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EXHIBIT 99.3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of May 15, 1997, by and among i2 Technologies, Inc., a Delaware
corporation (the "Company"), and the parties listed on Schedule 1 hereto
(individually a "Holder" and collectively the "Holders").
RECITALS
A. The Company, Think Systems Corporation, a New Jersey
corporation ("Think"), and TSC Acquisition Corporation, a New Jersey
corporation and wholly owned subsidiary of the Company ("Merger Sub"), are
parties to an Agreement and Plan of Merger, dated as of May 15, 1997 (the
"Merger Agreement"), providing, among other things, for the merger of Merger
Sub with and into Think (the "Merger").
B. Think Systems Private, Ltd., an Indian corporation
("TSP"), the stockholders of TSP and the Company have proposed to enter into an
Agreement for Purchase of Shares providing, subject to the conditions therein,
for the purchase by the Company of shares of the capital stock of TSP (the
"Exchange").
C. The execution and delivery of this Agreement by the
Company and each Holder is a condition to the closing of the Merger pursuant to
the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the following terms shall have
the meanings indicated:
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" means the Company's Common Stock, par value
$0.00025 per share.
"Demand Registration" means the registration referred to in
Sections 2.2(a) hereof.
"Initial Registration" means the registration provided for in
Section 2.1 hereof.
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"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
"Pooling Period" means the period beginning at the Effective Time
of the Merger (as defined in the Merger Agreement) and continuing until such
time as financial results covering at least 30 days of combined operations of
the Company and Think (on a consolidated basis) shall have been published by
the Company within the meaning of Section 201.01 of the Commission's
Codification of Financial Reporting Policies.
"Potential Material Event" means any of the following: (a) the
possession by the Company of material non-public information required to be
disclosed in the registration statement and the determination in good faith by
the Board of Directors of the Company that disclosure of such information in
the registration statement at that time would be detrimental to the business
and affairs of the Company; or (b) any material engagement or activity by the
Company which would, in the good faith determination of the Board of Directors
of the Company, if disclosed in the registration statement at such time, be
materially and adversely affected, which determination shall be accompanied by
a good faith determination by the Board of Directors of the Company that the
registration statement would be materially misleading absent the inclusion of
such information.
"Registration Expenses" means all expenses incident to the
Company's performance of or compliance with Article II hereof, including,
without limitation, all registration, Commission filing fees, NASD fees, all
fees and expenses of complying with securities or blue sky laws, printing
expenses, the fees and disbursements of counsel for the Company and of its
independent public accountants, including the expenses of "cold comfort"
letters required by or incident to such performance and compliance, and, in the
case of a registration pursuant to Section 2.2 the reasonable fees and expenses
(not to exceed $30,000) of one counsel to the selling Holders (selected by
selling Holders representing at least 50% of the Registrable Securities covered
by such registration); provided, however, that Registration Expenses shall
exclude, and the sellers of the Registrable Stock being registered shall pay,
any underwriting discounts, commissions and transfer taxes in respect of the
Registrable Stock being registered.
"Registrable Stock" means (a) all Common Stock received and to be
received by the Holders in connection with the Merger and the Exchange and (b)
any securities issued or issuable with respect to such shares of Common Stock
by way of a stock dividend or stock split or in connection with a combination
or reclassification of shares, recapitalization, merger, consolidation or other
reorganization or otherwise; provided, however, that any particular Registrable
Stock shall cease to be Registrable Stock when (x) a registration statement
with respect to the sale of such stock shall become effective under the
Securities Act and such stock shall have been disposed of in accordance with
such registration statement or (y) such stock shall have been sold pursuant to
Rule 144.
"Rule 144" means Rule 144 (or any successor provision) under the
Securities Act.
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"Securities Act" means the Securities Act of 1933, as amended.
