EXHIBIT 10.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT is made as of April 23, 2006,
between JDA Software Group, Inc., a Delaware corporation (the "Company"), and
the Investors (the "Investors") listed on the Schedule of Investors attached
hereto.
The parties to this Agreement are parties to a Preferred Stock
Purchase Agreement, dated April 23, 2006 (the "Purchase Agreement"). In order to
induce the Investors to enter into the Purchase Agreement, the Company has
agreed to provide the registration rights set forth in this Agreement. The
execution and delivery of this Agreement is a condition to the closing under the
Purchase Agreement. Unless otherwise provided in this Agreement, capitalized
terms used herein shall have the meanings set forth in Section 8 hereof.
The parties hereto agree as follows:
1. Mandatory and Demand Registrations.
(a) Mandatory Registration. The Company shall use its commercially
reasonable efforts to file with the SEC a registration statement on the
applicable SEC form with respect to the resale, whether underwritten or
otherwise, of the Registrable Securities by the holders thereof within 30
calendar days, but in no event more than 60 calendar days, of the closing date
of purchase of Registrable Securities pursuant to the Purchase Agreement (the
"Closing Date"). The Company shall use its commercially reasonable efforts to
respond to all SEC comments related to such registration statement within 10
calendar days of the receipt thereof, and shall use its commercially reasonable
efforts to cause such registration statement to be declared effective by the SEC
within 90 days of the Closing Date. The Company shall use its commercially
reasonable efforts to maintain the effectiveness of the registration effected
pursuant to this Section 1(a) at all time, subject only to the limitations on
effectiveness set forth in Section 4 below. The registration contemplated by
this Section 1(a) is referred to herein as the "Mandatory Registration."
(b) Demand Registration. The holders of at least a majority of the
Registrable Securities then outstanding may request up to two registrations
under the Securities Act of all or any portion of their Registrable Securities
on Form S-1 or any similar long-form registration as the Company may elect
("Long-Form Registrations"), and the holders of at least 25% of the Registrable
Securities then outstanding may request an unlimited number of registrations
under the Securities Act of all or any portion of their Registrable Securities
on Form S-3 or any similar short-form registration as the Company may elect
("Short-Form Registrations"), if available; provided that to the extent the
registration statement contemplated by Section 1(a) is available for use with
respect to the transaction contemplated by such registration request, the
Company may require the requesting holders to use such registration statement in
lieu of filing an additional registration statement pursuant to this Section
1(b), and provided further that the aggregate offering value of the Registrable
Securities requested to be registered in any registration under this Section
1(b) must equal at least $10 million in any Long-Form Registration and at least
$2 million in any Short-Form Registration. Any registration contemplated by this
Section 1(b) is referred to herein as a "Demand Registration."
All requests for Demand Registrations shall be made by giving written
notice thereof to the Company (a "Demand Notice"). Each Demand Notice shall
specify the approximate number of Registrable Securities requested to be
registered. Within ten business days after receipt of any Demand Notice, the
Company shall give written notice of such requested registration to all other
holders of Registrable Securities and, subject to the terms of Section 1(f)
hereof, shall include in such registration (and in all related registrations and
qualifications under state blue sky laws or in compliance with other
registration requirements and in any related underwriting) all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 15 business days after the delivery of the Company's
notice in accordance with Section 11(k) hereof.
(c) Short-Form Registrations. The Mandatory Registration and any
Demand Registrations shall be Short-Form Registrations whenever the Company is
permitted to use any applicable short form and, if applicable, the managing
underwriters agree to the use of a Short-Form Registration, and the Company
shall use its commercially reasonable efforts to make Short-Form Registrations
on Form S-3 available for the sale of Registrable Securities. The holders of at
least a majority of the Registrable Securities requested to be included in the
Mandatory Registration or any Demand Registration that is a Short-Form
Registration may require the Company to file such Short-Form Registration with
the SEC in accordance with and pursuant to Rule 415 promulgated under the
Securities Act (or any successor rule then in effect) (a "Shelf Registration").
