EXHIBIT 4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of the 19th day of April,
2002, by and among Manugistics Group, Inc., a Delaware corporation
("MANUGISTICS"), and Western Data Systems of Nevada, Inc., a Nevada corporation
("SELLER").
B A C K G R O U N D:
A. Seller has entered into an Asset Purchase Agreement dated as
of April 19, 2002 (the "ASSET PURCHASE AGREEMENT") with Manugistics and
Manugistics, Inc. ("PURCHASER"), pursuant to which Seller has agreed to sell to
the Purchaser substantially all of the assets, properties and rights of Seller
used in connection with or otherwise relating to the Business as a going
concern, subject to the assumption by Purchaser of certain liabilities and
obligations of Seller relating to the Business. Unless otherwise defined herein,
all capitalized terms used in this Agreement shall have the respective meanings
assigned to such terms in the Asset Purchase Agreement.
B. Subject to the terms and conditions of the Asset Purchase
Agreement, Purchaser has agreed to deliver to Seller the number of shares of
Manugistics Common Stock as follows:
(i) On the effective date of the First Registration
Statement, Purchaser will cause to be delivered to
Seller the number of shares of Manugistics Common
Stock as determined by and in manner provided for in
Section 4(a)(i) of the Asset Purchase Agreement (the
"BASE SHARES"); and
(ii) Thereafter, Purchaser will cause to be delivered to
Seller the number of shares of Manugistics Common
Stock, if any, as determined by and in the manner
provided for in Sections 4 (e) (iv) and (v),
respectively of the Asset Purchase Agreement (the
"ADDITIONAL SHARES").
The Base Shares and the Additional Shares, if any, are herein referred to as the
"MANUGISTICS SHARES."
C. Pursuant to Sections 4(c) and 4 (e) (v) of the Asset Purchase
Agreement, the parties have agreed that Manugistics shall, under the terms and
conditions set forth in this Agreement, register the Manugistics Shares with the
Securities and Exchange Commission under the Securities Act of 1933, as amended,
for resale by Seller.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants set forth herein, the parties hereto, intending to be
legally bound, agree as follows:
1. CERTAIN DEFINITIONS.
As used in this Agreement, the following terms shall have the meanings
set forth below:
(a) "BUSINESS DAY" shall mean a day that is not a Saturday, a
Sunday, or a day on which banking institutions in New York, New York are
required to be closed.
(b) "COMMISSION" shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the Securities Act.
(c) "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934,
as amended, and the rules and regulations thereunder, all as the same shall be
in effect from time to time.
(d) "NASDAQ" means The Nasdaq Stock Market or any market successor
thereto.
(e) "PERSON" means an individual, partnership, limited liability
company, corporation, trust or unincorporated organization or government or
agency or political subdivision thereof.
(f) "PROSPECTUS" shall mean (i) the preliminary prospectus
included in each Registration Statement filed prior to the time it becomes
effective; (ii) each form of prospectus first filed with the Commission pursuant
to Rule 424(b) promulgated under the Securities Act; and (iii) all supplements
thereto and amendments thereto which shall have been declared effective by the
Commission.
(g) "REGISTRABLE SECURITIES" shall mean (i) the Manugistics
Shares; and (ii) any Manugistics Common Stock and any other security issued as a
dividend or other distribution with respect to or in exchange for or in
replacement of the Manugistics Shares, provided, however, that Registrable
Securities shall not include (a) any Manugistics Shares prior to their issuance
pursuant to the Asset Purchase Agreement or any right to receive such
Manugistics Shares, (b) any Manugistics Shares which have been sold to the
public either pursuant to a Registration Statement or pursuant to Rule 144, or
which are eligible for sale to the public pursuant to Rule 144, or (c) any
Manugistics Shares which have been sold in any other transaction in which the
transferor's rights under this Agreement are not assigned.
(h) The terms "REGISTER," "REGISTERED" and "REGISTRATION" shall
refer to a registration effected by preparing and filing with the Commission a
registration statement in compliance with the Securities Act and applicable
rules and regulations thereunder, and the declaration or ordering of the
effectiveness of such registration statement by the Commission.