ARTICLE II
REGISTRATION RIGHTS
2.1 Initial Registration. The Company shall cause to be filed
with the Commission as soon after the closing of the Merger (the "Closing") as
practicable, but in no event later than June 15, 1997, a shelf registration
statement providing for the registration and resale on a continuous or delayed
basis by the Holders, covering 50% of the shares of Registrable Stock issued to
each Holder in the Merger and the Exchange pursuant to Rule 415 under the
Securities Act, and the Company shall use its best efforts to cause such
Initial Registration to become or be declared effective as soon after the
termination of the Pooling Period as practicable. The Company shall use its
best efforts to keep such Initial Registration continuously effective,
supplemented and amended pursuant to the provisions of Section 2.6 hereof until
the earlier of (i) the sale by the Holders of all shares of Registrable Stock
registered in such registration or (ii) the first anniversary of the effective
date of such registration.
2.2 Request for Registration.
(a) Commencing on the first anniversary of the
effective date of the Initial Registration and continuing until the
second anniversary of the effective date of the Initial Registration,
the Holders of at least 66 2/3% of the Registrable Stock then
outstanding may request (on one occasion only) the Company to register
the offering of up to all of the shares of Registrable Stock issued to
the Holders in the Merger; provided, however, that such request relates
to the registration of shares having a market value of at least
$10,000,000.
(b) A request for a Demand Registration (a
"Registration Request") shall specify (i) the number of shares of
Registrable Stock held by the requesting Holders that are requested to
be included in such registration and (ii) the intended method of
distribution of such shares. The Company will promptly give notice of
such requested registration to all other Holders of Registrable Stock
and, subject to Section 2.2(c), will include in such registration all
shares of Registrable Stock that Holders of Registrable Stock have
requested the Company to include in such registration by notice to the
Company within 20 days after the date of receipt of the Company's
notice.
(c) If the Holders making a Registration Request intend
to distribute the Registrable Stock covered by such request by means of
an underwriting (an "Underwritten Offering"), then such Holders shall so
advise the Company as a part of their Registration Request and the
Company shall include such information in the written notice referred to
in Section 2.2(b). In such event, the right of the Holders to include
their Registrable Stock in such registration shall be conditioned upon
the Holders participation in such
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underwriting and the inclusion of the Holders' Registrable Stock in the
underwriting. Any Registrable Stock excluded and withdrawn from such
underwriting shall be withdrawn from the registration. Notwithstanding
any other provision of this Agreement, if the managing underwriter
determines in good faith that marketing factors require a limitation of
the number of shares to be underwritten, then the managing underwriter
may exclude shares (including Registrable Stock) from the registration
and the underwriting, and the number of shares that may be included in
the registration and the underwriting shall be allocated, first, pro
rata among the Holders of Registrable Stock requesting to be included in
such registration on the basis of the number of shares that such Holders
have requested be included in the registration, second, to the Company,
third, pro rata among all other security holders having contractual
rights to include their securities in such registration on the basis of
the number of shares that such holders have requested to be included in
the registration, and fourth, to all other security holders requesting
to include securities in such registration. For any Holder which is a
partnership or corporation, the partners, retired partners and
stockholders 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 "Holder," and
any pro rata reduction with respect to such "Holder" shall be based upon
the aggregate amount of shares carrying registration rights owned by all
entities and individuals included in such "Holder," as defined in this
sentence.
2.3 Selection of Managing Underwriter(s). The Company will
have the right to select one or more nationally recognized underwriters to
manage any offering which is the subject of a Demand Registration, subject to
the approval of 66 2/3% of the shares of Registrable Stock requested to be
included in such registration, which approval shall not be unreasonably
withheld.