The Mandatory Registration shall be filed as a Shelf Registration. So long as
any such Shelf Registration is effective as required herein and in compliance
with the Securities Act and usable for resale of Registrable Securities, the
holders of at least 25% of the Registrable Securities shall be entitled to
demand any number of draw-downs (including underwritten draw-downs, provided
that the aggregate offering value of the Registrable Securities requested to be
included in such underwritten draw-down must equal at least $2 million) from the
shelf and, in connection with any such draw-down, the Company shall take all
customary and reasonable actions that the Company would take in connection with
an underwritten Demand Registration pursuant to this Section 1 (including,
without limitation, all actions referred to in Section 4 necessary to effectuate
such sale in the manner determined by the holders of at least a majority of the
Registrable Securities to be included in such underwritten draw-▇▇▇▇) as any
holder reasonably requests. The Company shall use its reasonable efforts to
cause the registration statement or statements filed pursuant to a Short-Form
Registration to remain effective until such date as is the earlier of (i) the
date on which all Registrable Securities included in the registration statement
shall have been sold or shall have otherwise ceased to be Registrable Securities
and (ii) the date on which all remaining Registrable Securities may be sold
during any three month period without any restriction pursuant to Rule 144(k)
promulgated under the Securities Act after taking into account any holders'
status as an affiliate of the Company as determined by the counsel to the
Company pursuant to a written opinion letter addressed to the Company's transfer
agent to such effect.
(d) Long-Form Registrations. A registration shall not be deemed to
have been effected for purposes of Section 1 and shall not count as the one of
the Demand Registrations permitted as a Long-Form Registration if the applicable
registration statement has not been declared effective and kept effective until
the earlier of (i) six months following the date on which such registration
statement was declared effective and (ii) the sale pursuant to such registration
statement of all Registrable Securities covered thereby; provided that in any
event
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the Company shall pay all Registration Expenses in connection with any
registration initiated as a Demand Registration whether or not it has become
effective and whether or not such registration has counted as one of the
permitted Long-Form Registrations. All Demand Registrations that are Long-Form
Registrations shall be underwritten registrations unless otherwise requested by
the holders of at least a majority of the Registrable Securities included in the
applicable Long-Form Registration. In the event the Mandatory Registration must
be effected as a Long-Form Registration, such registration shall nonetheless be
filed a Shelf Registration and the Company shall use its commercially reasonable
efforts to keep such registration current and effective, including by filing
periodic post-effective amendments to update the financial statements contained
in such registration statement in accordance with Regulation S-X promulgated
under the Securities Act until the date on which all Registrable Securities
included in the registration statement shall have been sold.
(e) Expenses. The Registration Expenses (as defined in Section 5(a)
hereof) in the Mandatory Registration and all Demand Registrations shall be paid
by the Company.
(f) Priority. The Company shall not include in the Mandatory
Registration or any Demand Registration any securities which are not Registrable
Securities without the prior written consent of the holders of at least a
majority of the Registrable Securities included in such registration. If a
Demand Registration is an underwritten offering and the managing underwriters
advise the Company in writing that in their opinion the number of Registrable
Securities and, if permitted hereunder, other securities requested to be
included in such offering exceeds the number of Registrable Securities and other
securities, if any, which can be sold in an orderly manner in such offering
within a price range acceptable to the holders of at least a majority of the
Registrable Securities requested to be included in such offering, the Company
shall include in such registration, prior to the inclusion of any securities
which are not Registrable Securities, the number of Registrable Securities
requested to be included which in the opinion of such underwriters can be sold
in an orderly manner within the price range of such offering, pro rata among the
respective holders thereof on the basis of the amount of Registrable Securities
owned by each such holder.
(g) Restrictions on Demand Registrations. The Company shall not be
obligated to effect any Demand Registration within 180 days after the effective
date of the Mandatory Registration or a previous Demand Registration or a
previous registration in which the holders of Registrable Securities were given
piggyback rights pursuant to Section 2.
Notwithstanding the foregoing, the Company may postpone for up to 180
days the filing or the effectiveness of a registration statement for a Demand
Registration (but not, for the avoidance of doubt, the Mandatory Registration)
if the Company's board of directors determines in its reasonable good faith
judgment that such Demand Registration would reasonably be expected to have a
material adverse effect on any proposal or plan of the Company or any of its
Subsidiaries to engage in any acquisition of assets or any merger,
consolidation, tender offer, reorganization or other material transaction;
provided that in such event, the holders of Registrable Securities initially
requesting such Demand Registration shall be entitled to withdraw such request
and, if such request is withdrawn with respect to a Long-Form Registration, such
Demand Registration shall not count as one of the permitted Long-Form
Registrations hereunder and the Company shall pay all Registration Expenses in
connection with
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such registration. The Company may delay a Demand Registration hereunder only
once in any twelve-month period.
(h) Selection of Underwriters. The holders of a majority of the
Registrable Securities included in any Demand Registration or any underwritten
takedown off the registration statement filed pursuant to the Mandatory
Registration shall have the right to select the investment banker(s) and
manager(s) to administer the offering; provided, however, that such banker(s)
and manager(s) must be reasonably acceptable to the Company (its acceptance not
to be unreasonably withheld or delayed).
