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AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
among
EXE TECHNOLOGIES, INC.,
GENERAL ATLANTIC PARTNERS 41, L.P.,
GAP COINVESTMENT PARTNERS, L.P.,
MSD CAPITAL L.P.,
TRIPLE XXXXXX INVESTMENTS LLC,
ROTHKO INVESTMENTS LLC
and
THE STOCKHOLDERS NAMED HEREIN
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Dated as of: July 10, 1998
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TABLE OF CONTENTS
Page
1. Definitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2. General; Securities Subject to this Agreement . . . . . . . . . . . . . 7
(a) Grant of Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(b) Registrable Securities . . . . . . . . . . . . . . . . . . . . . . 7
(c) Holders of Registrable Securities . . . . . . . . . . . . . . . . . 7
3. Demand Registration . . . . . . . . . . . . . . . . . . . . . . . . . . 7
(a) Request for Demand Registration . . . . . . . . . . . . . . . . . . 7
(b) Incidental or "Piggy-Back" Rights with Respect to a Demand
Registration . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
(c) Effective Demand Registration . . . . . . . . . . . . . . . . . . . 8
(d) Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
(e) Underwriting Procedures . . . . . . . . . . . . . . . . . . . . . . 9
(f) Selection of Underwriters . . . . . . . . . . . . . . . . . . . . . 10
4. Incidental or "Piggy-Back" Registration . . . . . . . . . . . . . . . . 10
(a) Request for Incidental Registration . . . . . . . . . . . . . . . . 10
(b) Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
5. Form S-3 Registration . . . . . . . . . . . . . . . . . . . . . . . . . 11
(a) Request for a Form S-3 Registration . . . . . . . . . . . . . . . . 11
(b) Form S-3 Underwriting Procedures. . . . . . . . . . . . . . . . . . 12
(c) Limitations on Form S-3 Registrations . . . . . . . . . . . . . . . 12
(d) Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(e) No Demand Registration . . . . . . . . . . . . . . . . . . . . . . 13
6. Holdback Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . 13
(a) Restrictions on Public Sale by Designated Holders . . . . . . . . . 13
(b) Restrictions on Public Sale by the Company . . . . . . . . . . . . 13
7. Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . . 14
(a) Obligations of the Company . . . . . . . . . . . . . . . . . . . . 14
(b) Seller Information . . . . . . . . . . . . . . . . . . . . . . . . 17
(c) Notice to Discontinue . . . . . . . . . . . . . . . . . . . . . . . 17
(d) Registration Expenses . . . . . . . . . . . . . . . . . . . . . . . 18
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8. Indemnification; Contribution . . . . . . . . . . . . . . . . . . . . . 18
(a) Indemnification by the Company . . . . . . . . . . . . . . . . . . 18
(b) Indemnification by Designated Holders . . . . . . . . . . . . . . . 19
(c) Conduct of Indemnification Proceedings . . . . . . . . . . . . . . 19
(d) Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
9. Rule 144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
10. Miscellaneous . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(a) Recapitalizations, Exchanges, etc . . . . . . . . . . . . . . . . . 21
(b) No Inconsistent Agreements . . . . . . . . . . . . . . . . . . . . 21
(c) Remedies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
(d) Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . 21
(e) Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
(f) Successors and Assigns; Third Party Beneficiaries . . . . . . . . . 24
(g) Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(h) Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(i) Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
(j) Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
(k) Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 25
(l) Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . 25
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AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT is hereby made
on this 10th day of July, 1998 by and among EXE Technologies, Inc., a
Delaware corporation (the "Company"), General Atlantic Partners 41, L.P., a
Delaware limited partnership ("GAP LP"), GAP Coinvestment Partners, L.P., a
New York limited partnership ("GAP Coinvestment"), MSD Capital L.P., a
Delaware limited partnership ("MSD"), Triple Xxxxxx Investments LLC, a
Delaware limited liability company, ("Triple Xxxxxx"), Rothko Investments
LLC, a Delaware limited liability company ("Rothko"), Xxxx Xxxxx ("Xxxxx"),
and Xxxxx Xxxxxxx, Xxxx Xxxxxx and Xxxxxxx Xxxx (the "Neptune Stockholders,"
and collectively with Xxxxx, the "Major Stockholders").
PRELIMINARY STATEMENTS
A. The Company, GAP LP, GAP Coinvestment, and the Major Stockholders are
parties to that certain Registration Rights Agreement, dated as of September 15,
1997 (the "Prior Registration Rights Agreement").
B. GAP LP and GAP Coinvestment own all of the issued and outstanding
shares of the Company's Series A Convertible Participating Preferred Stock, par
value $0.01 per share (the "Series A Preferred Stock"), and of the Company's
Series B Convertible Preferred Stock, par value $0.01 per share (the "Series B
Preferred Stock").
C. The Major Stockholders own a majority of the issued and outstanding
shares of the Company's Class A Common Stock, (as defined below).
D. Each of MSD, Triple Xxxxxx and Xxxxxx have agreed to purchase shares
of the Company's Series C Convertible Preferred Stock, par value $0.01 per share
(the "Series C Preferred Stock"), pursuant to that certain Series C Preferred
Stock Purchase Agreement dated of even date herewith (the "Series C Stock
Purchase Agreement").
E. Concurrently with the execution and delivery of this Agreement, the
Company, GAP LP, GAP Coinvestment, the Major Stockholders, MSD, Triple Xxxxxx
and Rothko are entering into an Amended and Restated Stockholders' Agreement
(the "Restated Stockholders' Agreement"), pursuant to which the parties have
agreed, among other things, to certain first offer, tag-along and preemptive
rights and corporate governance rights and obligations.
F. Each of the Company, GAP LP, GAP Coinvestment and the Major
Stockholders deems it desirable (a) to enter into this Agreement to induce MSD,
Triple Xxxxxx
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and Rothko to purchase the shares of Series C Preferred Stock pursuant to the
Series C Stock Purchase Agreement and to enter into the Restated
Stockholders' Agreement, and (b) to amend and restate the Prior Registration
Rights Agreement.
IN CONSIDERATION of the foregoing and of the mutual covenants and
agreements set forth in this Agreement and for good and valuable consideration,
the receipt and adequacy of which is hereby acknowledged, the parties to this
Agreement, intending to be legally bound, hereby agree as follows:
1. DEFINITIONS. As used in this Agreement the following terms have
the meanings indicated:
"AFFILIATE" shall mean any Person who is an "affiliate" as
defined in Rule 12b-2 of the General Rules and Regulations under the Exchange
Act. The following shall be deemed to be Affiliates of GAP LP: (a) GAP LLC,
the members of GAP LLC and the limited partners of GAP LP; (b) any Affiliate of
GAP LLC, the members of GAP LLC and the limited partners of GAP LP; and (c) any
limited liability company or partnership a majority of whose members or
partners, as the case may be, are members, former members, consultants or key
employees of GAP LLC. GAP LP and GAP Coinvestment shall be deemed to be
Affiliates of one another. The following shall be deemed to be Affiliates of
MSD: (x) Xxxxxxx Xxxx; (y) the limited partners of MSD LP; and (z) any Affiliate
of Xxxxxxx Xxxx and the limited partners of MSD LP. The following shall be
deemed to be Affiliates of Triple Xxxxxx: (I) the members of Triple Xxxxxx; and
(II) any Affiliate of the members of Triple Xxxxxx. The following shall be
deemed to be Affiliates of Rothko: (A) the members of Rothko; and (B) any
Affiliate of the members of Rothko. MSD, Triple Xxxxxx and Xxxxxx shall be
deemed to be Affiliates of one another.