2.4 Right to Defer Registration. No Registration Request
shall require a registration statement requested therein to be filed (i) prior
to the effective date of a registration statement filed by the Company covering
a firm commitment underwritten public offering of Common Stock if the Company
shall have given written notice in the manner provided in Section 2.5 below of
such registration statement to the Holders prior to the receipt of a
Registration Request and shall have thereafter pursued the preparation, filing
and effectiveness of such registration statement with diligence (it being
understood by such Holders that advance notice of the pendency of such
registration may be material, non-public information) or (ii) if the Company
shall furnish to the Holders a certificate signed by the Chairman of the Board
of the Company stating that, in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the Company and
its stockholders for such registration to the effected at such time, in which
event the Company shall have the right to defer the filing of the registration
statement for a period of not more than sixty (60) days after receipt of the
Registration Request. If the Company shall so postpone the filing of a
registration statement, such Holders of Registrable Stock requesting
registration thereof pursuant to Section 2.2 shall have the right to withdraw
the request for registration by giving written notice to the Company within 30
days after receipt of the notice of postponement and, in the event of such
withdrawal, such request shall not
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count as the request for registration to which Holders of Registrable Stock are
entitled pursuant to Section 2.2 hereof. The registration requested pursuant
to Section 2.2 shall not be deemed to have been effected (i) unless the
registration statement with respect thereto has become effective, (ii) if after
it has become effective and prior to the sale of all of the shares covered
thereby, such registration is interfered with by any stop order, injunction or
other order or requirement of the Commission or other governmental agency or
court for any reason not attributable to the selling Holders and has not
thereafter become effective, or (iii) if the conditions to closing specified in
the underwriting agreement, if any, entered into in connection with such
registration are not satisfied or waived, other than by reason of a failure on
the part of the selling Holders.
2.5 Piggyback Registrations.
(a) Right to Piggyback. (i) If prior to the
first anniversary of the Closing the Company proposes to register
any offering of its securities under the Securities Act in a firm
commitment underwritten public offering (other than pursuant to
the Initial Registration, the Demand Registration, or on Form X-
0, Xxxx X-0 or any successor form) or (ii) if after the first
anniversary of the Closing and prior to the third anniversary of
the Closing the Company proposes to register any offering of its
securities under the Securities Act whether or not for sale for
its own account (other than pursuant to the Initial Registration,
the Demand Registration, or on Form X-0, Xxxx X-0 or any
successor form), and in the case of (i) or (ii) the registration
form to be used permits the registration of an offering of
Registrable Stock by the Holders (a "Piggyback Registration"),
the Company will give prompt notice to all Holders of Registrable
Stock of its intention to effect such a registration (each a
"Piggyback Notice"). Subject to Section 2.5(b) below, the
Company will include in such registration all shares of
Registrable Stock that the Holders thereof have requested the
Company to include in such registration by notice to the Company
within 20 days after the date of receipt of the Company's notice.
No such registration effected under this Section 2.5 shall
relieve the Company of its obligation to effect any registration
upon request under Section 2.2.
(b) Priority on Primary Registrations. If any
Piggyback Registration shall be an underwritten offering, the
right of any such Holder's Registrable Stock to be included in
such Piggyback Registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of
such Holder's Registrable Stock in the underwriting to the extent
provided herein. Notwithstanding any other provision of this
Agreement, if the managing underwriter determines in good faith
that marketing factors require a limitation of the number of
shares to be underwritten, then the managing underwriter may
exclude shares (including Registrable Stock) from the
registration and the underwriting, and the number of shares that
may be included in the registration and the underwriting shall be
allocated, first, to the Company, second, pro rata among all
security holders having contractual rights to include their
securities in such registration (including the Holders) on the
basis of the number of shares that such holders have requested
(consistent with their contractual rights) to be included in the
registration, and third, to all other security holders requesting
to include securities in such registration. If any Holder
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disapproves of the terms of any such underwriting, such Holder
may elect to withdraw therefrom by written notice to the Company
and the managing underwriter. Any Registrable Stock excluded or
withdrawn from such underwriting shall be excluded and withdrawn
from the registration. For any Holder which is a partnership or
corporation, the partners, retired partners and stockholders 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
"Holder," and any pro rata reduction with respect to such
"Holder" shall be based upon the aggregate amount of shares
carrying registration rights owned by all entities and
individuals included in such "Holder," as defined in this
sentence.