(i) Other Registration Rights. The Company represents and warrants
that it is not a party to, or otherwise subject to, any other agreement granting
registration rights to any other Person with respect to any securities of the
Company. Except as provided in this Agreement, the Company shall not grant to
any Person the right to request the Company to register any equity securities of
the Company, or any securities convertible or exchangeable into or exercisable
for such securities, without the prior written consent of the holders of at
least a majority of the Registrable Securities; provided that without such
consent the Company may grant rights to other Persons to participate in
Piggyback Registrations so long as such rights are subordinate to the rights of
the holders of Registrable Securities with respect to such Piggyback
Registrations as provided in Sections 2(c) and 2(d) below. Any securities (other
than Registrable Securities) as to which the Company has granted contractual
registration rights shall be referred to as "Other Securities."
2. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to register any
of its securities under the Securities Act other than pursuant to a Demand
Registration and other than in connection with the registration of equity
securities issued or issuable pursuant to an employee equity option, purchase,
bonus or similar plan or pursuant to a merger, exchange offer or transaction of
the type specified in Rule 145(a) under the Securities Act, and the registration
form to be used may be used for the registration of Registrable Securities (a
"Piggyback Registration"), the Company shall give prompt written notice to all
holders of Registrable Securities of its intention to effect such a registration
and shall (subject to Sections 2(c) and 2(d)) include in such registration (and
in all related registrations or qualifications under blue sky laws or in
compliance with other registration requirements and in any related underwriting)
all Registrable Securities with respect to which the Company has received
written requests for inclusion therein within 20 days after the receipt of the
Company's notice.
(b) Piggyback Expenses. The Registration Expenses in all Piggyback
Registrations shall be paid by the Company.
(c) Priority on Primary Registrations. If a Piggyback Registration is
an underwritten primary registration on behalf of the Company, and the managing
underwriters advise the Company in writing that in their opinion the number of
securities requested to be included in such registration exceeds the number
which can be sold in an orderly manner in such offering within a price range
acceptable to the Company, the Company shall include in such registration (i)
first, the securities the Company proposes to sell, (ii) second, the Registrable
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Securities requested to be included in such registration, pro rata among the
holders of such Registrable Securities on the basis of the number of shares
requested to be included therein by each such holder, and (iii) the Other
Securities requested to be included in such registration.
(d) Priority on Secondary Registrations. If a Piggyback Registration
is an underwritten secondary registration on behalf of holders of the Company's
securities, and the managing underwriters advise the Company in writing that in
their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the holders initially requesting
such registration, the Company shall include in such registration (i) first, the
securities requested to be included therein by the holders requesting such
registration and the Registrable Securities requested to be included in such
registration, pro rata among the holders of such securities on the basis of the
number of securities so requested to be included therein, and (ii) second, the
Other Securities requested to be included in such registration.
(e) Selection of Underwriters. If any Piggyback Registration is an
underwritten offering, the selection of investment banker(s) and manager(s) for
the offering by the Company must be approved by the holders of at least a
majority of the Registrable Securities included in such Piggyback Registration,
which such approval shall not be unreasonably withheld or delayed.
(f) Other Registrations. If the Company has previously filed a
registration statement with respect to Registrable Securities pursuant to
Section 1 or pursuant to this Section 2, and if such previous registration has
not been withdrawn or abandoned, the Company shall not file or cause to be
effected any other registration of any of its equity securities or securities
convertible or exchangeable into or exercisable for its equity securities under
the Securities Act (except pursuant to a registration on Form ▇-▇, ▇▇▇▇ ▇-▇ or
any successor form), whether on its own behalf or at the request of any holder
or holders of such securities, until a period of at least 90 days has elapsed
from the effective date of such previous registration.
3. Holdback Agreements; Cooperation.
(a) Each holder of Registrable Securities shall not effect any public
sale or distribution (including sales pursuant to Rule 144 promulgated under the
Securities Act) of equity securities of the Company, or any securities
convertible into or exchangeable or exercisable for such securities, during (i)
with respect to any underwritten Demand Registration or any underwritten
Piggyback Registration in which Registrable Securities are included, the seven
days prior to and the 90-day period beginning on the effective date of such
registration (or such shorter period as agreed to by the managing underwriters),
and (ii) upon notice from the Company of the commencement of an underwritten
distribution in connection with any Shelf Registration, the seven days prior to
and the 90-day period beginning on the date of commencement of such distribution
(or such shorter period as agreed to by the managing underwriters), in each case
except as part of such underwritten registration and in each case unless the
underwriters managing the registered public offering otherwise agree.