(i) "REGISTRATION EXPENSES" shall mean all expenses incurred in
effecting any registration pursuant to this Agreement, including all
registration, qualification and filing fees, reproduction and printing expenses,
expenses incurred by Manugistics in the preparation of any registration
statement, fees and disbursements of counsel for Manugistics and those of
Manugistics' other independent professional advisors and experts, listing fees
and other costs incurred in listing Registrable Securities for trading on Nasdaq
or on any stock exchange, blue sky fees and expenses (if any), expenses of any
regular or special accounting services provided to Manugistics incident to or
required by any such registration, but shall not include Selling Expenses.
(j) "REGISTRATION STATEMENTS" shall mean the registration
statements to be filed or filed by Manugistics with the Commission pursuant to
Section 2 hereof (including all (a) amendments and supplements thereto, (b) each
Prospectus contained therein, and (c) all exhibits thereto or incorporated by
reference therein).
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(k) "RULE 144" shall mean Rule 144 as promulgated by the
Commission under the Securities Act, as such rule may be amended from time to
time, or any similar successor rule that may be promulgated by the Commission.
(l) "SECURITIES ACT" shall mean the Securities Act of 1933, as
amended, and regulations thereunder, all as the same shall be in effect from
time to time.
(m) "SELLING EXPENSES" shall mean all brokerage fees, selling
commissions and underwriting discounts (if any), and stock transfer taxes
applicable to the sale of Registrable Securities or fees and expenses of counsel
or other professional advisors to Seller.
(n) "TRANSACTION DOCUMENTS" shall mean this Agreement, the Asset
Purchase Agreement, and each of the other agreements and documents delivered
pursuant to or in connection with the Asset Purchase Agreement.
(o) "TRANSFER" means any sale, transfer, encumbrance, gift,
donation, assignment, pledge, hypothecation or other disposition of any
Registrable Securities or any interest therein, whether voluntary or
involuntary, including, but not limited to, any disposition by operation of law,
by court order, by judicial process or by foreclosure, levy or attachment.
2. REGISTRATION.
(a) As soon as practicable after the Closing Date and consistent
with the requirements of applicable law, but subject to subsection (e) below,
Manugistics shall use commercially reasonable efforts to effect (i) the
registration for offer and resale under the Securities Act of all of the Base
Shares, and (ii) appropriate qualifications (if any), required under applicable
state "blue-sky" securities laws of such jurisdictions as Seller shall
reasonably request in writing from time to time (collectively, the "FIRST
REGISTRATION"). In furtherance of the First Registration, Manugistics shall file
with the Commission within ninety (90) days after the Closing Date, but subject
to subsection (e) below, a registration statement on an appropriate form (which
form shall comply as to form in all material respects with the requirements of
the applicable form) (the "FIRST REGISTRATION STATEMENT") under the Securities
Act covering the Base Shares and/or any other securities which then constitute
Registrable Securities.
(b) Following the issuance, if any, of the Additional Shares and
for a period of one hundred and twenty (120) days thereafter, if Manugistics
proposes to file a registration statement on Form S-3 solely for the resale of
Manugistics Common Stock for the account of any of Manugistics stockholders in a
non-underwritten offering (each such registration not withdrawn or abandoned
prior to the effective date thereof, a "PIGGYBACK REGISTRATION"), Manugistics
shall give written notice of such proposal to Seller not later than 10 days
prior to the anticipated filing date of such Piggyback Registration (a
"REGISTRATION NOTICE"). No more than one Registration Notice of one Piggyback
Registration shall be given.
(c) Subject to subsection (e) below, if Seller shall so request,
Manugistics shall include in the Piggyback Registration such Additional Shares,
if any, with respect to which Manugistics receives, within 5 days after the date
on which Manugistics shall have given written notice of such Piggyback
Registration to Seller pursuant to 2(b) hereof, the written request of Seller
for inclusion
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in such Piggyback Registration and shall use commercially reasonable efforts to
effect appropriate qualifications (if any), required under applicable state
"blue-sky" securities laws of such jurisdictions as Seller shall reasonably
request in writing . The registration statement filed under the Securities Act
for the Piggyback Registration is herein referred to as the "PIGGYBACK
REGISTRATION STATEMENT." Notwithstanding the foregoing, Manugistics shall not be
obligated to give a Registration Notice concerning, or include any Registrable
Securities in, any registration statement relating exclusively to one or more of
any employee stock, compensation or benefit plan or arrangement, any dividend
reinvestment or stock purchase plan, or any registration statement relating
exclusively to any merger, consolidation, reorganization, share exchange or
other similar transaction.
