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EXHIBIT 99.4
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made
and entered into as of May 15, 1997, by and among i2 Technologies, Inc., a
Delaware corporation (the "Company"), and the parties listed on Schedule 1
hereto (individually a "Holder" and collectively the "Holders").
RECITALS
A. The Company, Optimax Systems Corporation, a Delaware
corporation ("Optimax"), and OSC Acquisition Corporation, a Delaware
corporation and wholly owned subsidiary of the Company ("Merger Sub"), are
parties to an Agreement and Plan of Merger, dated as of May 15, 1997 (the
"Merger Agreement"), providing, among other things, for the merger of Merger
Sub with and into Optimax (the "Merger").
B. The execution and delivery of this Agreement by the
Company and each Holder is a condition to the closing of the Merger pursuant to
the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and other
good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms shall have
the meanings indicated:
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" means the Company's Common Stock, par value
$0.00025 per share.
"Demand Registration" means the registration referred to in
Section 2.2(a) hereof.
"Initial Registration" means the registration provided for in
Section 2.1 hereof.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
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"Pooling Period" means the period beginning at the Effective
Time of the Merger (as defined in the Merger Agreement) and continuing until
such time as financial results covering at least 30 days of combined operations
of the Company and Optimax (on a consolidated basis) shall have been published
by the Company within the meaning of Section 201.01 of the Commission's
Codification of Financial Reporting Policies.
"Potential Material Event" means any of the following: (a)
the possession by the Company of material non-public information required to be
disclosed in the registration statement and the determination in good faith by
the Board of Directors of the Company that disclosure of such information in
the registration statement at that time would be detrimental to the business
and affairs of the Company; or (b) any material engagement or activity by the
Company which would, in the good faith determination of the Board of Directors
of the Company, if disclosed in the registration statement at such time, be
adversely affected, which determination shall be accompanied by a good faith
determination by the Board of Directors of the Company that the registration
statement would be materially misleading absent the inclusion of such
information.
"Registration Expenses" means all expenses incident to the
Company's performance of Article II of this Agreement, including without
limitation all registration and filing fees, fees and expenses of compliance
with securities or blue sky laws, printing expenses, messenger and delivery
expenses, fees of transfer agents and registrars, and fees and expenses of
counsel and all independent certified public accountants, underwriters
(excluding underwriting discounts, brokerage fees and selling commissions on
shares sold by the Holders, which shall be paid by the selling stockholders out
of the proceeds of the applicable offering) and other Persons retained by the
Company.
"Registrable Stock" means (a) all Common Stock received and to
be received by the Holders in connection with the Merger and (b) any securities
issued or issuable with respect to such shares of Common Stock by way of a
stock dividend or stock split or in connection with a combination or
reclassification of shares, recapitalization, merger, consolidation or other
reorganization or otherwise; provided, however, that any particular Registrable
Stock shall cease to be Registrable Stock when (x) a registration statement
with respect to the sale of such stock shall become effective under the
Securities Act and such stock shall have been disposed of in accordance with
such registration statement or (y) such stock shall have been sold pursuant to
Rule 144; and provided, further, that all Registrable Stock held by a
particular Holder shall cease to be Registrable Stock when all such stock may
be disposed of by such Holder within a single three (3)-month period pursuant
to Rule 144.
"Rule 144" means Rule 144 (or any successor provision) under
the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
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ARTICLE II
REGISTRATION RIGHTS
2.1 Initial Registration. Immediately following the
closing of the Merger (the "Closing"), the Company agrees to use commercially
reasonable efforts to register the offering of fifty percent (50%) of the
shares of Registrable Stock issued to each Holder in the Merger such that such
registration shall become effective immediately upon the expiration of the
Pooling Period.
2.2 Requests for Registration.
(a) Commencing on the 300th day after the Closing
and continuing until the 90th day after the first anniversary of the
Closing, the Holders of at least 66 2/3% of the Registrable Stock then
outstanding may request (on one occasion only) the Company to register
the offering of not less than twenty percent (20%) and not more than
all of the shares of Registrable Stock issued to the Holders in the
Merger.
(b) Any request for a Demand Registration (a
"Registration Request") shall specify (i) the number of shares of
Registrable Stock held by the requesting Holders that are requested to
be included in such registration and (ii) the intended method of
distribution of such shares. The Company will promptly give notice of
such requested registration to all other Holders of Registrable Stock
and, subject to Section 2.2(c), will include in such registration all
shares of Registrable Stock that Holders of Registrable Stock have
requested the Company to include in such registration by notice to the
Company within 20 days after the date of sending of the Company's
notice.