"APPROVED UNDERWRITER" has the meaning set forth in Section 3(f)
of this Agreement.
"XXXXX" has the meaning set forth in the recitals to this
Agreement.
"BOARD OF DIRECTORS" means the Company's Board of Directors.
"CLASS A COMMON STOCK" means the Company's Class A Common Stock,
par value $.01 per share, or any other equity securities of the Company into
which such securities are converted, reclassified, reconstituted or exchanged.
"CLASS B COMMON STOCK" means the Company's Class B Common Stock,
par value $.01 per share, or any other equity securities of the Company into
which such securities are converted, reclassified, reconstituted or exchanged.
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"CLOSING PRICE" means, with respect to the Registrable
Securities, as of the date of determination: (a) the closing price per share of
a Registrable Security on such date published in the WALL STREET JOURNAL or, if
no such closing price on such date is published in the WALL STREET JOURNAL, then
the average of the closing bid and asked prices on such date, as officially
reported on the principal national securities exchange (including, without
limitation, The Nasdaq Stock Market, Inc.) on which the Registrable Securities
are then listed or admitted to trading; (b) if the Registrable Securities are
not then listed or admitted to trading on any national securities exchange but
are designated as national market system securities by the NASD, then the last
trading price per share of a Registrable Security on such date; (c) if there
shall have been no trading on such date or if the Registrable Securities are not
so designated, then the average of the reported closing bid and asked prices of
the Registrable Securities on such date as shown by The Nasdaq Stock Market,
Inc. (or its successor) and reported by any member firm of the New York Stock
Exchange, Inc. selected by the Company; or (d) if none of (a), (b) or (c) is
applicable, then a market price per share reasonably determined in good faith by
the Board of Directors or, if such determination is not reasonably satisfactory
to the Designated Holder for whom such determination is being made, then by a
nationally recognized investment banking firm selected by the Company and such
Designated Holder, the expenses for which shall be borne equally by the Company
and such Designated Holder.
"COMPANY" has the meaning set forth in the preamble to this
Agreement.
"COMPANY UNDERWRITER" has the meaning set forth in Section 4(a)
of this Agreement.
"DELL STOCKHOLDERS" means MSD, Triple Xxxxxx and Xxxxxx and any
Affiliate thereof to which Registerable Securities are transferred in accordance
with Section 2.2 of the Restated Stockholders' Agreement.
"DEMAND REGISTRATION" has the meaning set forth in Section 3(a)
of this Agreement.
"DESIGNATED HOLDER" means each of the EXE Stockholders and the
General Atlantic Stockholders and the Dell Stockholders and any transferee of
any of them to whom Registrable Securities have been transferred in accordance
with the provisions of the Restated Stockholders' Agreement and Section 10(f) of
this Agreement, other than a transferee to whom such securities have been
transferred pursuant to a Registration Statement under the Securities Act or
Rule 144 or Regulation S under the Securities Act.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
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"EXE STOCKHOLDERS" means the Major Stockholders and any Permitted
Transferee (as defined in the Restated Stockholders' Agreement) thereof to
which Registrable Securities are transferred in accordance with Section 2.2 of
the Restated Stockholders' Agreement.
"GAP COINVESTMENT" has the meaning set forth in the preamble to
this Agreement.
"GAP LLC" means General Atlantic Partners, LLC, a Delaware
limited liability company and the general partner of GAP LP, and any successor
to such entity.
"GAP LP" has the meaning set forth in the preamble to this
Agreement.
"GENERAL ATLANTIC STOCKHOLDERS" means GAP LP, GAP Coinvestment
and any Affiliate thereof to which Registrable Securities are transferred in
accordance with Section 2.2 of the Restated Stockholders' Agreement.
"HOLDERS' COUNSEL" has the meaning set forth in Section 7(a)(i)
of this Agreement.
"INCIDENTAL REGISTRATION" has the meaning set forth in Section
4(a) of this Agreement.
"INDEMNIFIED PARTY" has the meaning set forth in Section 8(c) of
this Agreement.
"INDEMNIFYING PARTY" has the meaning set forth in Section 8(c) of
this Agreement.
"INITIAL PUBLIC OFFERING" means a firm commitment underwritten
initial public offering pursuant to an effective Registration Statement filed
under the Securities Act.
"INITIATING HOLDERS" has the meaning set forth in Section 3(a) of
this Agreement.
"INVESTOR STOCKHOLDERS" means, collectively, the Dell
Stockholders and the General Atlantic Stockholders.
"INSPECTOR" has the meaning set forth in Section 7(a)(viii) of
this Agreement.
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"IPO EFFECTIVENESS DATE" means the date upon which the Company
commences its Initial Public Offering.
"MAJOR STOCKHOLDERS" has the meaning set forth in the recitals to
this Agreement.
"MARKET PRICE" means, on any date of determination, the average
of the daily Closing Price of the Registrable Securities for the immediately
preceding thirty (30) days on which the national securities exchanges are open
for trading.
"NASD" has the meaning set forth in Section 7(a)(xiv) of this
Agreement.
"NEPTUNE STOCKHOLDERS" has the meaning set forth in the preamble
to this Agreement.
"PERSON" means any individual, firm, corporation, partnership,
limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, limited liability company, government (or an
agency or political subdivision thereof) or other entity of any kind, and shall
include any successor (by merger or otherwise) of such entity.
"PREFERRED STOCK" means, collectively, the Series A Preferred
Stock, the Series B Preferred Stock and the Series C Preferred Stock.
"RECORDS" has the meaning set forth in Section 7(a)(viii) of this
Agreement.
"REGISTRABLE SECURITIES" means each of the following: (a) any
and all shares of Class A Common Stock owned by the Designated Holders or issued
or issuable to a Designated Holder upon conversion of shares of Class B Common
Stock or Preferred Stock, including, without limitation, any shares of Class A
Common Stock issued or issuable upon conversion of any shares of preferred stock
acquired by any of the Designated Holders after the date hereof; (b) any other
shares of Class A Common Stock acquired or owned by any of the Designated
Holders prior to the IPO Effectiveness Date, or acquired or owned by any of the
Designated Holders after the IPO Effectiveness Date if such Designated Holder is
an Affiliate of the Company; and (c) any shares of Class A Common Stock or
voting common stock issued or issuable to any of the Designated Holders with
respect to shares of Class A Common Stock, Class B Common Stock or Preferred
Stock by way of stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or
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other reorganization or otherwise and shares of Class A Common Stock or voting
common stock issuable upon conversion, exercise or exchange thereof.
