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EXHIBIT 4.8
BAAN COMPANY N.V.
4.5% CONVERTIBLE SUBORDINATED NOTES DUE 2001
REGISTRATION RIGHTS AGREEMENT
Dated as of
December 15, 1996
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. Limited
Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc.
ABN AMRO Rothschild
Banque Indosuez
c/o ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. Ltd.
▇-▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Ladies and Gentlemen:
Baan Company N.V., a Netherlands corporation (the "Company"), proposes
to issue and sell to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. Limited, Deutsche ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Inc., ABN AMRO Rothschild and Banque Indosuez (the "Initial Purchasers") upon
the terms set forth in a purchase agreement dated December 12, 1996 (the
"Purchase Agreement") between the Initial Purchasers and the Company, its 4.5%
Convertible Subordinated Notes due 200 1. As an inducement to the Initial
Purchasers to enter into the Purchase Agreement and in satisfaction of a
condition to the obligations of the Initial Purchasers thereunder, the Company
agrees with the Initial Purchasers, (i) for the benefit of the Initial
Purchasers and (ii) for the benefit of the Holders (as defined below) from time
to time of the Registrable Securities (as defined below), including the Initial
Purchasers, as follows:
1. DEFINITIONS. Capitalized terms used herein without definition shall
have their respective meanings set forth in or pursuant to the Purchase
Agreement or the Offering Memorandum, dated December 12, 1996, in respect of the
Securities. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Affiliate" of any specified Person means any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified Person. For purposes of
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this definition, control of a Person means the power. direct or indirect, to
direct or cause the direction of the management and policies of such Person
whether by contract or otherwise; and the terms "controlling" and "controlled"
have meanings correlative to the foregoing.
"Agreement" shall mean this Registration Rights Agreement as the same
may be amended, supplemented or modified from time to time in accordance with
the terms hereof
"Commission" means the United States Securities and Exchange
Commission.
"Common Shares" means the Common Shares, nominal value of NLG 0.01, of
the Company and any other shares of common shares as may constitute "Common
Shares" for purposes of the Indenture.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning set forth in Section 2(b)
hereof.
"Electing Holder" shall mean, with respect to any Shelf Registration
Statement, a Holder electing to sell Registrable Securities thereunder.
"Exchange Act" means the United States Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
"Holder" shall mean any person that is the record owner of Registrable
Securities (and includes any person that has a beneficial interest in any
Registrable Security in book-entry form).
"Indenture" shall mean the Indenture, dated as of December 15, 1996,
between the Company and the Trustee thereunder, pursuant to which the Securities
are being issued, as amended, modified or supplemented from time to time in
accordance with the terms thereof.
"Issue Date" means December 23, 1996.
"Liquidated Damages" has the meaning set forth in Section 2(c).
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering,
if any, as set forth in Section 6 hereof.
"NLG" shall mean Dutch guilders.
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed
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as part of an effective registration statement in reliance upon Rule 430A under
the Securities Act), as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Registrable
Securities.
"Registration Default" has the meaning set forth in Section 2(c)
hereof.
"Restricted Securities" shall mean all Securities required pursuant to
Section 3.5(c) of the Indenture to bear any Restricted Securities Legend (as
defined in the Indenture).
"Registrable Security" shall mean any Restricted Security and any share
of Common Shares issuable upon conversion thereof except any such Restricted
Security or share of Common Shares which (i) has been effectively registered
under the Securities Act and sold in a manner contemplated by the Registration
Statement, (ii) has been transferred in compliance with Rule 144 under the
Securities Act (or any successor provision thereto), or is transferable pursuant
to paragraph (k) of such Rule 144 (or any successor provision thereto), (iii)
has been resold in compliance with Regulation S under the Securities Act (or any
successor thereto) and does not constitute the unsold allotment of a distributor
within the meaning of Regulation S under the Securities Act, or (iv) has
otherwise been transferred and a new Security or share of Common Shares not
subject to transfer restrictions under the Securities Act has been delivered by
or on behalf of the Company in accordance with Section 3.5(b) of the Indenture.
"Rule 144" shall mean Rule 144 promulgated by the Commission pursuant
to the Securities Act, as such Rule may be amended from time to time, or any
successor rule or regulation.
"Rule 144A" shall mean Rule 144A promulgated by the Commission pursuant
to the Securities Act, as such Rule may be amended from time to time, or any
successor rule or regulation.
"Rule 415" shall mean Rule 415 promulgated by the Commission pursuant
to the Securities Act, as such Rule may be amended from time to time, or any
successor rule or regulation.