(c) If the Holders making a Registration Request
intend to distribute the Registrable Stock covered by such request by
means of an underwriting (an "Underwritten Offering"), then such
Holders shall so advise the Company as a part of their Registration
Request and the Company shall include such information in the written
notice referred to in Section 2.2(b). In such event, the right of the
Holders to include their Registrable Stock in such registration shall
be conditioned upon the Holders participation in such underwriting and
the inclusion of the Holders' Registrable Stock in the underwriting.
Any Registrable Stock excluded and withdrawn from such underwriting
shall be withdrawn from the registration. Notwithstanding any other
provision of this Agreement, if the managing underwriter determines in
good faith that marketing factors require a limitation of the number
of shares to be underwritten, then the managing underwriter may
exclude shares (including Registrable Stock) from the registration and
the underwriting, and the number of shares that may be included in the
registration and the underwriting shall be allocated, first, pro rata
among the Holders of Registrable Stock requesting to be included in
such registration on the basis of the number of shares that such
Holders have requested be included in the registration, second, to the
Company, third, pro rata among all other security holders having
contractual rights to include their securities in such registration on
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the basis of the number of shares that such holders have requested to
be included in the registration, and fourth, to all other security
holders requesting to include securities in such registration. For
any Holder which is a partnership or corporation, the partners,
retired partners and stockholders of such 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 persons 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.
2.3 Selection of Managing Underwriter(s). The Company
will have the exclusive right to select one or more underwriters to manage any
offering which is the subject of a Demand Registration, subject to the approval
of a majority of the shares of Registrable Stock requested to be included in
such registration, which approval shall not be unreasonably withheld.
2.4 Right to Defer Registration. No Registration Request
shall require a registration statement requested therein to become effective
(i) prior to the effective date of a registration statement filed by the
Company covering a firm commitment underwritten public offering of Common Stock
being sold for the account of the Company if the Company shall have given
written notice in the manner provided in Section 2.5 below of such registration
statement to the Holders prior to the receipt of a Registration Request and
shall have thereafter pursued the preparation, filing and effectiveness of such
registration statement with diligence (it being understood by such Holders that
advance notice of the pendency of such registration may be material, non-public
information) or (ii) if the Company shall furnish to the Holders a certificate
signed by the Chairman of the Board of the Company stating that, in the good
faith judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such registration to the
effected at such time, in which event the Company shall have the right to defer
the filing of the registration statement for a period of not more than sixty
(60) days after receipt of the Registration Request.
2.5 Piggyback Registrations.
(a) Right to Piggyback. If prior to the first
anniversary of the Closing the Company proposes to register any
offering of its securities under the Securities Act in a firm
commitment underwritten public offering (other than pursuant to the
Initial Registration, a Demand Registration, or on Form X-0, Xxxx X-0
or any successor form) and the registration form to be used permits
the registration of an offering of Registrable Stock by the Holders (a
"Piggyback Registration"), the Company will give prompt notice to all
Holders of Registrable Stock of its intention to effect such a
registration (each a "Piggyback Notice"). Subject to Section 2.5(b)
below and the limitations set forth in the following sentence, the
Company will include in such registration all shares of Registrable
Stock that the Holders thereof have requested the Company to include
in such registration by notice to the Company within 20 days after the
date of sending of the Company's notice. Notwithstanding any
provision of this Agreement to the contrary, the number of
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shares of Registrable Stock which any Holder will be permitted to
include in any such Piggyback Registration shall not exceed (i) for
any Piggyback Registration commenced during the first 180 days
following the Closing, twenty-five percent (25%) of the shares of
Registrable Stock issued to such Holder in the Merger less any such
shares previously sold by such Holder or then included in any
registration hereunder or otherwise and (ii) for any Piggyback
Registration first declared effective by the Commission after the
180-day period described in clause (i) above and prior to the first
anniversary of the Closing, fifty percent (50%) of the shares of
Registrable Stock issued to such Holder in the Merger less any such
shares previously sold by such Holder or then included in any
registration hereunder or otherwise.
