EXHIBIT 10.15
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of September 26, 1997, by and between Software AG Systems, Inc., a
Delaware corporation (the "Company"), and Xxxxxx Equity Investors III, L.P., a
Delaware limited partnership, for the benefit of all holders of Registrable
Shares (as defined herein).
The parties hereby agree as follows:
1. Definitions. For purposes of this Agreement:
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(a) "Common Stock" means shares of the Company's common stock, par
value $0.01 per share;
(b) "Investors" means the holders of Registrable Shares on the date
hereof and any person or entity that acquires any shares of Common Stock from
any of such Investors after the date hereof in a transaction as a result of
which such shares constitute "restricted securities" under Rule 144 under the
Securities Act;
(c) "IPO Event" means the consummation of an underwritten public
offering pursuant to an effective registration statement under the Securities
Act that is underwritten by one or more nationally-recognized investment
banking firms;
(d) "Majority-in-Interest" means Investors who in the aggregate
hold more than 50% of the Registrable Shares as the time of determination;
(e) "Register," "registered," and "registration" refer to an
underwritten registration effected by preparing and filing with the Securities
and Exchange Commission (the "Commission") a registration statement or similar
document in compliance with the Securities Act, and the declaration or ordering
by the Commission of effectiveness of such registration statement or document;
(f) "Registration Expenses" means all expenses in connection with the
Company's performance of or compliance with its obligations under this
Agreement, including, without limitation, all (i) registration, qualification
and filing fees; (ii) fees, costs and expenses of compliance with securities or
blue sky laws (including reasonable fees, expenses and disbursements of counsel
for the underwriters in connection with blue sky qualifications of the
Registrable Shares under the laws of such jurisdictions as the managing
underwriter or underwriters in a registration may designate, subject to the
limitation as set forth in subsection (h) of Section 5 hereof); (iii) printing
expenses; (iv) messenger, telephone and delivery expenses;
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(v) fees, expenses and disbursements of counsel for the Company and of all
independent certified public accountants retained by the Company (including the
expenses of any special audit and "cold comfort" letters required by or incident
to such performance); (vi) Securities Act liability insurance if the Company so
desires; (vii) fees, expenses and disbursements of any other individuals or
entities retained by the Company in connection with the registration of the
Registrable Shares; (viii) fees, costs and expenses incurred in connection with
the listing of the Registrable Shares on each national securities exchange or
automated quotation system on which the Company has made application for the
listing of its Common Stock; and (ix) internal expenses of the Company
(including, without limitation, all salaries and expenses of its officers and
employees performing legal or accounting duties and expenses of any annual
audit). Registration Expenses shall not include selling commissions, discounts
or other compensation paid to underwriters or other agents or brokers to effect
the sale of Registrable Shares, or counsel fees and any other expenses incurred
by Investors in connection with any registration that are not specified in the
immediately preceding sentence;
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(g) "Registrable Shares" means shares of Common Stock held by any of
the Investors that cannot be sold by such Investor to the public without
registration under the Securities Act, including shares that may be sold under
Rule 144 if the total number of shares desired to be sold by such Investor
cannot be sold by such Investor under Rule 144 in a single transaction; and
(h) "Securities Act" means the Securities Act of 1933, as amended.
2. Demand Registrations.
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(a) Request for Registration. If a Majority-in-Interest submits a
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written request (a "Demand Notice") to the Company subsequent to an IPO Event
that the Company register Registrable Shares under and in accordance with the
Securities Act (a "Demand Registration"), then the Company shall:
(i) within 5 business days after receipt of such Demand
Notice, give written notice of the proposed registration to all other Investors;
and
(ii) as soon as practicable, use reasonable diligent efforts to
effect such registration as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Registrable
Shares as are specified in such request,
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together with all or such portion of the Registrable Shares of any Investors
joining in such request as are specified in written requests received by the
Company within 10 business days after the date the Company sends the written
notice referred to in clause (i) above.
Notwithstanding the foregoing, however, the Company shall not be
obligated to take any action to effect any such registration under this Section
2 within six months immediately following the effective date of any registration
statement pertaining to securities of the Company in which the Investors were
given the right to register Registrable Shares pursuant to the registration
rights described in Section 3 hereof and the number of Registrable Shares
included in such registration was not reduced from the number of Registrable
Shares requested to be included pursuant to Section 3(b). Nor shall the Company
be obligated to complete more than five Demand Registrations or more than one
Demand Registration on Form S-1 (or any successor form).
