EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is made as of
November 4, 1999, by and among Commerce One, Inc., a Delaware corporation (the
"PARENT"), and the shareholders (the "SHAREHOLDERS") of CommerceBid, Inc., a
Delaware corporation ("COMPANY") listed on Schedule A hereto.
RECITALS
WHEREAS, pursuant to the Agreement and Plan of Reorganization, dated
November 4, 1999, by and among Parent, Xxxxx Acquisition Corporation, ("SUB"),
Company and certain other parties (the "ACQUISITION AGREEMENT"), Parent has
agreed to issue shares of its common stock (the "COMMON STOCK") to the
Shareholders in exchange for their shares of Company capital stock;
WHEREAS, as an inducement to the Shareholders to enter into the Acquisition
Agreement, as of the Closing Date, the Shareholders shall be granted certain
registration rights with respect to the Common Stock as set forth herein; and
WHEREAS, the registration rights granted to the Shareholders may be
subordinate to the registration rights previously granted by the Parent to its
founders and certain other investors (as more fully described in Section 2.2
hereof).
NOW, THEREFORE, in consideration of the promises, mutual covenants and
conditions herein contained, and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms shall
have the following respective meanings:
"1933 ACT" means the Securities Act of 1933, as amended.
"1934 ACT" means the Securities Exchange Act of 1934, as amended.
"REGISTER," "REGISTERED," and "REGISTRATION" refer to a registration
effected by preparing and filing a registration statement or similar document in
compliance with the 1933 Act, and the declaration or ordering of effectiveness
of such registration statement or document.
"REGISTRATION STATEMENT" means any registration statement described in
Section 2.1 or Section 2.2 of this Agreement.
"REGISTRABLE SECURITIES" means the Common Stock of the Parent issued to the
Shareholders in accordance with the terms and conditions of the Acquisition
Agreement, and any securities of the Parent issued as a dividend on or other
distribution with respect to, or in exchange for or replacement of, such Common
Stock.
"SEC" means the Securities and Exchange Commission.
2. REGISTRATION RIGHTS.
2.1 SHELF REGISTRATION. Subject to Section 4.1 hereof, the Parent shall
file a Registration Statement on Form S-3 with the SEC on July 3, 2000 to
register under the 1933 Act the resale or other disposition of the Registrable
Securities by the Shareholders, and as promptly as practicable after filing the
Registration Statement the Parent shall use its best efforts to cause the
Registration Statement to be declared effective by the SEC. The Parent shall
notify Xxxxx Xxxxxxxxx (the "SHAREHOLDERS' AGENT") when the Registration
Statement has been declared effective by the SEC. Except as provided in Section
4 hereof, the Parent shall maintain the effectiveness of the Registration
Statement for at least sixty (60) days after the Registration Statement is
declared effective by the SEC (plus any additional days as provided in Section
4.1) and, from time to time, will amend or supplement the Registration Statement
and the prospectus contained therein to the extent necessary to comply with the
1933 Act and any applicable state securities statute or regulation.
2.2 PIGGYBACK REGISTRATION.
(a) If, but without any obligation to do so, the Parent proposes to
register its sale of common stock under the Act in connection with an
underwritten public offering of such common stock solely for cash (other than a
registration relating solely to the sale of securities to participants in a
Parent stock plan or a transaction covered by Rule 145 under the 1933 Act (or
the resale of securities issued pursuant to such a transaction), a registration
in which the only stock being registered is Common Stock issuable upon
conversion of debt securities which are also being registered, or any
registration on any form which does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities), the Parent shall, at such
time, give each Shareholder written notice of such registration. Upon the
written request of each Shareholder given within ten (10) days after mailing of
such notice by the Parent in accordance with Section 10.1, the Parent shall,
subject to the provisions of Section 2.3, cause to be registered under the 1933
Act all of the Registrable Securities that each such Shareholder has requested
to be registered. The Parent's obligations under this Section 2.2 shall
terminate upon the earlier of (i) effectiveness of the Form S-3 Registration
Statement described in Section 2.1 or (ii) the amendment of the Existing
Registration Rights Agreement (defined below) as described in Section 2.4.
