EXHIBIT 10.32
THIRD AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
June 22, 2000
To each of the several Purchasers named in EXHIBIT A to the Series E Convertible
Preferred Stock Purchase Agreement of even date herewith and each of the several
Purchasers named in EXHIBIT A to the Series E Convertible Preferred Stock
Purchase Agreement dated April 14, 2000 (collectively, the "Series E
Purchasers"), each of the several Purchasers named in EXHIBIT A to the Series D
Convertible Preferred Stock Purchase Agreement dated December 30, 1999, as
amended (the "Series D Purchasers") and each of the Several Purchasers named in
Exhibit 1.01 to the Preferred Stock and Preferred Stock Warrant Purchase
Agreement dated February 25, 1999, as amended (together with the Series E
Purchasers and Series D Purchasers, collectively the "Purchasers")
Dear Sirs:
This will confirm that in consideration of the Series E Purchasers'
agreement on the date hereof to purchase 1,487,805 shares (the "Series E
Preferred Shares") of Series E Convertible Preferred Stock, par value $.01 per
share ("Series E Preferred Stock"), of Viewlocity, Inc., a Delaware corporation
(the "Company"), pursuant to and as set forth in the Series E Convertible
Preferred Stock Purchase Agreement dated as of June 22, 2000 ("Second Series E
Purchase Agreement") by and among the Company and the Series E Purchasers listed
on Exhibit A to the Second Series E Purchase Agreement, and as an inducement to
the Series E Purchasers to consummate the transactions contemplated by the
Second Series E Purchase Agreement, the Company covenants and agrees with each
of the Purchasers included on the signature pages hereto as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following terms
shall have the following respective meanings:
"COMMISSION" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"COMMON STOCK" shall mean the Common Stock, par value $.01 per share, of
the Company, as constituted as of the date of this Agreement.
"COMMVEST WARRANT" shall mean that certain Warrant to purchase 150,000
Common Shares dated November 12, 1999, issued by the Corporation to CommVest,
LLC.
"CONTINGENT WARRANT" shall mean that certain Contingent Warrant to purchase
393,750 Common Shares dated October 27, 1999, issued by the Corporation to
Xxxxxxx Street Associates II, LLC.
Registration Rights Agreement - Page 2
"CONVERSION SHARES" shall mean shares of Common Stock issued or issuable
upon conversion of the Preferred Shares, and any shares of capital stock
received in respect thereof.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934 or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
"FIRST SERIES E PURCHASE AGREEMENT" shall mean that certain Series E
Convertible Preferred Stock Purchase Agreement of the Company dated April 14,
2000.
"IMPERIAL BANK WARRANT" shall mean that certain Warrant to purchase 52,000
Common Shares dated November 26, 1999, issued by the Corporation to Imperial
Bancorp.
"PREFERRED SHARES" shall mean all Series A Preferred Shares, Series B
Preferred Shares, Series D Preferred Shares, and Series E Preferred Shares.
"PREFERRED STOCK" shall mean the Series A Preferred Stock, the Series B
Preferred Stock, the Series D Preferred Stock and the Series E Preferred Stock.
"PRIOR PURCHASE AGREEMENT" shall mean the Preferred Stock and Preferred
Stock Warrant Purchase Agreement of the Company dated February 25, 1999, as
amended on March 12, 1999.
"REGISTRATION EXPENSES" shall mean the expenses so described in Section 8.
"RESTRICTED STOCK" shall mean (1) the Conversion Shares, excluding
Conversion Shares which have been (a) registered under the Securities Act
pursuant to an effective registration statement filed thereunder and are
eligible to be disposed of pursuant to an effective "shelf" registration
statement or have been disposed of in accordance with the registration statement
covering them or (b) publicly sold pursuant to Rule 144 under the Securities
Act, and (2) solely for purposes of Section 5 hereof, any shares of Common Stock
issued or issuable upon the exercise of the Contingent Warrant, the CommVest
Warrant, and/or the Imperial Bank Warrant, excluding any such shares which have
been (a) registered under the Securities Act pursuant to an effective
registration statement filed thereunder and are eligible to be disposed of
pursuant to an effective "shelf" registration statement or have been disposed of
in accordance with the registration statement covering them or (b) publicly sold
pursuant to Rule 144 under the Securities Act.
"SECURITIES ACT" shall mean the Securities Act of 1933 or any similar
federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time.
"SERIES A PREFERRED SHARES" shall mean shares of Series A Preferred Stock.
"SERIES A PREFERRED STOCK" shall mean the Series A Convertible Preferred
Stock, $.01 par value per share, of the Company.
"SERIES D PURCHASE AGREEMENT" shall mean that certain Series D Convertible
Preferred Stock Purchase Agreement of the Company dated December 30, 1999.
Registration Rights Agreement - Page 3
"SELLING EXPENSES" shall mean the expenses so described in Section 8.
"SERIES B PREFERRED SHARES" shall mean shares of Series B Preferred Stock
issued or issuable upon exercise of the Warrants.
"SERIES B PREFERRED STOCK" shall mean the Series B Convertible Preferred
Stock, $.01 par value per share, of the Company.
"SERIES D PREFERRED STOCK" shall mean the Series D Convertible Preferred
Stock, $.01 par value per share, of the Company.
"WARRANTS" shall mean those certain Series B Preferred Stock Purchase
Warrants issued to Battery Ventures IV, L.P. and Battery Investment Partners IV,
LLC on March 12, 1999 and April 9, 1999.
