EXHIBIT 4.2
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
This AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"AGREEMENT"), dated as of September 20, 2002, is entered into between SynQuest,
Inc., a corporation organized under the laws of the State of Georgia (the
"COMPANY"), the undersigned investors named under the heading "Common Investors"
on the signature pages hereto (together with any of their Transferees (as
defined herein), the "COMMON INVESTORS") and the undersigned investors named
under the heading "Preferred Investors" on the signature pages hereto (together
with any of their Transferees, the "PREFERRED INVESTORS" and together with the
Common Investors, the "INVESTORS"). Any other person or entity who later becomes
a party to this Agreement by executing a Joinder Agreement in form attached as
Exhibit A shall also be referred to herein as an "Investor," and, if applicable,
a "Preferred Investor."
WHEREAS:
A. The Company and certain of the Preferred Investors are
executing, concurrently herewith, an Amended and Restated Stock Purchase
Agreement , dated the date hereof (the "STOCK PURCHASE AGREEMENT"), pursuant to
which the Company has agreed, upon the terms and subject to the conditions
contained therein, to issue and sell to such Preferred Investors shares of the
Company's Series A Convertible Preferred Stock, $0.01 par value per share (the
"PREFERRED STOCK"), convertible into shares of the Company's common stock, $0.01
par value per share (the "COMMON STOCK").
B. The Company and certain of the Common Investors have
previously entered into an Agreement and Plan of Merger, dated as of August 30,
2002 (the "VIEWLOCITY MERGER AGREEMENT") (together with the Stock Purchase
Agreement, the "TRANSACTION AGREEMENTS"), pursuant to which the Company has
agreed, upon the terms and subject to the conditions contained therein, to issue
to such Common Investors shares of Common Stock in a merger transaction.
C. The (i) shares of Common Stock held by the Existing Investor
(as defined in Section 1(ii) below), (ii) shares of Common Stock to be issued
pursuant to the Viewlocity Merger Agreement, and (iii) shares of Common Stock
issuable upon conversion of the shares of Preferred Stock to be issued pursuant
to the Stock Purchase Agreement are collectively are referred to herein as the
"SHARES."
D. The Company has agreed to provide certain rights with respect
to the registration of the Shares under the Securities Act of 1933, as amended
(the "SECURITIES ACT").
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Company and the
Investors, intending to be legally bound, hereby agree as follows:
1. DEFINITIONS.
Capitalized terms used and not defined herein have the
respective meanings assigned to them in the Stock Purchase Agreement. As used in
this Agreement, the following terms shall have the following meanings:
(i) "CLOSING DATE" means the date of closing of
the transactions contemplated by the Transaction Agreements.
(ii) "EXISTING INVESTOR" means Warburg Pincus
LLC.
(iii) "REGISTER," "REGISTERED," and "REGISTRATION"
refer to a registration effected by preparing and filing a Registration
Statement or Statements in compliance with the Securities Act and pursuant to
Rule 415 under the Securities Act or any successor rule providing for offering
securities on a continuous basis ("RULE 415"), and the declaration or ordering
of effectiveness of such Registration Statement by the United States Securities
and Exchange Commission (the "SEC").
(iv) "REGISTRABLE SECURITIES" means (i) the
Shares and (ii) any shares of Common Stock issued as a dividend or distribution
on or in exchange for or otherwise with respect to the Shares; provided,
however, that any shares of Common Stock issued as a dividend or distribution on
or in exchange for or otherwise with respect to any Shares shall not be
considered Registrable Securities to the extent such shares of capital stock are
covered by another current and effective Registration Statement permitting the
resale without restriction of such shares. Notwithstanding the foregoing,
Registrable Securities shall only be treated as Registrable Securities if and so
long as they have not been (A) disposed of pursuant to an effective Registration
Statement, (B) sold in any transaction in which the recipient receives freely
tradable, non-restricted shares, or (C) sold in a transaction exempt from the
registration and prospectus delivery requirements of the Act so that all
transfer restrictions, and restrictive legends with respect thereto, if any, are
removed in connection with such sale.
(v) "REGISTRATION STATEMENT" means one or more
registration statements of the Company under the Securities Act registering
Registrable Securities, including any Shelf Registration Statement.
2. REGISTRATION.
a. Mandatory Registration. The Company shall file with
the SEC, within 180 calendar days after the Closing Date, a Registration
Statement on Form S-3 (or, if Form S-3 is not then available, on such form of
Registration Statement as is then available to effect a registration of all of
the Registrable Securities) covering the resale of all Registrable Securities
(the "SHELF REGISTRATION STATEMENT").
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b. Effectiveness of Registration. The Company shall use
all commercially reasonable efforts to cause the Shelf Registration Statement to
become effective as soon as practicable.
c. Piggy Back Registrations.