(b) Priority on Primary Registrations. The right
of any such Holder's Registrable Stock to be included in a Piggyback
Registration shall be conditioned upon such Holder's participation in
such underwriting and the inclusion of such Holder's Registrable Stock
in the underwriting to the extent provided herein. Notwithstanding
any other provision of this Agreement, if the managing underwriter
determines in good faith that marketing factors require a limitation
of the number of shares to be underwritten, then the managing
underwriter may exclude shares (including Registrable Stock) from the
registration and the underwriting, and the number of shares that may
be included in the registration and the underwriting shall be
allocated, first, to the Company, second, pro rata among all security
holders having contractual rights to include their securities in such
registration (including the Holders) on the basis of the number of
shares that such holders have requested (consistent with their
contractual rights) to be included in the registration, and third, to
all other security holders requesting to include securities in such
registration. If any Holder disapproves of the terms of any such
underwriting, such Holder may elect to withdraw therefrom by written
notice to the Company and the managing underwriter. Any Registrable
Stock 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 such 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 persons 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.
2.6 Registration Procedures. In connection with the
Initial Registration and whenever the Holders of Registrable Stock have
requested that any Registrable Stock be registered pursuant to a Demand
Registration, the Company will use commercially reasonable efforts to effect
the registration and the sale of such Registrable Stock in accordance with the
intended method of distribution thereof and will as expeditiously as possible:
(a) prepare and file with the Commission a
registration statement with respect to such Registrable Stock and use
commercially reasonable efforts to cause such registration statement
to become effective; provided, however, that the Company shall not
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be obligated to cause the Initial Registration to become effective
prior to the expiration of the Pooling Period; and provided, further,
that before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company will furnish to the
counsel, if any, selected by the Holders of a majority of the
Registrable Stock covered by such registration statement copies of all
such documents proposed to be filed, which documents will be subject
to the reasonable comments of such counsel;
(b) prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to keep
such registration statement effective for a period of up to 270 days
plus any additional periods represented by any "Black-Out Period" (as
defined in the last paragraph of this Section 2.6), and comply with
the provisions of the Securities Act with respect to the disposition
of all securities covered by such registration statement during such
period in accordance with the intended methods of distribution by the
sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Stock
such number of copies of such registration statement, each amendment
and supplement thereto, the prospectus included in such registration
statement (including each preliminary prospectus) and such other
documents as such seller may reasonably request in order to facilitate
the disposition of the Registrable Stock then held, owned and being
registered by such seller;
(d) use commercially reasonable efforts to
register or qualify such Registrable Stock under such other securities
or blue sky laws of such jurisdictions as any seller reasonably
requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate
the disposition in such jurisdictions of the Registrable Stock then
held, owned and being registered by such seller; provided, however,
that the Company will not be required (i) to qualify generally to do
business in any jurisdiction where it would not otherwise be required
to qualify but for this subsection (d), (ii) to subject itself to
taxation in any such jurisdiction or (iii) to consent to general
service of process in any such jurisdiction;
(e) notify each seller of such Registrable Stock,
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
contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading and, at the
request of any such seller, the Company will prepare a supplement or
amendment to such prospectus so that, as thereafter delivered to the
purchasers of such Registrable Stock, such prospectus will not contain
an untrue statement of a material fact or omit to state any fact
necessary to make the statements therein, in light of the
circumstances under which such statements are made, not misleading;
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(f) cause all such Registrable Stock to be listed
on each securities exchange on which similar securities issued by the
Company are then listed and to be qualified for trading on each system
on which similar securities issued by the Company are from time to
time qualified;
(g) provide a transfer agent and registrar for
all such Registrable Stock not later than the effective date of such
registration statement and thereafter maintain such a transfer agent
and registrar;
(h) enter into such customary agreements
(including underwriting agreements in customary form) and take all
such other actions as the holders of a majority of the shares of
Registrable Stock being sold or the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of such
Registrable Stock;
(i) make available for inspection by any
underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent
retained by any such underwriter, all financial and other records,
pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by any such
underwriter, attorney, accountant or agent in connection with such
registration statement;
(j) otherwise use commercially reasonable efforts
to comply with all applicable rules and regulations of the Commission,
and make available to its security holders, as soon as reasonably
practicable, an earnings statement covering the period of at least 12
months beginning with the first day of the Company's first full
calendar quarter after the effective date of the registration
statement, which earnings statement shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder;
(k) permit any Holder of Registrable Stock which
might be deemed, in the reasonable judgment of such Holder, to be an
underwriter or a controlling person of the Company, to participate in
the preparation of such registration or comparable statement and to
require the insertion therein of material, furnished to the Company in
writing, which in the reasonable judgment of such Holder and its
counsel, if any, should be included; and
(l) in the event of the issuance of any stop
order suspending the effectiveness of a registration statement, or of
any order suspending or preventing the use of any related prospectus
or suspending the qualification of any Registrable Stock included in
such registration statement for sale in any jurisdiction, the Company
will use commercially reasonable efforts promptly to obtain the
withdrawal of such order.