2.6 Registration Procedures. In connection with any
registration hereunder, the Company will use its best efforts to effect the
registration and the sale of such Registrable Stock in accordance with the
intended method of distribution thereof and will as expeditiously as possible:
(a) promptly prepare and file with the
Commission a registration statement with respect to such
Registrable Stock and use its best efforts to cause such
registration statement to become effective; provided, however,
that the Company shall not be obligated to cause the Initial
Registration to become effective prior to the expiration of the
Pooling Period; and provided, further, that before filing a
registration statement or prospectus or any amendments or
supplements thereto, the Company will furnish to the counsel, if
any, selected by the Holders of a majority of the Registrable
Stock covered by such registration statement copies of all such
documents proposed to be filed, which documents will be subject
to the reasonable comments of such counsel;
(b) prepare and file with the Commission such
amendments and supplements to such registration statement and the
prospectus used in connection therewith as may be necessary to
keep such registration statement effective for such period as
shall be required for the disposition pursuant to the terms of
such registration of all Registrable Stock covered thereby (but
not to exceed, in the case of (i) the Demand Registration or any
Piggyback Registration, 180 days plus any additional periods
represented by any "Black-Out Period" (as defined in the last
paragraph of this Section 2.6) and (ii) the Initial Registration,
the first anniversary of the effective date of such
registration), and in each such case 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 distribution by
the sellers thereof set forth in such registration statement;
(c) furnish to each seller of Registrable Stock
such number of copies of such registration statement, each
amendment and supplement thereto, in each case including all
exhibits, the prospectus included in such registration statement
(including each preliminary prospectus) and such other documents
as such seller may reasonably
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request in order to facilitate the disposition of the Registrable
Stock then held, owned and being registered by such seller;
(d) use its best efforts to register or qualify
such Registrable Stock under such other securities or blue sky
laws of such jurisdictions as any seller reasonably requests to
keep such registration or qualification in effect for as long as
the relevant registration statement is in effect and do any and
all other acts and things which may be reasonably necessary or
advisable to enable such seller to consummate the disposition in
such jurisdictions of the Registrable Stock then held, owned and
being registered by such seller; provided, however, that the
Company will not be required (i) to qualify generally to do
business in any jurisdiction where it would not otherwise be
required to qualify but for this subsection (d) or (ii) to
consent to general service of process in any such jurisdiction;
(e) notify each seller of such Registrable
Stock, at any time when a prospectus relating thereto is required
to be delivered under the Securities Act, of 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 any fact necessary to make the statements therein
not misleading and, at the request of any such seller, the
Company will promptly prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of
such Registrable Stock, such prospectus will not contain an
untrue statement of a material fact or omit to state any fact
necessary to make the statements therein, in light of the
circumstances under which such statements are made, not
misleading;
(f) cause all such Registrable Stock to be
listed on each securities exchange on which similar securities
issued by the Company are then listed and to be qualified for
trading on each system on which similar securities issued by the
Company are from time to time qualified;
(g) provide a transfer agent and registrar for
all such Registrable Stock not later than the effective date of
such registration statement and thereafter maintain such a
transfer agent and registrar;
(h) enter into such customary agreements
(including underwriting agreements in customary form) and take
all such other actions as the underwriters, if any, reasonably
request in order to expedite or facilitate the disposition of
such Registrable Stock;
(i) make available for inspection by any
underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other
agent retained by any such underwriter, all financial and other
records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors, employees
and independent accountants to supply all information reasonably
requested by
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any such underwriter, attorney, accountant or agent in connection
with such registration statement;
(j) otherwise use its best efforts to comply
with all applicable rules and regulations of the Commission, and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering the period of at least 12 months beginning
with the first day of the Company's first full calendar quarter after
the effective date of the registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
(k) if such registration relates to an
underwritten offering, furnish to each seller of Registrable Stock a
signed counterpart of
(x) an opinion of counsel for the
Company, which may be the head in-house counsel for the
Company, and
(y) a "comfort" letter signed by the
independent public accountants who have certified the
Company's financial statements included or incorporated by
reference in such registration statement,
in each case covering substantially the same matters with respect to
such registration statement (and the prospectus included therein) and,
in the case of the accountants' comfort letter, with respect to events
subsequent to the date of such financial statements, as are customarily
covered in opinions of issuer's counsel and in accountants' comfort
letters to be delivered to the underwriters in underwritten public
offerings of securities (and dated the dates such opinions and comfort
letters are customarily dated) and, in the case of the accountants'
comfort letter, such other financial matters.