(i) Right to Include Certain Registrable
Securities. If at any time prior to the expiration of the Registration Period
(as hereinafter defined) the Company shall file with the SEC a Registration
Statement relating to an offering for its own account or the account of others
under the Securities Act of any of its equity securities (other than on Form S-4
or Form S-8, or their then equivalents, relating to equity securities to be
issued in connection with any acquisition of any entity or business or equity
securities issuable in connection with stock option or other employee benefit
plans), the Company shall send to each Preferred Investor that holds Registrable
Securities at such time, either in the form of Preferred Stock or, after
converting such Preferred Stock, the Common Stock issued upon conversion thereof
(such Investors, the "PIGGYBACK INVESTORS"), written notice of the determination
to make such filing and, if within ten (10) days after the date of such notice,
any such Piggyback Investor shall so request in writing, the Company shall
include in such registration statement, by means of a Rule 429 filing that
incorporates such Piggyback Investor's previously registered shares, all or any
part of the Registrable Securities that such Piggyback Investor requests to be
registered (such rights, the "PIGGYBACK RIGHTS") The Existing Investor shall
have such Piggyback Rights pursuant to this Section 2(c) only with respect to
the Shares issuable upon conversion of the shares of Preferred Stock that it
holds.
(ii) Priority in Piggy Back Registrations. If in
connection with any underwritten public offering for the account of the Company
the managing underwriter(s) thereof shall impose a limitation on the number of
shares of Common Stock which may be included because, in such underwriter(s)'
judgment, marketing or other factors dictate such limitation is necessary to
facilitate public distribution, then the Company shall be obligated to include
in such registration statement only such portion, if any, of the Registrable
Securities that the Piggyback Investors have requested to have included as the
underwriter shall permit.
(A) Offering for the Account of the
Company. If the offering is initiated by the Company for the purpose of
completing a primary offering of its securities, no Company shares shall be
excluded until all shares sought to be included by Piggyback Investors and other
security holders with similar rights are first excluded. Any exclusion of
Registrable Securities shall be made pro rata among the Piggyback Investors
seeking to include Registrable Securities, in proportion to the number of
Registrable Securities sought to be included by each such Piggyback Investor,
and pro rata with holders of other securities having the right to include such
securities in the registration statement (except to the extent any existing
agreements otherwise provide).
(B) Offering for the Account of Others.
If the offering is initiated by the Company for the purpose of completing a
secondary offering of its securities, any exclusion of Registrable Securities
shall be made pro rata among the Piggyback Investors seeking to include
Registrable Securities, in proportion to the number of Registrable Securities
sought to be included
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by such Piggyback Investors, and pro rata with (1) the securities to be sold by
the Company and (2) with holders of other securities having the right to include
such securities in the registration statement other than holders of securities
entitled to inclusion of their securities in such registration statement by
reason of demand registration rights (except to the extent any existing
agreements otherwise provide).
(iii) Additional Limitations. If an offering as to
which an Investor is entitled to registration under this Section 2(c) is an
underwritten offering, then each Investor whose Registrable Securities are
included in such registration statement shall, unless otherwise agreed by the
Company, offer and sell such Registrable Securities in the underwritten offering
using the same underwriter or underwriters and, subject to the provisions of
this Agreement, on the same terms and conditions as other shares of Common Stock
included in such underwritten offering.
(iv) Withdrawal. Any Piggyback Investor may elect
to withdraw its respective Registrable Securities from inclusion in a
Registration Statement or offering pursuant to this Section 2(c) at any time
prior to ten (10) Business Days prior to the then-anticipated pricing date for
such offering. The Company may, without the consent of any Investor, delay,
suspend, abandon or withdraw any proposed registration in which any Investor has
requested inclusion of Registrable Securities pursuant to this Section 2(c).
d. Eligibility for Form S-3. The Company represents and
warrants that it is eligible to register the resale of Registrable Securities on
a registration statement on Form S-3 under the Securities Act, and that the
Company is not aware of any facts or circumstances (including without limitation
any required approvals or waivers or any circumstances that may delay or prevent
the obtaining of accountant's consents) that would prohibit or delay the
preparation, filing and effectiveness of a registration statement on Form S-3
with respect to the Registrable Securities.
x. Xxxxx of Filing or Sales. The Company shall have the
right at any time and from time to time to delay filing or the declaration of
effectiveness of a Registration Statement or to require Investors not to sell
any Registrable Securities pursuant to an effective Registration Statement for
not in excess of 90 days beginning on the date on which such notice is given or
such shorter period of time as may be specified in such notice or in a
subsequent notice delivered by the Company to such effect prior to or during the
effectiveness of the Registration Statement, but in no event before the lapse of
ninety (90) days after the effectiveness of such Shelf Registration Statement,
if (a) the Company is engaged in or proposes to engage in discussions or
negotiations with respect to, or has proposed or taken a substantial step to
commence, or there otherwise is pending, any merger, acquisition, other form of
business combination, divestiture, tender offer, financing or other transaction,
or there is an event or state of facts relating to the Company, in any such case
which is material to the Company (any such negotiation, step, event or state of
facts being herein called a "MATERIAL ACTIVITY") and (b) such Material Activity
would, in the reasonable opinion of the Company, require disclosure so as to
permit the Registrable Securities to be sold in compliance with law; provided,
that the Company may not delay the filing of a Registration Statement or the
sale of any Registrable Securities whether pursuant to one or more
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notices as set forth above for more than an aggregate of 90 days within any
12-month period. The Company shall have no obligation to include in any notice
contemplated hereby any reference to or description of the facts based upon
which the Company is delivering such notice. Any periods during which sales of
Registrable Securities are prohibited pursuant to Section 3(l) of this Agreement
shall count toward the 90-day period described in this Section 2(e), as if the
Company had declared Material Activities existed during such periods.