(d) In the event that a Piggyback Registration is not filed within
one hundred and twenty (120) days of the issuance, if any, of the Additional
Shares, then as an alternative to the Piggyback Registration and in lieu
thereof, Manugistics shall, subject to subsection (e) below, within sixty (60)
days after such one hundred and twenty (120) day period, file a registration
statement with the Commission in order to register for offer and resale under
the Securities Act all of the Additional Shares and shall use commercially
reasonable best efforts to have such registration statement declared effective
as soon as practicable thereafter. Any such registration effected pursuant to
this subsection shall be referred to as a "SECOND REGISTRATION" and the
registration statement filed pursuant thereto as the "SECOND REGISTRATION
STATEMENT."
(e) Notwithstanding the foregoing, Manugistics shall not be
obligated to effect, or to take any action to effect, the First Registration,
the Second Registration or the Piggyback Registration and may defer the filing
of any such Registration Statement for only so long as is reasonably necessary,
in the sole discretion of the Board of Directors of Manugistics, if:
(i) in any particular jurisdiction, Manugistics would be
required to execute a general consent to service of
process in effecting such Registration,
qualification, or compliance, unless Manugistics is
already subject to service in such jurisdiction and
except as may be required by the Securities Act; or
(ii) (A) in the good faith judgment of the Board of
Directors of Manugistics, such Registration would be
detrimental to Manugistics and the Board of Directors
of Manugistics in its sole discretion concludes, as a
result, that it is essential to defer the filing or
effectiveness of the Registration Statement, and (B)
Manugistics shall furnish to Seller a certificate
signed by the Chief Financial Officer of Manugistics
stating that, in the good faith judgment of the Board
of Directors of Manugistics, it would be detrimental
to Manugistics for the Registration Statement to be
filed or declared effective, as applicable, in the
near future and that it is, therefore, essential to
defer the filing or effectiveness of the Registration
Statement;
provided, however, that any deferral of the filing or effectiveness pursuant to
subsection (ii) hereof of either the First Registration Statement or the Second
Registration Statement shall not exceed one hundred fifty (150) days.
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(e) In the event that pursuant to Section 4(a)(i) of the Asset
Purchase Agreement cash is paid in lieu of the Stock Consideration, Manugistics
shall withdraw the First Registration Statement from filing with the Commission.
(f) All Registration Expenses shall be borne by Manugistics and
all Selling Expenses shall be borne by Seller.
3. REGISTRATION PROCEDURES.
Manugistics shall, at its own expense:
(a) notify Seller as to: (i) the initial filing of each
Registration Statement; (ii) the receipt of any comments thereon from the
Commission; (iii) any request from the Commission or any state regulatory
authority for amendment of each Registration Statement or for supplement to any
Prospectus or for any additional information in connection therewith; (iv) the
filing of each amendment thereto, including any post-effective amendment; (v)
the effectiveness of each Registration Statement or any post-effective amendment
thereto; and (vi) the issuance by the Commission or any state regulatory
authority of any stop order suspending the effectiveness of either Registration
Statement or the use of any Prospectus or the institution of any proceedings for
that purpose;
(b) subject to Section 2(b) and the requirements of Sections 4 and
5 of this Agreement, use commercially reasonable best efforts to cause each
Registration Statement to be declared effective by the Commission as soon as
practicable after its filing and to prevent the issuance of any stop order
preventing or suspending the use of any Prospectus and to obtain as soon as
possible the lifting or withdrawal thereof, if issued;
(c) keep the First Registration effective from the effective date
thereof to and including the first to occur of: (i) one year from the effective
date of the First Registration Statement; or (ii) the date on which Seller has
completed the distribution of Registrable Securities described in the First
Registration Statement (the "FIRST APPLICABLE PERIOD");
(d) keep either the Piggyback Registration or the Second
Registration (but not both, and only in the event either is required) effective
from the effective date thereof to and including the first occur of: (i) one
year from the issuance of the Additional Shares or (ii) the date which Seller
has completed the distribution of Registrable Securities described in the Second
Registration Statement (the "SECOND APPLICABLE PERIOD," and together with the
First Applicable Period, the "APPLICABLE PERIODS");
(e) promptly prepare and file with the Commission such amendments
and supplements to each Registration Statement and the prospectus used in
connection with the Registration Statement as shall be necessary to comply with
the provisions of the Securities Act with respect to the disposition by Seller
of all securities covered by each Registration Statement and thereafter use its
reasonable best efforts to cause any such post-effective amendment to be
declared effective by the Commission as promptly as permitted by the Commission,
provided, however, Manugistics shall not be obligated to file more than one
post-effective amendment or supplement to either Registration Statement and the
prospectus used in connection with the
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Registration Statement solely to amend the list of selling stockholders therein.
