EXHIBIT 4.4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into as of
the 5th day of December, 2001, by and among DOCUMENTUM, INC., a Delaware
corporation (the "Company"), and THE BULLDOG GROUP INC., an Ontario corporation
("Bulldog" or the "Stockholder"). Capitalized terms used and not otherwise
defined herein shall have the meanings assigned to them in the Acquisition
Agreement (as hereinafter defined).
RECITALS
WHEREAS, an Asset Purchase Agreement (the "Acquisition Agreement") has
been entered into of even date herewith among Documentum Canada Company, a Nova
Scotia company ("Buyer"), the Stockholder, Empower Computerware Inc., an Ontario
corporation ("Empower"), The Bulldog Group US, Inc., a Delaware corporation
("Bulldog US") and The Bulldog Group UK Limited, an English company ("Bulldog
UK") (the Stockholder, Empower, Bulldog US and Bulldog UK shall be collectively
referred to as the "Sellers"), pursuant to which the Buyer will direct the
Company to issue shares of the Company's Common Stock (the "Shares") to Bulldog
in trust for the Sellers in connection with the acquisition by the Buyer of
certain assets from the Sellers.
WHEREAS, the Acquisition Agreement provides that the Stockholder be
granted certain registration rights with respect to the Shares as set forth in
the Agreement.
NOW, THEREFORE, in consideration of the mutual promises, representations,
warranties, covenants and conditions set forth in this Agreement and in the
Acquisition Agreement, the parties mutually agree as follows:
ARTICLE 1
GENERAL
1.1 DEFINITIONS. As used in this Agreement the following terms shall have
the following respective meanings:
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FORM S-3" means such form under the Securities Act as in effect on the
date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
"HOLDER" means the Stockholder and any permitted transferees under this
Agreement.
"REGISTER," "REGISTERED," AND "REGISTRATION" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of effectiveness of such
registration statement or document.
1.
"REGISTRABLE SECURITIES" means (i) the Shares and (ii) any Common Stock of
the Company issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, the
Shares. Notwithstanding the foregoing, Registrable Securities shall not include
any securities sold by a person to the public either pursuant to a registration
statement or Rule 144 promulgated under the Securities Act of 1933 ("Rule 144")
or sold in a private transaction, except a transfer or assignment described in
Section 2.8(a).
"REGISTRATION EXPENSES" shall mean all expenses incurred by the Company in
complying with Section 2.2 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, blue sky fees and expenses, accounting fees and the
expense of any special audits incident to or required by any such registration.
"SEC" OR "COMMISSION" means the Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the sale.
"SHARES" shall mean the Company's Common Stock issued to the Stockholder
pursuant to the Acquisition Agreement (excluding the Escrowed Shares).
ARTICLE 2
REGISTRATION; RESTRICTIONS ON TRANSFER
2.1 RESTRICTIONS ON TRANSFER.
(a) The Holder agrees not to make any disposition of all or any
portion of the Registrable Securities unless and until (A) there is then in
effect a registration statement under the Securities Act covering such proposed
disposition and such disposition is made in accordance with such registration
statement, or (B) such transfer is made according to Sections (a)(i) or (a)(ii)
below and the transferee has agreed in writing for the benefit of the Company to
be bound by this Section 2.1.
(i) (A) The Holder shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (B) if
reasonably requested by the Company, the Holder shall have furnished the Company
with an opinion of counsel, reasonably satisfactory to the Company, that such
disposition will not require registration of such shares under the Securities
Act. It is agreed that the Company will not require notification or opinions of
counsel for transactions made pursuant to Rule 144.
2.
(ii) Notwithstanding the foregoing, no such registration
statement or opinion of counsel shall be necessary for a transfer by the Holder
which is (A) a partnership to its partners or former partners in accordance with
partnership interests, (B) a corporation to its stockholders in accordance with
their interest in the corporation, (C) a limited liability company to its
members or former members in accordance with their interest in the limited
liability company, or (D) to the Holder's family member or trust for the benefit
of an individual Holder; provided that in each case the transferee will be
subject to the terms of this Agreement to the same extent as if he were an
original Holder hereunder.