"REGISTRATION EXPENSES" has the meaning set forth in Section 7(d)
of this Agreement.
"REGISTRATION STATEMENT" means a Registration Statement filed
pursuant to the Securities Act.
"RESTATED STOCKHOLDERS' AGREEMENT" has the meaning set forth in
the Preliminary Statements to this Agreement.
"S-3 INITIATING HOLDERS" has the meaning set forth in Section
5(a) of this Agreement.
"S-3 REGISTRATION" has the meaning set forth in Section 5(a) of
this Agreement.
"SEC" means the Securities and Exchange Commission or any similar
agency then having jurisdiction to enforce the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"SERIES A PREFERRED STOCK" has the meaning set forth in the
Preliminary Statements to this Agreement.
"SERIES B PREFERRED STOCK" has the meaning set forth in the
Preliminary Statements to this Agreement.
"SERIES C PREFERRED STOCK" has the meaning set forth in the
Preliminary Statements to this Agreement.
2. GENERAL; SECURITIES SUBJECT TO THIS AGREEMENT.
(a) GRANT OF RIGHTS. The Company hereby grants registration
rights to the EXE Stockholders, the Dell Stockholders and the General Atlantic
Stockholders upon the terms and conditions set forth in this Agreement.
(b) REGISTRABLE SECURITIES. For the purposes of this Agreement,
Registrable Securities will cease to be Registrable Securities when (i) a
Registration Statement
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covering such Registrable Securities has been declared effective under the
Securities Act by the SEC and such Registrable Securities have been disposed of
pursuant to such effective Registration Statement, (ii) the entire amount
of Registrable Securities proposed to be sold in a single sale, in the opinion
of counsel satisfactory to the Company and the Designated Holder, each in their
reasonable judgment, may be distributed to the public without any limitation as
to volume pursuant to Rule 144 (or any successor provision then in effect) under
the Securities Act or (iii) the Registrable Securities are proposed to be sold
or distributed by a Person not entitled to the registration rights granted by
this Agreement.
(c) HOLDERS OF REGISTRABLE SECURITIES. A Person is deemed to be
a holder of Registrable Securities whenever such Person owns of record
Registrable Securities, or holds an option to purchase, or a security
convertible into or exercisable or exchangeable for, Registrable Securities
whether or not such acquisition or conversion has actually been effected and
disregarding any legal restrictions upon the exercise of such rights. If the
Company receives conflicting instructions, notices or elections from two or more
Persons with respect to the same Registrable Securities, then the Company may
act upon the basis of the instructions, notice or election received from the
registered owner of such Registrable Securities. Registrable Securities
issuable upon exercise of an option or upon conversion of another security shall
be deemed outstanding for the purposes of this Agreement.
3. DEMAND REGISTRATION.
(a) REQUEST FOR DEMAND REGISTRATION. At any time after the IPO
Effectiveness Date, each of (i) the Investor Stockholders holding a majority of
the Registerable Securities held by the Investor Stockholders, acting as a group
through their written designee, and (ii) the EXE Stockholders holding a majority
of the Registerable Securities held by the EXE Stockholders, acting as a group
through their written designee (the "Initiating Holders") may make a written
request to the Company to register, under the Securities Act (other than
pursuant to a Registration Statement on Form S-4 or S-8 or any successor
thereto) and under the securities or "blue sky" laws of any jurisdiction
designated by such holder or holders (a "Demand Registration"), the number of
Registrable Securities stated in such request; PROVIDED, HOWEVER, that the
Company shall not be obligated to effect more than two (2) Demand Registrations
for the Investor Stockholders and two (2) Demand Registration for the EXE
Stockholders pursuant to this Section 3. For purposes of the preceding
sentence, two or more Registration Statements filed in response to one demand
shall be counted as one Registration Statement. If at the time of any request
to register Registrable Securities pursuant to this Section 3(a), the Company is
engaged in, or has fixed plans to engage in within thirty (30) days of the time
of such request, a registered public offering or is engaged in any other
activity which, in the good faith determination of the Board of Directors, would
be adversely affected by the requested registration to the material detriment of
the Company, then the Company may at its option direct that such request be
delayed for a reasonable period not in
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excess of three (3) months from the effective date of such offering or the date
of completion of such other material activity, as the case may be, such right to
delay a request to be exercised by the Company not more than once in any
one-year period. In addition, the Company shall not be required to effect any
registration within sixty (60) days after the effective date of any other
Registration Statement of the Company. Each request for a Demand Registration
by the Initiating Holders shall state the amount of the Registrable Securities
proposed to be sold and the intended method of disposition thereof. Upon a
request for a Demand Registration, the Company shall promptly take such steps as
are necessary or appropriate to prepare for the registration of the Registrable
Securities to be registered.
(b) INCIDENTAL OR "PIGGY-BACK" RIGHTS WITH RESPECT TO A DEMAND
REGISTRATION. Each of the Designated Holders (other than the Initiating
Holders) may offer its or his Registrable Securities under any Demand
Registration pursuant to this Section 3. Within ten (10) days after the receipt
from an Initiating Holder of a request for a Demand Registration, the Company
shall (i) give written notice thereof to all of the Designated Holders (other
than the Initiating Holders) and (ii) subject to Section 3(e), include in such
registration all of the Registrable Securities held by such Designated Holders
from whom the Company has received a written request for inclusion therein
within ten (10) days of the receipt by such Designated Holders of such written
notice referred to in clause (i) above. Each such request by such Designated
Holders shall specify the number of Registrable Securities proposed to
be registered and the intended method of disposition thereof. The failure of
any Designated Holder to respond within such 10-day period referred to in clause
(ii) above shall be deemed to be a waiver of such Designated Holder's rights
under this Section 3 with respect to such Demand Registration, PROVIDED that any
Designated Holder may waive its rights under this Section 3 prior to the
expiration of such 10-day period by giving written notice to the Company, with a
copy to the Initiating Holder.
(c) EFFECTIVE DEMAND REGISTRATION. The Company shall use its
best efforts to cause any such Demand Registration to become and remain
effective not later than ninety (90) days after it receives a request under
Section 3(a) hereof. A registration shall not constitute a Demand Registration
until it has become effective and remains continuously effective for the lesser
of (i) the period during which all Registrable Securities registered in the
Demand Registration are sold and (ii) 120 days; PROVIDED, HOWEVER, that a
registration shall not constitute a Demand Registration if (x) after such Demand
Registration has become effective, such registration or the related offer, sale
or distribution of Registrable Securities thereunder is interfered with by any
stop order, injunction or other order or requirement of the SEC or other
governmental agency or court for any reason not attributable to the Initiating
Holders and such interference is not thereafter eliminated or (y) the conditions
specified in the underwriting agreement, if any, entered into in connection with
such Demand Registration are not satisfied or waived, other than by reason of a
failure by the Initiating Holders.