"Rule 430A" shall mean Rule 430A promulgated by the Commission pursuant
to the Securities Act, as such Rule may be amended from time to time, or any
successor rule or regulation.
"Securities" shall mean the $175,000,000 aggregate principal amount of
4.5% Convertible Subordinated Notes due 2001 of the Company being issued
pursuant to the Indenture (together with up to $25,000,000 aggregate principal
amount of such convertible subordinated notes if, and to the extent, the Initial
Purchasers' over-allotment option is exercised).
"Securities Act" means the United States Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Shelf Registration" means a registration effected pursuant to Section
2 hereof.
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"Shelf Registration Statement" means a shelf registration statement of
the Company pursuant to the provisions of Section 2 hereof filed with the
Commission which covers some or all of the Registrable Securities, as
applicable, on an appropriate form under Rule 415 under the Securities Act, or
any similar rule that may be adopted by the Commission, amendments and
supplements to such registration statement, including post-effective amendments,
in each case including the Prospectus contained therein, all exhibits thereto
and all material incorporated by reference therein.
"Special Counsel" means any special counsel to the Holders, determined
as provided in Section 4 hereof.
"Trust Indenture Act" has the meaning set forth in Section 1.1 of the
Indenture.
"Trustee" the Trustee under the Indenture.
"underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
2. SHELF REGISTRATION.
(a) The Company shall, within 90 calendar days following the
Issue Date of the Securities, file with the Commission a Shelf Registration
Statement relating to the offer and sale of the Registrable Securities by the
Holders from time to time in accordance with the methods of distribution elected
by such Holders and set forth in such Shelf Registration Statement and,
thereafter, shall use its reasonable efforts to cause such Shelf Registration
Statement to be declared effective under the Securities Act within 180 calendar
days after the Issue Date; provided, however, that no Holder shall be entitled
to have the Registrable Securities held by it covered by such Shelf Registration
unless such Holder is in compliance with Section 3(m) hereof
(b) The Company shall use its reasonable efforts:
(i) To keep the Shelf Registration Statement
continuously effective in order to permit the Prospectus
forming part thereof to be usable by Holders for a period of
three years from the later of a) the Issue Date or b) the last
date of original issuance of the Securities or such shorter
period that will terminate upon the earliest of the following:
(A) when all the Securities covered by the Shelf Registration
Statement have been sold pursuant to the Shelf Registration
Statement, (B) when all shares of Common Shares issued upon
conversion of any such Securities that had not been sold
pursuant to the Shelf Registration Statement have been sold
pursuant to the Shelf Registration Statement and (C) when
there shall cease to be outstanding Registrable Securities (in
any such case, such period being called the "Effectiveness
Period"); and
(ii) After the effectiveness of the Shelf
Registration Statement, promptly upon the request of any
Holder, to take any action reasonably necessary to register
the
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sale of any Registrable Securities of such- Holder and to
identify such Holder as a selling securityholder.
The Company shall be deemed not to have used its reasonable efforts to keep the
Shelf Registration Statement effective during the requisite period if the
Company voluntarily takes any action that would result in Holders of Registrable
Securities covered thereby not being able to offer and sell any such Registrable
Securities during that period, unless (i) such action is required by applicable
law, (ii) the continued effectiveness of the Shelf Registration Statement would
require the Company to disclose a material financing, acquisition or other
corporate transaction, and the Management Board shall have determined in good
faith that such disclosure is not in the best interests of the Company and the
holders of its outstanding Common Shares, or (iii) the Management Board shall
have determined in good faith that there is a valid business purpose or reason
for such suspension, and (x), in the case of clause (i) above, the Company
thereafter promptly complies with the requirements of paragraph 3(i) below and
(y) in the case of clauses (ii) and (iii) above, the Company complies with its
obligations, if any, to pay Liquidated Damages.