(b) Each certificate representing the Shares shall (unless otherwise
permitted by the provisions of the Agreement) be stamped or otherwise imprinted
with legends substantially similar to the following (in addition to any legend
required under applicable state securities laws or as provided elsewhere in the
Agreement):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND
MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THESE SHARES UNDER THE SECURITIES ACT AND
APPLICABLE STATE SECURITIES LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO
THE COMPANY THAT REGISTRATION IS NOT REQUIRED AND THAT AN APPLICABLE
EXEMPTION IS AVAILABLE OR AS PROVIDED IN SECTION 2.1 OF THAT CERTAIN
REGISTRATION RIGHTS AGREEMENT BETWEEN THE COMPANY AND THE BULLDOG GROUP
INC, DATED DECEMBER 5, 2001.
(c) The Company shall be obligated to reissue promptly unlegended
certificates at the request of any holder thereof if the holder shall have
obtained an opinion of counsel (which counsel may be counsel to the Company)
reasonably acceptable to the Company to the effect that the securities proposed
to be disposed of may lawfully be so disposed of without registration,
qualification or legend.
(d) Any legend endorsed on an instrument pursuant to applicable
state securities laws and the stop-transfer instructions with respect to such
securities shall be removed upon receipt by the Company of an order of the
appropriate blue sky authority authorizing such removal.
2.2 FORM S-3 REGISTRATION. To the extent that the Registrable Securities
have not been registered pursuant to Section 2.3, the Company has agreed to file
with the SEC a Form S-3 registration statement covering the Registrable
Securities and to use commercially reasonable efforts to cause such registration
statement to become effective not later than 180 days from the date hereof.
3.
Notwithstanding any other provision of this Agreement, the Stockholder
understands that there may be periods during which the Company's Board of
Directors may determine, in good faith, that it is in the best interest of the
Company and its stockholders to defer disclosure of material non-public
information and that during such periods sales of Registrable Securities and the
effectiveness of any registration statement covering Registrable Securities may
be suspended or delayed. Each Holder of Registrable Securities agrees by
acquisition of such Registrable Securities that upon receipt of any notice from
the Company of the development of any material non-public information, the
Holder will forthwith discontinue the Holder's disposition of Registrable
Securities pursuant to the registration statement relating to such Registrable
Securities until the Holder's receipt of copies of an appropriately supplemented
or amended prospectus (the "Blackout Period") and, if so directed by the
Company, the Holder will use commercially reasonable efforts to deliver to the
Company (at the Company's expense) all copies, other than permanent file copies
then in the Holder's possession, of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice. Notwithstanding the
foregoing, (i) the aggregate duration of all Blackout Periods in any one hundred
eighty (180) day period shall not exceed thirty (30) days.
The Company shall not be required to effect more than one (1) registration
pursuant to this Section 2.2.
2.3 PIGGYBACK REGISTRATION.
(a) The Company shall notify the Holders of Registrable Securities
in writing at least fifteen (15) days prior to the filing of any registration
statement under the Securities Act for purposes of a public offering of
securities of the Company (including, but not limited to, registration
statements relating to secondary offerings of securities of the Company, but
excluding any registration statement on Form S-4 or S-8) and will afford each
the Holder an opportunity to include in such registration statement all or part
of such Registrable Securities held by the Holder. The Holder desiring to
include in any such registration statement all or any part of the Registrable
Securities held by it shall, within fifteen (15) days after the above-described
notice from the Company, so notify the Company in writing. Such notice shall
state the intended method of disposition of the Registrable Securities by the
Holder. If the Holder decides not to include all of its Registrable Securities
in any registration statement thereafter filed by the Company, the Holder shall
nevertheless continue to have the right to include any Registrable Securities in
any subsequent registration statement or registration statements as may be filed
by the Company with respect to offerings of its securities, all upon the terms
and conditions set forth herein.