2. RESTRICTIVE LEGEND. Each certificate representing Preferred Shares,
Conversion Shares or Restricted Stock shall, except as otherwise
provided in this Section 2 or in Section 3, be stamped or otherwise
imprinted with a legend substantially in the following form:
"The securities represented by this certificate have not been registered
under the Securities Act of 1933 or applicable state securities laws. These
securities have been acquired for investment and not with a view to
distribution or resale, and may not be sold mortgaged, pledged,
hypothecated or otherwise transferred without an effective registration
statement for such securities under the Securities Act of 1933 and
applicable state securities laws, or the availability of an exemption from
the registration provisions of the Securities Act of 1933 and applicable
state securities laws."
A certificate shall not bear such legend if in the written opinion of
counsel reasonably satisfactory to the Company (it being agreed that either
Xxxxx, Xxxxxxx & Xxxxxxxxx, LLP or Xxxxx, Xxxxx & Xxxxx shall be satisfactory)
the securities being sold thereby may be publicly sold without registration
under the Securities Act.
3. NOTICE OF PROPOSED TRANSFER. Prior to any proposed transfer of any
Preferred Shares, Conversion Shares or Restricted Stock (other than
under the circumstances described in Sections 4, 5 or 6), the holder
thereof shall give written notice to the Company of its intention to
effect such transfer. Each such notice shall describe the manner of
the proposed transfer and, if requested by the Company, shall be
accompanied by a written opinion of counsel reasonably satisfactory to
the Company (it being agreed that either Xxxxx, Xxxxxxx & Xxxxxxxxx,
LLP or Xxxxx, Xxxxx & Xxxxx shall be satisfactory) to the effect that
the proposed transfer may be effected without registration under the
Securities Act, whereupon the holder of such stock shall be entitled
to transfer such stock in accordance with the terms of its notice;
PROVIDED, HOWEVER, that no such opinion of counsel shall be required
for a transfer to one or more partners of the transferor
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(in the case of a transferor that is a partnership), to one or more
members of the transferor (in the case of a transferor that is a
limited liability company) or to an affiliated corporation (in the
case of a transferor that is a corporation); PROVIDED, FURTHER,
HOWEVER, that any transferee other than a partner or affiliate of the
transferor shall execute and deliver to the Company a representation
letter in form reasonably satisfactory to the Company's counsel to the
effect that the transferee is acquiring Restricted Stock for its own
account, for investment purposes and without any view to distribution
thereof. Each certificate for Preferred Shares or Conversion Shares
transferred as above provided shall bear the legend set forth in
Section 2, except that such certificate shall not bear such legend if
(i) such transfer is in accordance with the provisions of Rule 144 (or
any other rule permitting public sale without registration under the
Securities Act) or (ii) the opinion of counsel referred to above is to
the further effect that the transferee and any subsequent transferee
(other than an affiliate of the Company) would be entitled to transfer
such securities in a public sale without registration under the
Securities Act. The restrictions provided for in this Section 3 shall
not apply to securities which are not required to bear the legend
prescribed by Section 2 in accordance with the provisions of that
Section.
4. Required Registration.
(a) The holders of Restricted Stock constituting at least twenty percent
(20%) in interest of the total shares of Restricted Stock then outstanding may
request the Company to register under the Securities Act all or any portion of
the shares of Restricted Stock held by such requesting holder or holders for
sale in the manner specified in such notice. For purposes of this Section 4 and
Sections 5, 6, 13(a) and 13(d), the term "Restricted Stock" shall be deemed to
include the number of shares of Restricted Stock which would be issuable to a
holder of Preferred Shares upon conversion of all shares of Preferred Stock and
upon exercise of all Warrants held by such holder at such time; PROVIDED,
HOWEVER, that the only securities which the Company shall be required to
register pursuant hereto shall be shares of Common Stock; PROVIDED, FURTHER,
HOWEVER, that, in any underwritten public offering contemplated by this Section
4 or Sections 5 and 6, the holders of Preferred Shares or Warrants shall be
entitled to sell such Preferred Shares or Warrants to the underwriters for
conversion and sale of the shares of Common Stock issued upon conversion or
exercise and conversion, as applicable, thereof. Notwithstanding anything to the
contrary contained herein, no request may be made under this Section 4 within
180 days after the effective date of a registration statement filed by the
Company covering a firm commitment underwritten public offering in which the
holders of Restricted Stock shall have been entitled to join pursuant to
Sections 5 or 6.
(b) Following receipt of any notice under this Section 4, the Company shall
immediately notify all holders of Restricted Stock and Preferred Shares from
whom notice has not been received and such holders shall then be entitled within
30 days thereafter to request the Company to include in the requested
registration all or any portion of their shares of Restricted Stock. The Company
shall use its best efforts to register under the Securities Act, for public sale
in accordance with the method of disposition described in paragraph (a) above,
the number of shares of Restricted Stock specified in such notice (and in all
notices received by the Company from other holders within 30 days after the
giving of such notice by the Company).
Registration Rights Agreement - Page 5
The Company shall be obligated to register Restricted Stock pursuant to this
Section 4 on two occasions only; PROVIDED, HOWEVER, that such obligation shall
be deemed satisfied only when a registration statement covering all shares of
Restricted Stock specified in notices received as aforesaid for sale in
accordance with the method of disposition specified by the requesting holders
shall have, become effective or if such registration statement has been
withdrawn prior to the consummation of the offering at the request of the
holders of Restricted Stock (other than as a result of a material adverse change
in the business or condition, financial or otherwise, of the Company) and, if
such method of disposition is a firm commitment underwritten public offering,
all such shares shall have been sold pursuant thereto (not including shares
eligible for sale pursuant to the underwriters' over-allotment option).