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(d) EXPENSES. In any registration initiated as a Demand
Registration, the Company shall pay all Registration Expenses (other than
underwriting discounts and commissions) in connection therewith, whether or not
such Demand Registration becomes effective.
(e) UNDERWRITING PROCEDURES. If the Initiating Holders holding
a majority of the Registrable Securities held by all of the Initiating Holders
to which the requested Demand Registration relates so elect, the offering of
such Registrable Securities pursuant to such Demand Registration shall be in the
form of a firm commitment underwritten offering and the managing underwriter or
underwriters selected for such offering shall be the Approved Underwriter
selected in accordance with Section 3(f). In connection with any Demand
Registration under this Section 3 involving an underwriting, none of the
Registrable Securities held by any Designated Holder making a request for
inclusion of such Registrable Securities pursuant to Section 3(b) hereof shall
be included in such underwriting unless such Designated Holder accepts the terms
of the underwriting as agreed upon by the Company, the Initiating Holders and
the Approved Underwriter, and then only in such quantity as will not, in the
opinion of the Approved Underwriter, jeopardize the success of such offering by
the Initiating Holders. If the Approved Underwriter advises the Company in
writing that in its opinion the aggregate amount of such Registrable Securities
requested to be included in such offering is sufficiently large to have a
material adverse effect on the success of such offering, then the Company shall
include in such registration only the aggregate amount of Registrable Securities
that in the opinion of the Approved Underwriter may be sold without any such
material adverse effect and shall reduce the amount of Registrable Securities to
be included in such registration, FIRST as to the Company, SECOND as to the
Designated Holders (who are not Initiating Holders and who requested to
participate in such registration pursuant to Section 3(b) hereof) as a group, if
any, and THIRD as to the Initiating Holders as a group, pro rata within each
group based on the number of Registrable Securities included in the request for
Demand Registration.
(f) SELECTION OF UNDERWRITERS. If any Demand Registration or
S-3 Registration, as the case may be, of Registrable Securities is in the form
of an underwritten offering, the Initiating Holders or S-3 Initiating Holders,
as the case may be, holding a majority of the Registrable Securities held by all
such Initiating Holders or S-3 Initiating Holders shall select and obtain an
investment banking firm of national reputation to act as the managing
underwriter of the offering (the "Approved Underwriter"); PROVIDED, HOWEVER,
that the Approved Underwriter shall, in any case, be acceptable to the Company
in its reasonable judgment.
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4. INCIDENTAL OR "PIGGY-BACK" REGISTRATION.
(a) REQUEST FOR INCIDENTAL REGISTRATION. At any time after the
IPO Effectiveness Date, if the Company proposes to file a Registration Statement
under the Securities Act with respect to an offering by the Company for its own
account (other than a Registration Statement on Form S-4 or S-8 or any successor
thereto), then the Company shall give written notice of such proposed filing to
each of the Designated Holders of Registrable Securities at least thirty
(30) days before the anticipated filing date, and such notice shall describe the
proposed registration and distribution and offer such Designated Holders the
opportunity to register the number of Registrable Securities as each such holder
may request (an "Incidental Registration") PROVIDED, HOWEVER, that
notwithstanding the foregoing, the Neptune Stockholders may exercise their
rights to an Incidental Registration in respect of the Company's Initial Public
Offering for an aggregate number of shares not to exceed twenty percent (20%) of
the total number of Registrable Securities held by the Neptune Stockholders as a
group. The Company shall, and shall use its best efforts (within ten (10) days
of the notice provided for in the preceding sentence) to cause the managing
underwriter or underwriters of a proposed underwritten offering (the "Company
Underwriter") to permit each of the Designated Holders who have requested in
writing to participate in the Incidental Registration to include its or his
Registrable Securities in such offering on the same terms and conditions as the
securities of the Company included therein. In connection with any Incidental
Registration under this Section 4(a) involving an underwriting, the Company
shall not be required to include any Registrable Securities in such underwriting
unless the holders thereof accept the terms of the underwriting as agreed upon
between the Company and the Company Underwriter, and then only in such quantity
as will not, in the opinion of the Company Underwriter, jeopardize the success
of the offering by the Company. If in the written opinion of the Company
Underwriter the registration of all or part of the Registrable Securities which
the Designated Holders have requested to be included would materially adversely
affect such offering, then the Company shall be required to include in such
Incidental Registration, to the extent of the amount that the Company
Underwriter believes may be sold without causing such adverse effect, FIRST, all
of the securities to be offered for the account of the Company; SECOND, in
connection with an Incidental Registration with respect to the Company's Initial
Public Offering, 20% of the Registrable Securities to be offered for the
accounts of the Neptune Stockholders as a group pursuant to this Section 4, pro
rata within such group based on the number of such Registrable Securities
included in the request for such Incidental Registration; THIRD, the Registrable
Securities to be offered for the account of the Designated Holders (including
the Registrable Securities of the Neptune Stockholders other than those, if any,
included in such Incidental Registration pursuant to the immediately preceding
clause) pursuant to this Section 4, pro rata based on the amount recommended by
the Company Underwriter; and FOURTH, any other securities requested to be
included in such underwriting.
-10-
(b) EXPENSES. The Company shall bear all Registration Expenses
(other than underwriting discounts and commissions) in connection with any
Incidental Registration pursuant to this Section 4, whether or not such
Incidental Registration becomes effective.
5. FORM S-3 REGISTRATION.
(a) REQUEST FOR A FORM S-3 REGISTRATION. Notwithstanding the
limitations on the obligations of the Company set forth in Section 3(a) of this
Agreement, in the event that the Company shall receive from (i) the Investor
Stockholders holding a majority of the Registerable Securities held by the
Investor Stockholders, acting as a group through their written designee, or (ii)
the EXE Stockholders holding a majority of the Registerable Securities held by
the EXE Stockholders, acting as a group through their written designee (the "S-3
Initiating Holders") a written request that the Company register, under the
Securities Act and the securities and "blue sky" laws of any jurisdiction
reasonably designated by such holder or holders, on Form S-3 (or any successor
form then in effect) (an "S-3 Registration"), all or a portion of the
Registrable Securities owned by such S-3 Initiating Holders, the Company shall
give written notice of such request to all of the Designated Holders (other than
the S-3 Initiating Holders) at least thirty (30) days before the anticipated
filing date of such Form S-3, and such notice shall describe the proposed
registration and offer such Designated Holders the opportunity to register the
number of Registrable Securities as each such Designated Holder may request in
writing to the Company, given within fifteen (15) days after their receipt from
the Company of the written notice of such registration. The Company shall (i)
take such steps as are necessary or appropriate to prepare for the registration
of the Registrable Securities to be registered and (ii) use its reasonable best
efforts to (x) cause such registration pursuant to this Section 5(a) to become
and remain effective as soon as practicable, but in any event not later than
ninety (90) days after it receives a request therefor and (y) include in such
offering the Registered Securities of the Designated Holders (other than the S-3
Initiating Holders) who have requested in writing to participate in such
registration on the same terms and conditions as the Registrable Securities of
the S-3 Initiating Holders included therein.