(b) UNDERWRITING. If the registration statement under which the
Company gives notice under this Section 2.3 is for an underwritten offering, the
Company shall so advise the Holders of Registrable Securities. In such event,
the right of the Holder to be included in a registration pursuant to this
Section 2.3 shall be conditioned upon the Holder's participation in such
underwriting and the inclusion of the Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their Registrable Securities through such underwriting shall enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for such underwriting by the Company. Notwithstanding
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any other provision of this Agreement, if the underwriter determines in good
faith that marketing factors require a limitation of the number of shares to be
underwritten, the number of shares that may be included in the underwriting
shall be allocated, first, to the Company; second, to the holders of the
Company's Common Stock who have been granted registration rights (whether under
this Agreement or any other agreement) on a pro rata basis based on the total
number of registrable securities (as defined in the applicable grant of
registration right) held by the Holders; and third, to any stockholder of the
Company (other than the Holder) on a pro rata basis. If any Holder disapproves
of the terms of any such underwriting, the Holder may elect to withdraw
therefrom by written notice to the Company and the underwriter, delivered at
least ten (10) business days prior to the effective date of the registration
statement. Any Registrable Securities excluded or withdrawn from such
underwriting shall be excluded and withdrawn from the registration. For any
Holder which is a partnership or corporation, the partners, retired partners and
stockholders of the Holder, or the estates and family members of any such
partners and retired partners and any trusts for the benefit of any of the
foregoing person shall be deemed to be a single "Holder," and any pro rata
reduction with respect to such "Holder" shall be based upon the aggregate amount
of shares carrying registration rights owned by all entities and individuals
included in such "Holder," as defined in this sentence.
(c) RIGHT TO TERMINATE REGISTRATION. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Section 2.3 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration. The Registration
Expenses of such withdrawn registration shall be borne by the Company in
accordance with Section 2.4 hereof.
2.4 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration pursuant to Section 2.2 and Section 2.3 shall
be borne by the Company. All Selling Expenses incurred in connection with any
registrations hereunder, shall be borne by the Holders registered pro rata on
the basis of the number of shares so registered by such Holder.
2.5 OBLIGATIONS OF THE COMPANY. In connection with the registration of the
Registrable Securities under Section 2.2 and 2.3, the Company shall, as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use all reasonable efforts to cause
such registration statement to become effective, and keep such registration
statement effective until the date one (1) year from the date of this Agreement
or, if earlier, until the Holder or Holders have completed the distribution
related thereto. Notwithstanding the foregoing, if the distribution is not
complete on the first anniversary of the date of this Agreement and the Company
is not satisfying the requirements of section (c) of Rule 144, the Company shall
keep the registration statement effective until the earlier of the second
anniversary of the date of this Agreement or the date Holder or Holders have
completed their distribution related thereto.
(b) Prepare and file with the SEC such amendments and supplements to
such registration statement and the prospectus used in connection with such
registration statement as
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may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement.
(c) Furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
as a result of which the prospectus included in such registration statement, as
then in effect, includes an 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 in the light of the circumstances then
existing.
(f) Notify the Holders promptly after any registration statement (or
any supplement or amendment thereto) pursuant to Section 2.2 or 2.3 is declared
effective.
(g) Advise the Holders promptly after it shall receive notice or
obtain knowledge thereof, of the issuance of any stop order by the SEC and
promptly use all commercially reasonable efforts to prevent the issuance of any
stop order or obtain the withdrawal if such stop order has been issued.
2.6 TERMINATION OF REGISTRATION RIGHTS. All registration rights granted
under this Article II shall terminate and be of no further force and effect on
the earlier of (i) one (1) year after the date of this Agreement, or (ii) the
date on which all Registrable Securities covered by the registration statement
have been sold.
2.7 DELAY OF REGISTRATION. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Article 2.
2.8 ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the Company to
register Registrable Securities pursuant to this Article 2 may be assigned by
the Holder to a transferee or assignee of Registrable Securities which (a) is a
subsidiary, parent, shareholder, general partner, limited partner, retired
partner, member or former member of the Holder, or (b) is the Holder's family
member or trust for the benefit of an individual Holder; provided, however, (i)
the transferor shall, within twenty (20) days after such transfer, furnish to
the Company written notice of the name and address of such transferee or
assignee and the securities with respect to
6.
which such registration rights are being assigned and (ii) such transferee shall
agree to be subject to all restrictions set forth in this Agreement.