(c) The Company shall be entitled to include in any registration statement
referred to in this Section 4 shares of Common Stock to be sold by the Company
for its own account, except as and to the extent that, in the opinion of the
managing underwriter, such inclusion would adversely affect the marketing of the
Restricted Stock to be sold. Except for registration statements on Form X-0, X-0
or any successor thereto, the Company will not file with the Commission any
other registration statement with respect to its Common Stock, whether for its
own account or that of other stockholders, from the date of receipt of a notice
from requesting holders requesting sale pursuant to an underwritten offering
pursuant to this Section 4 until the completion of the period of distribution of
the registration contemplated thereby.
(d) If in the opinion of the managing underwriter the inclusion of all of
the Restricted Stock requested to be registered under this Section would
adversely affect the marketing of such shares, shares to be sold by the holders
of Restricted Stock, if any, shall be excluded only after any shares to be sold
by the Company have been excluded and in such manner that the shares to be sold
shall be allocated among the selling holders pro rata based on their ownership
of Restricted Stock.
5. INCIDENTAL REGISTRATION. If the Company at any time (other than
pursuant to Section 4 or Section 6) proposes to register any of its
securities under the Securities Act for sale to the public, whether
for its own account or for the account of other security holders or
both (except with respect to registration statements on Forms X-0, X-0
or another form not available for registering the Restricted Stock for
sale to the public), each such time it will give written notice to all
holders of outstanding Restricted Stock of its intention so to do.
Upon the written request of any such holder, received by the Company
within 30 days after the giving of any such notice by the Company, to
register any of its Restricted Stock, the Company will use its best
efforts to cause the Restricted Stock as to which registration shall
have been so requested to be included in the securities to be covered
by the registration statement proposed to be filed by the Company, all
to the extent requisite to permit the sale or other disposition by the
holder (in accordance with its written request) of such Restricted
Stock so registered. In the event that any registration pursuant to
this Section 5 shall be, in whole or in part, an underwritten public
offering of Common Stock, the number of shares of Restricted Stock to
be included in such an underwriting may be reduced (pro rata among the
requesting holders based upon the number of shares of Restricted Stock
held by such requesting holders) if and to the extent that the
managing
Registration Rights Agreement - Page 6
underwriter shall be of the opinion that such inclusion would
adversely affect the marketing of the securities to be sold by the
Company therein; PROVIDED, HOWEVER, that such number of shares of
Restricted Stock shall not be reduced if any shares are to be included
in such underwriting for the account of any person other than the
Company or requesting holders of Restricted Stock; PROVIDED, FURTHER,
HOWEVER, that in no event shall the number of shares of Restricted
Stock included in the offering be reduced below the lesser of (a)
twenty percent (20%) of the total number of shares of Common Stock
included in such offering or (b) all of the shares of Restricted Stock
requested to be registered, unless the offering is the Company's
initial public offering of the Company's securities in which case the
number of shares of Restricted Stock to be included by the holders may
be reduced or eliminated entirely as set forth above. Notwithstanding
the foregoing provisions, the Company may withdraw any registration
statement referred to in this Section 5 without thereby incurring any
liability to the holders of Restricted Stock.
6. REGISTRATION ON FORM S-3.
(a) If at any time (i) a holder or holders of Restricted Stock then
outstanding request that the Company file a registration statement on Form S-3
or any successor thereto for a public offering of all or any portion of the
shares of Restricted Stock held by such requesting holder or holders, the
reasonably anticipated aggregate price to the public of which would exceed
$500,000, and (ii) the Company is a registrant entitled to use Form S-3 or any
successor thereto to register such shares, then the Company shall use its
reasonable best efforts to register under the Securities Act on Form S-3 or any
successor thereto, for public sale in accordance with the method of disposition
specified in such notice, the number of shares of Restricted Stock specified in
such notice. Whenever the Company is required by this Section 6 to use its best
efforts to effect the registration of Restricted Stock, each of the procedures
and requirements of Section 4 (including but not limited to the requirement that
the Company notify all holders of Restricted Stock from whom notice has not been
received and provide them with the opportunity to participate in the offering)
shall apply to such registration; PROVIDED, HOWEVER, that there shall be no
limitation on the number of registrations on Form S-3 which may be requested and
obtained under this Section 6.
(b) Notwithstanding anything to the contrary set forth in this Agreement,
the Company's obligation under this Agreement to register Restricted Stock under
the Securities Act on registration statements ("Registration Statements") may,
upon the reasonable determination of the Board of Directors made only once
during any six (6) month period, be suspended in the event and during such
period as unforeseen circumstances (including without limitation (i) an
underwritten primary offering by the Company (which includes no secondary
offering) if the Company is advised in writing by its underwriters that the
registration of the Restricted Stock would have a material adverse effect on the
Company's offering, or (ii) pending negotiations relating to, or consummation
of, a transaction or the occurrence of an event which would require additional
disclosure of material information by the Company in Registration Statements or
such other filings, as to which the Company has a bona fide business purpose for
preserving confidentiality or which renders the Company unable to comply with
Commission requirements) exist (such unforeseen circumstances being hereinafter
referred to as a "Suspension Event")
Registration Rights Agreement - Page 7
which would make it impractical or unadvisable for the Company to file the
Registration Statements or such other filings or to cause such to become
effective. Such suspension shall continue only for so long as such event is
continuing but in no event for a period longer than ninety (90) days. The
Company shall notify the Purchasers of the existence and nature of any
Suspension Event.