Such amendments or supplements, if any, shall be prepared and filed only after
receipt by Manugistics of written instruction from Seller, or, if Seller no
longer exists, from the trustee of the liquidating trust provided for in Section
10 (n) of the Asset Purchase Agreement and shall be filed as soon as reasonably
practicable after receipt of such instruction;
(f) furnish to Seller: (i) such number of Prospectuses and other
documents incident thereto, including any amendment of or supplement to the
Prospectus, as Seller may reasonably request (for dissemination or otherwise)
from time to time; (ii) one signed copy of each Registration Statement and all
amendments thereto, including all exhibits filed therewith; and (iii) such
number of conformed copies of each Registration Statement (including such number
of copies of the exhibits filed therewith as may reasonably be requested),
including documents incorporated by reference therein, as Seller may reasonably
request from time to time;
(g) notify Seller at any time:
(i) when a prospectus relating thereto is required to be
delivered under the Securities Act of the happening
of any event or the failure of any event to occur or
the discovery of any facts as a result of which the
Prospectus included in such Registration Statement,
as then in effect, includes any untrue statement of a
material fact or omits to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading or incomplete
in the light of the circumstances then existing, and
at the request of Seller prepare and furnish as soon
as reasonably practicable to Seller a reasonable
number of copies of a supplement to or an amendment
of such Prospectus as may be necessary so that, as
thereafter delivered to the purchaser(s) of such
shares, such Prospectus shall not include any untrue
statement of a material fact or omit to state a
material fact required to be stated therein or
necessary to make the statements therein not
misleading or incomplete in the light of the
circumstances then existing;
(ii) if, during an Applicable Period, the representations
and warranties of Manugistics contained in this
Agreement cease to be true and correct in any
material respect;
(iii) if Manugistics receives any notification of the
issuance of a stop order or the suspension of the
registration or qualification of the Registrable
Securities in any jurisdiction or the initiation of
any proceeding for such purpose; and
(iv) that, in Manugistics' reasonable determination, a
post-effective amendment to such Registration
Statement would be appropriate;
(h) Manugistics shall provide one copy of each notice or document
given or furnished to Seller pursuant to Section 3(a), (e) and (f), above,
concurrently with the provision thereof or as promptly thereafter as reasonably
practicable to legal counsel designated by Seller (or, if Seller no longer
exists, by holders of a majority of the issued and outstanding Shares that are
Registrable Securities) in a written notice given to Manugistics;
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(i) list the Registrable Securities registered pursuant to this
Agreement on Nasdaq and any securities exchange on which Manugistics Common
Stock is then listed;
(j) make generally available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at least
twelve (12) months, but not more than eighteen (18) months, beginning with the
first month after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act); and
(k) make a commercially reasonable best effort to obtain the
withdrawal or removal of any order suspending the effectiveness of either
Registration Statement as promptly as is reasonably practicable under the
circumstances.
4. INFORMATION BY SELLERS.
(a) Seller shall furnish to Manugistics such information regarding
Seller, the Registrable Securities held by Seller and the sale thereof proposed
by Seller as shall be reasonably required in connection with either
Registration.