2.9 INDEMNIFICATION.
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, the partners, shareholders, officers, directors and
legal counsel of each Holder, any underwriter (as defined in the Securities Act)
for the Holder and each person, if any, who controls the Holder or underwriter
within the meaning of the Securities Act or the Exchange Act, against any
losses, claims, damages, or liabilities (joint or several) to which they may
become subject under the Securities Act, the Exchange Act or other federal or
state law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "Violation") by the Company: (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law in
connection with the offering covered by such registration statement; and the
Company will reimburse each such Holder, partner, shareholder, officer,
director, legal counsel, underwriter or controlling person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided however,
that the indemnity agreement contained in this Section 2.9(a) shall not apply to
amounts paid in settlement of any such loss, claim, damage, liability or action
if such settlement is effected without the prior written consent of the Company,
which consent shall not be unreasonably withheld, nor shall the Company be
liable in any such case for any such loss, claim, damage, liability or action to
the extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by the Holder, partner, officer,
director, legal counsel, underwriter or controlling person of the Holder.
(b) To the extent permitted by law, each Holder will, if Registrable
Securities held by the Holder are included in the securities as to which such
registration qualifications or compliance is being effected, indemnify and hold
harmless the Company, each of its directors, its officers, and legal counsel and
each person, if any, who controls the Company within the meaning of the
Securities Act, any underwriter and any other Holder selling securities under
such registration statement or any of such other Holder's partners, directors or
officers or any person who controls the Holder, against any losses, claims,
damages or liabilities (joint or several) to which the Company or any such
director, officer, controlling person, underwriter or other the Holder, or
partner, director, officer or controlling person of such other Holder may become
subject under the Securities Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereto) arise out of or are based upon any Violation, in each case to
the extent (and only to the extent) that such Violation occurs in
7.
reliance upon and in conformity with written information furnished by the Holder
under an instrument duly executed by the Holder and stated to be specifically
for use in connection with such registration; and the Holder will reimburse any
legal or other expenses reasonably incurred by the Company or any such director,
officer, legal counsel, controlling person, underwriter or other Holder, or
partner, officer, director, legal counsel or controlling person of such other
Holder in connection with investigating or defending any such loss, claim,
damage, liability or action if it is judicially determined that there was such a
Violation; provided, however, that the indemnity agreement contained in this
Section 2.9(b) 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 the Holder, which consent shall not be unreasonably withheld;
provided further, that in no event shall any indemnity under this Section 2.9
exceed the proceeds from the offering received by the Holder.
(c) Promptly after receipt by an indemnified party under this
Section 2.9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2.9, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 2.9, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 2.9.
(d) If the indemnification provided for in this Section 2.9 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any losses, claims, damages or liabilities referred to herein,
the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the Violation(s) that resulted in such
loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or
8.
omission; provided, that in no event shall any contribution by the Holder
hereunder exceed the proceeds from the offering received by the Holder.
(e) The obligations of the Company and Holders under this Section
2.9 shall survive completion of any offering of Registrable Securities in a
registration statement and the termination of this agreement. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation.
2.10 RULE 144 REPORTING.
(a) The Company agrees to use commercially reasonable efforts to:
(i) make and keep public information available, as those terms are described in
Rule 144 promulgated pursuant to SEC regulations, (ii) file with the SEC in a
timely manner all reports and other documents required by the Exchange Act, and
(iii) so long as a Holder holds Registrable Securities, furnish such Holder
within a reasonable period of time following a written request from such Holder,
a written statement by the Company as to its compliance with the items specified
in (i) and (ii) of this Section.
(b) All obligations of the Company under this Section 2.10 shall
terminate and be of no further force and effect on the earlier of (i) two (2)
years after the date of this Agreement, or (ii) the date on which no Holder
continues to hold Registrable Securities.
2.11 REPRESENTATIONS OF THE HOLDERS.
(a) Holder is a person or entity that is not a U.S. Person.
(b) The Shares acquired by the Holder will be acquired for
investment for the Holder's own account, not as a nominee or agent, and not for
the account or benefit of, a U.S. Person, and not with a view to the resale or
distribution of any part thereof in the "United States" or to a "U.S. Person",
and that Holder has no present intention of selling, granting any participation
in, or otherwise distributing the same.