(l) permit any Holder of Registrable Stock which
might be deemed, in the reasonable judgment of such Holder, to be an
underwriter or a controlling person of the Company, to participate in
the preparation of such registration or comparable statement and to
require the insertion therein of material, furnished to the Company in
writing, which in the reasonable judgment of such Holder and its
counsel, if any, should be included; and
(m) in the event of the issuance of any stop
order suspending the effectiveness of a registration statement, or of
any order suspending or preventing the use of any related prospectus or
suspending the qualification of any Registrable Stock included in such
registration statement for sale in any jurisdiction, the Company will
promptly notify each Seller of Registrable Stock thereof and will use
its best efforts promptly to obtain the withdrawal of such order.
Each Holder of shares covered by a registration statement agrees that if the
Company has delivered preliminary or final prospectuses to such Holder and
after having done so the Company
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shall give notice to such Holder that (i) the prospectus needs to be amended or
supplemented to comply with the requirements of the Securities Act, (ii) a stop
order suspending the effectiveness of the registration statement is issued by
the Commission or (iii) a Potential Material Event shall exist, then each such
Holder shall immediately cease making offers and sales of Registrable Stock and
return all remaining prospectuses to the Company. Following such amendment or
supplement, the lifting of any stop order or such time as the Potential
Material Event shall no longer exist, the Company shall promptly provide such
Holders with revised prospectuses and, following receipt of the revised
prospectuses, such Holders shall be free to resume making offers of the
Registrable Stock, or any portion thereof. The period during which the Company
exercises its rights as described in this paragraph to postpone, delay or
interrupt the offer and sale of the Registrable Stock or during the pendency of
any stop order, injunction or other order or requirement of the Commission or
any other governmental agency or court shall be referred to herein as a "Black-
Out Period."
2.7 Payment of Expenses. The Company shall pay all
Registration Expenses in connection with the Initial Registration, the Demand
Registration and any Piggyback Registration.
2.8 Participation in Underwritten Registrations. No
Holder may participate in any registration hereunder which is underwritten
unless such Holder (a) agrees to sell such Holder's securities on the basis
provided in any underwriting arrangements approved by the Person or Persons
entitled hereunder to approve such arrangements; (b) completes and executes all
questionnaires, powers of attorney, indemnities, standstill or holdback
agreements, underwriting agreements and other documents required under the
terms of such underwriting arrangements, provided that no Holder of Registrable
Stock included in any underwritten registration shall be required to make any
representations or warranties to the Company or the underwriters other than
representations and warranties regarding such Holder and such Holder's intended
method of distribution; and (c) if requested by the managing underwriter,
agrees not to sell or otherwise dispose of Registrable Stock or other Company
securities held by such Holder in any transaction other than pursuant to such
underwriting for such period (not to exceed 90 days) as determined in the
discretion of the Board of Directors of the Company (such agreement to be in
writing in a form satisfactory to the Company and such managing underwriter),
provided that no Holder of Registrable Stock shall be required to enter into
such an agreement unless each other Holder of Registrable Stock participating
in such offering, each director and executive officer of the Company enters
into a substantially identical agreement relating to such underwriting. The
Company may impose stop-transfer instructions to its transfer agent with
respect to the Registrable Stock and other securities subject to the
restriction described in clause (c) above until the end of the lock-up period.