In addition, if the Company shall furnish to the Majority-in-Interest
under this Section 2 a certificate signed by the president 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
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Company or its stockholders for a registration statement to be filed on or
before the date filing would be required in connection with any Demand
Registration and it is therefore essential to defer the filing of such
registration statement, the Company shall have the right to defer such filing
for a reasonable period not to exceed an additional ninety (90) days provided
that such right shall not be exercised more than once with respect to a request
for registration hereunder; and in any such event, the Majority-in-Interest will
be entitled to withdraw their request for registration hereunder. If any such
request is withdrawn as provided in the immediately preceding sentence, such
registration will not be considered a permitted Demand Registration hereunder,
and the Company will pay all Registration Expenses in connection with such
withdrawn request for registration.
(b) Underwriting. In connection with any registration under this
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Section 2, if so requested, the Company shall enter into an underwriting
agreement with one or more underwriters selected by the Majority-in-Interest
having terms and conditions customary for such agreements.
3. Company Registration.
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(a) Notice of Registration. If at any time or from time to time, the
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Company shall determine to
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register any of its Common Stock, whether or not for its own account, other than
a registration relating to employee benefit plans or a registration relating to
a Rule 145 transaction, the Company shall:
(i) provide to each Investor written notice thereof at least
10 business days prior to the filing of the registration statement by the
Company in connection with such registration; and
(ii) include in such registration, and in any underwriting
involved therein, all those Registrable Shares specified in a written request by
each Investor received by the Company within 5 business days after the Company
sends the written notice referred to above, subject to the provisions of Section
3(b) below.
(b) Underwriting. The right of any Investor to registration pursuant
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to this Section 3 shall be conditioned upon the participation by such Investor
in the underwriting arrangements specified by the Company in connection with
such registration and the inclusion of the Registrable Shares of such Investor
in such underwriting to the extent provided herein. All Investors proposing to
distribute their Registrable Shares through such underwriting shall (together
with the Company) enter into an underwriting agreement in
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customary form with the managing underwriter selected for such underwriting by
the Company and take all other actions, and deliver such opinions and
certifications, as may be reasonably requested by such managing underwriter.
Notwithstanding any other provision of this Section 3, if the managing
underwriter determines that marketing factors require a limitation of the number
of shares to be underwritten, the managing underwriter may limit the number of
Registrable Shares to be included in such registration. The Company shall so
advise all Investors distributing Registrable Shares through such underwriting,
and there shall be excluded from such registration and underwriting, to the
extent necessary to satisfy such limitation, first shares held by the Investors
and, thereafter, to the extent necessary, shares which the Company wishes to
register for its own account. As among the Investors as a group, the number of
Registrable Shares that may be included in the registration and underwriting
shall be allocated among them in proportion, as nearly as practicable, to the
respective amounts of Registrable Shares required to be included (determined
without regard to any requirement of a request to be included in such
registration) in such registration held by all Investors at the time of filing
the registration statement. To
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facilitate the allocation of shares in accordance with the above provisions, the
Company may round the number of shares allocated to any Investor to the nearest
100 shares.
(c) Right to Terminate Registration. The Company shall have the right to
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terminate or withdraw any registration initiated by it under this Section 3
prior to the effectiveness of such registration whether or not any Investor has
elected to include Registrable Shares in such registration.
4. Expense of Registration. All Registration Expenses incurred in
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connection with the registration and other obligations of the Company pursuant
to Sections 2, 3 and 5 shall be borne by Company; provided, however, that
Company shall not be required to pay for expenses of any registration begun
pursuant to Section 2, the request for which has been subsequently withdrawn by
the Majority-in-Interest, in which case such expenses shall be borne by the
Majority-in-Interest pro rata in accordance with the number of Registrable
Shares initially sought to be registered, unless the Majority-in-Interest
withdraw their request for registration hereunder as a result of a deferral of
the filing of such registration statement at the request of
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the Company, in which case, the Company will pay all Registration Expenses in
connection with such registration.
5. Registration Procedures. If and whenever the Company is required by
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the provisions of this Agreement to effect the registration of Registrable
Shares, the Company shall:
(a) promptly prepare and file with the Commission a registration
statement with respect to such Registrable Shares, and use its reasonable
diligent efforts to cause such registration statement to become effective as
promptly as practicable and remain effective thereafter as provided herein,
provided that prior to filing a registration statement or prospectus or any
amendments or supplements thereto, including documents incorporated by reference
after the initial filing of any registration statement, the Company will furnish
to each of the Investors whose Registrable Shares are covered by such
registration statement, their counsel and the underwriters copies of all such
documents proposed to be filed sufficiently in advance of filing to provide them
with a reasonable opportunity to review such documents and comment thereon;
(b) prepare and file with the Commission such amendments (including
post-effective amendments)
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and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration statement
effective and current and to comply with the provisions of the Securities Act
with respect to the sale or other disposition of all Registrable Shares covered
by such registration statement, including such amendments (including post-
effective amendments) and supplements as may be necessary to reflect the
intended method of disposition by the prospective seller or sellers of such
Registrable Shares, but (except for a shelf registration) for no longer than 120
days subsequent to the effective date of such registration statement;
(c) provide customary indemnity and contribution arrangements to any
qualified independent underwriter or qualified independent pricer as defined in
Schedule E of the Bylaws of the National Association of Securities Dealers, Inc.
