's maximum liability hereunder shall be the value of the Shares
beneficially held by such Holder (or to which Holder may become entitled)
covered by both Prospectuses measured by the closing price of such Shares on
Nasdaq or other market or exchange on which the Shares are traded, or, if not so
traded, by a fair market value standard reasonably approved by Manugistics' then
current Board of Directors.
(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 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 such party's expense, and provided further that the failure of any
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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 defense of such claim and 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, in connection with the
statement or omissions 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 that in no event shall any
contribution by a Holder under this Section 6(d) exceed the net proceeds that
such Holder realized from the sale of its Shares pursuant to the Prospectuses;
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
contributions 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 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.
The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were determined by pro rata
allocation (even if the Holders were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to above in this Section 6(d). The amount paid or
payable by an Indemnified Party as a result of any loss, liability, claim,
damage, or expense (or actions or proceedings in respect thereof) referred to
above in this Section 6(d) shall be deemed to include any legal or other
expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. The Holders' obligations in
this Section 6(d) to contribute are several and not joint.
(e) The obligations of each Holder to indemnify and hold harmless
Manugistics and each other person entitled to indemnity as an Indemnified Party
under Section 6(b) is independent of any provision of the Asset Purchase
Agreement and the right of Manugistics and each such other person to be
indemnified under Section 6(b), above, shall not be limited by or otherwise
subject to any provision of the Asset Purchase Agreement.
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(f) The obligations of Manugistics and each Holder under this Section 6
shall survive the completion of any offering of Registrable Securities in a
Registration Statement.
7. REPORTING REQUIREMENTS.
Manugistics agrees that:
(a) during each Applicable Period, for so long as Manugistics is subject
to the reporting requirements of Section 13 or 15 of the Exchange Act,
Manugistics 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 and the rules and regulations adopted by the Commission
thereunder;
(b) if Manugistics shall cease to be so required to file such reports,
it will, upon the request of any Holder, take such further action that is
reasonable in the circumstances, including, without limitation, the provision of
current public information as required by Rule 144(c) (or any similar successor
provision), to enable such Holder to sell its Registrable Securities pursuant to
Rule 144; and
(c) periodically furnish to each Holder forthwith upon written request a
written statement by Manugistics as to its compliance with the reporting
requirements of the Securities Act, the Exchange Act and/or Rule 144, as
appropriate.
8. RESTRICTIVE LEGENDS.
(a) Each certificate evidencing Shares delivered on the Closing Date or
the Performance Payment Date shall bear the following legends:
The securities represented by this certificate (the "Shares")
have not been registered under the Securities Act of 1993, as
amended (the "Act") or applicable state securities laws. The
shares have been acquired for the record holder's own account,
as principal, and not with a view to the resale of all or any
part of the shares, and with no present intention, agreement
or arrangement to resell, transfer or otherwise dispose of all
or any part of the shares except pursuant to Registration
under the Act.
The shares represented by this certificate are subject to
certain restrictions on transferability and to the other terms
and conditions of that certain Registration Rights Agreement
dated as of May 17, 2001, by and among Manugistics Group, Inc.
and the other parties thereto, copies of which are on file and
may be obtained upon written request directed to the attention
of the Secretary of Manugistics Group, Inc. Under said
Agreement, such shares may not be sold, pledged, donated or
otherwise transferred or encumbered except as expressly
permitted thereunder.
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(b) Upon the effectiveness of each Registration Statement, the
restrictive legend referring to the Securities Act of 1933 set forth in Section
8(a) hereof shall be eligible to be removed from each certificate representing
Shares that are being registered under such Registration Statement. The legend
in Section 8(a) hereof referring to this Registration Rights Agreement shall be
removed from each certificate evidencing Registrable Securities upon the first
to occur of: (i) the sale or other Transfer of such securities pursuant to the
Prospectus; and (ii) the sale of such securities pursuant to Rule 144 (including
Rule 144(k)).