(b) FORM S-3 UNDERWRITING PROCEDURES. If the S-3 Initiating
Holders holding a majority of the Registrable Securities held by all of the S-3
Initiating Holders to which the requested S-3 Registration relates so elect, the
Company shall use its reasonable efforts to cause such S-3 Registration pursuant
to this Section 5 to be in the form of a firm commitment underwritten offering
and the managing underwriter or underwriters selected for such offering shall be
the Approved Underwriter selected in accordance with Section 3(f).
In connection with any S-3 Registration under Section 5(a) involving an
underwriting, the Company shall not be required to include any Registrable
Securities in such underwriting unless the Designated Holders thereof accept the
terms of the underwriting as agreed upon
-11-
between the Company, the Approved Underwriter and the S-3 Initiating Holders,
and then only in such quantity as will not, in the opinion of such underwriter,
jeopardize the success of such offering by the S-3 Initiating Holders. If in
the written opinion of the Approved Underwriter the registration of all or part
of the Registrable Securities which the S-3 Initiating Holders and the other
Designated Holders have requested to be included would materially adversely
affect such public offering, then the Company shall be required to include in
the underwriting, to the extent of the amount that the Approved Underwriter
believes may be sold without causing such adverse effect, FIRST, all of the
Registrable Securities to be offered for the account of the S-3 Initiating
Holders; SECOND, the Registrable Securities to be offered for the account of the
other Designated Holders who requested inclusion of their Registrable Securities
pursuant to Section 5(a), pro rata which each group based on the amount
recommended by the Approved Underwriter, and THIRD, any other securities
requested to be included in such underwriting.
(c) LIMITATIONS ON FORM S-3 REGISTRATIONS. If at the time of
any request to register Registrable Securities pursuant to Section 5(a), the
Company is engaged in, or has fixed plans to engage in within thirty (30) days
of the time of such request, a registered public offering or is engaged in any
other activity which, in the good faith determination of the Board of Directors,
would be adversely affected by the requested S-3 Registration to the material
detriment of the Company, then the Company may at its option direct that such
request be delayed for a reasonable period not in excess of three (3) months
from the effective date of such offering or the date of completion of such other
material activity, as the case may be, such right to delay a request to be
exercised by the Company not more than once in any one-year period. In
addition, the Company shall not be required to effect any registration pursuant
to Section 5(a) (i) within three (3) months after the effective date of any
other Registration Statement of the Company, (ii) if within the 12-month period
preceding the date of such request, the Company has effected two registrations
on Form S-3 pursuant to Section 5(a) and all of the Registrable Securities
registered therein have been sold, (iii) if Form S-3 is not available for such
offering by the S-3 Initiating Holders or (iv) if the S-3 Initiating Holders,
together with the Designated Holders (other than the S-3 Initiating Holders)
registering Registrable Securities in such registration, propose to sell their
Registrable Securities at an aggregate price (calculated based upon the Market
Price of the Registrable Securities on the date of filing of the Form S-3 with
respect to such Registrable Securities) to the public of less than $1,000,000.
(d) EXPENSES. In connection with any registration pursuant to
this Section 5, the Company shall pay all Registration Expenses (other than
underwriting discounts and commissions), whether or not such registration
becomes effective; PROVIDED, HOWEVER, that the Company shall not be required to
pay the Registration Expenses for a registration pursuant to this Section 5 if
the Company has paid the Registration Expenses of another registration pursuant
to this Section 5 in the preceding 12-month period. All Registration Expenses
-12-
incurred in connection with any registration pursuant to this Section 5 for
which the Company has no obligation to pay such Registration Expenses shall be
borne by the Designated Holders who participate in such registration on a pro
rata basis according to the number of Registrable Securities owned by the
Designated Holders that are included in such registration at the time that such
registration becomes effective.
(e) NO DEMAND REGISTRATION. No registration requested by any
Designated Holder pursuant to this Section 5 shall be deemed a Demand
Registration pursuant to Section 3.
6. HOLDBACK AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC SALE BY DESIGNATED HOLDERS. If and
to the extent requested by the Company, the Initiating Holders or the S-3
Initiating Holders, as the case may be, in the case of a non-underwritten public
offering or if and to the extent requested by the Approved Underwriter or the
Company Underwriter, as the case may be, in the case of an underwritten public
offering, each Designated Holder of Registrable Securities agrees not to effect
any public sale or distribution of any Registrable Securities or of any
securities convertible into or exchangeable or exercisable for such Registrable
Securities, including a sale pursuant to Rule 144 under the Securities Act,
during the 90-day period or such shorter period agreed upon by such Designated
Holder and the requesting party beginning on the effective date of such
Registration Statement (except as part of such registration).
(b) RESTRICTIONS ON PUBLIC SALE BY THE COMPANY. The Company
agrees not to effect any public sale or distribution of any of its securities,
or any securities convertible into or exchangeable or exercisable for such
securities (except pursuant to registrations on Form S-4 or S-8 or any successor
thereto), during the period beginning on the effective date of any Registration
Statement in which the Designated Holders of Registrable Securities are
participating and ending on the earlier of (i) the date on which all Registrable
Securities registered on such Registration Statement are sold and (ii) 120 days
after the effective date of such Registration Statement (except as part of such
registration).