(a "Qualified Independent Underwriter/Pricer"), if requested by such Qualified
Independent Underwriter/Pricer, on such reasonable terms as such Qualified
Independent Underwriter/Pricer customarily requires;
(d) subject to receiving reasonable assurances of confidentiality, for
a reasonable period after the filing of such registration statement, and
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throughout each period during which the Company is required to keep a
registration effective, make available for inspection by the selling holders of
Registrable Shares being offered, and any underwriters, and their respective
counsel, such financial and other information and books and records of the
Company, and cause the officers, directors, employees, counsel and independent
certified public accountants of the Company to respond to such inquiries as
shall be reasonably necessary, in the judgment of such counsel, to conduct a
reasonable investigation within the meaning of Section 11 of the Securities Act;
(e) promptly notify the selling holders of Registrable Shares and any
underwriters and confirm such advice in writing, (i) when such registration
statement or the prospectus included therein or any prospectus amendment or
supplement or post-effective amendment has been filed, and, with respect to
such registration statement or any post-effective amendment, when the same has
become effective, (ii) of any comments by the Commission, by the National
Association of Securities Dealers Inc. ("NASD"), and by the Blue Sky or
securities commissioner or regulator of any state with respect thereto or any
request by any such entity for amendments or supplements to such registration
statement or
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prospectus or for additional information, (iii) of the issuance by the
Commission of any stop order suspending the effectiveness of such registration
statement or the initiation or threatening of any proceedings for that purpose,
(iv) if at any time the representations and warranties of the Company cease to
be true and correct in all material respects, (v) of the receipt by the Company
of any notification with respect to the suspension of the qualification of the
Registrable Shares for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose, or (vi) at any time when a prospectus is
required to be delivered under the Securities Act, that such registration
statement, prospectus, prospectus amendment or supplement or post-effective
amendment, or any document incorporated by reference in any of the foregoing,
contains an untrue statement of a material fact or omits to state any material
fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they are made, not misleading;
(f) furnish to each selling holder of Registrable Shares being
offered, and any underwriters, prospectuses or amendments or supplements
thereto, in
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such quantities as they may reasonably request and as soon as practicable, that
update previous prospectuses or amendments or supplements thereto;
(g) in the case of a registration under Section 3 hereof, permit
selling holders of Registrable Shares to rely on any representations and
warranties made to any underwriter of the Company or any opinion of counsel or
"cold comfort" letter delivered to any such underwriter, and indemnify each such
holder to the same extent that it indemnities any such underwriter;
(h) use reasonable diligent efforts to (i) register or qualify the
Registrable Shares to be included in a registration statement hereunder under
such other securities laws or blue sky laws of such jurisdictions within the
United States of America as any selling holder of such Registrable Shares or any
underwriter of the securities being sold shall reasonably request, (ii) keep
such registrations or qualifications in effect for so long as the registration
statement remains in effect and (ii) take any and all such actions as may be
reasonably necessary or advisable to enable such holder or underwriter to
consummate the disposition in such jurisdictions of such Registrable Shares
owned by such holder; provided, however, that the Company shall not be required
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for any such purpose to
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(x) qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not otherwise be required to qualify but for the
requirements of this Section 5(h), (y) subject itself to taxation in any such
jurisdiction or (z) consent to general service of process in any such
jurisdiction;
(i) cause all such Registrable Shares to be listed or accepted for
quotation on each securities exchange or automated quotation system on which the
Company's Common Stock then trades; and
(j) otherwise use reasonable diligent efforts to comply with all
applicable provisions of the Securities Act, and rules and regulations of the
Commission, and make available to its security holders, as soon as reasonably
practicable, an earning statement covering a period of at least twelve months
which shall satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 thereunder.