7. REGISTRATION PROCEDURES. If and whenever the Company is required by
the provisions of Sections 4, 5 or 6 to use its best efforts to effect
the registration of any shares of Restricted Stock under the
Securities Act, the Company will, promptly:
(a) prepare and file with the Commission a registration statement (which,
in the case of an underwritten public offering pursuant to Section 4, shall be
on Form S-1 or other form satisfactory to the managing underwriter selected as
therein provided) with respect to such securities and use its best efforts to
cause such registration statement to become and remain effective for the period
of the distribution contemplated thereby (determined as hereinafter provided);
(b) prepare and file with the Commission such amendments and supplements to
such registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for the period
specified in paragraph (a) above and comply with the provisions of the
Securities Act with respect to the disposition of all Restricted Stock covered
by such registration statement in accordance with the sellers' intended method
of disposition set forth in such registration statement for such period;
(c) furnish without charge to each seller of Restricted Stock and to each
underwriter such number of copies of the registration statement, each such
amendment and supplement thereto (in each case including all exhibits and all
documents incorporated therein by reference) and the prospectus included therein
(including each preliminary prospectus) as such persons reasonably may request
in order to facilitate the public sale or other disposition of the Restricted
Stock covered by such registration statement;
(d) use its best efforts to register or qualify the Restricted Stock
covered by such registration statement under the securities or "blue sky" laws
of such jurisdictions as the sellers of Restricted Stock or, in the case of an
underwritten public offering, the managing underwriter reasonably shall request;
PROVIDED, HOWEVER, that the Company shall not for any such purpose be required
to qualify generally to transact business as a foreign corporation in any
jurisdiction where it is not so qualified or to consent to general service of
process in any such jurisdiction;
(e) (i) use its best efforts to list the Restricted Stock covered by such
registration statement with any securities exchange on which the Common Stock of
the Company is then listed, if the listing of such Restricted Stock is then
permitted under the rules of such exchange, or (ii) if no similar securities are
then so listed, to either cause all such Restricted Stock to be listed on a
national securities exchange or to secure designation of all such Restricted
Stock as a National Association of Securities Dealers, Inc. Automated Quotation
System ("NASDAQ") "national market system security" within the meaning of Rule
11Aa2-1 of the Commission or, failing that, secure NASDAQ authorization for such
shares and, without limiting the generality
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of the foregoing, take all actions that may be required by the Company as the
issuer of such Restricted Stock in order to facilitate the managing
underwriter's arranging for the registration of at least two market makers as
such with respect to such shares with the National Association of Securities
Dealers, Inc. (the "NASD"), provided, however, the Company shall not be required
to cause the Restricted Stock to be listed on any national securities exchange
or to secure designation of the Restricted Stock as a NASDAQ national market
system security or on any other inter-dealer quotation system if at that time
the Company does not satisfy the criteria for such listing or designation
established by such exchange or inter-dealer quotation system;
(f) immediately notify each seller of Restricted Stock and each underwriter
under such registration statement, (i) at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the happening
of any event of which the Company has knowledge as a result of which the
prospectus contained in such registration statement, as then in effect, includes
an untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances then existing, and promptly prepare and
furnish without charge to such seller a reasonable number of copies of a
prospectus supplemented or amended so that, as thereafter delivered to the
purchasers of such Restricted Stock, such prospectus shall not include an 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 in
light of the circumstances then existing; (ii) when the registration statement,
any pre-effective amendment to the registration statement, the prospectus or any
prospectus supplement related thereto or post-effective amendment to the
registration statement has been filed and, with respect to the registration
statement or any post-effective amendment, when the same has become effective;
(iii) of any request by the Commission or state securities authority for
amendments or supplements to the registration statement or the prospectus
related thereto or for additional information; (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the registration
statement or the initiation of any proceedings for that purpose; and (v) of the
receipt by the Company of any notification with respect to the suspension of the
qualification of any Restricted Stock for sale under the securities or blue sky
laws of any jurisdiction or the initiation of any proceeding for such purpose;
(g) if the offering is underwritten and at the request of any seller of
Restricted Stock, use its best efforts to furnish on the date that Restricted
Stock is delivered to the underwriters for sale pursuant to such registration:
(i) an opinion dated such date of counsel representing the Company for the
purposes of such registration, addressed to the underwriters and to such seller,
to such effect as reasonably may be requested by counsel for the underwriters,
and (ii) a letter dated such date from the independent public accountants
retained by the Company, addressed to the underwriters and to such seller,
stating that they are independent public accountants within the meaning of the
Securities Act and that, in the opinion of such accountants, the financial
statements of the Company included in the registration statement or the
prospectus, or any amendment or supplement thereof, comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other financial matters
(including information as to the period ending no more than five business days
prior to the date of such letter) with respect to such registration as such
underwriters reasonably may request;
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(h) make available for inspection by each seller of Restricted Stock, any
underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such seller
or underwriter, reasonable access to all financial and other records, pertinent
corporate documents and properties of the Company, as such parties may
reasonably request, and cause the Company's officers, directors and employees to
supply all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration statement;
(i) cooperate with the selling holders of Restricted Stock and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing Restricted Stock to be sold, such certificates to be
in such denominations and registered in such names as such holders or the
managing underwriters may request at least two business days prior to any sale
of Restricted Stock; and permit any holder of Restricted Stock which holder, in
the sole and exclusive judgment, exercised in good faith, of such holder, might
be deemed to be a controlling person of the Company, to participate in good
faith in the preparation of such registration or comparable statement and to
require the insertion therein of material, furnished to the Company in writing,
which in the reasonable judgment of such holder and its counsel should be
included, subject to review by the Company and its counsel after consultation
with such holder. For purposes of Section 7(a) and 7(b) and of Section 4(c), the
period of distribution of Restricted Stock in a firm commitment underwritten
public offering shall be deemed to extend until each underwriter has completed
the distribution of all securities purchased by it, and the period of
distribution of Restricted Stock in any other registration shall be deemed to
extend until the earlier of the sale of all Restricted Stock covered thereby and
180 days after the effective date thereof.