(b) If Seller does not timely provide any of the information
required to be furnished to Manugistics under Section 4(a) hereof, Seller shall
not be eligible to be named as a selling stockholder in either Registration
Statement.
(c) Seller shall furnish to Manugistics such certificates and
documents confirming, as of the effective date of each Registration Statement,
the information provided by Seller to Manugistics pursuant to Section 4(a)
hereof and the performance of the covenants made herein by Seller and such
related matters as Manugistics shall have reasonably requested.
5. RESTRICTIONS ON TRANSFER
(a) Prior to the effective date of the First Registration
Statement, Seller shall not make or effect any Transfer, directly or indirectly,
of any of the Base Shares or of its right to receive such shares. Prior to the
effective date of the Second Registration Statement, Seller shall not make or
effect any Transfer, directly or indirectly of any of the Additional Shares or
of its right to receive such shares
(b) Subsequent to the effectiveness of each Registration
Statement, Seller shall not make or effect any Transfer of Registrable
Securities except: (i) Transfers pursuant to the Prospectus and as provided
under the caption "Plan of Distribution" therein; and (ii) Transfers in
accordance with Rule 144(k); provided, however, that if, for any reason, the
First Registration Statement shall not have become effective prior to the first
anniversary of the issuance of the securities covered thereby, Transfers of
Registrable Securities that constitute Base Shares may be effected in accordance
with Rule 144; and provided, further, however, that if for any reason, the
Second Registration Statement shall not have been filed or become effective
prior to the first anniversary of the issuance of the securities covered
thereby, Transfers of Registrable Securities that constitute Additional Shares
may be effected in accordance with Rule 144; and provided, further, however that
if either Registration Statement shall become effective but the Prospectus
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shall thereafter become unusable to effect sales of Registrable Securities
during the Applicable Period due to the entry of a stop order, the filing of a
post-effective amendment which has not been declared effective or for any other
reason, then Transfers of the Registrable Securities to which such Registration
Statement pertains may be effected pursuant to the provisions of Rule 144.
(c) Seller shall promptly notify Manugistics Group if it shall
have become an "affiliate" of Manugistics within the meaning of Rule 144(a).
(d) Seller has not taken and will not take, directly or
indirectly, any action designed to cause or result in, or which has constituted
or might reasonably be expected to constitute, the manipulation or stabilization
of the price of Manugistics Common Stock or of any other securities of
Manugistics.
(e) Seller will endeavor in good faith to maintain an orderly
market when selling the Registrable Securities and will sell no more than
300,000 shares of Registrable Securities on any trading day (excluding block
transactions or privately negotiated transactions).
(f) If, after either Registration Statement becomes effective,
Manugistics advises Seller that Manugistics considers it appropriate for such
Registration Statement to be amended or supplemented, Seller shall suspend any
further sales of Manugistics Shares until Manugistics advises Seller that such
Registration Statement has been amended or supplemented.
6. INDEMNIFICATION WITH RESPECT TO SECURITIES MATTERS.
(a) Manugistics will indemnify Seller, each of its officers,
directors and each person controlling Seller within the meaning of Section 15 of
the Securities Act with respect to which Registration has been effected pursuant
to Section 2 of this Agreement against all expenses, claims, losses, damages,
and liabilities (or actions, proceedings, judgments or settlements in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in each Registration Statement,
Prospectus or offering circular incident to such Registration, or based on any
omission (or alleged omission) to state therein a material fact required to be
stated therein or necessary to make the statement therein not misleading, or any
violation (or alleged violation) by Manugistics of the Securities Act, the
Exchange Act, any other federal or state securities laws, or any rule or
regulation thereunder applicable to Manugistics and relating to action or
inaction required of Manugistics in connection with such Registration, and will
reimburse Seller, its officers, directors and each person controlling Seller for
any legal and any other expenses reasonably incurred in connection with
investigating and defending or settling any such claim, loss, damage, liability,
or action; provided, however, that Manugistics will not be liable in any such
case to the extent that any such claim, loss, damage, liability, or expense
arises out of or is based on any untrue statement or omission based upon written
information furnished to Manugistics by or on behalf of Seller specifically for
use therein. It is agreed that the indemnity agreement contained in this Section
6 shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability, or action if such settlement is effected without the consent of
Manugistics (which consent shall not be unreasonably withheld).