(b) The Company (i) shall not effect any public sale or distribution
of its equity securities, or any securities convertible into or exchangeable or
exercisable for such
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securities (except pursuant to registration on Form ▇-▇, ▇▇▇▇ ▇-▇ or any
successor form), during (A) with respect to any underwritten Demand Registration
or any underwritten Piggyback Registration in which Registrable Securities are
included, the seven days prior to and the 90-day period (or such shorter period
as agreed to by the underwriters) beginning on the effective date of such
registration, and (B) upon notice from any holder(s) of Registrable Securities
subject to a Shelf Registration that such holder(s) intend to effect an
underwritten distribution of Registrable Securities pursuant to such Shelf
Registration (upon receipt of which, the Company will promptly notify all other
holders of Registrable Securities of the date of commencement of such
distribution), the seven days prior to and the 90-day period (or such shorter
period as agreed to by the underwriters) beginning on the date of commencement
of such distribution, and (ii) shall cause each holder or group of affiliated
holders who purchases from the Company at any time after the date of this
Agreement at least 10% of its Common Stock, or any securities convertible into
or exchangeable or exercisable for at least 10% of its Common Stock, (other than
purchases in a registered public offering or pursuant to an underwritten
offering under Rule 144A or pursuant to equity subscription agreements, stock
option agreements, stock appreciation rights, phantom stock plans or similar
rights or plans in effect on the date of this Agreement) (a "Private Purchaser")
to agree not to effect any public sale or distribution (including sales pursuant
to Rule 144) of any such securities during such 90 day periods (or such shorter
or longer periods as provided below) so long as (x) the holders of Registrable
Securities continue to hold at least 50% of the Registrable Securities held as
of the date hereof (provided that a Private Purchaser shall be subject to such
periods only twice in any twelve-month period) and (y) such Private Purchaser
has entered into an agreement with the Company limiting such Private Purchaser's
right or ability to effectuate a public sale or distribution during an
underwritten registered offering by the Company (provided that such Private
Purchaser shall be limited for the same period of time that it is limited by
with respect to an underwritten registered offering by the Company (which may be
greater or less than the 90 day period set forth above), in each case except as
part of such underwritten registration and in each case unless the underwriters
managing the registered public offering otherwise agree.
(c) Each holder of Registrable Securities agrees to cooperate with the
Company as reasonably requested by the Company in connection with the
preparation and filing hereunder of any registration statement, prospectus or
preliminary prospectus or any amendment thereof or supplement thereto.
4. Registration Procedures. In the Mandatory Registration and whenever
the holders of Registrable Securities have requested that any Registrable
Securities be registered pursuant to this Agreement, the Company shall use its
reasonable efforts to effect the registration and the sale of such Registrable
Securities in accordance with the intended method of disposition thereof, and
pursuant thereto the Company shall as expeditiously as practicable:
(a) subject to Section 1(a) in the case of the Mandatory Registration,
prepare and file with the SEC a registration statement, and all amendments and
supplements thereto and related prospectuses as may be necessary to comply with
applicable securities laws, with respect to such Registrable Securities and use
its best efforts to cause such registration statement to become effective
(provided that before filing a registration statement or prospectus or any
amendments or supplements thereto, the Company shall furnish to the counsel
selected by the holders of a majority of the Registrable Securities covered by
such registration statement copies
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of all such documents proposed to be filed, and the Company shall in good faith
consider any comments of such counsel);
(b) notify each holder of Registrable Securities of the effectiveness
of each registration statement filed hereunder and 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 a period of not less than 180 days (or, in
the case of a Shelf Registration, a period ending on such date as is the earlier
of (i) the date on which all Registrable Securities included in the registration
statement shall have been sold or shall have otherwise ceased to be Registrable
Securities and (ii) the date on which all remaining Registrable Securities may
be sold during any three month period without any restriction pursuant to Rule
144(k) promulgated under the Securities Act after taking into account any
holders' status as an affiliate of the Company as determined by the counsel to
the Company pursuant to a written opinion letter addressed to the Company's
transfer agent to such effect) 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;
(c) furnish to each seller of Registrable Securities such number of
copies of the prospectus included in such registration statement (including each
preliminary prospectus), each amendment and supplement thereto and such other
documents as such seller may reasonably request in order to facilitate the
disposition of the Registrable Securities owned by such seller;
(d) 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 reasonably requests 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 Securities owned by such
seller (provided that the Company shall not be required to (i) qualify generally
to do business in any jurisdiction where it would not otherwise be required to
qualify but for this subparagraph, (ii) subject itself to taxation in any such
jurisdiction or (iii) consent to general service of process in any such
jurisdiction);
(e) notify each seller of such Registrable Securities, 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 shall
prepare a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of such Registrable Securities, such prospectus
shall not contain an untrue statement of a material fact or omit to state any
fact necessary to make the statements therein not misleading;