6. Indemnification. In the event any of the Registrable Shares are
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included in a registration statement under this Agreement:
(a) the Company will indemnify each Investor who participates in such
registration, each of its officers and directors and partners and such
Investor's separate legal counsel and independent
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accountants, and each person controlling such Investor within the meaning of
Section 15 of the Securities Act, and each underwriter, if any, and each person
who controls any underwriter within the meaning of Section 15 of the Securities
Act, against all expenses, claims, losses, damages or liabilities (or actions in
respect thereof), including any of the foregoing incurred in settlement of any
litigation, commenced or threatened, arising out of or based on any untrue
statement (or alleged untrue statement) of a material fact contained in any
registration statement, prospectus, offering circular or other document, or any
amendment or supplement thereto, incident to any such registration,
qualification or compliance, or based on any omission (or alleged omission) to
state therein a material fact required to be stated therein or necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, or any violation by the Company of any rule or regulation
promulgated under the Securities Act applicable to the Company in connection
with any such registration, qualification or compliance, and the Company will
reimburse each such Investor, each of its officers and directors and partners
and such Investor's separate legal counsel and independent accountants and
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each person controlling such Investor, each such underwriter and each person who
controls any such underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating, preparing or defending any such
claim, loss, damage, liability or action, provided that the Company will not be
liable in any such case to the extent that any such claim, loss, damage,
liability or expense arises out of or is based on any 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 an instrument
duly executed by such Investor or underwriter and stated to be specially for use
therein.
(b) Each Investor will, if Registrable Shares held by such Investor
are included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers and its legal counsel and independent accountants, each underwriter, if
any, of the Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act, and each other such Investor, each of its
officers and directors and each
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person controlling such Investor within the meaning of Section 15 of the
Securities Act, against all claims, losses, damages and liabilities (or actions
in respect thereof) arising out of or based on any untrue statement (or alleged
untrue statement) of a material fact contained in any such registration
statement, prospectus, offering circular or other document, or any omission (or
alleged omission) to state therein a material fact required to be stated therein
or necessary to make the statement therein not misleading, and will reimburse
the Company, such Investors, such directors, officers, persons, underwriters or
control persons for any legal or any other expenses reasonably incurred in
connection with investigating or defending any such claim, loss, damage,
liability or action, in each case to the extent, but only to the extent, that
such untrue statement (or alleged untrue statement) or omission (or alleged
omission) is made in such registration statement, prospectus, offering circular
or other document in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Investor and
stated to be specifically for use therein.
(c) Each party entitled to indemnification under this Section 6 (the
"Indemnified Party") shall
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give notice to the party required to provide indemnification (the "Indemnifying
Party") promptly after such Indemnified Party has actual knowledge of any claim
as to which indemnity may be sought provided that failure to give such prompt
notice shall not relieve the Indemnifying Party of its obligations hereunder
unless it is materially prejudiced thereby, and shall permit the Indemnifying
Party to assume the defense of any such claim or any litigation resulting
therefrom, provided that counsel for the Indemnifying Party, who shall conduct
the defense of such claim or litigation, shall be approved by the Indemnified
Party (whose approval shall not unreasonably be withheld). Such Indemnified
Party shall have the right to employ separate counsel in any such action and to
participate in the defense thereof, but the fees and expenses of such counsel
shall be that of such Indemnified Party unless (i) the Indemnifying Party has
agreed to pay such fees and expenses or (ii) the Indemnifying Party shall have
failed to assume the defense of such action or proceeding and employ counsel
reasonably satisfactory to such Indemnified Party in any such action or
proceeding or (iii) the named parties to any such action or proceeding
(including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party
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and such Indemnified Party shall have been advised by counsel that there may be
one or more legal defenses available to such Indemnified Party which are
different from or additional to those available to the Indemnifying Party (in
which case, if such Indemnified Party notifies the Indemnifying Party in writing
of an election to employ separate counsel at the expense of the Indemnifying
Party, the Indemnifying Party shall not have the right to assume the defense of
such action or proceeding on behalf of such Indemnified Party, it being
understood, however, that the Indemnifying Party then shall have the right to
employ separate counsel at its own expense and to participate in the defense
thereof, and shall not, in connection with any one such action or proceeding or
separate but substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys at any time for all Indemnified Parties, which firm shall be
designated in writing by a majority of the Indemnified Parties who are eligible
to select such counsel). 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
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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. No
Indemnified Party may consent to entry of any judgment or enter into any
settlement without the prior written consent of the Indemnifying Party.