9. MISCELLANEOUS.
(a) Benefits Non-transferable. Notwithstanding anything to the contrary
contained elsewhere in this Agreement or in any other Transaction Document, the
obligation of Manugistics to effect the First Registration and the Second
Registration and, thereafter, to maintain the effectiveness of each Registration
Statement is solely for the benefit of each Holder.
(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. A reference to a person shall mean a natural person, a
trustee, a corporation, a partnership and any other form of legal entity. 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.
(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 9(f), may not be amended, modified or supplemented,
otherwise than with the prior written consent of Manugistics and Holders holding
at least 50% of the issued and outstanding Shares that are Registrable
Securities.
(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 a Holder, to the Sellers addressed as provided in the Asset Purchase
Agreement, or if required to be given hereunder directly to the Holder, to the
most current address given by such Holder to the Sellers by means of a notice
given in accordance with the provisions of this Section 9(g), and (ii) if to
Manugistics, initially at Manugistics' address as set forth in the Asset
Purchase Agreement, and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 9(g).
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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. This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of the parties
hereto, subject to Section 9(a), above, provided, however, that nothing herein
shall be deemed to permit any assignment, transfer or other disposition of
Registrable Securities in violation of the terms of this Agreement, the Asset
Purchase Agreement or applicable law. If any transferee of any Holder 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.
(i) Consent to Jurisdiction and Service. Except for disputes that are
subject to binding arbitration pursuant to the Transaction Documents, the
parties hereby absolutely and irrevocably consent and submit to the jurisdiction
of the courts of the State of Delaware and of any Federal court located in said
State in connection with any actions or proceedings brought by or against any
party hereto and arising out of or relating to the Transaction Documents and
agree that any such actions or proceedings shall be brought only in such courts.
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 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 9(g) hereof.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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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:
-----------------------------
Name:
----------------------------
Title:
--------------------------
ONE XXXXXXX.XXX, LLC:
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
ONE XXXXXXX.XXX, INC.:
By:
------------------------------
Name:
----------------------------
Title:
---------------------------
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EXHIBIT A
ADOPTION AGREEMENT
This Adoption Agreement is executed by the undersigned (the
"TRANSFEREE") pursuant to the terms of that certain Registration Rights
Agreement dated as of May 17, 2001 (the "AGREEMENT") by and among Manugistics
Group, Inc., a Delaware corporation ("Manugistics"), and the other parties
thereto. Capitalized terms used but not defined herein shall have the respective
meanings ascribed to such terms in the Agreement. By the execution of this
Adoption Agreement, the Transferee agrees as follows:
1. Acknowledgment. Transferee acknowledges that Transferee is
acquiring certain securities of Manugistics (the "SECURITIES"), subject to the
terms and conditions of the Agreement, a copy of which has been delivered to the
Transferee.
2. Agreement. Transferee (i) agrees that the Securities acquired by
Transferee shall be bound by and subject to the terms of the Agreement, and (ii)
hereby adopts the Agreement with the same force and effect as if Transferee were
originally a party thereto, with the effect that Transferee shall hereafter be
deemed a "HOLDER" for the purposes of the Agreement. .
3. Notice. Any notice required or permitted by the Agreement shall
be given to Transferee at the address listed beside Transferee's signature
below.
4. Joinder. The spouse of the undersigned Transferee, if
applicable, executes this Adoption Agreement to acknowledge its fairness and
that it is in such spouse's best interests and to bind to the terms of the
Agreement such spouse's community interest, if any, in the Securities.
EXECUTED AND DATED as of this ____ day of __________________..
[NAME OF TRANSFEREE]
By:
--------------------------------------------------
Name:
------------------------------------------------
Title:
-----------------------------------------------
Social Security Number or Tax ID Number:
-------------
Address:
--------------------------------------------
Fax:
-------------------------------------------------
Spouse: (if applicable):
Name:
-----------------------------------------------
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Accepted and Agreed to by Manugistics:
MANUGISTICS GROUP, INC.
By:
------------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
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