Each Holder of shares covered by a registration statement agrees that if the
Company has delivered preliminary or final prospectuses to such Holder and
after having done so the Company
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shall give notice to such Holder that (i) the prospectus needs to be amended or
supplemented to comply with the requirements of the Securities Act, (ii) a stop
order suspending the effectiveness of the registration statement is issued by
the Commission or (iii) a Potential Material Event shall exist, then each such
Holder and each such Holder shall immediately cease making offers and sales of
Registrable Stock and return all remaining prospectuses to the Company.
Following such amendment or supplement, the lifting of any stop order or such
time as the Potential Material Event shall no longer exist, the Company shall
promptly provide such Holders with revised prospectuses and, following receipt
of the revised prospectuses, such Holders shall be free to resume making offers
of the Registrable Stock, or any portion thereof. The period during which the
Company exercises its rights as described in this paragraph to postpone, delay
or interrupt the offer and sale of the Registrable Stock or during the pendency
of any stop order, injunction or other order or requirement of the Commission
or any other governmental agency or court shall be referred to herein as a
"Black-Out Period."
2.7 Payment of Expenses. The Company shall pay all
Registration Expenses in connection with the Initial Registration, any Demand
Registration and any Piggyback Registration. All fees and disbursements of
counsel, accountants and other experts retained by the Holders shall be borne
by such Holders. All underwriting discounts, brokerage fees and selling
commissions applicable to sales of Registrable Stock by a Holder shall be borne
by such Holder.
2.8 Participation in Underwritten Registrations. No
Holder may participate in any registration hereunder which is underwritten
unless such Holder (a) agrees to sell such Holder's securities on the basis
provided in any underwriting arrangements approved by the Person or Persons
entitled hereunder to approve such arrangements; (b) completes and executes all
questionnaires, powers of attorney, indemnities, standstill or holdback
agreements, underwriting agreements and other documents required under the
terms of such underwriting arrangements, provided that no Holder of Registrable
Stock included in any underwritten registration shall be required to make any
representations or warranties to the Company or the underwriters other than
representations and warranties regarding such Holder and such Holder's intended
method of distribution; and (c) if requested by the managing underwriter,
agrees not to sell or otherwise dispose of Registrable Stock or other Company
securities held by such Holder in any transaction other than pursuant to such
underwriting for such period (not to exceed 180 days) as determined in the
discretion of the Board of Directors of the Company (such agreement to be in
writing in a form satisfactory to the Company and such managing underwriter),
provided that no Holder of Registrable Stock shall be required to enter into
such an agreement unless each other Holder of Registrable Stock participating
in such offering, each director and executive officer of the Company enters
into a substantially identical agreement relating to such underwriting. The
Company may impose stop-transfer instructions to its transfer agent with
respect to the Registrable Stock and other securities subject to the
restriction described in clause (c) above until the end of the lock-up period.
2.9 Information of the Holders. As a condition to
participation in any registration hereunder, each Holder shall furnish to the
Company such information regarding such
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Holder and the distribution proposed by the Holder as the Company may
reasonably request and as shall be required in connection with any
registration, qualification or compliance contemplate by this Agreement.
ARTICLE III
INDEMNIFICATION
3.1 Indemnification by the Company. The Company agrees
to indemnify, to the extent permitted by law, each Holder, its officers and
directors and each Person who controls such Holder (within the meaning of the
Securities Act) against all losses, claims, damages, liabilities and expenses
caused by any untrue or alleged untrue statement of material fact contained in
any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein not misleading, except insofar as the same are caused by or
contained in any information furnished in writing to the Company by such
Holder, its officers and directors and each Person who controls such Holder
expressly for use therein or by such Holder's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto
after the Company has furnished such Holder with a sufficient number of copies
of the same. In connection with an underwritten offering, the Company will
indemnify such underwriters, their officers and directors and each Person who
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the
Holders.
3.2 Indemnification by Holders. In connection with any
registration statement in which a Holder is participating, each such Holder
will, to the extent permitted by law, indemnify the Company, its directors and
officers and each Person who controls the Company (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities and expenses
resulting from any untrue or alleged untrue statement of material fact
contained in the registration statement, prospectus or preliminary prospectus
or any amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading (but only to the extent that such untrue
statement or omission is contained in any information or affidavit so furnished
in writing by such Holder) and any failure by each such Holder to deliver a
copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such Holder with a
sufficient number of copies of the same; provided, however, that the obligation
to indemnify will be individual to each Holder and will be limited to the net
amount of proceeds received by such Holder from the sale of Registrable Stock
pursuant to such registration statement.