(c) (1) If (i) on or prior to 90 days following the Issue Date
a Shelf Registration Statement has not been filed with the Commission or (ii) on
or prior to the 180th day following the Issue Date, such Shelf Registration
Statement is not declared effective (each, a "Registration Default"), additional
interest ("Liquidated Damages") will accrue on the Restricted Securities from
and including the date following such Registration Default until such time as
such Shelf Registration Statement is filed or such Shelf Registration Statement
is declared effective, as the case may be. Liquidated Damages will be paid
semi-annually in arrears, with the first semi-annual payment due on the first
Interest Payment Date under the Indenture following the date on such Liquidated
Damages begin to accrue, and will accrue at a rate per annum equal to an
additional one-quarter of one percent (0.25%) of the principal amount, to and
including the 90th day following such Registration Default and one-half of one
percent (0.50%) thereof from and after the 91 st day following such Registration
Default. In the event that Shelf Registration Statement ceases to be effective
for more than 90 days or the Company suspends the use of the prospectus which is
a part thereof for more than 90 days, whether or not consecutive, during any
12-month period, then the interest rate borne by Restricted Securities will
increase by an additional one-half of one percent (0.50%) per annum from the 91
st day of the applicable 12-month period such Shelf Registration Statement
ceases to be effective or the Company suspends the use of the prospectus which
is a part thereof, as the case may be, until the earlier of such time as (i) the
Shelf Registration Statement again becomes effective, (ii) the use of the
related prospectus ceases to be suspended or (iii) the Effectiveness Period
expires. Following the cure of all Registration Defaults relating to any
Restricted Securities, the accrual of Liquidated Damages with respect to such
Restricted Securities will cease (without in any way limiting the effect of any
subsequent Registration Default). In no event shall the Company be required to
pay Liquidated Damages in excess of the applicable maximum amount of one-half of
one percent (0.50%) set forth above, regardless of whether one or multiple
Registration Defaults exist.
(2) Liquidated Damages on the Restricted Securities
shall be paid by the Company to the holders of record of such Restricted
Securities on each Interest Payment Date (as
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defined in the Indenture) in the same manner as for interest on such Restricted
Securities as provided in the form of Securities set forth in Section 2.2 of the
Indenture.
(3) All of the Company's obligations set forth in
this Section 2(c) which are unsatisfied to any extent with respect to any
Restricted Security at the time such security ceases to be a Restricted Security
shall survive until such time as all such obligations with respect to such
security have been satisfied in full (notwithstanding the earlier termination of
this Agreement).
(4) Any payments due and payable pursuant to this
Section 2(c) shall be subordinated to Senior Indebtedness (as defined in the
Indenture) to the extent and in the manner set forth in the Indenture.
(5) The rights of the recordholders of Restricted
Securities to Liquidated Damages as set forth in this Section 2(c) is not
intended to be exclusive of any other right or remedy, and shall be in addition
to every other right and remedy given hereunder or under the Indenture or now or
hereafter existing at law or in equity or otherwise.
3. REGISTRATION PROCEDURES. In connection with any Shelf Registration
Statement, the following provisions shall apply:
(a) The Company shall furnish to the Special Counsel and
Holders (if requested), prior to the filing thereof with the
Commission, a copy of any Shelf Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein and shall use its reasonable efforts to
reflect in each such document, when so filed with the Commission, such
comments as the Special Counsel and Holders reasonably may propose.
(b) The Company shall take such action as may be necessary so
that (1) any Shelf Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any amendment or supplement
thereto (and each report or other document incorporated therein by
reference in each case) complies in all material respects with the
Securities Act and the Exchange Act, (ii) any Shelf Registration
Statement and any amendment thereto does not, when it becomes
effective, contain an 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 and (iii) any Prospectus
forming part of any Shelf Registration Statement, and any amendment or
supplement to such Prospectus, does not include an untrue statement of
a material fact or omit to state a material fact necessary in order to
make the statements, in the light of the circumstances under which they
were made, not misleading.
(c) (1) The Company shall advise the Initial Purchasers and,
in the case of clause (i), the Holders and, if requested by the Initial
Purchasers or any such Holder, confirm such advice in writing:
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(i) when a Shelf Registration Statement and any
amendment thereto has been filed with the Commission and when
the Shelf Registration Statement or any post effective
amendment thereto has become effective; and
(ii) of any request by the Commission for amendments
or supplements to the Shelf Registration Statement or the
Prospectus included therein or for additional information.
(2) The Company shall advise the Electing Holders and, if
requested by any such Electing Holder, confirm such advice in writing
of:
(i) the issuance by the Commission of any stop order
suspending effectiveness of the Shelf Registration Statement
or the initiation of any proceedings for that purpose;
(ii) the receipt by the Company of any notification
with respect to the suspension of the qualification of the
securities included therein for sale in any jurisdiction or
the initiation of any proceeding for such purpose; and
(iii) the happening of any event that requires the
making of any changes in the Shelf Registration Statement or
the Prospectus so that, as of such date, the Shelf
Registration Statement and the Prospectus do not contain an
untrue statement of a material fact and do not omit to state a
material fact required to be stated therein or necessary to
make the statements therein (in the case of the Prospectus, in
light of the circumstances under which they were made) not
misleading (which advice shall be accompanied by an
instruction to suspend the use of the Prospectus until the
requisite changes have been made).