(b) The Shareholders acknowledge that the registration rights
granted to them under this Section 2.2 are subordinate to the registration
rights previously granted by the Parent to certain investors who invested in
the Parent prior to its initial public offering. In other words, those
investors' piggyback registration rights have priority over the Shareholders'
piggyback
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registration rights. Due to the large number of shares of common
stock held by these investors, it is possible that even if the Shareholders
attempt to piggyback on an underwritten public offering, the Shareholders may
be precluded from doing so. As a result, the Shareholders may not be able to
sell any Registrable Securities unless the shareholders are made parties to
the Existing Rights Agreement as provided in Section 2.4 or until the
Registration Statement described in Section 2.1 is available.
2.3 UNDERWRITING REQUIREMENTS. In connection with any underwritten
public offering described in Section 2.2, the Parent shall not be required to
include any of the Shareholders' Registrable Securities in such underwriting
unless the Shareholder accepts the terms of the underwriting as agreed upon
between the Parent and the underwriters, and then only in such quantity as the
underwriters determine in their sole discretion will not jeopardize the success
of the offering by the Parent. If the total amount of securities, including
Registrable Securities, requested to be included in such offering exceeds the
amount of securities that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Parent shall be required
to include in the offering only that number of such securities, including
Registrable Securities, which the underwriters determine in their sole
discretion will not jeopardize the success of the offering. In such event, the
Parent may reduce the number of Registrable Securities to be included in the
offering, or exclude the Registrable Securities altogether, prior to reducing or
excluding the shares proposed to be offered by the Parent or any other selling
stockholders (in the event that the number of Registrable Securities is reduced,
the Registrable Securities included shall be apportioned pro rata among the
Shareholders according to the total amount of Registrable Securities entitled to
be included therein owned by each Shareholder). For purposes of the preceding
parenthetical clause concerning apportionment, for any Shareholder which is a
holder of Registrable Securities and which is a partnership or corporation, the
partners, retired partners and shareholders of such holder, or the estates and
family members of any such partners and retired partners and any trusts for the
benefit of any of the foregoing persons shall be deemed to be a single
"SHAREHOLDER," and any pro-rata reduction with respect to such "Shareholder"
shall be based upon the aggregate amount of shares carrying registration rights
owned by all entities and individuals included in such "Shareholder," as defined
in this sentence.
2.4 AMENDMENT TO EXISTING REGISTRATION RIGHTS. As soon as practicable
after the execution of the Agreement, Parent shall use its best efforts to amend
the Fourth Amended and Restated Registration Rights Agreement, dated April 19,
1999, by and among the Parent and certain shareholders of Parent (the "EXISTING
REGISTRATION RIGHTS AGREEMENT") to make the Shareholders parties to such
agreement as Holders (as defined in the Existing Registration Rights Agreement).
As a result, Shareholders would have the right to "piggyback" on certain
registered offerings of Parent on a pro-rata basis with the other Holders. Each
of the Shareholders hereby acknowledges and agrees, by execution of the
signature page to this Agreement, that if the Existing Registration Rights
Agreement is amended as described above, he or she will automatically become a
party to the Existing Registration Rights Agreement and will have the rights and
obligations of a Holder thereunder. Each of the Shareholders also acknowledges
and agrees that Parent may not succeed in amending the Existing Registration
Rights Agreement as described above and such Shareholder may not receive any
rights under the Existing Registration Rights Agreement. In such event, such
Shareholders will receive only the registration rights provided for in this
Agreement.
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3. FURTHER OBLIGATIONS OF THE PARENT AFTER REGISTRATION.
3.1 The Parent shall, as soon as reasonably possible after the
effectiveness of a Registration Statement, use its best efforts to register
and qualify the Registrable Securities covered by the Registration Statement
under such other securities or "blue sky" laws of such jurisdictions as shall
be reasonably requested by the Shareholders, provided that the Parent shall
not be required in connection therewith or as a condition thereto to qualify
to do business or to file a general consent to service of process in any such
states or jurisdictions unless the Parent is already subject to service in
such jurisdiction and except as may be required by the 0000 Xxx.