7. REGISTRATION PROCEDURES.
(a) OBLIGATIONS OF THE COMPANY. Whenever registration
of Registrable Securities has been requested pursuant to Section 3, Section 4 or
Section 5 of this Agreement, the Company shall use its best efforts to effect
the registration and sale of such Registrable Securities in accordance with the
intended method of distribution thereof as quickly as practicable, and in
connection with any such request, the Company shall, as expeditiously as
possible:
-13-
(i) use its best efforts to prepare and file with the
SEC a Registration Statement on any form for which the Company then qualifies or
which counsel for the Company shall deem appropriate and which form shall be
available for the sale of such Registrable Securities in accordance with the
intended method of distribution thereof, and use its best efforts to cause such
Registration Statement to become effective; PROVIDED, HOWEVER, that (x) before
filing a Registration Statement or prospectus or any amendments or supplements
thereto, the Company shall provide counsel selected by the Designated Holders
holding a majority of the Registrable Securities being registered in such
registration ("Holders' Counsel") and any other Inspector with an adequate and
appropriate opportunity to participate in the preparation of such Registration
Statement and each prospectus included therein (and each amendment or supplement
thereto) to be filed with the SEC, which documents shall be subject to the
review of Holders' Counsel, and (y) the Company shall notify the Holders'
Counsel and each seller of Registrable Securities of any stop order issued or
threatened by the SEC and take all reasonable action required to prevent the
entry of such stop order or to remove it if entered;
(ii) prepare and file with the SEC 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 lesser of (x) 120 days and (y) such shorter period which will terminate when
all Registrable Securities covered by such Registration Statement have been
sold, and comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement during such
period in accordance with the intended methods of disposition by the sellers
thereof set forth in such Registration Statement;
(iii) as soon as reasonably possible, furnish to each
seller of Registrable Securities, prior to filing a Registration Statement,
copies of such Registration Statement as is proposed to be filed, and thereafter
such number of copies of such Registration Statement, each amendment and
supplement thereto (in each case including all exhibits thereto), the prospectus
included in such Registration Statement (including each preliminary prospectus)
and such other documents as each such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such seller;
(iv) use its best efforts to register or qualify such
Registrable Securities under such other securities or "blue sky" laws of such
jurisdictions as any seller of Registrable Securities may request, and to
continue such qualification in effect in such jurisdiction for as long as
permissible pursuant to the laws of such jurisdiction, or for as long as any
such seller requests or until all of such Registrable Securities are sold,
whichever is shortest, and do any and all other acts and things which may be
reasonably necessary or advisable to enable any such seller to consummate the
disposition in such jurisdictions of the Registrable Securities owned by such
seller; PROVIDED, HOWEVER, that the Company shall not be
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required to (x) qualify generally to do business in any jurisdiction where it
would not otherwise be required to qualify but for this Section 7(a)(iv), (y)
subject itself to taxation in any such jurisdiction or (z) consent to general
service of process in any such jurisdiction;
(v) use its best efforts to cause the Registrable
Securities covered by such Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
by virtue of the business and operations of the Company to enable the seller or
sellers of Registrable Securities to consummate the disposition of such
Registrable Securities;
(vi) notify each seller of Registrable Securities at
any time when a prospectus relating thereto is required to be delivered under
the Securities Act, upon discovery that, or upon the happening of any event as a
result of which, the prospectus included in such Registration Statement 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 not
misleading in light of the circumstances under which they were made, and the
Company shall promptly prepare a supplement or amendment to such prospectus and
furnish to each seller a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, after delivery to the
purchasers of such Registrable Securities, such prospectus shall not contain an
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not misleading
in light of the circumstances under which they were made;
(vii) enter into and perform customary agreements
(including an underwriting agreement in customary form with the Approved
Underwriter or Company Underwriter, if any, selected as provided in Section 3,
Section 4 or Section 5, as the case may be) and take such other actions as are
prudent and reasonably required in order to expedite or facilitate the
disposition of such Registrable Securities;
(viii) make available for inspection by any seller of
Registrable Securities, any managing underwriter participating in any
disposition pursuant to such Registration Statement, Holders' Counsel and any
attorney, accountant or other agent retained by any such seller or any managing
underwriter (each, an "Inspector" and collectively, the "Inspectors"), all
financial and other records, pertinent corporate documents and properties of the
Company and its subsidiaries (collectively, the "Records") as shall be
reasonably necessary to enable them to exercise their due diligence
responsibility, and cause the Company's and its subsidiaries' officers,
directors and employees, and the independent public accountants of the Company,
to supply all information reasonably requested by any such Inspector in
connection with such Registration Statement. Records that the Company
determines, in good faith, to be confidential and which it notifies the
Inspectors are confidential shall not be disclosed by the Inspectors unless
(x) the disclosure of such Records is necessary to avoid or correct a
misstate-
-15-
ment or omission in the Registration Statement, (y) the release of such
Records is ordered pursuant to a subpoena or other order from a court of
competent jurisdiction or (z) the information in such Records was known to
the Inspectors on a non-confidential basis prior to its disclosure by the
Company or has been made generally available to the public. Each seller of
Registrable Securities agrees that it shall, upon learning that disclosure of
such Records is sought in a court of competent jurisdiction, give notice to
the Company and allow the Company, at the Company's expense, to undertake
appropriate action to prevent disclosure of the Records deemed confidential;
(ix) if such sale is pursuant to an underwritten
offering, use its best efforts to obtain a "cold comfort" letter from the
Company's independent public accountants in customary form and covering such
matters of the type customarily covered by "cold comfort" letters as Holders'
Counsel or the managing underwriter reasonably request;
(x) use its best efforts to furnish, at the request of
any seller of Registrable Securities on the date such securities are delivered
to the underwriters for sale pursuant to such registration or, if such
securities are not being sold through underwriters, on the date the Registration
Statement with respect to such securities becomes effective, an opinion, dated
such date, of counsel representing the Company for the purposes of such
registration, addressed to the underwriters, if any, and to the seller making
such request, covering such legal matters with respect to the registration in
respect of which such opinion is being given as such seller may reasonably
request and are customarily included in such opinions;
(xi) otherwise use its best efforts to comply with
all applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable but no later than fifteen
(15) months after the effective date of the Registration Statement, an earnings
statement covering a period of twelve (12) months beginning after the effective
date of the Registration Statement, in a manner which satisfies the provisions
of Section 11(a) of the Securities Act and Rule 158 thereunder;
(xii) cause all such Registrable Securities to be listed
on each securities exchange on which similar securities issued by the Company
are then listed, PROVIDED that the applicable listing requirements are
satisfied;
(xiii) keep Holders' Counsel advised in writing as to the
initiation and progress of any registration under Section 3, Section 4 or
Section 5 hereunder;
(xiv) cooperate with each seller of Registrable
Securities and each underwriter participating in the disposition of such
Registrable Securities and their
-16-
respective counsel in connection with any filings required to be made with
the National Association of Securities Dealers, Inc. (the "NASD"); and
(xv) use best efforts to take all other steps necessary
to effect the registration of the Registrable Securities contemplated hereby.
(b) SELLER INFORMATION. The Company may require each seller of
Registrable Securities as to which any registration is being effected to furnish
to the Company such information regarding the distribution of such securities as
the Company may from time to time reasonably request in writing.
(c) NOTICE TO DISCONTINUE. Each Designated Holder of
Registrable Securities agrees that, upon receipt of any notice from the Company
of the happening of any event of the kind described in Section 7(a)(vi), such
Designated Holder shall forthwith discontinue disposition of Registrable
Securities pursuant to the Registration Statement covering such Registrable
Securities until such Designated Holder's receipt of the copies of the
supplemented or amended prospectus contemplated by Section 7(a)(vi) and, if so
directed by the Company, such Designated Holder shall deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in such
Designated Holder's possession, of the prospectus covering such Registrable
Securities which is current at the time of receipt of such notice. If the
Company shall give any such notice, the Company shall extend the period during
which such Registration Statement shall be maintained effective pursuant to this
Agreement (including, without limitation, the period referred to in Section
7(a)(ii)) by the number of days during the period from and including the date of
the giving of such notice pursuant to Section 7(a)(vi) to and including the date
when the Designated Holder shall have received the copies of the supplemented or
amended prospectus contemplated by and meeting the requirements of
Section 7(a)(vi).