(c) Holder does not have any contract, undertaking, agreement or
arrangement with any person to sell, transfer or grant participations to such
person or to any third person in the United States or to a U.S. Person, or any
hedging transaction with any third person in the United States or to a United
States resident, with respect to any of the Shares.
(d) Holder understands that the Shares are not registered under the
Securities Act on the ground that the sale provided for in this Agreement and
the issuance of securities hereunder is exempt from registration under the
Securities Act pursuant to Regulation S thereof, and that the Company's reliance
on such exemption is predicated on the Purchasers' representations set forth
herein.
9.
(e) Holder hereby agrees to resell such Shares only in accordance
with the provisions of Regulation S, pursuant to registration under the
Securities Act, or pursuant to an exemption from registration. Purchaser further
agrees not to engage in hedging transactions with regard to such Shares unless
in compliance with the Securities Act.
2.12 REPRESENTATIONS OF THE COMPANY.
(a) CAPITAL STRUCTURE. The authorized stock and outstanding stock of
the Company is as described in the Company's most recent filings with the
Securities and Exchange Commission since January 1, 2001 (the "SEC Documents"),
excluding the exercise of stock options and the issuance of shares pursuant to
the Company's employee stock purchase plan. Other than as set forth in the SEC
Documents or options granted to employees and consultants in the ordinary
course, there are no other options, warrants, calls, rights, commitments or
agreements of any character to which the Company is a party or by which it is
bound obligating the Company to issue, deliver, sell, repurchase or redeem, or
cause to be issued, delivered, sold, repurchased or redeemed, any shares of the
capital stock of the Company or obligating the Company to grant, extend or enter
into any such option, warrant, call, right, commitment or agreement.
(b) AUTHORITY. The Company has all requisite corporate power and
authority to enter into and to perform its obligations under this Agreement; and
the execution, delivery and performance by the Company of this Agreement (and
the transactions contemplated thereby) have been duly authorized by all
necessary action on the part of the Company and its board of directors. No vote
of the Company's stockholders is needed to approve this Agreement or the
transactions contemplated thereby. This Agreement constitutes the legal, valid
and binding obligation of the Company, enforceable against it in accordance with
its terms, subject to (i) laws of general application relating to bankruptcy,
insolvency and the relief of debtors, (ii) the extent that the enforceability of
the indemnification provisions in this Agreement may be limited by applicable
laws, and (iii) rules of law governing specific performance, injunctive relief
and other equitable remedies.
(c) VALID ISSUANCE. The shares of the Company's Common Stock to be
issued pursuant to this transaction will be duly authorized, validly issued,
fully paid, non-assessable, free of any liens or encumbrances and not subject to
any pre-emptive rights or rights of first refusal created by statute or the
Certificate of Incorporation or Bylaws of the Company or any agreement to which
the Company is a party or is bound.
(d) SEC DOCUMENTS; COMPANY FINANCIAL STATEMENTS. As of the time it
was filed with the SEC (or, if amended or superseded by a filing prior to the
date of this Agreement, then on the date of such filing) none of the SEC
Documents contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. The SEC Documents contain an audited consolidated balance
sheet of the Company as of December 31, 2000 and the related audited
consolidated statements of income and cash flow for the year then ended and the
Company's unaudited consolidated balance sheet as of September 30, 2001 (the
"Company Balance Sheet") and the related unaudited consolidated
10.
statements of income and cash flow for the nine-month period then ended
(collectively, the "Company Financials"). The Company Financials, and notes
thereto, are correct in all material respects and have been prepared in
accordance with GAAP.
(e) ABSENCE OF CERTAIN CHANGES. Since the date of the Company
Balance Sheet, there has not occurred any change, event or condition (whether or
not covered by insurance) that has resulted in or might reasonably be expected
to result in a material adverse effect on the business, financial condition or
results of operations of Parent and its subsidiaries, taken as a whole.
(f) S-3 ELIGIBILITY. The Company is eligible to use a Registration
Statement on Form S-3 for the registration of shares of its Common Stock for
resale by holders of such Common Stock.
(g) The representations and warranties of the Company made in this
Section 2.12 shall terminate on the Closing Date (as defined in the Asset
Purchase Agreement).