3. OBLIGATIONS OF THE COMPANY.
In connection with the registration of the Registrable Securities, the
Company shall have the following obligations:
a. The Company shall use its best efforts to keep any
Registration Statement filed pursuant to Section 2(a) effective pursuant to Rule
415 at all times until the first date on which less than 1,000,000 shares of
Preferred Stock are outstanding (the "REGISTRATION PERIOD"). If the Shelf
Registration Statement is not filed on Form S-3, the Company shall, as soon as
it is eligible to do so, file a post-effective amendment on Form S-3 to the
Shelf Registration Statement to the extent permitted by applicable law, rules
and regulations, or, if not so permitted, then to the extent permitted file a
new Registration Statement on Form S-3 pursuant to Rule 429 under the Securities
Act to permit sales of the Registrable Securities in accordance with the methods
of distribution elected by the Investors (subject to the consent of the Company
if any such method imposes or would impose additional obligations on the
Company); and the Company shall use all commercially reasonable efforts to cause
such post-effective amendment or Registration Statement to become effective as
soon as possible. Each Registration Statement (including any amendments or
supplements thereto and prospectuses contained therein and all documents
incorporated by reference therein) filed pursuant to this Agreement (i) shall
comply in all material respects with the requirements of the Securities Act and
the rules and regulations of the SEC promulgated thereunder and (ii) shall not
contain 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, in
light of the circumstances under which they were made, not misleading.
b. Subject to Section 2(e), the Company shall prepare
and file with the SEC such amendments (including post-effective amendments) and
supplements to the Registration Statement and the prospectus used in connection
with the Registration Statement as may be necessary to keep the Registration
Statement effective at all times during the Registration Period, and, during
such period, comply with the provisions of the Securities Act with respect to
the disposition of all Registrable Securities covered by the Registration
Statement until such time as all of such Registrable Securities have been
disposed of in accordance with the intended methods of disposition by the seller
or sellers thereof as set forth in the Registration Statement.
c. The Company shall furnish to each Investor whose
Registrable Securities are included in the Registration Statement (i) promptly
after the same is prepared and publicly distributed, filed with the SEC, or
received by the Company, one copy of the Registration Statement
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and any amendment thereto, each preliminary prospectus and final prospectus and
each amendment or supplement thereto. In the case of the Registration Statement
referred to in Section 2(a), the Company shall furnish to each Investor which
requests (i) a copy of any request to accelerate the effectiveness of any
Registration Statement or amendment thereto, (ii) on the date of effectiveness
of the Registration Statement or any amendment thereto, a notice stating that
the Registration Statement or amendment has been declared effective, and (iii)
such number of copies of a prospectus, including a preliminary prospectus, and
all amendments and supplements thereto and such other documents as such Investor
may reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such Investor.
d. The Company shall use all commercially reasonable
efforts to (i) register and qualify the Registrable Securities covered by the
Registration Statement under such other securities or "blue sky" laws of such
jurisdictions in the United States as each Investor who holds Registrable
Securities being offered reasonably requests, (ii) prepare and file in those
jurisdictions such amendments (including post-effective amendments) and
supplements to such registrations and qualifications as may be necessary to
maintain the effectiveness thereof during the Registration Period, (iii) take
such other actions as may be necessary to maintain such registrations and
qualifications in effect at all times during the Registration Period, and (iv)
take all other actions reasonably necessary or advisable to qualify the
Registrable Securities for sale in such jurisdictions; provided, however, that
the Company shall not be required in connection therewith or as a condition
thereto to (a) qualify to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3(d), (b) subject itself
to general taxation in any such jurisdiction, (c) file a general consent to
service of process in any such jurisdiction, (d) provide any undertakings that
cause the Company undue expense or burden, or (e) make any change in its
certificate of incorporation or bylaws, which in each case the Board of
Directors of the Company determines to be contrary to the best interests of the
Company and its shareholders.
e. The Company shall use all commercially reasonable
efforts to prevent the issuance of any stop order or other suspension of
effectiveness of a Registration Statement, and, if such an order is issued, to
obtain the withdrawal of such order at the earliest practicable date (including
in each case by amending or supplementing such Registration Statement) and to
notify each Investor who holds Registrable Securities being sold (or, in the
event of an underwritten offering, the managing underwriters) of the issuance of
such order and the resolution thereof (and if such Registration Statement is
supplemented or amended, deliver such number of copies of such supplement or
amendment to each Investor as such Investor may reasonably request).
f. The Company shall make available for inspection by
(i) any Investor whose Registrable Securities are included in a Registration
Statement, (ii) any underwriter participating in any disposition pursuant to a
Registration Statement, (iii) one firm of attorneys and one firm of accountants
or other agents retained by the Investors, and (iv) one firm of attorneys
retained by all such underwriters (collectively, the "INSPECTORS") all pertinent
financial and other records, and pertinent corporate documents and properties of
the Company (collectively, the "RECORDS"), as shall be reasonably deemed
necessary by each Inspector to enable each Inspector to exercise its due
diligence responsibility, and cause the Company's officers, directors and
employees to supply all
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information which any Inspector may reasonably request for purposes of such due
diligence.