(j) in the case of an underwritten offering, enter into such customary
agreements (including an underwriting agreement) and take such other actions as
the holders of a majority of the shares of Restricted Stock participating in
such offering shall reasonably request in order to facilitate the disposition of
such Restricted Stock. The holders of the shares of Restricted Stock which are
to be distributed by such underwriters shall be parties to such underwriting
agreement and may, at their option, require that the Company make to and for the
benefit of such holders the representations, warranties and covenants of the
Company which are being made to and for the benefit of such underwriters and
which are of the type customarily provided to institutional investors in
secondary offerings;
(k) use its reasonable best efforts to obtain promptly the withdrawal of
any order suspending the effectiveness of the registration statement;
(l) provide a CUSIP number for all Restricted Stock, not later than the
effective date of the registration statement; and
(m) make reasonably available its employees and personnel and otherwise
provide reasonable assistance to the underwriters (taking into account the needs
of the Company's business and the requirements of the marketing process) in the
marketing of Restricted Stock in any underwritten offering.
Registration Rights Agreement - Page 10
In connection with each registration hereunder, the sellers of Restricted
Stock will furnish to the Company in writing such information requested by the
Company with respect to themselves and the proposed distribution by them as
reasonably shall be necessary in order to assure compliance with federal and
applicable state securities laws and to make the registration statement correct,
accurate and complete in all respects with respect to such sellers; provided,
however, that this requirement shall not be deemed to limit any disclosure
obligation arising out of any seller's relationship to the Company if one of
such seller's agents or affiliates is an officer, director or control person of
the Company. In addition, the sellers shall, if requested by the Company,
execute such other agreements, which are reasonably satisfactory to them and
which shall contain such provisions as may be customary and reasonable in order
to accomplish the registration of the Restricted Stock.
In connection with each registration pursuant to Sections 4, 5 or 6
covering an underwritten public offering, the Company and each seller agree to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature.
8. EXPENSES. All expenses incurred by the Company in complying with
Sections 4, 5 and 6, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel
and independent public accountants for the Company, fees and expenses
(including counsel fees) incurred in connection with complying with
state securities or "blue sky" laws, fees and expenses of one counsel
for the selling holders of Restricted Stock in connection with the
registration of Restricted Stock, fees of the National Association of
Securities Dealers, Inc., transfer taxes, fees of transfer agents and
registrars, costs of any insurance which might be obtained by the
Company, but excluding any Selling Expenses, are called "Registration
Expenses." All underwriting discounts and selling commissions
applicable to the sale of Restricted Stock and the fees and expenses
of more than one counsel for the selling holders of Restricted Stock
in connection with the registration of Restricted Stock are called
"Selling Expenses."
The Company will pay all Registration Expenses in connection with each
registration statement under Sections 4, 5 or 6. All Selling Expenses in
connection with each registration statement under Sections 4, 5 or 6 shall be
borne by the participating sellers in proportion to the number of shares sold by
each, or by such participating sellers other than the Company (except to the
extent the Company shall be a seller) as they may agree.
9. INDEMNIFICATION.
(a) In the event of a registration of any of the Restricted Stock under the
Securities Act pursuant to Sections 4, 5 or 6, the Company will indemnify and
hold harmless each holder of Restricted Stock, its partners, members,
stockholders, affiliates, officers and directors, each underwriter of such
Restricted Stock thereunder and each other person, if any, who controls such
seller or underwriter within the meaning of the Securities Act, against any
losses, claims,
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damages or liabilities, joint or several, to which such holder, partner, member,
stockholder, affiliate, officer, director, underwriter or controlling person may
become subject under the Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of or
are based upon (i) any untrue statement or alleged untrue statement of any
material fact contained in any registration statement under which such
Restricted Stock was registered under the Securities Act pursuant to Sections 4,
5 or 6, any preliminary prospectus or final prospectus contained therein, or any
amendment or supplement thereof, (ii) any blue sky application or other document
executed by the Company specifically for that purpose or based upon written
information furnished by the Company filed in any state or other jurisdiction in
order to qualify any or all of the Restricted Stock under the securities laws
thereof (any such application, document or information herein called a "Blue Sky
Application"), (iii) the omission or alleged omission to state in any document
referred to in clause (i) or (ii), together with any document incorporated by
reference therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iv) any violation by the Company or
its agents of any rule or regulation promulgated under the Securities Act
applicable to the Company or its agents and relating to action or inaction
required of the Company in connection with such registration, or (v) any failure
to register or qualify the Restricted Stock in any state where the Company or
its agents has affirmatively undertaken or agreed in writing that the Company
(the undertaking of any underwriter chosen by the Company being attributed to
the Company) will under-take such registration or qualification on the seller's
behalf (provided that in such instance the Company shall not be so liable if it
has undertaken its best efforts to so register or qualify the Restricted Stock)
and will reimburse each such holder, partner, member, stockholder, affiliate,
and such officer and director, each such underwriter and each such controlling
person for any legal or other expenses reasonably incurred by them in connection
with investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company will not be liable in any such case
if and to the extent that any such loss, claim, damage or liability arises out
of or is based upon an untrue statement or alleged untrue statement or omission
or alleged omission so made in conformity with information furnished by any such
seller, any such underwriter or any such controlling person in writing
specifically for use in such registration statement, prospectus or Blue Sky
Application.