(d) The Company shall use its reasonable efforts to prevent
the issuance, and if issued to obtain the withdrawal, of any order
suspending the effectiveness of any Shelf Registration Statement at the
earliest possible time.
(e) The Company shall furnish to the Special Counsel and each
Electing Holder (if requested) with respect to a Shelf Registration
Statement, without charge, at least one copy of such Shelf Registration
Statement and any post-effective amendment thereto, including financial
statements and schedules, and, if the Electing Holder so requests in
writing, all reports, other documents and exhibits (including those
incorporated by reference).
(f) The Company shall, during the Effectiveness Period,
deliver to each Electing Holder with respect to a Shelf Registration
Statement, without charge, as many copies of the Prospectus (including
each preliminary Prospectus) included in such Shelf Registration
Statement and any amendment or supplement thereto as such Electing
Holder may reasonably request, and the Company consents (except during
the continuance of any event described in Section 3(c)(2)(iii)) to the
use of the Prospectus or any amendment or supplement thereto by
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each of the Electing Holders in connection with the offering and sale
of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto during the Effectiveness Period.
(g) Prior to any offering of Registrable Securities pursuant
to any Shelf Registration Statement, the Company shall register or
qualify or cooperate with the Special Counsel and Electing Holders in
connection with the registration or qualification of such Registrable
Securities for offer and sale under the securities or blue sky laws of
such jurisdictions as any such Electing Holders reasonably request in
writing and do any and all other acts or things necessary or advisable
to enable the offer and sale in such jurisdictions of the Registrable
Securities covered by such Shelf Registration Statement; provided,
however, that in no event shall the Company be obligated to (i) qualify
as a foreign corporation or as a dealer in securities in any where it
would not otherwise be required to so qualify but for this Section
3(g), (ii) file any general consent to service of process in any where
it is not as of the date hereof then so subject or (iii) subject itself
to taxation in any jurisdiction if it is not so subject.
(h) Unless any Registrable Securities shall be in book-entry
only form, the Company shall cooperate with the Electing Holders to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold pursuant to any Shelf
Registration Statement free of any restrictive legends and in such
permitted denominations and registered in such names as Electing
Holders may request in connection with the sale of Registrable
Securities pursuant to such Shelf Registration Statement.
(i) Upon the occurrence of any event contemplated by paragraph
3(c)(2)(iii) above, the Company shall promptly prepare a post-effective
amendment to any Shelf Registration Statement or an amendment or
supplement to the related Prospectus or FILE any other required
document so that, as thereafter delivered to purchasers of the
Registrable Securities included therein, the Prospectus will not
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. If the
Company notifies the Electing Holders of the occurrence of any event
contemplated by paragraph 3(c)(2)(iii) above, the Electing Holders
shall suspend the use of the Prospectus until the requisite changes to
the Prospectus have been made.
(j) Not later than the effective date of any Shelf
Registration Statement hereunder, the Company shall provide a CUSIP
number for the Securities registered under such Shelf Registration
Statement.
(k) The Company shall use its reasonable efforts to comply
with all applicable rules and regulations of the Commission and shall
make generally available to their securityholders or otherwise provide
in accordance with Section 11(a) of the Securities Act as soon as
practicable after the effective date of the applicable Shelf
Registration Statement an earnings statement satisfying the provisions
of Section 11(a) of the Securities Act.
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(1) The Company shall cause the Indenture and the Securities
to be qualified under the Trust Indenture Act in a timely manner, and
in connection with such qualification, the Company shall cooperate with
the Trustee under the Indenture and the Holders (as defined in the
Indenture) to effect such changes to the Indenture as may be required
for such Indenture to be so qualified in accordance with the terms of
the Trust Indenture Act; and the Company shall execute and use all
reasonable efforts to cause the Trustee to execute, all documents that
may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner.
(m) The Company may require each Electing Holder with respect
to a Shelf Registration Statement to furnish to the Company such
information regarding the Electing Holder and the distribution of
Registrable Securities held by such Electing Holder as may be required
by applicable law or regulation for inclusion in such Shelf
Registration Statement (including, without limitation, the information
required by Item 507 of Regulation S-K of the Securities Act), and the
Company may exclude from such registration the Registrable Securities
of any Electing Holder that fails to furnish such information within a
reasonable time after receiving such request.
(n) The Company shall enter into such customary agreements
(including underwriting agreements in customary form) to take all other
appropriate actions in order to expedite or facilitate the registration
or the disposition of the Registrable Securities, and in connection
therewith, if an underwriting agreement is entered into pursuant to an
underwritten offering in accordance with the provisions of Section 6,
cause the same to contain indemnification provisions and procedures
substantially identical to those set forth in Section 5 (or such other
provisions and procedures acceptable to the Managing Underwriters, if
any) with respect to all parties to be indemnified pursuant to Section
5.