g. Both (A) the Company and (B) the Investors shall
hold, and the Investors will cause the Inspectors retained on their behalf to
hold, in confidence and not make any disclosure of information concerning an
Investor or the Company, respectively, provided to the other party unless (i)
disclosure of such information is necessary to comply with federal or state
securities laws, (ii) the disclosure of such information is necessary to avoid
or correct a misstatement or omission in any Registration Statement, (iii) the
release of such information is ordered pursuant to a subpoena or other order
from a court or governmental body of competent jurisdiction, (iv) such
information has been made generally available to the public other than by
disclosure in violation of this agreement, or (v) such party consents to the
form and content of any such disclosure. The Company and the Investors agree
that they shall, and the Investors shall cause the Inspectors retained by them,
upon learning that disclosure of such information concerning the other party is
sought in or by a court or governmental body of competent jurisdiction or
through other means, give prompt notice to such other party prior to making such
disclosure, and allow such other party, at its expense, to undertake appropriate
action to prevent disclosure of, or to obtain a protective order for, such
information.
h. The Company shall use all commercially reasonable
efforts to promptly secure the designation and quotation of all the Registrable
Securities covered by any Registration Statement on The Nasdaq Smallcap Market,
or on such other securities exchange or automated quotation system, if any, upon
which shares of Common Stock are listed.
i. The Company shall cooperate with the Investors who
hold Registrable Securities being offered and the managing underwriter or
underwriters, if any, to facilitate the timely preparation and delivery of
certificates (not bearing any restrictive legends) representing Registrable
Securities to be offered pursuant to the Registration Statement and enable such
certificates to be in such denominations or amounts, as the case may be, as the
managing underwriter or underwriters, if any, or the Investors may reasonably
request and registered in such names as the managing underwriter or
underwriters, if any, or the Investors may request, and, within two (2) Business
Days after a Registration Statement which includes Registrable Securities is
ordered effective by the SEC, the Company shall deliver, and shall cause legal
counsel selected by the Company to deliver, to the transfer agent for the
Registrable Securities (with copies to the Investors whose Registrable
Securities are included in such Registration Statement) any required opinion of
such counsel in a form customary for such transactions.
j. At the request of Investors who hold a
majority-in-interest of the Registrable Securities, the Company shall prepare
and file with the SEC such amendments (including post-effective amendments) and
supplements to the Shelf Registration Statement and the prospectus used in
connection with the Shelf Registration Statement each as approved by the
Company, which approval shall not be unreasonably withheld or delayed, as may be
necessary in order to change the plan of distribution set forth in the Shelf
Registration Statement.
k. The Company shall comply with applicable federal and
state securities laws and regulations related to a Registration Statement and
offering and sale of securities.
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l. (A) Promptly notify each Investor holding Registrable
Securities if a condition exists, of which the Company has knowledge, as a
result of which the prospectus included in the Registration Statement, as then
in effect, 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 in which they were made, not misleading,
and (B) subject to the Company's rights under Section 2(e), promptly prepare and
furnish to each such Investor a supplement to or an amendment to such prospectus
(and subsequently furnish such number of copies of such supplement or amendment
as the Investors may reasonably request) so that, as thereafter delivered to the
purchasers of such Registrable Securities, such prospectus will not contain any
untrue statement of material fact or omit to state 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.
4. OBLIGATIONS OF THE INVESTORS.
In connection with the registration of the Registrable Securities, the
Investors shall have the following obligations:
a. It shall be a condition precedent to the obligations
of the Company to complete the registration pursuant to this Agreement with
respect to the Registrable Securities of a particular Investor that such
Investor shall furnish to the Company such information regarding itself, the
Registrable Securities held by it and the intended method of disposition of the
Registrable Securities held by it as shall be reasonably required to effect the
registration of such Registrable Securities and shall execute such documents in
connection with such registration as the Company may reasonably request. At
least five (5) Business Days prior to the first anticipated filing date of the
Shelf Registration Statement, the Company shall notify each Investor of any
information the Company requires from each such Investor.
b. Each Investor, by such Investor's acceptance of the
Registrable Securities, agrees to cooperate with the Company as reasonably
requested by the Company in connection with the preparation and filing of any
Registration Statement hereunder, unless such Investor has notified the Company
in writing of such Investor's election to exclude all of such Investor's
Registrable Securities from the Registration Statement.
c. No Investor may participate in any underwritten
distribution hereunder unless such Investor (i) agrees to sell such Investor's
Registrable Securities on the basis provided in any underwriting arrangements in
usual and customary form entered into by the Company, (ii) completes and
executes all questionnaires, powers of attorney, underwriting agreements and
other documents reasonably required under the terms of such underwriting
arrangements, and (iii) agrees to pay its pro rata share of all underwriting
discounts and commissions and any expenses in excess of those payable by the
Company pursuant to Section 5 below.