(d) If the indemnification provided for in this Section 6 is held by a
court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any loss, liability, claim, damage or expense referred to herein,
then the Indemnifying Party, in lieu of indemnifying the Indemnified Party,
shall contribute to the amount paid or payable by such Indemnified Party with
respect to such loss, liability, claim, damage or expenses in the proportion
that is appropriate to reflect the relative fault of the Indemnifying Party and
the Indemnified Party in connection with the statements or omissions that
resulted in such loss, liability, claim, damage, or expense, as well as any
other relevant equitable considerations. The relative fault of the Indemnifying
Party and the Indemnified Party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of material fact or the
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omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
7. Information by Investors. Investors whose Registrable Shares are
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included in any registration shall furnish to the Company such information
regarding themselves and the distribution proposed by them as the Company may
request in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Agreement.
8. Rule 144 Reporting. With a view to making available the benefits of
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certain rules and regulations of the Commission which may at any time permit the
sale of the Registrable Shares to the public without registration, after such
time as a public market exists for the Common Shares and until five years from
the date thereof, the Company shall use reasonably diligent efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, beginning 90 days
after (i) an IPO Event, or (ii) the Company registers a class of securities
under Section 12 of the Securities Exchange Act of 1934, as amended; or
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(b) File with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Securities
Exchange Act of 1934, as amended (at any time after it has become subject to
such reporting requirements);
(c) Furnish to any Investor promptly upon request a written statement
as to its compliance with the reporting requirements of Rule 144 (at any time
after 90 days after an IPO Event), and of the Securities Act and the Securities
Exchange Act of 1934 (at any time after it has become subject to such reporting
requirements), a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents of the Company and other
information in the possession of or reasonably obtainable by the Company as an
Investor may reasonably request in availing itself of any rule or regulation of
the Commission allowing an Investor to sell Registrable Shares without
registration.
9. Termination of Registration Rights. No Investor shall be entitled to
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exercise any right provided for in this Agreement after 7 years following an IPO
event.
10. Miscellaneous.
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(a) Amendments and Waivers. The provisions of this Agreement,
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including the provisions of this
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sentence, may not be amended, modified or supplemented, and waivers or consents
to depart from the provisions hereof may not be given unless the Company has
obtained the written consent of a Majority-in-Interest. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof with
respect to a matter which relates exclusively to the rights of Investors whose
Registrable Shares are being sold pursuant to a registration statement and which
does not directly or indirectly affect the rights of other Investors may be
given by the holders of majority of the Registrable Shares being sold by such
holders.
(b) Notices. All notices or communications which are required or
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permitted hereunder shall be in writing and sufficient if delivered personally
or sent by facsimile transmission or by reputable overnight express delivery
service. Communications to an Investor shall be sent to such Investor at its
address set forth in the security register or other records of the Company.
Communications to the Company shall be sent as follows:
Software AG Systems, Inc.
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Secretary
Facsimile No.: 000-000-0000
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(c) Descriptive Headings. The descriptive headings of the several
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Sections of this Agreement are inserted for convenience only and do not
constitute a part of this Agreement.
(d) Governing Law. This Agreement shall be construed and enforced in
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accordance with, and the rights of the parties shall be governed by, the law of
the State of New York as applied to agreements entered into and wholly performed
in New York, without giving effect to the choice of law or conflicts principles
thereof.
(e) Entire Agreement. This Agreement contains the entire agreement
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among the parties with respect to the subject matter hereof and supersedes all
prior and contemporaneous arrangements or understandings with respect thereto.
(f) Severability. Any provisions of this Agreement that is prohibited
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or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
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(g) Counterparts. This Agreement may be executed simultaneously in two
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or more counterparts, each of which shall be deemed as original, and it shall
not be necessity in making proof of this Agreement to produce or account for
more than one such counterpart.
(h) Successors and Assigns; Third Party Beneficiaries. All the terms
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and provisions of this Agreement shall be binding upon, shall inure to the
benefit of and shall be enforceable by the respective successors and the
permitted assigns of the parties hereto. In addition, the terms and provisions
of this Agreement shall also inure to the benefit of and be enforceable by the
Investors who are not signatories to this Agreement, each of whom is an intended
third party beneficiary hereof, provided however that each such Investor who
registers Registrable Shares pursuant to the terms of this Agreement shall be
conclusively deemed to have agreed to be bound by and to perform all of the
terms and provisions of this Agreement.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
SOFTWARE AG SYSTEMS, INC.
By: /s/ Xxxxx X. XxXxxxxx
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Xxxxx X. XxXxxxxx
Vice President, Treasurer and
Chief Financial Officer
XXXXXX EQUITY INVESTORS III, L.P.
By: TC Equity Partners, LLC,
its General Partner
By: /s/ Xxxx Xxxxxxxxxx
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Xxxx Xxxxxxxxxx
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