(b) In the event of a registration of any of the Restricted Stock under the
Securities Act pursuant to Sections 4, 5 or 6, each seller of such Restricted
Stock thereunder, severally and not jointly, will indemnify and hold harmless
the Company, each person, if any, who controls the Company within the meaning of
the Securities Act, each officer of the Company who signs the registration
statement, each director of the Company, each other holder of Restricted Stock
(including its partners, members, stockholders and affiliates), each underwriter
and each person who controls any underwriter within the meaning of the
Securities Act, against all losses, claims, damages or liabilities, joint or
several, to which the Company or such officer, director, other seller,
underwriter or controlling person may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration statement
under which such Restricted Stock was registered under the Securities Act
pursuant to Sections 4, 5 or 6, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, or any Blue Sky
Application or arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not
Registration Rights Agreement - Page 12
misleading, and will reimburse the Company and each such officer, director,
other seller, underwriter and controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that such
seller will be liable hereunder in any such case if and only to the extent that
any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with information pertaining to such
seller, as such, furnished in writing to the Company by such seller specifically
for use in such registration statement, prospectus or Blue Sky Application; and
PROVIDED, FURTHER, HOWEVER, that the liability of each seller hereunder shall be
limited to the proportion of any such loss, claim, damage, liability or expense
which is equal to the proportion that the public offering price of the shares
sold by such seller under such registration statement bears to the total public
offering price of all securities sold thereunder, but not in any event to exceed
the proceeds received by such seller from the sale of Restricted Stock covered
by such registration statement.
(c) Promptly after receipt by an indemnified party hereunder of notice of
the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
such indemnified party other than under this Section 9 and shall only relieve it
from any liability which it may have to such indemnified party under this
Section 9 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 9 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; PROVIDED,
HOWEVER, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that the interests of the indemnified party reasonably may be deemed
to conflict with the interests of the indemnifying party, the indemnified party
shall have the right to select a separate counsel and to assume such legal
defenses and otherwise to participate in the defense of such action, with the
expenses and fees of such separate counsel and other expenses related to such
participation to be reimbursed by the indemnifying party as incurred.
(d) If for any reason the foregoing indemnity is unavailable or is
insufficient to hold harmless an indemnified party under Sections 9(a) or (b),
then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of any and losses, claims, damages and
liabilities ("Claims") in such proportion as is appropriate to reflect the
relative fault of the indemnifying party, on the one hand, and the indemnified
party, on the other hand, with respect to such offering of securities. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
indemnifying party or the indemnified party and the parties' relative intent,
knowledge,
Registration Rights Agreement - Page 13
access to information and opportunity to correct or prevent such untrue
statement or omission. If, however, the allocation provided in the second
preceding sentence is not permitted by applicable law, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative faults
but also the relative benefits of the indemnifying party and the indemnified
party as well as any other relevant equitable considerations. The parties hereto
agree that it would not be just and equitable if contributions pursuant to this
Section 9(d) were to be determined by pro rata allocation or by any other method
of allocation which does not take account of the equitable considerations
referred to in the preceding sentences of this Section 9(d). The amount paid or
payable in respect of any Claim shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such Claim. No person guilty of fraudulent
misrepresentation (within the meaning of section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. Notwithstanding anything in this section 9(d) to
the contrary, no indemnifying party (other than the Company) shall be required
pursuant to this section 9(d) to contribute any amount in excess of the net
proceeds received by such indemnifying party from the sale of Restricted Stock
in the offering to which the losses, claims, damages or liabilities of the
indemnified parties relate, less the amount of any indemnification payment made
by such indemnifying party pursuant to Sections 9(b).
(e) The indemnities provided in this Section 9 shall survive the transfer
of any Restricted Stock by such holder.
(f) The indemnities provided in this Section 9 shall be for the exclusive
benefit of the Company and the holders of Restricted Stock and shall not be
deemed to benefit any third party who has not otherwise become a party hereto.
10. CHANGES IN COMMON STOCK OR PREFERRED STOCK. If, and as often as, there
is any change in the Common Stock or the Preferred Stock by way of a
stock split, stock dividend, combination or reclassification, or
through a merger, consolidation, reorganization or recapitalization,
or by any other means, appropriate adjustment shall be made in the
provisions hereof so that the rights and privileges granted hereby
shall continue with respect to the Common Stock or the Preferred Stock
as so changed.
11. RULE 144 REPORTING. With a view to making available the benefits of
certain rules and regulations of the Commission which may at any time
permit the sale of the Restricted Stock to the public without
registration, at all times after 90 days after any registration
statement covering a public offering of securities of the Company
under the Securities Act shall have become effective, the Company
agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to file with the Commission in a timely manner all
reports and other documents required of the Company under the Securities Act and
the Exchange Act; and
Registration Rights Agreement - Page 14
(c) furnish to each holder of Restricted Stock forthwith upon request a
written statement by the Company as to its compliance with the reporting
requirements of such Rule 144 and of the Securities Act and the Exchange Act, a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents so filed by the Company as such holder may
reasonably request in availing itself of any rule or regulation of the
Commission allowing such holder to sell any Restricted Stock without
registration.
12. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to you as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and will not
violate any provision of law, any order of any court or other agency of
government, the certificate of incorporation or By-laws of the incorporation or
any provision of any indenture, agreement or other instrument to which it or any
or its properties or assets is bound, conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the Company and
constitutes the legal, valid and binding obligation of the Company, enforceable
in accordance with its terms, except to the extent the indemnification
provisions herein may be deemed not enforceable.