3.2 With respect to a Registration Statement filed pursuant to
Section 2.1, the Parent shall, as soon as reasonably possible after the
effectiveness of the Registration Statement, furnish to the Shareholders'
Agent such numbers of copies of a prospectus in conformity with the
requirements of the 1933 Act, and such other documents as the Shareholders
may reasonably request in order to facilitate the resale or other disposition
of Registrable Securities owned by them.
3.3 With respect to a Registration Statement filed pursuant to
Section 2.1, the Parent shall promptly notify each selling Shareholder of
such Registrable Securities of the happening of any event as a result of
which the prospectus included in the Registration Statement contains an
untrue statement of a material fact or omits any fact necessary to make the
statements therein not misleading and, at the request of any such
Shareholder, the Parent will prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue statement
of a material fact or omit to state any fact necessary to make the statements
therein not misleading.
4. CONDITIONS AND LIMITATIONS ON REGISTRATION RIGHTS. The registration
rights granted by this Agreement are subject to the following additional
conditions and limitations:
4.1 The Parent may suspend or delay the filing or effectiveness of a
Registration Statement for up to fifteen (15) calendar days if the Parent is
in possession of material nonpublic information that the Parent does not deem
advisable to disclose in the Registration Statement or otherwise to the
public at such time, whether such information relates to a financing, pending
acquisition, merger, or other material corporate transaction to which the
Parent is or expects to be a party, or any other material matter or matters.
Parent may not, however, delay or suspend the effectiveness of a Registration
Statement filed pursuant to Section 2.2 more than once. In the event the
Parent suspends the effectiveness of a Registration Statement filed pursuant
to Section 2.2, the number of days during which Parent is required to keep
such Registration Statement effective shall be extended by the length of such
suspension. If the Parent suspends the effectiveness of a Registration
Statement, the Parent will promptly notice the Shareholders of such
suspension and will again notice the Shareholders when such suspension is no
longer necessary.
4.2 Each Shareholder agrees that, upon receipt of any notice from the
Parent of the happening of any event of the kind described in Section 3.3 or
4.1 hereof, such Shareholder shall forthwith discontinue disposition of
Registrable Securities until such Shareholder's receipt of copies of the
supplemented or amended prospectus contemplated by Section 3.3 or 4.1 hereof,
or until it is
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advised in writing (the "ADVICE") by the Parent that the use
of the prospectus may be resumed, and has received copies of any additional
or supplemental filings which are incorporated by reference in the
prospectus, and, if so directed by the Parent, such Shareholder will deliver
to the Parent all copies of the prospectus covering such Registrable
Securities current at the time of receipt of such notice.
4.3 The registration rights granted by this Agreement shall not be
transferable or assignable without the Parent's prior written consent;
PROVIDED, HOWEVER, that notwithstanding the foregoing, the registration
rights granted under this Agreement may be transferred or assigned together
with any Registrable Securities transferred or assigned to any constituent
partner or affiliate of a Shareholder, or the estate or personal
representative of a Shareholder, provided that such transfer or assignment
may otherwise be effected in accordance with applicable provincial, state and
federal securities laws, written notice of such transfer is delivered to the
Parent at least ten (10) days in advance thereof, and the transferee or
assignee thereof executes and delivers a copy of this Agreement thereby
agreeing to be bound by the terms and provisions set forth herein. Any
purported transfer or assignment in violation of this provision shall be void
and of no force and effect whatsoever.
4.4 No Shareholder shall have any right to obtain or seek an
injunction restraining or otherwise delaying any such registration as the
result of any controversy that might arise with respect to the interpretation
or implementation of this Section 4.
5. INFORMATION FROM SHAREHOLDERS. It shall be a condition precedent to the
obligations of the Parent to take any action pursuant to this Agreement with
respect to the Registrable Securities of the Shareholders that the Shareholders
shall furnish to the Parent such information regarding themselves, the
Registrable Securities held by them, and the intended method of disposition of
such securities, as shall be required to effect the registration of the
Registrable Securities.