2.9 Information of the Holders. As a condition to
participation in any registration hereunder, each Holder shall furnish to the
Company such information regarding such Holder and the distribution proposed by
the Holder as the Company may reasonably request and as shall be required in
connection with any registration, qualification or compliance contemplated by
this Agreement.
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2.10 Rule 144 Information. From and after the date
hereof and for so long as necessary in order to permit the Holders to sell the
Registrable Stock pursuant to Rule 144 under the Securities Act, the Company
will file on a timely basis all reports required to be filed by it pursuant to
Section 13 or 15(d) of the Securities Exchange Act of 1934, referred to in
paragraph (c)(1) of Rule 144 under the Securities Act (or, if applicable, the
Company will make publicly available the information regarding itself referred
to in paragraph (c)(2) of Rule 144), in order to permit the Holders to sell the
Registrable Stock, pursuant to the terms and conditions of the applicable
provisions of Rule 144.
ARTICLE III
INDEMNIFICATION
3.1 Indemnification by the Company. The Company agrees
to indemnify, to the extent permitted by law, each Holder, its officers and
directors and each Person who controls such Holder (within the meaning of the
Securities Act) against all losses, claims, damages, liabilities and expenses
caused by any untrue or alleged untrue statement of material fact contained in
any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of
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 furnished in writing to the Company by such
Holder, its officers and directors and each Person who controls such Holder
expressly for use therein or by such Holder's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto
after the Company has furnished such Holder with a sufficient number of copies
of the same. In connection with an underwritten offering, the Company will
indemnify such underwriters, their officers and directors and each Person who
controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the
Holders.
3.2 Indemnification by Holders. In connection with any
registration statement in which a Holder is participating, each such Holder
will, to the extent permitted by law, indemnify the Company, its directors and
officers and each Person who controls the Company (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities and expenses
resulting from any untrue or alleged untrue statement of material fact
contained in the registration statement, prospectus or preliminary prospectus
or any amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein not misleading (but only to the extent that such untrue
statement or omission is contained in any information or affidavit so furnished
in writing by such Holder expressly for use therein) and any failure by each
such Holder to deliver a copy of the registration statement or prospectus or
any amendments or supplements thereto after the Company has furnished such
Holder with a sufficient number of copies of the same; provided, however, that
the obligation to indemnify will be individual to each Holder and will
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be limited to the net amount of proceeds received by such Holder from the sale
of Registrable Stock pursuant to such registration statement.
3.3 Notice: Defense of Claims. Any Person entitled to
indemnification hereunder will (a) give prompt written notice to the
indemnifying party of any claim with respect to which it seeks indemnification
and (b) unless in such indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties may exist with
respect to such claim, permit such indemnifying party to assume the defense of
such claim with counsel reasonably satisfactory to the indemnified party. If
such defense is assumed, the indemnifying party will not be subject to any
liability for any settlement made by the indemnified party without its consent
(but such consent will not be unreasonably withheld). An indemnifying party
who is not entitled to, or elects not to, assume the defense of a claim will
not be obligated to pay the fees and expenses of more than one counsel (in
addition to local counsel) for all parties indemnified by such indemnifying
party with respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such claim.