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(b) Seller will indemnify Manugistics, Manugistics, Inc., each of
their respective directors and officers and each person who controls Manugistics
or Manugistics, Inc. within the meaning of Section 15 of the Securities Act,
against all expenses, claims, losses, damages and liabilities (or actions,
proceedings, judgments or settlements in respect thereof) arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact
contained in each Registration Statement, Prospectus or offering circular
incident to such Registration or any omission (or alleged omission) to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only to the
extent, that such untrue statement (or alleged untrue statement) or omission (or
alleged omission) is made in such Registration Statement, Prospectus or offering
circular in reliance upon and in conformity with written information furnished
to Manugistics by or on behalf of Seller, whether by Seller or otherwise,
specifically for use therein, and will reimburse Manugistics, Manugistics, Inc.
and each of their respective directors, officers and each person controlling any
of them for any legal or any other expenses reasonably incurred in connection
with investigating or defending any such claim, loss, damage, liability, or
action, in each case to the extent, but only to the extent, that such untrue
statement (or alleged untrue statement) or omission (or alleged omission) is
made in such Registration Statement, Prospectus or offering circular in reliance
upon and in conformity with written information furnished to Manugistics by or
on behalf of Seller, whether by Seller or otherwise, specifically for use
therein; provided, however, that the obligations of Seller hereunder shall not
apply to amounts paid in settlement of any such expenses, claims, losses,
damages, or liabilities (or actions in respect thereof) if such settlement is
effected without the consent of Seller (which consent shall not be unreasonably
withheld). The maximum liability of Seller for indemnity pursuant to this
Section 6(b) shall not exceed the net proceeds that Seller realized from the
sale of its Manugistics Shares pursuant to each Prospectus or, if Seller has not
yet sold, pursuant to each Prospectus, all of the Manugistics Shares to which it
is or may be entitled to receive at the time that indemnification is required
pursuant to this Agreement, then Seller's maximum liability hereunder shall be
the value of the Manugistics Shares beneficially held by Seller (or to which
Seller may become entitled) covered by the Prospectus measured by the greater of
the closing price of Manugistics Common Stock on Nasdaq or other market or
exchange on which Manugistics Common Stock is traded (i) on the date the
Manugistics Shares are delivered to Seller pursuant to the Purchase Agreement or
(ii) such closing price on the date of the demand for indemnity, or if not so
traded, by a fair market value standard reasonably approved by Manugistics' then
current Board of Directors.
(c) Each party entitled to indemnification under this Section 6
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided further that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Agreement to the extent such
failure is not prejudicial. No Indemnifying Party, in the defense of any such
claim or litigation, shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any
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settlement that does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect to such claim or litigation. Each Indemnified Party shall
furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with defense of such claim and litigation resulting
therefrom.
(d) If the indemnification provided for in this Section 6 is held
by a court of competent jurisdiction to be unavailable to or insufficient to
hold harmless an Indemnified Party with respect to any loss, liability, claim,
damage, or expense (or actions or proceedings in respect thereof) referred to
therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability, claim, damage, or expense
(or actions or proceedings in respect thereof) in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party, on the one
hand, and of the Indemnified Party on the other, in connection with the
statement or omissions that resulted in such loss, liability, claim, damage, or
expense (or actions or proceedings in respect thereof), as well as any other
relevant equitable considerations; provided however that in no event shall any
contribution by Seller under this Section 6(d) exceed the net proceeds that
Seller realized from the sale of its Manugistics Shares pursuant to the
Prospectus or, if Seller has not yet sold all of the Manugistics Shares to which
it is or may be entitled to receive at the time the indemnification is required
pursuant to this Agreement, then Seller's maximum liability hereunder shall be
the value of the Manugistics Shares beneficially held by Seller (or to which
Seller may become entitled) measured by the greater of the closing price of
Manugistics Common Stock on Nasdaq or other market or exchange on which
Manugistics Common Stock is traded (i) on the date the Manugistics Shares are
delivered to Seller under the Purchase Agreement or (ii) on the date of the
demand for indemnity, or, if not so traded by a fair market value standard
reasonably approved by the then current Board of Directors of Manugistics;
provided further, however, that no Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contributions from any Person that was not guilty of such fraudulent
misrepresentation. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Indemnifying Party or by the Indemnified Party and the parties'
relative intent, knowledge, access to information, and opportunity to correct or
prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 6(d). The amount
paid or payable by an Indemnified Party as a result of any loss, liability,
claim, damage, or expense (or actions or proceedings in respect thereof)
referred to above in this Section 6(d) shall be deemed to include any legal or
other expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim.