3.3 Notice: Defense of Claims. Any Person entitled to
indemnification hereunder will (a) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (b) unless in such indemnified party's reasonable judgment
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a conflict of interest between such indemnified and indemnifying parties may
exist with respect to such claim, permit such indemnifying party to assume the
defense of such claim with counsel reasonably satisfactory to the indemnified
party. If such defense is assumed, the indemnifying party will not be subject
to any liability for any settlement made by the indemnified party without its
consent (but such consent will not be unreasonably withheld). An indemnifying
party who is not entitled to, or elects not to, assume the defense of a claim
will not be obligated to pay the fees and expenses of more than one counsel for
all parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party a conflict of
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim.
3.4 Contribution. If the indemnification provided for in
this Article III is unavailable or insufficient to hold harmless an indemnified
party under Section 3.1 or 3.2, then each indemnifying party shall contribute
to the amount paid or payable by such indemnified party as a result of the
losses, claims, damages or liabilities referred to above (a) in such proportion
as is appropriate to reflect the relative benefits received by the indemnifying
party on the one hand and the indemnified party on the other from the offering
of the securities or (b) if the allocation provided by clause (a) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (a) above but also the
relative fault of the indemnifying party on the one hand and the indemnified
party on the other in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities, as well as any other equitable
considerations. The relative benefits received by the indemnifying party on
the one hand and the indemnified party on the other shall be deemed to be in
the same proportion as the total net proceeds from the offering received by the
indemnifying party bear to the total net proceeds received by the indemnified
party. The relative fault 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 related to
information supplied by the indemnifying party or written information supplied
by indemnified party, and the parties' relevant intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the first sentence of this
Section 3.4 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or
defending against any action or claim that is the subject of this section. 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
who was not guilty of such fraudulent misrepresentation.
3.5 Survival. The indemnification provided for under
this Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
director or controlling Person of such indemnified party and will survive the
transfer of securities.
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ARTICLE IV
MISCELLANEOUS
4.1 Notices. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered personally
or by commercial delivery service, or mailed by registered or certified mail
(return receipt requested) or sent via facsimile (with confirmation of receipt)
to the parties at the following address (or at such other address for a party
as shall be specified by like notice):
(a) if to the Company, to:
i2 Technologies, Inc.
000 X. Xxx Xxxxxxx Xxxx., 00xx Xxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Fax: (000) 000-0000
Tel: (000) 000-0000
with a copy (which shall not constitute
notice) to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
(b) If to a Holder, at the appropriate address as
listed on Schedule 1 hereto.
4.2 Remedies Cumulative. Except as otherwise provided
herein, any and all remedies herein expressly conferred upon a party will be
deemed cumulative with and not exclusive of any other remedy conferred hereby,
or by law or equity upon such party, and the exercise by a party of any one
remedy will not preclude the exercise of any other remedy.
4.3 Amendments and Waivers. Except as otherwise provided
herein, no amendment, modification, termination or cancellation of this
Agreement shall be effective as to (a) the Company, unless made in writing
signed by the Company or (b) the Holders of Registrable Stock, unless made in
writing signed by the Holders of a majority of the then outstanding shares of
Registrable Stock.
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4.4 Successors and Assigns. This Agreement, and the
rights and obligations of each Holder hereunder, may be assigned, only with the
prior written consent of the Company, by such Holder to any Person to which
Registrable Stock is transferred by such Holder. Any such transferee shall be
deemed a "Holder" for purposes of this Agreement.
4.5 Registrable Stock Held in Escrow; Termination. The
parties acknowledge that, pursuant to the terms of the Merger Agreement and an
Escrow Agreement entered into in connection with the Merger, certain shares of
Registrable Stock shall be held in escrow. The parties agree that in no event
shall shares of Registrable Stock be included in any registration under this
Agreement unless such shares are released from such escrow prior to or at the
time such registration becomes effective. Notwithstanding anything to the
contrary herein, all registration rights under this Agreement granted to the
Holders shall terminate on the second anniversary of the closing of the Merger.
4.6 Severability. In the event that any provision of this
Agreement, or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further
agree to replace such void or unenforceable provision of this Agreement with a
valid and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
4.7 Entire Agreement. This Agreement constitutes the
entire agreement among the parties with respect to the subject matter hereof
and supersedes all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
4.8 Headings. The headings of this Agreement are for
convenience only and do not constitute a part of this Agreement.