6. EXPENSES OF REGISTRATION. The Parent shall pay all registration, filing
and qualification fees (including SEC filing fees and the listing fees of the
Nasdaq National Market or any stock exchange on which the Parent securities are
traded) attributable to the Registrable Securities registered on behalf of the
Shareholders under this Agreement. The Shareholders shall pay all underwriting
discount or commissions attributable to the sale of their securities and any
legal, accounting or other professional fees or expenses incurred by them.
7. INDEMNIFICATION.
7.1 The Parent will indemnify and hold harmless the Shareholders, each
of their directors, officers, trustees or beneficiaries, if applicable, and each
person, if any, who controls a non-individual shareholder within the meaning of
the 1933 Act against any losses, claims, damages, or liabilities (joint or
several) to which the Shareholders may become subject under the 1933 Act, or the
1934 Act or other federal or state law, insofar as such losses, claims, damages,
or liabilities (or actions in respect thereof) arise out of or are based upon
any of the following statements, omissions or violations (collectively a
"VIOLATION"): (i) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, including any final prospectus
contained therein or any amendments or supplements thereto, or (ii) the omission
or alleged omission to state
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therein a material fact required to be stated therein, or necessary to make
the statements' therein not misleading, PROVIDED, HOWEVER, that the indemnity
agreement contained in this Section 7.1 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of the Parent, which consent shall
not be unreasonably withheld, nor shall the Parent be liable in any such case
for any such loss, claim, damage, liability, or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and
in conformity with information furnished in writing expressly for use in
connection with such registration by the Shareholders seeking indemnification
hereunder. In addition, the Parent shall not be liable for any untrue
statement or omission in any prospectus if a supplement or amendment thereto
correcting such untrue statement or omission was delivered to the
Shareholders' Agent prior to the pertinent sale or sales by the Shareholders.
7.2 Each Shareholder will indemnify and hold harmless the Parent, each
of its directors, each of its officers who has signed the Registration
Statement, each person, if any, who controls the Parent within the meaning of
the 1933 Act, any other shareholder selling securities in the Registration
Statement and any controlling person of any such shareholder, against any
losses, claims, damages, or liabilities (joint or several) to which any of the
foregoing persons may become subject under the 1933 Act or the 1934 Act or other
federal or state law, insofar as such losses, claims, damages, or liabilities
(or actions in respect thereto) arise out of or are 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 written information furnished by such
Shareholder solely for such Shareholder's behalf expressly for use in connection
with such registration; PROVIDED, HOWEVER, that the indemnity agreement
contained in this Section 7.2 shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability or action if such settlement is effected
without the consent of such Shareholder, which consent shall not be unreasonably
withheld, provided that in no event shall any indemnity under this Section 7.2
by such Shareholder exceed the gross proceeds from the offering, before
deducting discounts or commissions, containing the Violation at issue received
by such Shareholder.
7.3 Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action (including any governmental action),
such indemnified party will, if a claim in respect thereof is to be made against
any indemnifying party under this Section 7, deliver to the indemnifying party a
written notice of the commencement thereof and the indemnifying party shall have
the right to participate in, and, to the extent the indemnifying party so
desires, jointly with any other indemnifying party similarly noticed, to assume
the defense thereof with counsel mutually satisfactory to the parties. The
failure to deliver written notice to the indemnifying party promptly upon the
commencement of any such action, if materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 7, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 7.
7.4 If the indemnification provided for in this Section 7 is held by a
court of competent jurisdiction to be unavailable to an indemnified party with
respect to any loss, liability,
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claim, damage, or expense referred to therein, then the indemnifying party,
in lieu of indemnifying such indemnified party hereunder, shall contribute to
the amount paid or payable by such indemnified party as a result of such
loss, liability, claim, damage, or expense in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the
one hand and of the indemnified party on the other in connection with the
statements or omissions that resulted in such loss, liability, claim, damage,
or expense as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified party shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a
material fact relates to information supplied by the indemnifying party or by
the indemnified party and the parties' relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or omission.
7.5 The obligations of the Parent, and the Shareholders under this
Section 7 shall survive the completion of any offering of Registrable Securities
under a registration statement filed pursuant to this Agreement or otherwise.