2.13 Holder understands and agrees that the certificates representing the
Shares shall bear the following legend, in addition to any other legends
required by applicable securities laws:
"THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED PURSUANT TO
REGULATION S OF THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), AND
MAY NOT BE SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED
EXCEPT IN ACCORDANCE THEREWITH, PURSUANT TO A REGISTRATION UNDER THE ACT
OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION.
ARTICLE 3
MISCELLANEOUS
3.1 GOVERNING LAW. This Agreement shall be governed by and construed under
the laws of the State of Delaware as applied to agreements among Delaware
residents entered into and to be performed entirely within Delaware.
3.2 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein,
the provisions hereof shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors, and administrators of the parties hereto.
3.3 SEPARABILITY. In case any provision of the Agreement shall be invalid,
illegal, or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
3.4 AMENDMENT AND WAIVER.
11.
(a) Except as otherwise expressly provided, this Agreement may be
amended or modified only upon the written consent of the Company and the holders
of a majority of the Registrable Securities.
(b) Except as otherwise expressly provided, the obligations of the
Company and the rights of the Holders under this Agreement may be waived only
with the written consent of the holders of at least a majority of the
Registrable Securities.
3.5 DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power, or remedy accruing to any Holder, upon any breach,
default or noncompliance of the Company under this Agreement shall impair any
such right, power, or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of any
similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent, or approval of any kind or character on
any Holder's part of any breach, default or noncompliance under the Agreement or
any waiver on the Holder's part of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, by law, or otherwise afforded to Holders, shall be cumulative and not
alternative.
3.6 NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient; if not, then on the next business
day, (iii) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (iv) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery.
All communications shall be sent to the party to be notified at the address as
set forth on Exhibit A or at such other address as such party may designate by
ten (10) days advance written notice to the other parties hereto.
3.7 ATTORNEYS' FEES. In the event that any suit or action is instituted to
enforce any provision in this Agreement, the prevailing party in such dispute
shall be entitled to recover from the losing party all fees, costs and expenses
of enforcing any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and expenses of
attorneys and accountants, which shall include, without limitation, all fees,
costs and expenses of appeals.
3.8 TITLES AND SUBTITLES. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
3.9 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
12.
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date set forth in the first paragraph hereof.
DOCUMENTUM, INC. BULLDOG GROUP, INC.
By:/s/ Xxxxx Xxxxxxx Xxxxx Xxxxxxxx
-------------------------------- -----------------------------------
Print Name
Title Vice President and Secretary /s/ Xxxxx Xxxxxxxx
------------------------------ -----------------------------------
Signature
0000 Xxxx Xxxxxx Xxxxxxx XXX
Xxxxxxxxxx, XX 00000 -----------------------------------
Title (if applicable)
Address:
13.
DOCUMENTUM, INC.
REGISTRATION RIGHTS AGREEMENT
DECEMBER 5, 2001
TABLE OF CONTENTS
PAGE
ARTICLE 1 GENERAL................................................................... 1
1.1 Definitions.................................................................. 1
ARTICLE 2 REGISTRATION; RESTRICTIONS ON TRANSFER.................................... 2
2.1 Restrictions on Transfer..................................................... 2
2.2 Form S-3 Registration........................................................ 3
2.3 Piggyback Registration....................................................... 4
2.4 Expenses of Registration..................................................... 5
2.5 Obligations of the Company................................................... 5
2.6 Termination of Registration Rights........................................... 6
2.7 Delay of Registration........................................................ 6
2.8 Assignment of Registration Rights............................................ 6
2.9 Indemnification.............................................................. 7
2.10 Rule 144 Reporting........................................................... 9
2.11 Representations of the Holders............................................... 9
2.12 Representations of the Company...............................................10
ARTICLE 3 MISCELLANEOUS.............................................................11
3.1 Governing Law................................................................11
3.2 Successors and Assigns.......................................................11
3.3 Separability.................................................................11
3.4 Amendment and Waiver.........................................................11
3.5 Delays or Omissions..........................................................12
3.6 Notices......................................................................12
3.7 Attorneys' Fees..............................................................12
3.8 Titles and Subtitles.........................................................12
3.9 Counterparts.................................................................12
i.