(o) The Company shall make reasonably available for inspection
by one representative of the Electing Holders designated in writing by
the Holders of a majority of the Registrable Securities to be
registered thereunder, any underwriter participating in any disposition
pursuant to such Shelf Registration Statement, and any attorney,
accountant or other agent retained by such representative or any such
underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and its subsidiaries;
(p) The Company shall cause the Company's officers, directors
and employees to make reasonably available for inspection all relevant
information reasonably requested by such representative or any such
underwriter, attorney, accountant or agent in connection with any such
Shelf Registration Statement, in each case, as is customary for similar
due diligence examinations; provided, however, that any information
that is designated in writing by the Company, in good faith, as
confidential at the time of delivery of such information shall be kept
confidential by such representative, any Holders or any such
underwriter, attorney, accountant or agent, unless such disclosure is
made in connection with a court proceeding or
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required by law, or such information becomes available to the public
generally or through a third party without an accompanying obligation
of confidentiality;
(q) The Company will use its reasonable efforts to cause the
Common Shares issuable upon conversion of the Securities to be admitted
for quotation on the Nasdaq National Market or other stock exchange or
trading system on which the Common Shares primarily trades on or prior
to the effective date of any Shelf Registration Statement hereunder.
(r) In the event that any broker-dealer registered under the
Exchange Act shall underwrite any Registrable Securities or participate
as a member of an underwriting syndicate or selling group or "assist in
the distribution" (within the meaning of the Rules of Fair Practice and
the By-Laws of the National Association of Securities Dealers, Inc.
("NASD")) thereof, whether as a Holder of such Registrable Securities
or as an underwriter, a placement or sales agent or a broker or dealer
IN respect thereof, or otherwise, assist such broker-dealer in
complying with the requirements of such Rules and By-Laws, including,
without limitation, by (A) such Rules or By-Laws, including Schedule E
thereto, shall so require, engaging a "qualified independent
underwriter" (as defined in Schedule E) to participate in the
preparation of the Shelf Registration Statement relating to such
Registrable Securities and to exercise usual standards of due diligence
in respect thereto, (B) indemnifying any such qualified independent
underwriter to the extent of the indemnification of underwriters
provided in Section 5 hereof and (C) providing such information to
such broker-dealer as may be required in order for such broker-dealer
to comply with the requirements of the Rules of Fair Practice of the
NASD.
(s) The Company shall use its reasonable efforts to take all
other steps necessary to effect the registration, offering and sale of
the Registrable Securities covered by the Shelf Registration Statement
contemplated hereby.
(t) Notwithstanding any provision of this Section 3 to the
contrary, the Company shall not be required to amend or supplement the
Shelf Registration Statement pursuant to the requirements of Sections
3(b), 3(c), 3(i) or 3(s) hereof if (i) such amendment or supplement
would require the Company to disclose a material financing, acquisition
or corporate transaction and the Management Board shall have determined
that such disclosure is not in the best interests of the Company and
the holders of its outstanding Common Shares or (ii) the Management
Board shall have determined in good faith that there is a valid
business purpose or reason for suspending the use of the Prospectus
included in such Shelf Registration Statement in accordance with
Section 3(i) hereof instead of making such amendment or supplement,
provided that in each such case the Company complies with its
obligations, if any, to pay Liquidated Damages.
4. REGISTRATION EXPENSES. Except as otherwise provided in Section 6,
the Company shall bear all fees and expenses incurred in connection with the
performance of its obligations under Sections 2 and 3 hereof and shall bear or
reimburse the Electing Holders for the reasonable fees and
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disbursements of a Special Counsel designated by the Company. For purposed of
this Agreement, the Company initially appoints Shearman & Sterling as Special
Counsel- provided that the Holders of a majority of the Registrable Securities
covered by the Shelf Registration Statement have the right pursuant to this
Agreement to substitute another firm of counsel as Special Counsel under this
Agreement.