13. MISCELLANEOUS.
(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective successors and assigns of the parties hereto (including without
limitation valid transferees of any Preferred Shares or Restricted Stock),
whether so expressed or not; PROVIDED, HOWEVER, that registration rights
conferred herein on the holders of Preferred Shares or Restricted Stock shall
only inure to the benefit of a transferee of Preferred Shares or Restricted
Stock if (i) there is transferred to such transferee at least 1,000,000 shares
of Restricted Stock (appropriately adjusted for any subdivision or combination)
or such lesser number of shares of Restricted Stock as may have been originally
issued pursuant to the First Series E Purchase Agreement, the Series D Purchase
Agreement, the Prior Purchase Agreement, the CommVest Warrant, the Contingent
Warrant, or the Imperial Bank Warrant to the direct or indirect transferor of
such transferee or (ii) such transferee is a partner, shareholder or affiliate
of a party hereto.
(b) All notices, requests, consents and other communications hereunder
shall be in writing and shall be mailed by overnight courier service, certified
or registered mail, return receipt requested, postage prepaid, or telexed, in
the case of non-U.S. residents, addressed as follows:
if to the Company or any other party hereto, at the address of such party
set forth in the Purchase Agreement or in a certain Stockholders Agreement by
and among the parties hereto dated as of the date hereof with a copy to the
Company's counsel as indicated therein;
Registration Rights Agreement - Page 15
if to any subsequent holder of Preferred Shares or Restricted Stock, to it
at such address as may have been furnished to the Company in writing by such
holder;
or, in any case, at such other address or addresses as shall have been
furnished in writing to the Company (in the case of a holder of Preferred Shares
or Restricted Stock) or to the holders of Preferred Shares or Restricted Stock
(in the case of the Company) in accordance with the provisions of this
paragraph.
(c) This Agreement shall be governed by and construed and enforced under
the Delaware General Corporation Law as to matters within the scope thereof and
as to all other matters shall be governed by and construed and enforced under
the laws of the State of Georgia, in each case without regard to its conflicts
of law provisions.
(d) This Agreement may not be amended or modified, and no provision hereof
may be waived, without the written consent of the Company and the holders of at
least sixty percent (60%) in interest of the outstanding shares of Restricted
Stock. Notwithstanding the foregoing, no such amendment or modification shall be
effective if and to the extent that such amendment or modification either (i)
creates any additional affirmative obligations to be complied with by any or all
of the holders of Restricted Stock or (ii) grants to any one or more Purchasers
any rights more favorable than any rights granted to all other Purchasers or
otherwise treats any one or more Purchasers differently than all other
Purchasers, unless the consent of all Purchasers is obtained.
(e) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
(f) Unless earlier satisfied as set forth herein, the obligations of the
Company to register shares of Restricted Stock under Sections 4, 5 or 6 shall
terminate five years after completion of an underwritten public offering of
shares of Common Stock in which the net proceeds received by the Company shall
be at least $30 million and the per share price paid by the public for such
shares shall be at least $6.17 (appropriately adjusted to reflect any
subdivision or combination).
(g) If requested in writing by the underwriters for the initial
underwritten public offering of securities of the Company, each holder of
Restricted Stock who is a party to this Agreement shall agree not to sell
publicly any shares of Restricted Stock or any other shares of Common Stock
(other than shares of Restricted Stock or other shares of Common Stock being
registered in such offering), without the consent of such underwriters, for a
period of not more than 180 days following the consummation of such initial
public offering; PROVIDED, HOWEVER, that all persons entitled to registration
rights with respect to shares of Common Stock who are not parties to this
Agreement and all executive officers and directors of the Company shall also
have agreed not to sell publicly their Common Stock under the circumstances and
pursuant to the terms set forth in this Section 13(g).
(h) The Company shall not grant to any third party any registration rights
comparable to or more favorable than any of those contained herein, so long as
any of the registration rights
Registration Rights Agreement - Page 16
under this Agreement remains in effect; PROVIDED, HOWEVER, that the Company may
grant to a third party incidental registration rights upon the approval of such
grant by the Board of Directors of the Company.
(i) If any provision of this Agreement shall be held to be illegal, invalid
or unenforceable, such illegality, invalidity or unenforceability shall attach
only to such provision and shall not in any manner affect or render illegal,
invalid or unenforceable any other provision of this Agreement, and this
Agreement shall be carried out as if any such illegal, invalid or unenforceable
provision were not contained herein.
(j) This Agreement supercedes and amends the Second Amended and Restated
Registration Rights Agreement dated April ___, 2000 ("Second Amended
Registration Rights Agreement") by and among the Company and the Purchasers of
the Company's Series A Convertible Preferred Stock, Purchase Warrants for Series
B Convertible Preferred Stock, Series D Convertible Preferred Stock, Series E
Convertible Preferred Stock, CommVest, LLC, and Imperial Bancorp. Accordingly,
the Second Amended Registration Rights Agreement (x) shall be of no further
force or effect, (y) shall be deemed cancelled in its entirety, and (z) shall be
deemed amended and restated by this Agreement, all upon effectiveness hereof.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
Registration Rights Agreement - Signature Pages
Please indicate your acceptance of the foregoing by signing and returning
the enclosed counterpart of this letter, whereupon this Agreement shall be a
binding agreement between the Company and you.
Very truly yours,
VIEWLOCITY, INC.
By: /s/ Xxxx X. Xxxxxxxxxxx
_________________________________
Name: Xxxx X. Xxxxxxxxxxx
_______________________________
Title: Sr. VP & Secretary
______________________________
AGREED TO AND ACCEPTED as of the date
first above written.
Registration Rights Agreement - Signature Pages
NEW SERIES E PURCHASERS:
SANDS BROTHERS VENTURE CAPITAL, L.L.C.