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d. At least one business day prior to any sale under any
Registration Statement, each Investor proposing to sell shall notify the Company
of such intention. As promptly as practicable after receiving such notice, the
Company shall notify each such Investor whether sales under the Registration
Statement are permitted. Each such Investor will refrain from selling
Registrable Securities if and for so long as sales are not permitted. The
Company may notify such Investors that sales are not permitted under this
Section 4(d) only if (i) it has received notice of any stop order or other
suspension of effectiveness of a Registration Statement, following which the
Company shall comply with Section 3(e), or (ii) a condition exists, of which the
Company has knowledge, as a result of which the prospectus included in the
Registration Statement, as then in effect, 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 in
which they were made, not misleading. In the case of (ii) above, the Company
will promptly comply with Section 3(l)(B). In addition, each Investor agrees
that upon the receipt of a notice pursuant to Section 3(l)(A) it will
immediately discontinue its offering and sale of Registrable Securities pursuant
to the applicable Registration Statement until it has received copies of the
supplemented or amended prospectus contemplated by Section 3(l)(B) (or until it
has received a notice from the Company stating that a Material Activity no
longer exists, if the Company utilized its rights under Section 2(e)).
5. EXPENSES OF REGISTRATION.
All expenses incurred by the Company in connection with registrations,
filings or qualifications pursuant to Sections 2 and 3 above (excluding brokers'
fees and underwriting discounts and commissions), including, without limitation,
all registration, listing and qualifications fees, printers and accounting fees
and the fees and disbursements of counsel for the Company, shall be borne by the
Company.
6. INDEMNIFICATION.
In the event any Registrable Securities are included in a Registration
Statement under this Agreement:
a. To the extent permitted by law, the Company will
indemnify, hold harmless and defend (i) each Investor who holds such Registrable
Securities, and (ii) the directors, officers, partners, members, employees and
agents of such Investor and each person who controls any Investor within the
meaning of Section 15 of the Securities Act or Section 20 of the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT"), if any (each, an
"INDEMNIFIED PERSON"), against any joint or several losses, claims, damages,
liabilities or expenses (collectively, together with actions, proceedings or
inquiries by any regulatory or self-regulatory organization, whether commenced
or threatened, in respect thereof, "CLAIMS") to which any of them may become
subject insofar as such Claims arise out of or are based upon: (i) any untrue
statement or alleged untrue statement of a material fact in a Registration
Statement or the omission or alleged omission to state therein a material fact
required to be stated or necessary to make the statements therein not
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misleading or (ii) any untrue statement or alleged untrue statement of a
material fact contained in any preliminary prospectus if used prior to the
effective date of such Registration Statement, or contained in the final
prospectus (as amended or supplemented, if the Company files any amendment
thereof or supplement thereto with the SEC) or the omission or alleged omission
to state therein any material fact necessary to make the statements made
therein, in light of the circumstances under which the statements therein were
made, not misleading (the matters in the foregoing clauses (i) and (ii) being,
collectively, "VIOLATIONS"). Subject to the restrictions set forth in Section
6(c) with respect to the number of legal counsel, the Company shall reimburse
the Investors and each other Indemnified Person as such expenses are incurred
and are due and payable for any reasonable legal fees or other reasonable
expenses incurred by them in connection with investigating or defending any such
Claim. Notwithstanding anything to the contrary contained herein, the
indemnification agreement contained in this Section 6(a): (i) shall not apply to
a Claim arising out of or based upon a Violation which occurs in reliance upon
and in conformity with information furnished to the Company in writing by such
Indemnified Person expressly for use in the Registration Statement or any such
amendment thereof or supplement thereto; (ii) shall not apply to amounts paid in
settlement of any Claim if such settlement is effected without an unconditional
release of the Company and all of its controlling persons, employees and agents,
or without the prior written consent of the Company, which consent shall not be
unreasonably withheld; and (iii) with respect to any prospectus, shall not inure
to the benefit of any Indemnified Person if the untrue statement or omission of
material fact contained in such prospectus was corrected on a timely basis in
the prospectus, as then amended or supplemented, if such corrected prospectus
was timely made available by the Company and the Indemnified Person was promptly
advised in writing not to use the incorrect prospectus prior to the use giving
rise to a Violation and such Indemnified Person, notwithstanding such advice,
used it. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of the Indemnified Person and shall survive
the transfer of the Registrable Securities by the Investors pursuant to Section
9.
b. In connection with any Registration Statement in
which an Investor is participating, each such Investor agrees severally and not
jointly to indemnify, hold harmless and defend, to the same extent and in the
same manner set forth in Section 6(a), the Company, each of its directors, each
of its officers who signs the Registration Statement, its employees, agents and
each person, if any, who controls the Company within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act, and any other
stockholder selling securities pursuant to the Registration Statement or any of
its directors or officers or any person who controls such stockholder or
underwriter within the meaning of the Securities Act or the Exchange Act
(collectively and together with an Indemnified Person, an "INDEMNIFIED PARTY"),
against any Claim to which any of them may become subject, under the Securities
Act, the Exchange Act or otherwise, insofar as such Claim arises out of or is
based upon any Violation, in each case to the extent (and only to the extent)
that such Violation occurs in reliance upon and in conformity with information
furnished to the Company in writing by such Investor expressly for use in
connection with such Registration Statement; and subject to Section 6(c) such
Investor will reimburse any legal or other expenses (promptly as such expenses
are incurred and are due and payable) reasonably incurred by them in connection
with investigating or defending any such Claim; provided, however, that the
indemnity agreement contained in this Section 6(b) shall not apply to amounts
paid in settlement of
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any Claim if such settlement is effected without an unconditional release of
such Investor and all of its controlling persons, employees and agents, or
without the prior written consent of such Investor, which consent shall not be
unreasonably withheld; provided, further, however, that the Investor shall be
liable under this Agreement (including this Section 6(b) and Section 7) for only
that amount as does not exceed the net proceeds actually received by such
Investor as a result of the sale of Registrable Securities pursuant to such
Registration Statement. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of such Indemnified Party
and shall survive the transfer of the Registrable Securities by the Investors
pursuant to Section 9. Notwithstanding anything to the contrary contained
herein, the indemnification agreement contained in this Section 6(b) with
respect to any preliminary prospectus shall not inure to the benefit of any
Indemnified Party if the untrue statement or omission of material fact by the
Investor contained in the preliminary prospectus was corrected on a timely basis
in the prospectus, as then amended or supplemented, and the Indemnified Party
failed to utilize such corrected prospectus.