5. INDEMNIFICATION AND CONTRIBUTION. (a) In connection with any Shelf
Registration Statement, the Company shall indemnify and hold harmless each
Electing Holder, each underwriter who participates in an offering of Registrable
Securities, each person, if any, who controls any of such parties within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act
and each of their respective directors, officers, employees. trustees and
agents, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, including any amounts paid in settlement of any
investigation, litigation, proceeding or claim, joint or several. as
incurred, arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Shelf Registration
Statement (or any amendment thereto) covering Registrable Securities,
including all documents incorporated therein by reference, or the
omission or alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in any Prospectus (or any
amendment or supplement thereto) or the omission or alleged omission
therefrom of a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; provided. that the Company shall not be liable under
this clause (i) for any settlement of any action effected without its
written consent, which consent shall not be unreasonably withheld-, and
(ii) against any and all expenses whatsoever, as incurred
(including reasonable fees and disbursements of counsel chosen by the
Electing Holders, such Electing Holder or any underwriter (except to
the extent otherwise expressly provided in Section 5(c) hereof)),
reasonably incurred in investigating, preparing or defending against
any litigation, or any investigation or proceeding by any court or
governmental agency or body, commenced or threatened, or any claim
whatsoever based upon any such untrue statement or omission, or any
such alleged untrue statement or omission, to the extent that any such
expense is not paid under subparagraph (i) of this Section 5(a);
provided that this indemnity shall not apply to any loss, liability, claim,
damage or expense to the extent arising out of an untrue statement or omission
or alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by such Electing Holder or any
underwriter in writing expressly for use in the Shelf Registration Statement (or
any amendment thereto) or any Prospectus (or any amendment or supplement
thereto). Any amounts advanced by the Company to an indemnified party pursuant
to this Section 5 as a result of such losses shall be returned to the Company if
it shall be finally determined by such a court in a judgment not subject to
appeal or final review that such indemnified party was not entitled to
indemnification by the Company.
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(b) Each Electing Holder shall agree, severally and not jointly, to
indemnify and hold harmless the Company, each underwriter who participates in an
offering of Registrable Securities and the other Electing Holders and each of
their respective directors, officers (including each officer of the Company who
signed the Shelf Registration Statement), employees, trustees and agents and
each Person, if any, who controls the Company, any underwriter or any other
Electing Holder within the meaning of Section 15 of the Securities Act or
Section 20 of the Exchange Act, from and against any and all loss, liability,
claim, damage and expense whatsoever described in the indemnity contained in
Section 5(a)(i) and (ii) hereof, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Shelf Registration Statement (or any amendment thereto) or any Prospectus (or
any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Electing Holder expressly
for use in the Shelf Registration Statement (or any amendment thereto) or any
Prospectus (or any amendment or supplement thereto); provided, however, that, no
such Electing Holder shall be liable for any claims hereunder in excess of the
amount of net proceeds received by such Electing Holder from the sale of
Registrable Securities pursuant to the Shelf Registration Statement.
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, enclosing a copy of all papers served on such
indemnified party, but failure to so notify an indemnifying party shall not
relieve it of any liability which it may have to the indemnified party otherwise
than on account of this indemnity agreement. An indemnifying party may
participate at its own expense in the defense of any such action. If an
indemnifying party so elects within a reasonable time after receipt of such
notice, such indemnifying party, jointly with any other indemnifying party, may
assume the defense of such action with counsel chosen by it and approved by the
indemnified party or parties defendant in such action, provided that if any such
indemnified party reasonably determines that there may be legal defenses
available to such indemnified party which are different from or in addition to
those available to such indemnifying party or that representation of such
indemnifying party and any indemnified party by the same counsel would present a
conflict of interest, then such indemnifying party or parties shall not be
entitled to assume such defense. If an indemnifying party is not entitled to
assume the defense of such action as a result of the proviso to the preceding
sentence, counsel for such indemnifying party shall be entitled to conduct the
defense of such indemnifying party and counsel for each indemnified party or
parties shall be entitled to conduct the defense of such indemnified party or
parties. If an indemnifying party assumes the defense of an action in accordance
with and as permitted by the provisions of this paragraph, such indemnifying
party shall not be liable for any fees and expenses of counsel for the
indemnified parties incurred thereafter in connection with such action. In no
event shall the indemnifying party or parties be liable for the fees and
expenses of more than one counsel (in addition to any local counsel) separate
from its own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnity provision agreement provided for in this
Section 5 is for any reason held to be unavailable to the indemnified parties
although applicable in accordance with its terms, the Company, and the Electing
Holders shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of
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the nature contemplated by said indemnity agreement incurred by the Company and
the Electing Holders, as incurred; provided 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. As between the Company, on the one hand, and the
Electing Holders, on the other hand, such parties shall contribute to such
aggregate losses, liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement in such proportion as shall be
appropriate to reflect the relative fault of the Company, on the one hand, and
the Electing Holders, on the other hand, with respect to the statements or
omissions which resulted in such loss, liability, claim, damage or expense, or
action in respect thereof, as well as any other relevant equitable
considerations. The relative fault of the Company, on the one hand, and of the
Electing Holders, on the other hand, 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 Company, on the one hand, or by or on behalf of the
Electing Holders, on the other hand, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and the Initial Purchasers agree, and the
Electing Holders shall agree, that it would not be just and equitable if
contribution pursuant to this Section 5 were to be determined by pro rata
allocation or by any other method of allocation that does not take into account
the relevant equitable considerations. For purposes of this Section 5(d), each
director, officer, employee, trustee, agent and Person, if any, who controls a
Holder within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act shall have the same rights to contribution as such Holder, and
each director, officer, employee, trustee and agent of the Company, and each
Person, if any, who controls the Company within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act shall have the same rights to
contribution as the Company. No party shall be liable for contribution with
respect to any action, suit, proceeding or claim settled without its written
consent.