3.4 Contribution. If the indemnification provided for
in this Article III is unavailable or insufficient to hold harmless an
indemnified party under Section 3.1 or 3.2, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of the losses, claims, damages or liabilities referred to above (a) in such
proportion as is appropriate to reflect the relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other from
the offering of the securities or (b) if the allocation provided by clause (a)
above is not permitted by applicable law, in such proportion as is appropriate
to reflect not only the relative benefits referred to in clause (a) above but
also the relative fault of the indemnifying party on the one hand and the
indemnified party on the other in connection with the statements or omissions
that resulted in such losses, claims, damages or liabilities, as well as any
other equitable considerations. The relative benefits received by the
indemnifying party on the one hand and the indemnified party on the other shall
be deemed to be in the same proportion as the total net proceeds from the
offering received by the indemnifying party bear to the total net proceeds
received by the indemnified party. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact related to information supplied by the indemnifying party or
written information supplied by indemnified party, and the parties' relevant
intent, knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The amount paid by an indemnified party as
a result of the losses, claims, damages or liabilities referred to in the first
sentence of this Section 3.4 shall be deemed to include any legal or other
expenses reasonably incurred by such indemnified party in connection with
investigating or defending against any action or claim that is the subject of
this section. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Any obligation of a Holder to provide contribution will be
individual to such Holder and will be
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limited to the net amount of proceeds received by such Holder from the sale of
Registrable Stock that is the subject of any claim.
3.5 Survival. The indemnification provided for under
this Agreement will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
director or controlling Person of such indemnified party and will survive the
transfer of securities.
ARTICLE IV
MISCELLANEOUS
4.1 Notices. All notices and other communications
hereunder shall be in writing and shall be delivered personally or by
commercial delivery service, or mailed by registered or certified mail (return
receipt requested) or sent via facsimile (with confirmation of receipt) to the
parties at the following address (or at such other address for a party as shall
be specified by like notice):
(a) if to the Company, to:
000 X. Xxx Xxxxxxx Xxxx.
00xx Xxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
with a copy (which shall not constitute
notice) to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
(b) if to a Holder, at the appropriate address
as listed on Schedule 1 hereto.
Notice given by personal delivery, commercial delivery service or mail shall be
effective upon actual receipt. Notice given by facsimile shall be confirmed by
appropriate answer back and shall be effective upon actual receipt if received
during the recipient's normal business hours,
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or at the beginning of the recipient's next business day after receipt if not
received during the recipient's normal business hours.
4.2 Remedies Cumulative. 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.
4.3 Amendments and Waivers. Except as otherwise
provided herein, no amendment, modification, termination or cancellation of
this Agreement shall be effective as to (a) the Company, unless made in writing
signed by the Company or (b) the Holders of Registrable Stock, unless made in
writing signed by the Holders of 66-2/3 of the then outstanding shares of
Registrable Stock.
4.4 Successors and Assigns. This Agreement, and the
rights and obligations of each Holder hereunder, may be assigned, but only with
the prior written consent of the Company, by such Holder to any Person to which
Registrable Stock is transferred by such Holder and who agrees to be bound by
the terms of this Agreement. Any such transferee shall be deemed a "Holder"
for purposes of this Agreement.
4.5 Registrable Stock Held in Escrow. The parties
acknowledge that, pursuant to the terms of the Merger Agreement and an Escrow
Agreement entered into in connection with the Merger, certain shares of
Registrable Stock shall be held in escrow. The parties agree that in no event
shall shares of Registrable Stock be included in any registration under this
Agreement unless such shares are released from such escrow prior to or at the
time such registration becomes effective. Notwithstanding anything to the
contrary herein, all registration rights under this Agreement granted to the
Holders shall terminate on the third anniversary of the closing of the Merger.
4.6 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.
4.7 Entire Agreement. This Agreement constitutes the
entire agreement among the parties with respect to the subject matter hereof
and supersedes all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof.
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4.8 Headings. The headings of this Agreement are for
convenience only and do not constitute a part of this Agreement.
4.9 Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Texas (other than the
conflicts of law principles thereof). Each of the parties hereto irrevocably
consents to the non-exclusive jurisdiction of any court located within the
State of Texas, in connection with any matter based upon or arising out of this
Agreement or the matters contemplated herein, agrees that process may be served
upon them in any manner authorized by the laws of the State of Texas for such
persons and waives and covenants not to assert or plead any objection which
they might otherwise have to such jurisdiction and such process.