c. Promptly after receipt by an Indemnified Person or
Indemnified Party under this Section 6 of notice of the commencement of any
action (including any governmental action), such Indemnified Person or
Indemnified Party shall, if a Claim in respect thereof is made against any
indemnifying party under this Section 6, deliver to the indemnifying party a
written notice of the commencement thereof, and the indemnifying party shall
have the right to assume control of the defense thereof with counsel mutually
satisfactory to the indemnifying party and the Indemnified Person or the
Indemnified Party, as the case may be; provided, however, that such indemnifying
party shall not be entitled to assume such defense and an Indemnified Person or
Indemnified Party shall have the right to retain its own counsel with the
reasonable fees and expenses to be paid by the indemnifying party, if, in the
reasonable opinion of counsel retained by the indemnifying party, the
representation by such counsel of the Indemnified Person or Indemnified Party
and the indemnifying party would be inappropriate due to actual or potential
conflicts of interest between such Indemnified Person or Indemnified Party and
any other party represented by such counsel in such proceeding or the actual or
potential defendants in, or targets of, any such action include both the
Indemnified Person or the Indemnified Party and the indemnifying party and any
such Indemnified Person or Indemnified Party reasonably determines that there
may be legal defenses available to such Indemnified Person or Indemnified Party
which are in conflict with those available to such indemnifying party. The
indemnifying party shall pay for only one separate legal counsel for all
Indemnified Persons or the Indemnified Parties, as applicable, and such legal
counsel shall be selected by Investors holding a majority-in-interest of the
Registrable Securities included in the Registration Statement to which the Claim
relates, if the Investors are entitled to indemnification hereunder, or by the
Company, if the Company is entitled to indemnification hereunder, as applicable.
The failure to deliver written notice to the indemnifying party within a
reasonable time of the commencement of any such action shall not relieve such
indemnifying party of any liability to the Indemnified Person or Indemnified
Party under this Section 6, except to the extent that the indemnifying party is
actually prejudiced in its ability to defend such action. The indemnification
required by this Section 6 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as such expense,
loss, damage or liability is incurred and is due and payable.
11
7. CONTRIBUTION.
To the extent any indemnification by an indemnifying party is
prohibited or limited by law, the indemnifying party agrees to make the maximum
contribution with respect to any amounts for which it would otherwise be liable
under Section 6 to the fullest extent permitted by law; provided, however, that
(i) no contribution shall be made under circumstances where the maker would not
have been liable for indemnification under the fault standards set forth in
Section 6, (ii) no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any other person who was not guilty of such fraudulent
misrepresentation, and (iii) contribution (together with any indemnification or
other obligations under this Agreement) by any seller of Registrable Securities
shall be limited in amount to the net amount of proceeds received by such seller
from the sale of such Registrable Securities.
8. REPORTS UNDER THE EXCHANGE ACT.
With a view to making available to the Investors the benefits of Rule
144 promulgated under the Securities Act or any other similar rule or regulation
of the SEC that may at any time permit the Investors to sell securities of the
Company to the public without registration ("RULE 144"), the Company agrees to:
a. file with the SEC in a timely manner and make and
keep available all reports and other documents required of the Company under the
Securities Act and the Exchange Act so long as the Company remains subject to
such requirements and the filing and availability of such reports and other
documents as is required for the applicable provisions of Rule 144; and
b. furnish to each Investor so long as such Investor
owns Registrable Securities, promptly upon request, (i) a written statement by
the Company that it has complied with the reporting requirements of Rule 144,
the Securities Act and the Exchange Act, (ii) a copy of the most recent annual
or quarterly report of the Company and such other reports and documents so filed
by the Company, and (iii) such other information as may be reasonably requested
to permit the Investors to sell such securities pursuant to Rule 144 without
registration.
9. ASSIGNMENT OF REGISTRATION RIGHTS.
The rights of the Investors hereunder, including the right to have the
Company register Registrable Securities pursuant to this Agreement, may be
assigned by any Investor to any transferee or assignee of Registrable Securities
together with the securities being transferred (a "TRANSFEREE"); provided that
in each case: (i) the Investor agrees in writing with the Transferee to assign
such rights, and a copy of such agreement is furnished to the Company after such
assignment, (ii) the Company is furnished with written notice of (a) the name
and address of such Transferee and (b) the securities with respect to which such
registration rights are being transferred or assigned, and (iii) the Transferee
agrees in writing with the Company to be bound by all of the provisions
contained herein and; provided, further that Piggyback Rights shall not be
transferred or assigned to any Transferee unless such Transferee, upon
consummation of the transfer, holds as record or beneficial owner no fewer than
100,000 shares of Registrable Securities.