(e) The Company may require, as a condition to including any
Registrable Securities in any Registration Statement filed and to entering into
any underwriting agreement with respect thereto, that the Company shall have
received an undertaking reasonably satisfactory to it from the holder of such
Registrable Securities and from each underwriter named in any such underwriting
agreement, severally and not jointly, to comply with the provisions of
paragraphs (a) through (d) of this Section 5.
6. UNDERWRITTEN OFFERING. The Electing Holders who desire to do so may
sell Registrable Securities in an underwritten offering. In any such
underwritten offering, the investment banker or bankers and manager or managers
that will administer the offering will be selected by, and the underwriting
arrangements with respect thereto will be approved by the Holders of a majority
of the Registrable Securities to be included in such offering- provided,
however, that (i) such investment bankers and managers and underwriting
arrangements must be reasonably satisfactory to the Company and (ii) the Company
shall not be obligated to arrange for more than one underwritten offering during
the Effectiveness Period. No Holder may participate in any underwritten offering
contemplated hereby unless such Holder (a) agrees to sell such Holder's
Registrable Securities in accordance with any approved underwriting
arrangements, (b) completes and executes all reasonable questionnaires, powers
of attorney, indemnities, underwriting agreements, lock-up letters and other
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documents required under the terms of such approved underwriting arrangements
and (c) at least 20% of the outstanding Registrable Securities are included in
such underwritten offering. The Holders participating in any underwritten
offering shall be responsible for any expenses customarily borne by selling
securityholders, including underwriting discounts and commissions and fees and
expenses of counsel to the selling securityholders and shall reimburse the
Company for the fees and disbursements of their counsel, their independent
public accountants and any printing expenses incurred in connection with such
underwritten offerings. Notwithstanding the foregoing or the provisions of
Section 6(a) hereof, upon receipt of a request from the Managing Underwriter or
a representative of Holders of a majority of the Registrable Securities
outstanding to prepare and file an amendment or supplement to the Shelf
Registration Statement and Prospectus in connection with an underwritten
offering, the Company may delay the filing of any such amendment or supplement
for up to 90 days if the Company in good faith has a valid business reason for
such delay.
The Company shall in connection with an underwritten offering in
accordance with the provisions of this Section:
(a) The Company shall, if requested, promptly include or
incorporate IN a Prospectus supplement or post-effective amendment to a
Shelf Registration Statement, such information as the Managing
Underwriters administering an underwritten offering of Registrable
Securities registered thereunder reasonably request to be included
therein and to which the Company does not reasonably object and shall
make all required filings of such Prospectus supplement or
post-effective amendment as soon as practicable after they are notified
of the matters to be included or incorporated in such Prospectus
supplement or posteffective amendment;
(b) make such representations and warranties to the Electing
Holders and the underwriters in form, substance and scope as are
customarily made by the Company to under-writers in primary
underwritten offerings and covering matters, including, but not limited
to, those set forth in the Purchase Agreement;
(c) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Managing Underwriters)
addressed to each Electing Holder and the underwriters covering such
matters as are customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably
requested by such Electing Holders and underwriters (it being agreed
that the matters to be covered by such opinion or written statement by
such counsel delivered in connection with such opinions shall include
in customary form, without limitation, as of the date of the opinion
and as of the effective date of the Shelf Registration Statement or
most recent post-effective amendment thereto, as the case may be, the
absence from such Shelf Registration Statement and the prospectus
included therein, as then amended or supplemented, including the
documents incorporated by reference therein, of an untrue statement of
a material fact or the omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading);
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(d) obtain "cold comfort" letters and updates thereof from the
independent public accountants of the Company (and, if necessary, any
other independent public accountants of any subsidiary of the Company
or of any business acquired by the Company for which financial
statements and financial data are, or are required to be, included in
the Shelf Registration Statement), addressed to each Electing Holder
and the underwriters IN customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
primary underwritten offerings; and
(e) deliver such documents and certificates as may be
reasonably requested by any such Electing Holders and the Managing
Underwriters, including those to evidence compliance with Section 3(i)
and with any customary conditions contained in the underwriting
agreement or other agreement entered into by the Company.