(d) REGISTRATION EXPENSES. The Company shall pay all expenses
arising from or incident to the performance of, or compliance with, this
Agreement, including, without limitation, (i) SEC, stock exchange and NASD
registration and filing fees, (ii) all fees and expenses incurred in complying
with securities or "blue sky" laws (including reasonable fees, charges and
disbursements of counsel in connection with "blue sky" qualifications of the
Registrable Securities), (iii) all printing, messenger and delivery expenses,
(iv) the fees, charges and disbursements of counsel to the Company and of its
independent public accountants and any other accounting fees, charges and
expenses incurred by the Company (including, without limitation, any expenses
arising from any "cold comfort" letters or any special audits incident to or
required by any registration or qualification) and any legal fees, charges and
expenses incurred by the Company and, in the case of a Demand Registration, the
Initiating Holders and (v) any liability insurance or other premiums for
insurance obtained in connection with any Demand Registration or piggy-back
registration thereon, Incidental
-17-
Registration or registration on Form S-3 pursuant to the terms of this
Agreement, regardless of whether such Registration Statement is declared
effective. All of the expenses described in this Section 7(d) are referred
to herein as "Registration Expenses."
8. INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify and hold harmless, to the fullest extent permitted by law, each
Designated Holder, its officers, directors, trustees, partners, employees,
advisors and agents and each Person who controls (within the meaning of the
Securities Act or the Exchange Act) such Designated Holder from and against any
and all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation) arising out of or based upon any untrue, or allegedly
untrue, statement of a material fact contained in any Registration Statement,
prospectus or preliminary prospectus or notification or offering circular (as
amended or supplemented if the Company shall have furnished any amendments or
supplements thereto) or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as the
same are caused by or contained in any information concerning such Designated
Holder furnished in writing to the Company by such Designated Holder expressly
for use therein. The Company shall also provide customary indemnities to any
underwriters of the Registrable Securities, their officers, directors and
employees and each Person who controls such underwriters (within the meaning of
the Securities Act and the Exchange Act) to the same extent as provided above
with respect to the indemnification of the Designated Holders of Registrable
Securities.
(b) INDEMNIFICATION BY DESIGNATED HOLDERS. In connection with
any Registration Statement in which a Designated Holder is participating
pursuant to Section 3, Section 4 or Section 5 hereof, each such Designated
Holder shall furnish to the Company in writing such information with respect to
such Designated Holder as the Company may reasonably request or as may be
required by law for use in connection with any such Registration Statement or
prospectus and each Designated Holder agrees to indemnify and hold harmless, to
the fullest extent permitted by law, the Company, any underwriter retained by
the Company and their respective directors, officers, employees and each Person
who controls the Company or such underwriter (within the meaning of the
Securities Act and the Exchange Act) to the same extent as the foregoing
indemnity from the Company to the Designated Holders, but only with respect to
any such information with respect to such Designated Holder furnished in writing
to the Company by such Designated Holder expressly for use therein; PROVIDED,
HOWEVER, that the total amount to be indemnified by such Designated Holder
pursuant to this Section 8(b) shall be limited to the net proceeds received by
such Designated Holder in the offering to which the Registration Statement or
prospectus relates.
-18-
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person entitled
to indemnification hereunder (the "Indemnified Party") agrees to give prompt
written notice to the indemnifying party (the "Indemnifying Party") after the
receipt by the Indemnified Party of any written notice of the commencement of
any action, suit, proceeding or investigation or threat thereof made in writing
for which the Indemnified Party intends to claim indemnification or contribution
pursuant to this Agreement; PROVIDED, HOWEVER, that the failure so to notify the
Indemnifying Party shall not relieve the Indemnifying Party of any liability
that it may have to the Indemnified Party hereunder unless, and only to the
extent that, such failure results in the Indemnifying Party's forfeiture of
substantive rights or defenses. If notice of commencement of any such action is
given to the Indemnifying Party as above provided, the Indemnifying Party shall
be entitled to participate in and, to the extent it may wish, jointly with any
other Indemnifying Party similarly notified, to assume the defense of such
action at its own expense, with counsel chosen by it and satisfactory to such
Indemnified Party. The Indemnified Party shall have the right to employ
separate counsel in any such action and participate in the defense thereof, but
the fees and expenses of such counsel (other than reasonable costs of
investigation) shall be paid by the Indemnified Party unless (i) the
Indemnifying Party agrees to pay the same, (ii) the Indemnifying Party fails to
assume the defense of such action with counsel satisfactory to the Indemnified
Party in its reasonable judgment or (iii) the named parties to any such action
(including any impleaded parties) have been advised by such counsel that either
(x) representation of such Indemnified Party and the Indemnifying Party by the
same counsel would be inappropriate under applicable standards of professional
conduct or (y) there may be one or more legal defenses available to it which are
different from or additional to those available to the Indemnifying Party. In
either of such cases, the Indemnifying Party shall not have the right to assume
the defense of such action on behalf of such Indemnified Party. No Indemnifying
Party shall be liable for any settlement entered into without its written
consent, which consent shall not be unreasonably withheld.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 8 from the Indemnifying Party is unavailable to an Indemnified Party
hereunder in respect of any losses, claims, damages, liabilities or expenses
referred to therein, then the Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the Indemnifying Party and Indemnified Party in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative faults of such
Indemnifying Party and Indemnified Party shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such Indemnifying Party or Indemnified Party, and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
action. The amount paid or payable by a party as a
-19-
result of the losses, claims, damages, liabilities and expenses referred to
above shall be deemed to include, subject to the limitations set forth in
Sections 8(a), 8(b) and 8(c), any legal or other fees, charges or expenses
reasonably incurred by such party in connection with any investigation or
proceeding; PROVIDED that the total amount to be indemnified by such
Designated Holder shall be limited to the net proceeds received by such
Designated Holder in the offering.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 8(d) were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
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.
9. RULE 144. The Company covenants that it shall (a) file any
reports required to be filed by it under the Exchange Act and (b) take such
further action as each Designated Holder of Registrable Securities may
reasonably request (including providing any information necessary to comply with
Rules 144 and 144A under the Securities Act), all to the extent required from
time to time to enable such Designated Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (i) Rule 144 under the Securities Act, as such rule may
be amended from time to time, or (ii) any similar rules or regulations hereafter
adopted by the SEC. The Company shall, upon the request of any Designated
Holder of Registrable Securities, deliver to such Designated Holder a written
statement as to whether it has complied with such requirements.
10. MISCELLANEOUS.
(a) RECAPITALIZATIONS, EXCHANGES, ETC. The provisions of this
Agreement shall apply, to the full extent set forth herein with respect to
(i) the shares of Class A Common Stock, (ii) any and all shares of voting common
stock of the Company into which the shares of Class A Common Stock or Class B
Common Stock are converted, exchanged or substituted in any recapitalization or
other capital reorganization by the Company and (iii) any and all equity
securities of the Company or any successor or assign of the Company (whether by
merger, consolidation, sale of assets or otherwise) which may be issued in
respect of, in conversion of, in exchange for or in substitution of, the shares
of Class A Common Stock or Class B Common Stock and shall be appropriately
adjusted for any stock dividends, splits, reverse splits, combinations,
recapitalizations and the like occurring after the date hereof. The Company
shall cause any successor or assign (whether by sale, merger or otherwise) to
enter into a new registration rights agreement with the Designated Holders on
terms substantially the same as this agreement as a condition of any such
transaction.