(e) The obligations of Seller to indemnify and hold harmless
Manugistics and each other person entitled to indemnity as an Indemnified Party
under Section 6(b) is independent of any provision of the Asset Purchase
Agreement and the right of Manugistics and each such other
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person to be indemnified under Section 6(b), above, shall not be limited by or
otherwise subject to any provision of the Asset Purchase Agreement.
(f) The obligations of Manugistics and Seller under this Section 6
shall survive the completion of any offering of Registrable Securities in the
Registration Statements.
7. REPORTING REQUIREMENTS.
Manugistics agrees that:
(a) during each Applicable Period, for so long as Manugistics is
subject to the reporting requirements of Section 13 or 15 of the Exchange Act,
Manugistics will use its reasonable best efforts to file in a timely manner the
reports required to be filed by it under the Securities Act and Section 13(a) or
15(d) of the Exchange Act and the rules and regulations adopted by the
Commission thereunder;
(b) if Manugistics shall cease to be so required to file such
reports, it will, upon the request of Seller, take such further action that is
reasonable in the circumstances, including, without limitation, the provision of
current public information as required by Rule 144(c) (or any similar successor
provision), to enable Seller to sell its Registrable Securities pursuant to Rule
144; and
(c) periodically furnish to Seller forthwith upon written request
a written statement by Manugistics as to its compliance with the reporting
requirements of the Securities Act, the Exchange Act and/or Rule 144, as
appropriate.
8. RESTRICTIVE LEGENDS.
(a) Each certificate evidencing Manugistics Shares initially
delivered to Seller shall bear the following legends:
The securities represented by this certificate (the "Shares")
have not been registered under the Securities Act of 1993, as
amended (the "Act") or applicable state securities laws. The
shares have been acquired for the record holder's own account,
as principal, and not with a view to the resale of all or any
part of the shares, and with no present intention, agreement
or arrangement to resell, transfer or otherwise dispose of all
or any part of the shares except pursuant to Registration
under the Act.
The shares represented by this certificate are subject to
certain restrictions on transferability and to the other terms
and conditions of that certain Registration Rights Agreement
dated as of April 19, 2002, by and among Manugistics Group,
Inc. and the other parties thereto, copies of which are on
file and may be obtained upon written request directed to the
attention of the Secretary of Manugistics Group, Inc. Under
said Agreement, such shares may
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not be sold, pledged, donated or otherwise transferred or
encumbered except as expressly permitted thereunder.
(b) Upon the effectiveness of each Registration Statement, the
restrictive legend referring to the Securities Act of 1933 set forth in Section
8(a) hereof shall be eligible to be removed from each certificate representing
Shares that are being registered under such Registration Statement. The legend
in Section 8(a) hereof referring to this Registration Rights Agreement shall be
removed from each certificate evidencing Registrable Securities upon the first
to occur of: (i) the sale or other Transfer of such securities pursuant to the
Prospectus; and (ii) the sale of such securities pursuant to Rule 144 (including
Rule 144(k)).
9. MISCELLANEOUS.
(a) Benefits Non-Transferable. Notwithstanding anything to the
contrary contained elsewhere in this Agreement or in any other Transaction
Document, the obligation of Manugistics to effect the Registrations and,
thereafter, to maintain the effectiveness of the Registration Statements is
solely for the benefit of Seller (and any trust set up pursuant to Section 10(n)
of the Asset Purchase Agreement).