7. MISCELLANEOUS.
(a) Other Registration Rights. The Company may grant
registration rights that would permit any Person that is a third party the right
to piggyback on any Shelf Registration Statement, provided that if the Managing
Underwriter, if any, of such offering delivers an opinion to the Electing
Holders that the total amount of securities which they and the holders of such
piggyback rights intend to include in any Shelf Registration Statement is so
large as to materially adversely affect the success of such offering (including
the price at which such securities can be sold), then only the amount, the
number or kind of securities to be offered for the account of holders of such
piggyback rights will be reduced to the extent necessary to reduce the total
amount of securities to be included in such offering to the amount, number or
kind recommended by the Managing Underwriter prior to any reduction in the
amount of Registrable Securities to be included.
(b) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co.
Limited.
(c) Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing by hand-delivery, first-class
mail, telex, telecopier, or air courier guaranteeing overnight delivery:
(1) if to a Holder, at the most current address given
by such Holder to the Company in accordance with the
provisions of this Section 7(c);
(2) if to the Initial Purchasers, initially at the
address set forth in the Purchase Agreement;
(3) if to the Company, initially at its address set
forth in the Purchase Agreement; and
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(4) if to the Special Counsel, the address given by
such Special Counsel to the Company in accordance with the pro
visions of this Section 7(c).
All such notices and communications shall be deemed to have been duly given when
received.
The Initial Purchasers or the Company by notice to the other may
designate additional or different addresses for subsequent notices or
communications.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
and the Holders, including, without the need for an express assignment or any
consent by the Company thereto, subsequent Holders of Registrable Securities.
The Company hereby agrees to extend the benefits of this Agreement to any Holder
of Registrable Securities and any such Holder may specifically enforce the
provisions of this Agreement as if an original party hereto.
(e) Counterparts. This agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof
(g) Governing Law. This agreement shall be governed by and
construed in accordance with the laws of the State of New York, United States of
America, without giving effect to any provisions relating to conflicts of laws.
(h) Severability. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be IN any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
(i) Jurisdiction. Each of the parties hereto irrevocably (i)
agrees that any legal suit, action or proceeding against the Company brought by
any Initial Purchaser or by any person who controls any Initial Purchaser
arising out of or based upon this Agreement or the transactions contemplated
hereby may be instituted in any New York court, (ii) waives, to the fullest
extent it may effectively do so, any objection which it may now or hereafter
have to the laying of venue of any such proceeding and (iii) submits to the
exclusive jurisdiction of such courts in any such suit, action or proceeding.
The Company irrevocably waives any immunity to to which ti may otherwise be
entitled or become entitled (including sovereign immunity, immunity to
pre-judgment attachment, post-judgment attachment and execution) in any legal
suit, action or proceeding against it by any Initial Purchaser arising out of or
based on this Agreement or the transactions contemplated hereby which is
instituted in any New York court or in any competent court in The Netherlands.
The
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Company has appointed CT Corporation System, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, as its authorized agent (the "Authorized Agent") upon whom process may be
served in any such action by any Initial Purchaser arising out of or based on
this Agreement or the transactions contemplated hereby which maybe instituted in
any New York court by any Initial Purchaser or by any person who controls, any
Initial Purchaser expressly consents to the Jurisdiction of any such court in
respect of any such action, and waives any other requirements of or objections
to personal jurisdiction with respect thereto. Such appointment shall be
irrevocable. The Company represent and warrants that the Authorized Agent has
agreed to act as such agent for service of process and agrees to take any and
all action, including the filing of any and all documents and instruments, that
may be necessary to continue such appointment in full force and effect as
aforesaid. Service of process upon the Authorized Agent and written notice of
such service to the Company shall be deemed, in every respect, effective service
of process upon the Company as the case may be.
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Please confirm that the foregoing correctly sets forth the agreement between the
Company and you.
Very truly yours,
BAAN COMPANY N.V.
By: /s/ Jan Baan
------------------------------------
Jan Baan, on behalf of Jan Baan,
B.V., Managing Director with the
title of Chief Executive Officer
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & CO. LIMITED
Acting severally on behalf of itself
and the several Initial Purchasers named herein.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & CO. LIMITED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------
Title: Managing Director
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