-20-
(b) NO INCONSISTENT AGREEMENTS. The Company represents and
warrants that it has not granted to any Person the right to request or require
the Company to register any securities issued by the Company, other than the
rights granted to the Designated Holders herein. The Company shall not enter
into any agreement with respect to its securities that is inconsistent with the
rights granted to the Designated Holders in this Agreement or grant any
additional registration rights to any Person or with respect to any securities
which are not Registrable Securities which are prior in right to or inconsistent
with the rights granted in this Agreement.
(c) REMEDIES. The Designated Holders, in addition to being
entitled to exercise all rights granted by law, including recovery of damages,
shall be entitled to specific performance of their rights under this Agreement.
The Company agrees that monetary damages would not be adequate compensation for
any loss incurred by reason of a breach by it of the provisions of this
Agreement and hereby agrees to waive in any action for specific performance the
defense that a remedy at law would be adequate.
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given unless consented to in writing by each of (i) the Company, (ii)
the EXE Stockholders holding Registrable Securities representing (after giving
effect to any adjustments) at least 60% of the aggregate number of Registrable
Securities owned by all of the EXE Stockholders and (iii) the Investor
Stockholders holding Registrable Securities representing (after giving effect to
any adjustments) at least 60% of the aggregate number of Registrable Securities
owned by all of the Investor Stockholders, PROVIDED, HOWEVER, that if any
amendment, supplement, modification or waiver could reasonably be expected to
have a material adverse effect on the rights of a particular class of the
Investor Stockholders, then such amendment, supplement, modification or waiver
shall not be effective unless approved by the holders of the affected class
representing (after giving effect to any adjustments) at least 60% of the
aggregate number of Registrable Securities owned by such affected class. Any
such written consent shall be binding upon the Company and all of the Designated
Holders.
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(e) NOTICES. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be made
by registered or certified first-class mail, return receipt requested,
telecopier, courier service, overnight mail or personal delivery:
(i) if to the Company or the Major Stockholders:
c/o EXE Technologies, Inc.
00000 Xxxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Telecopy: (000) 000-0000
Attention: Mr. Xxxxxxx Xxxx
with a copy to:
Xxxxxx Xxxxxxxx LLP
0000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxx, Esquire
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(ii) if to GAP LP or GAP Coinvestment:
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxxxx X. Xxxxxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
(iii) if to the Dell Stockholders:
Triple Xxxxxx Investments LLC
000 Xxxx 00xx Xxxxxx, Xxxxxx 00-X
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: (000) 000-0000
Attention: Mr. Xxxx Xxxxxx
- and to -
MSD Capital L.P.
0000 Xxxx Xxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Telecopy:_________________
Attention: Xx. Xxxxxxx X. Dell
with a copy to:
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Nissan, Esquire
(iv) if to any other Designated Holder, at its
address as it appears on the record books of
the Company.
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All such notices and communications shall be deemed to have been duly
given: when delivered by hand, if personally delivered; when delivered by
courier or overnight mail, if delivered by commercial courier service or
overnight mail; five (5) Business Days after being deposited in the mail,
postage prepaid, if mailed; and when receipt is mechanically acknowledged, if
telecopied.
(f) SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES. This
Agreement shall inure to the benefit of and be binding upon the successors and
assigns of each of the parties hereto. The Demand Registration rights of the
General Atlantic Stockholders, the Dell Stockholders and the Major Stockholders
contained in Section 3 of this Agreement and the other rights of each of
the General Atlantic Stockholders, the Dell Stockholders and the EXE
Stockholders with respect thereto shall be, with respect to any Registrable
Security, (i) automatically transferred, in the case of such rights of the
General Atlantic Stockholders, among the General Atlantic Stockholders, in the
case of such rights of the Dell Stockholders, among the Dell Stockholders, and,
in the case of such rights of the EXE Stockholders, among the EXE Stockholders
and (ii) in all other cases, transferred only with the consent of the Company.
The incidental or "piggy-back" registration rights of the Designated Holders
contained in Sections 3(b) and 4 of this Agreement, its Form S-3 registration
rights contained in Section 5 of this Agreement and the other rights of each of
the Designated Holders with respect thereto shall be, with respect to any
Registrable Security, automatically transferred by such Designated Holder to any
Person who is the transferee of such Registrable Security. All of the
obligations of the Company hereunder shall survive any such transfer. No Person
other than the parties hereto and their successors and permitted assigns is
intended to be a beneficiary of any of the rights granted hereunder.
(g) COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to the principles of conflicts of law of any jurisdiction.
(j) SEVERABILITY. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, then the
validity, legality and enforceability of
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any such provision in every other respect and of the remaining provisions hereof
shall not be in any way impaired, it being intended that all of the rights and
privileges of the Designated Holders shall be enforceable to the fullest extent
permitted by law.
(k) ENTIRE AGREEMENT. This Agreement is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. There are no restrictions,
promises, warranties or undertakings, other than those set forth or referred to
herein and in the Stock Purchase Agreements. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter including, without limitation, the Prior Registration Rights
Agreement.
(l) FURTHER ASSURANCES. Each of the parties shall execute such
documents and perform such further acts as may be reasonably required or
desirable to carry out or to perform the provisions of this Agreement.
[SIGNATURE PAGES FOLLOW]
-25-
IN WITNESS WHEREOF, the undersigned have executed, or have caused to
be executed, this Agreement on the date first written above.
EXE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------------
Print Name: Xxxxxxx X. Xxxx
-----------------------------------
Title: President
----------------------------------------
GENERAL ATLANTIC PARTNERS 41, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Print Name: Xxxxx X. Xxxxxx
-----------------------------------
Title: Managing Member
----------------------------------------
GAP COINVESTMENT PARTNERS, L.P.
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------------
Print Name: Xxxxx X. Xxxxxx
-----------------------------------
Title: General Partner
----------------------------------------
MSD CAPITAL L.P.
By: /s/ Xxxxxxx Xxxx
-------------------------------------------
Xxxxxxx Xxxx, General Partner
TRIPLE XXXXXX INVESTMENTS LLC
By: /s/ Xxxx Xxxxxx
-------------------------------------------
Xxxx Xxxxxx, Manager
ROTHKO INVESTMENTS LLC
By: /s/ Xxxxx Xxxxxxx
-------------------------------------------
Xxxxx Xxxxxxx, Manager
/s/ Xxxx Xxxxx
----------------------------------------------
Xxxx Xxxxx
/s/ Xxxxx Xxxxxxx
----------------------------------------------
Xxxxx Xxxxxxx
/s/ Xxxx Xxxxxx
----------------------------------------------
Xxxx Xxxxxx
/s/ Xxxxxxx Xxxx
----------------------------------------------
Xxxxxxx Xxxx