(b) Governing Law. This Agreement shall be governed by and
interpreted and enforced in accordance with the laws of the State of Delaware as
applied to contracts made and fully performed therein.
(c) Section Headings. All section headings are for convenience
only and shall in no way modify or restrict any of the terms or provisions
hereof.
(d) Interpretation. The masculine (or neuter) pronoun and the
singular number shall include the masculine, feminine and neuter genders and the
singular and plural numbers. A reference to a person shall mean a natural
person, a trustee, a corporation, a partnership and any other form of legal
entity. All references in the singular or plural shall be deemed to have been
made, respectively, in the plural or singular number as well, as the context may
require.
(e) Counterparts. This Agreement may be executed in two or more
counterparts, including, without limitation, execution by facsimile, each of
which shall be deemed an original, and all of which when taken together shall be
deemed to be one and the same instrument. It shall not be necessary in making
proof of this Agreement or any counterpart hereof to produce or account for any
of the other counterparts.
(f) Amendments and Waivers. The provisions of this Agreement,
including provisions of this Section 9(f), may not be amended, modified or
supplemented, otherwise than with the prior written consent of Manugistics and
Seller.
(g) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, registered first
class mail, telex, telecopier, or any courier guaranteeing overnight delivery:
(i) if to Seller, initially to Seller's address as provided in the Asset
Purchase Agreement, and thereafter at such other address, notice of which is
given in accordance with the provisions of this Section 9(g), and (ii) if to
Manugistics, initially at
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Manugistics' address as set forth in the Asset Purchase Agreement, and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 9(g).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five (5) Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
(h) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of the parties hereto,
subject to Section 9(a), above, provided, however, that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of this Agreement, the Asset Purchase
Agreement or applicable law. If any successor of Seller shall acquire
Registrable Securities, in any manner, whether by operation of law or otherwise,
such Registrable Securities shall be held subject to all of the terms of this
Agreement, and by taking and holding such Registrable Securities, such Person
shall be conclusively deemed to have agreed to be bound by and to perform all of
the terms and provisions of this Agreement and such Person shall be entitled to
receive the benefits hereof.
(i) Consent to Jurisdiction and Service. Except for disputes that
are subject to binding arbitration pursuant to the Transaction Documents, the
parties hereby absolutely and irrevocably consent and submit to the jurisdiction
of the courts of the State of Delaware and of any Federal court located in said
State in connection with any actions or proceedings brought by or against any
party hereto and arising out of or relating to the Transaction Documents and
agree that any such actions or proceedings shall be brought only in such courts.
In any such action or proceeding, the parties hereby absolutely and irrevocably
waive personal service of any summons, complaint, declaration or other process
and hereby absolutely and irrevocably agree that the service thereof may be made
by certified or registered first-class mail directed to such parties at their
respective addresses in accordance with Section 9(g) hereof.
(j) Severability. If any term or provision of this Agreement or
the application thereof to any Person or circumstance shall, to any extent, be
held invalid or unenforceable by any court of competent jurisdiction, the
remainder of this Agreement or the application of any such term or provision to
Persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of
this Agreement shall be valid and enforceable to the fullest extent permitted by
law. If any provision contained in this Agreement shall for any reason be held
to be excessively broad as to duration, scope, activity or subject, it shall be
construed by limiting and reducing it, so as to be valid and enforceable to the
extent compatible with the applicable law or the determination by a court of
competent jurisdiction.
(k) Integration. This Agreement together with the Asset Purchase
Agreement embodies the entire agreement among the parties with respect to its
subject matter. There are no restrictions, promises, representations,
warranties, covenants or undertakings other than those expressly set forth in
this Agreement and/or the Asset Purchase Agreement. This Agreement and the Asset
Purchase Agreement supersede any and all previous understandings, agreements,
representations or discussion, written or oral, among the parties. In the event
of a conflict between or among the
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provisions of this Agreement and the Asset Purchase Agreement, the Asset
Purchase Agreement shall control.
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have duly executed this Registration Rights Agreement on the date first
above written.
MANUGISTICS GROUP, INC.
By:
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Name:
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Title:
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WESTERN DATA SYSTEMS OF NEVADA, INC.
By:
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Name:
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Title:
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