4.9 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Texas (other than the
conflicts of law principles thereof). Each of the parties hereto irrevocably
consents to the exclusive jurisdiction of any court located within the State of
Texas, in connection with any matter based upon or arising out of this
Agreement or the matters contemplated herein, agrees that process may be served
upon them in any manner authorized by the laws of the State of Texas for such
persons and waives and covenants not to assert or plead any objection which
they might otherwise have to such jurisdiction and such process.
4.10 Further Assurances. Each party to this Agreement
hereby covenants and agrees, without the necessity of any further
consideration, to execute and deliver any and all such further documents and
take any and all such other actions as may be necessary to
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appropriately carry out the intent and purposes of this Agreement and to
consummate the transactions contemplated hereby.
4.11 Counterparts. This Agreement may be executed in one
or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.
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IN WITNESS WHEREOF, the Company and the Holders have executed
this Agreement as of the date first written above.
i2 TECHNOLOGIES, INC.
By:/s/Xxxxx X. Xxxx
------------------------------------
Xxxxx X. Xxxx
Vice President and
Chief Financial Officer
HOLDERS:
/s/Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx
/s/Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx
BOLT XXXXXXX & XXXXXX, INC.
By:
-----------------------------------
Name:
Title:
/s/Xxxxx X. Xxxxxx
---------------------------------------
Xxxxx X. Xxxxxx
/s/Xxx Xxxxxx
---------------------------------------
Xxx Xxxxxx
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/s/Xxxxx Xxxxxxx
---------------------------------------
Xxxxx Xxxxxxx
THE VENTURE CAPITAL FUND OF NEW
ENGLAND III, L.P.
By:
----------------------------------
Name:
Title:
SOLSTICE CAPITAL L.P.
By:
----------------------------------
Name:
Title:
/s/Xxxxxxx X. Xxxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxxx
/s/Xxxxx Xxxxxx
---------------------------------------
Xxxxx Xxxxxx
/s/Xxxxxxx Xxxx
---------------------------------------
Xxxxxxx Xxxx
/s/Xxxxxxx X. Xxxxx
---------------------------------------
Xxxxxxx X. Xxxxx
/s/S. Zelda Gamzu
---------------------------------------
S. Zelda Gamzu
/s/Xxxxxx Xxxxxxxx
---------------------------------------
Xxxxxx Xxxxxxxx
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SCHEDULE 1
Name of Holder Address No. of Shares
-------------- ------- -------------
COMMON STOCK
------------
Xxxxxxx X. Xxxxxxxx 00 Xxxx Xxxxxx 344,816
Xxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxx 00 Xxxxxxxxx Xxxx 258,612
Xxxxxxxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxx 00 Xxxxxxxx Xxxxxx 258,612
Xxxxxx, XX 00000
Bolt Xxxxxxx & Xxxxxx, Inc. 000 Xxxxxxxxx Xxxx Xxxxx 000,000
Xxxxxxxxx, XX 00000
Xxxxx X. Xxxxxx 00 Xxxxxxxx Xxxx 000
Xxxxxx, XX 00000
Xxx Xxxxxx 00 Xxxx Xxxxxx 000
Xxxxxxxxx, XX 00000
Xxxxx Xxxxxxx 000 Xxxxxxxxxxx Xxxx 0,000
Xxxxxxxxxx, XX 00000
The Venture Capital Fund of 000 Xxxxxxx Xxxxxx, 00xx Floor 103,444
New England III, L.P. Xxxxxx, XX 00000
Solstice Capital 00 Xxxxx Xxxxxx 00,000
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxxxxxx 00 Xxxxxxxxxxxx Xxxxxx 35,495
Xxxxxxxxx, XX 00000
Xxxxx Xxxxxx 00 Xxxxxxxx Xxxxxx 00,000
Xxxxxxxxxx, XX 00000
Xxxxxxx Xxxx 000 Xxxxxx Xxxxxx 00,000
Xxxxxxx, XX 00000
Xxxxxxx X. Xxxxx 00 Xxxxx Xxx 10,141
Xxxxxxxx, XX 00000
S. Zelda Gamzu 00 Xxxxxxx Xxxx 00,000
Xxxxxx Xxxxxx, XX 00000
Xxxxxx Xxxxxxxx 000 Xxxxxx Xxxxxx 00,000
Xxxxxxxxx, XX 00000
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