12
10. AMENDMENT OF REGISTRATION RIGHTS.
All consents, approvals and other determinations to be made by the
Investor pursuant to this Agreement and all waivers and amendments to or of any
provisions in this Agreement prior to the Closing Date to be binding upon the
Investors shall be made by such Investors and except as otherwise expressly
provided herein, all consents, approvals and other determinations (other than
amendments to the terms and provisions of this Agreement) to be made by the
Investors pursuant to this Agreement and all waivers and amendments to or of any
provisions in this Agreement after the Closing Date shall be made by Investors
who collectively hold more than 75% of the Registrable Securities; provided that
Section 2(a) shall not be amended so as to adversely affect the rights of Common
Investors who hold no shares of Preferred Stock as of the date of this Agreement
without the written consent of the holders of at least a majority of the shares
of Common Stock held by such Common Investors.
11. LIMITATION ON OTHER REGISTRATION RIGHTS.
The Company shall not grant to any person any registration right or
other right that would be inconsistent with any of the rights granted to
Investors herein. It shall not be a violation of this section for the Company to
grant other investors the right to participate in registrations on a basis
similar to that set forth in Section 2(c) and for such other investors to be
treated on the same basis as the Investors for purposes of determining priority
in registrations pursuant to Section 2(c)(ii).
12. MISCELLANEOUS.
a. If the Company receives conflicting instructions,
notices or elections from two or more persons or entities with respect to the
same Registrable Securities, the Company shall act upon the basis of
instructions, notice or election received from the registered owner of such
Registrable Securities.
b. Any notices required or permitted to be given under
the terms of this Agreement shall be sent by certified or registered mail
(return receipt requested) or delivered personally or by courier or by confirmed
telecopy, and shall be effective five (5) days after being placed in the mail,
if mailed, or upon receipt or refusal of receipt, if delivered personally or by
courier or confirmed telecopy, in each case addressed to a party. The addresses
for such communications shall be:
13
If to the Company:
SynQuest, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Chief Financial Officer
With a copy to:
King & Spalding
000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
If to an Investor, at the Investor's address set forth on Exhibit A hereto,
provided that if such address changes after the date hereof, as subsequently
provided in writing to the Company by notice given in accordance with this
Section 12(b), with a copy to:
Ropes & Xxxx
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxxxx
Each party hereto may from time to time change its address or facsimile
number for notices under this Section 12(b) by giving at least ten (10) days'
prior written notice of such changed address or facsimile number, in the case of
the Investors to the Company, and in the case of the Company to all of the
Investors.
c. Failure of any party to exercise any right or remedy
under this Agreement or otherwise, or delay by a party in exercising such right
or remedy, shall not operate as a waiver thereof.
d. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to conflicts
of law principles.
e. This Agreement constitutes the entire agreement among
the parties hereto with respect to the subject matter hereof and thereof. There
are no restrictions, promises, warranties or undertakings, other than those set
forth or referred to herein. This Agreement supersedes all prior
14
agreements and understandings among the parties hereto and thereto with respect
to the subject matter hereof.
f. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of each of the parties hereto.
g. The headings in this Agreement are for convenience of
reference only and shall not form part of or effect the interpretation of this
Agreement.
h. This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when counterparts have been signed by each party and
delivered to the other party. This Agreement, once executed by a party, may be
delivered to the other parties hereto by facsimile transmission of a copy of
this Agreement bearing the signature of the party so delivering this Agreement.
In the event any signature is delivered by facsimile transmission, the party
using such means of delivery shall cause the manually executed signature page(s)
hereof to be physically delivered to the other party within five (5) days of the
execution hereof.
i. Each party shall do and perform, or cause to be done
and performed, all such further acts and things, and shall execute and deliver
all such other agreements, certificates, instruments and documents, as the other
party may reasonably request in order to carry out the intent and accomplish the
purposes of this Agreement and the consummation of the transactions contemplated
hereby.
j. For purposes of this Agreement, the term "Business
Day" means any day other than a Saturday or Sunday or a day on which banking
institutions in the State of Georgia are authorized or obligated by law,
regulation or executive order to close.
k. If any provision of this Agreement shall be invalid
or unenforceable in any jurisdiction, such invalidity or unenforceability shall
not affect the validity or enforceability of the remainder of this Agreement or
the validity or enforceability of this Agreement in any other jurisdiction.
l. This Agreement is intended for the benefit of the
parties hereto and their respective permitted successors and assigns, and is not
for the benefit of, nor may any provision hereof be enforced by any other
person.
m. After the date of this Agreement, the parties
acknowledge that a person or other entity may become a party hereto if: (i) such
person or other entity has executed a Lock-up Agreement, substantially in the
form of Exhibit G to the Stock Purchase Agreement and (ii) if such person or
other entity will be the beneficial owner, as defined in Rule 13d-1 under the
Securities Exchange Act of 1934, as amended, of five percent (5%) or more of the
Company's Common Stock following the consummation of the transactions
contemplated by the Viewlocity
15
Merger Agreement and the Stock Purchase Agreement, such person or other entity
becomes a party to the Shareholders Agreement, substantially in the form of
Exhibit C to the Stock Purchase Agreement, by executing a copy of the Joinder
Agreement attached hereto as Exhibit A; provided, however, that notice of the
addition of any such party shall be promptly given to all other parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
16
IN WITNESS WHEREOF, the undersigned Investors and the Company have
caused this Amended and Restated Registration Rights Agreement to be duly
executed as of the date first above written.