By: /s/ Xxxxxx Xxxxx
________________________________
Name: Xxxxxx Xxxxx
Title: Manager, SB Venture Capital
Management LLC, Manager
280 VENTURES, L.L.C.
By: /s/ Xxxxxx Xxxxx
________________________________
Name: Xxxxxx Xxxxx
Title: Director, 280 Ventures
Management LLC, Manager
SB CONTENT ASSOCIATES, L.L.C.
By: /s/ Xxxxxx Xxxxx
________________________________
Name: Xxxxxx Xxxxx
Title: Manager, SB Content Management
Associates LLC, Manager
SB SYNCHRONIZED ASSOCIATES, L.L.C.
By: /s/ Xxxxxx Xxxxx
________________________________
Name: Xxxxxx Xxxxx
Title: Manager
Registration Rights Agreement - Signature Pages
S K GLOBAL AMERICA, INC.
By: /s/ X.X. Xxx
_________________________________
Name: X.X. Xxx
Title: President
Registration Rights Agreement - Signature Pages
J & M VENTURE CAPITAL, LLC
By: /s/ Xxxxx X. Xxxx
_____________________________
Name: Xxxxx X. Xxxx
Title: Member Manager
Registration Rights Agreement - Signature Pages
INITIAL SERIES E PURCHASERS:
DEUTSCHE POST INTERNATIONAL B.V.
By: /s/ Xxxxxxx Xxxxxxxxxx
_______________________________
Name: Xxxxxxx Xxxxxxxxxx
Title: Managing Director
By: /s/ Xxxxxxx Xxxxxxx
_______________________________
Name: Xxxxxxx Xxxxxxx
Title: Director
MARCONI CAPITAL LIMITED
By: /s/ Xxxx Xxxxxx
______________________________
Name: Xxxx Xxxxxx
Title: VP Corporate Development
SINGTEL VENTURES (SINGAPORE) PTE LTD.
By: /s/ Xxxxxx Xxxx
_______________________________
Name: Xxxxxx Xxxx
Title: Director Corporate Development
DHL INTERNATIONAL LIMITED
By: /s/ Xxxxxx Xxxxxxxx
_______________________________
Name: Xxxxxx Xxxxxxxx
Title: Attorney-in-fact
B2B CAPITAL II, LLC
By: /s/ Xxxxxx X. Xxxxxx
_______________________________
Name: Xxxxxx X. Xxxxxx
Title: Manager
Registration Rights Agreement - Signature Pages
SERIES A, B AND D PURCHASERS:
BCI GROWTH V, L.P.
By: Xxxx Pointe Associates V, LLC
By: /s/ Xxxx X. Xxxxxxxx
________________________________
Xxxx X. Xxxxxxxx
Managing Member
BCI INVESTORS, LLC
By: /s/ Xxxx X. Xxxxxxxx
_________________________________
Name: Xxxx X. Xxxxxxxx
Title: Managing Member
Registration Rights Agreement - Signature Pages
BANCBOSTON CAPITAL, INC.
By: /s/ Xxxxx X. Xxxxxxx
_______________________________
Name: Xxxxx X. Xxxxxxx
Title: VP & MD
THE BEACON GROUP III -
FOCUS VALUE FUND, L.P.
By: Beacon Focus Value Investors, L.L.C.
By: Focus Value GP, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
BATTERY VENTURES IV, L.P.
By: Battery Partners IV, LLC, its general
partner
By: /s/ Xxxxxx X. Xxxxx
_______________________________
Name: Xxxxxx X. Xxxxx
Title: Member Manager
BATTERY INVESTMENT PARTNERS IV, LLC
By: /s/ Xxxxxx X. Xxxxx
_______________________________
Name: Xxxxxx X. Xxxxx
Title: Member Manager
Registration Rights Agreement - Signature Pages
COMMVEST PARTNERS I COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Attorney-in-fact
XXXXXXX STREET ASSOCIATES II, LLC
By: /s/ Xxxxxxx X. Xxxxx
________________________________
Name: Xxxxxxx X. Xxxxx
Title: Executive XX
XXXXXXXXX & XXXXX, LLC
By: /s/ Xxxxxx X. Xxxxxxx
________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Managing Director
Registration Rights Agreement - Signature Pages
COMMVEST, LLC
By: /s/ Xxxxxxx X. Xxxxx
________________________________
Name: Xxxxxxx X. Xxxxx
Title: Executive VP
IMPERIAL BANCORP
By: /s/ Xxxxx Xxxxxxx
________________________________
Name: Xxxxx Xxxxxxx
Title: Assistant Secretary
XXXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
____________________________________
Xxxxxxx Xxxxx, Individually
Registration Rights Agreement - Signature Pages
SERIES D ADDITIONAL PURCHASERS:
/s/ Xxxxxxx Xxxxxx
____________________________________
Xxxx Xxxxxx
/s/ Xxxxxxx Xxxxxxxxx
____________________________________
Xxxxxxx Xxxxxxxxx
/s/ Xxxx Xxxxxxx
____________________________________
Xxxx Xxxxxxx
/s/ Xxxx Xxxxxx
____________________________________
Xxxx Xxxxxx
/s/ Xxxx X. Xxxxxxxxxxx
____________________________________
Xxxx X. Xxxxxxxxxxx
/s/ Xxxxxx Xxxxxxxx
____________________________________
Xxxxxx Xxxxxxxx
/s/ Xxxxxxxx Xxxxxxxxx
____________________________________
Xxxxxxxx Xxxxxxxxx
/s/ Xxxxxxx Xxxxx
____________________________________
Xxxxxxx Xxxxx