4.10 Further Assurances. Each party to this Agreement
hereby covenants and agrees, without the necessity of any further
consideration, to execute and deliver any and all such further documents and
take any and all such other actions as may be necessary to appropriately carry
out the intent and purposes of this Agreement and to consummate the
transactions contemplated hereby.
4.11 Counterparts. This Agreement may be executed 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 parties, it being
understood that all parties need not sign the same counterpart.
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IN WITNESS WHEREOF, the Company and the Holders have
executed this Agreement as of the date first written above.
i2 TECHNOLOGIES, INC.
By:/s/ Xxxxxx X. Xxxxx
-------------------------
Xxxxxx X. Xxxxx
Chairman of the Board
and Chief Executive
Officer
HOLDERS:
/s/Xxxxxxx X. Xxxxxxx
----------------------------
Xxxxxxx X. Xxxxxxx
/s/Xxxxxx Xxxxxxx
----------------------------
Xxxxxx Xxxxxxx
/s/Xxxx X. Xxxxx
----------------------------
Xxxx X. Xxxxx
/s/Xxxxxxxx Xxxxx
----------------------------
Xxxxxxxx Xxxxx
/s/X.X. Xxxxxxxxxx
----------------------------
X.X. Xxxxxxxxxx
/s/Xxxxxxx Xxxx
----------------------------
Xxxxxxx Xxxx
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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INSIGHT VENTURE PARTNERS I, L.P.
By: InSight Ventures Associates,
LLC,
Its General Partner
By:/s/Xxxxxxx Xxxxxx
--------------------------------
Xxxxxxx Xxxxxx
Member
INSIGHT VENTURE PARTNERS II, L.P.
By: InSight Ventures Associates,
LLC,
Its General Partner
By:/s/Xxxxxxx Xxxxxx
--------------------------------
Xxxxxxx Xxxxxx
Member
INTEGRAL CAPITAL PARTNERS III,
L.P.
By: Integral Capital Management
III, L.P.
By:/s/Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
General Partner
INTEGRAL CAPITAL PARTNERS
INTERNATIONAL III, L.P.
By: Integral Capital Management
III, L.P.
By:/s/Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
General Partner
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]
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SCHEDULE 1
Initial No. of
Shares of
Name of Holder Address Registrable Stock
-------------- ------- -----------------
Xxxxxxx X. Xxxxxxx 0 Xxxxxx Xxxx 585,079*
Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxxxx 0 Xxxxxx Xxxx 000,000
Xxxxxxxxxx, XX 00000
Xxxx X. Xxxxx 85 Reserve St. 585,079*
Xxxxxxx, XX 00000
Xxxxxxxx Xxxxx 85 Reserve St. 573,192
Xxxxxxx, XX 00000
X.X. Xxxxxxxxxx 0000 X. Xxxxxxx Xxxx Xxxxx Xx. 0,000
Xxxxxx, XX 00000
InSight Venture 000 X. Xxxxxx Xxx., Xxxxx 000 18,961
Partners I, Xxxxxxxxx, XX 00000
L.P.
InSight Venture 000 X. Xxxxxx Xxx., Xxxxx 000 451,641
Partners II, Xxxxxxxxx, XX 00000
L.P.
Xxxxxxx Xxxx 0000 Xxxxxxx Xxxxxx 00,000
Xxxxxx, XX 00000
Integral Capital 0000 Xxxx Xxxx Xxxx 142,356
Partners III, Xxxxx Xxxx, XX 00000
L.P.
Integral Capital 0000 Xxxx Xxxx Xxxx 00,000
Xxxxxxxx Xxxxx Xxxx, XX 00000
International
III, L.P.
-------------------------
*Includes shares issuable pursuant to the Exchange
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