COMPANY:
SYNQUEST, INC.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
Xxxxxxx X. Xxxxxx
President
[SIGNATURES CONTINUE ON NEXT PAGE]
PREFERRED INVESTORS:
VENROCK ASSOCIATES
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------
Xxxxx X. Xxxxxxxx
General Partner
VENROCK ASSOCIATES II, L.P.
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------
Xxxxx X. Xxxxxxxx
General Partner
VENROCK ASSOCIATES III, L.P.
By: Venrock Management III LLC
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------
Xxxxx X. Xxxxxxxx
Member
VENROCK ENTREPRENEURS FUND, L.P.
By: Venrock Management, LLC
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxxx
-----------------------
Xxxxx X. Xxxxxxxx
Member
[SIGNATURES CONTINUE ON NEXT PAGE]
NORTH BRIDGE VENTURE PARTNERS IV-A, L.P.
NORTH BRIDGE VENTURE PARTNERS IV-B, L.P.
By: North Bridge Venture Management IV, L.P.,
as General Partner for each of the foregoing
entities
By: /s/ X. X. Xxxxx
---------------------------
X. X. Xxxxx
General Partner
LIBERTY MUTUAL INSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxxx
---------------------------
Xxxxxx X. Xxxxxx
Vice President
WARBURG, XXXXXX INVESTORS, L.P.
By: Warburg, Xxxxxx & Co.,
General Partner
By: /s/ Xxxxx Xxxxxxx
---------------------------
Xxxxx Xxxxxxx
Senior Managing Director
TICONDEROGA E-SERVICES FUND II, L.P.
By: Ticonderoga e-Services Associates II, LLC,
its General Partner
By: /s/ Xxxxx X. Xxxxxxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxxxxxx
Member
/s/ X.X. Xxxxxxx
-----------------------
X.X. Xxxxxxx
[SIGNATURES CONTINUE ON NEXT PAGE]
BATTERY VENTURES IV, L.P.
By: Battery Partners IV, LLC
By: /s/ Xxxxxx X. Xxxxx
----------------------
Xxxxxx X. Xxxxx
Member Manager
BATTERY INVESTMENT PARTNERS IV LLC
By: Battery Partners IV, LLC
By: /s/ Xxxxxx X. Xxxxx
----------------------
Xxxxxx X. Xxxxx
Member Manager
[SIGNATURES CONTINUE ON NEXT PAGE]
LUCENT VENTURE PARTNERS I LLC
By: /s/ Xxxxx Xxxxxx
--------------------
Xxxxx Xxxxxx
Vice President
[SIGNATURES CONTINUE ON NEXT PAGE]
TILION, INC.
By: /s/ Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx
President and Chief Executive Officer
EXHIBIT A
VENROCK ASSOCIATES,
VENROCK ASSOCIATES II, L.P.,
VENROCK ASSOCIATES III, L.P.,
VENROCK ENTREPRENEURS FUND, L.P.
c/o Venrock Associates
00 Xxxxxxxxxxx Xxxxx, Xxxx 0000
Xxx Xxxx, XX 00000
NORTH BRIDGE VENTURE PARTNERS IV-A, L.P.,
NORTH BRIDGE VENTURE PARTNERS IV-B, L.P.
x/x Xxxxx Xxxxxx Xxxxxxx Partners
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
BATTERY VENTURES IV, L.P.,
BATTERY INVESTMENT PARTNERS IV LLC
c/o Battery Ventures
00 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
LIBERTY MUTUAL INSURANCE COMPANY
000 Xxxxxxxx Xxxxxx, 0X
Xxxxxx, XX 00000
WARBURG, XXXXXX INVESTORS, L.P.
c/o Warburg Pincus
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
TICONDEROGA E-SERVICES FUND II, L.P.
c/o Ticonderoga Capital
00 Xxxxxxx Xxxxxx
Xxxxx X00
Xxxxxxxxx, XX 00000
X.X. XXXXXXX
0000 Xxxxxxxx Xxxx
Xxxxx 0000
Xxxxxxx, XX 00000
LUCENT VENTURE PARTNERS I LLC
0000 Xxxxxx Xxxxx, Xxxxx X
Xxxx Xxxx, XX 00000
TILION, INC.
0 Xxxxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxx, XX 00000
EXHIBIT A
FORM OF JOINDER AGREEMENT
The undersigned hereby agrees, effective as of the date hereof, to
become a party to that certain Amended and Restated Registration Rights
Agreement (the "Agreement") dated as of September 20, 2002 by and among
SynQuest, Inc., a Georgia corporation, (the "Company") and the other parties
named therein, and for all purposes of the Agreement, the undersigned shall be
included within the term "Investor" and, if applicable, the term "Preferred
Investor", each as defined in the Agreement. The address and facsimile number to
which notices may be sent to the undersigned is as follows:
Address:
Fax:
By:
---------------------------------------
Name:
-------------------------------------