8. REPORTS UNDER THE SECURITIES EXCHANGE ACT. The Parent agrees to file
with the SEC in a timely manner all reports and other documents and information
required of the Parent under the 1934 Act, and take such other actions as may be
necessary to assure the availability of Form S-3 for use in connection with the
registration rights provided in this Agreement.
9. RULE 144. If the Parent is required to file the reports under the 1933
Act and the 1934 Act, the Parent shall use its best efforts to file the reports
in a timely manner to permit resales or other dispositions of Registrable
Securities pursuant to Rule 144 promulgated under the 1933 Act ("RULE 144"). In
the event that all of a Shareholder's Registrable Securities may be resold or
otherwise disposed of in a ninety (90) day period under Rule 144 without
registration under the 1933 Act, the registration rights granted under this
Agreement to such Shareholder, and the obligations of the Parent hereunder
(other than its obligations under this Section 9) to such Shareholder, shall
automatically terminate in their entirety and be of no further force and effect
whatsoever without any further action on the part of the Parent or any of the
Shareholders.
10. MISCELLANEOUS.
10.1 NOTICES. Notice to the Shareholders' Agent shall constitute notice
to all the shareholders party hereto. All notices and other communications
hereunder shall be in writing and shall be deemed given if delivered personally
or by commercial delivery service, or mailed by registered or certified mail
(return receipt requested) or sent via facsimile (with acknowledgment of
complete transmission) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
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(1) if to the Parent:
Commerce One, Inc.
0000 Xxxxxxx Xxxxxx
Xxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with copies to (which shall not constitute notice
hereunder):
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(2) if to the Shareholders' Agent, to
Xxxxx Xxxxxxxxx
0000 Xxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Preston, Gates & Xxxxx
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
10.2 ENTIRE AGREEMENT; ASSIGNMENT. This Agreement and the documents and
instruments and other agreements among the parties hereto referenced herein: (a)
constitute the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof;
(b) are not intended to confer upon any other person (including, without
limitation, those persons listed on any exhibits hereto) any rights or remedies
hereunder; and (c) shall not be assigned by operation of law or otherwise
without the prior written consent of each party hereto, except that the Parent
may assign its rights and obligations hereunder to an affiliate of the Parent
provided that the Parent shall remain liable for all its obligations hereunder
notwithstanding such
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assignment. Any assignment of rights or delegation of duties under this
Agreement by a party without the prior written consent of the other parties,
if such consent is required hereby, shall be void.
10.3 AMENDMENT; WAIVER. This Agreement may be amended, or any term or
conditions waiver, with the written consent of the Parent and Shareholder
holding, at the time of such amendment or waiver, a majority of the shares of
Common Stock with registration rights hereunder.
10.4 SEVERABILITY. In the event that any provision of this Agreement or
the application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as reasonably
to effect the intent of the parties hereto. The parties further agree to replace
such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of such void or unenforceable provision.
10.5 OTHER REMEDIES. Except as otherwise provided herein, any and all
remedies herein expressly conferred upon a party will be deemed cumulative with
and not exclusive of any other remedy conferred hereby, or by law or equity upon
such party, and the exercise by a party of any one remedy will not preclude the
exercise of any other remedy.
10.6 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of California, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.
10.7 INTERPRETATION. The words "include," "includes" and "including"
when used herein shall be deemed in each case to be followed by the words
"without limitation." The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
10.8 FACSIMILE; COUNTERPARTS. This Agreement may be executed by
facsimile and in one or more counterparts, all of which shall be considered one
and the same agreement and shall become effective when one or more counterparts
have been signed by each of the parties and delivered to the other party, it
being understood that all parties need not sign the same counterpart.
10.9 SHAREHOLDER EXECUTION. This Agreement shall be effective as of the
date first above written upon its execution by the Parent and Shareholders
holding in aggregate more than 90% of the outstanding shares of Company capital
stock. Each of the other Shareholders may become a party to the Agreement after
it becomes effective (provided such person was a Shareholder on the effective
date of this Agreement) by executing a counterpart signature page of the
Agreement and delivering it to Parent.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
date first above written.
COMMERCE ONE, INC.
By:__________________________
Name:
Title:
SHAREHOLDER
By:__________________________
Name:
Title:
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