(f) cause all such Registrable Securities to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and, if not so listed, to be listed on the NASD automated quotation
system and, if listed on the NASD automated quotation system, use its reasonable
efforts to secure designation of all such Registrable Securities covered by such
registration statement as a Nasdaq "national market system security"
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within the meaning of Rule 11Aa2-1 of the SEC or, failing that, to secure Nasdaq
authorization for such Registrable Securities and, without limiting the
generality of the foregoing, use its reasonable efforts to arrange for at least
two market makers to register as such with respect to such Registrable
Securities with the NASD;
(g) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(h) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the Registrable Securities being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the disposition of such
Registrable Securities (including preparing for and participating in such number
of "road shows" as the underwriters managing such offering may reasonably
request);
(i) make available for inspection by any seller of Registrable
Securities, any underwriter participating in any disposition pursuant to such
registration statement and any attorney, accountant or other agent retained by
any such seller or 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 any such seller, underwriter, attorney,
accountant or agent in connection with such registration statement (unless the
Company can demonstrate that such Person already possesses the requested
information);
(j) 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, an earnings statement covering the period of at least
twelve 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) permit any holder of Registrable Securities which holder, in its
sole and exclusive judgment, might be deemed 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 in a timely manner, which in the
reasonable judgment of such holder and its counsel should be included;
(l) 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 common stock included in such registration statement for sale in any
jurisdiction, the Company shall use its reasonable efforts promptly to obtain
the withdrawal of such order;
(m) use its reasonable efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved by such
other governmental agencies or authorities as may be necessary to enable the
sellers thereof to consummate the disposition of such Registrable Securities;
and
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(n) in the case of an underwritten offering, use reasonable 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 the holders of at least a majority of the Registrable
Securities being sold reasonably request.
5. Registration Expenses.
(a) All expenses incident to the Company's performance of or
compliance with this Agreement, including without limitation all registration
and filing fees, fees and expenses of compliance with securities or blue sky
laws, printing expenses, messenger and delivery expenses, fees and disbursements
of custodians, and fees and disbursements of counsel for the Company and, to the
extent provided in Section 5(b), fees and disbursements of counsel for any
holder of Registrable Securities and all independent certified public
accountants, underwriters (excluding discounts and commissions) and other
Persons retained by the Company (all such expenses being herein called
"Registration Expenses"), shall be borne by the Company as provided in this
Agreement, except that the Company shall, in any event, pay its internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expense of
any annual audit or quarterly review, the expense of any liability insurance
which the Company has agreed to obtain in its reasonable discretion and the
expenses and fees for listing the securities to be registered on each securities
exchange on which similar securities issued by the Company are then listed or on
the NASD automated quotation system.
(b) In connection with each Demand Registration and each Piggyback
Registration, the Company shall reimburse the holders of Registrable Securities
included in such registration for the reasonable fees and disbursements of one
counsel chosen by the holders of a majority of the Registrable Securities
included in such registration upon submission of reasonably itemized statements
for such counsel rendering services customarily performed by counsel for selling
shareholders.
(c) To the extent any expenses relating to a registration hereunder
are not required to be paid by the Company, each holder of securities included
in any registration hereunder shall pay those expenses allocable to the
registration of such holder's securities so included, and any expenses not so
allocable shall be borne by all sellers of securities included in such
registration in proportion to the aggregate selling price of the securities to
be so registered.
(d) Any obligation to pay Registration Expenses or other expenses
provided for in this Agreement shall survive the termination of this Agreement.
6. Indemnification.
(a) The Company agrees to indemnify, to the extent permitted by law,
each holder of Registrable Securities, its officers, directors, employees,
agents, Affiliates and each Person who controls such holder (within the meaning
of the Securities Act and the Securities Exchange Act) against all losses,
claims, actions, damages, liabilities and expenses caused by (i) 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
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omission or alleged omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, except to the extent
that such untrue statements relate to such holder and was reviewed and approved
of in writing by such holder for use in any registration statement, prospectus
or preliminary prospectus or any amendment thereof or supplement thereto, or
(ii) any violation by the Company of any rule or regulation promulgated under
the Securities Act applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration, qualification
or compliance, and to pay to each holder of Registrable Securities, its officers
and directors and each Person who controls such holder (within the meaning of
the Securities Act), as incurred, any legal and any other expenses reasonably
incurred in connection with investigating, preparing or defending any such
claim, loss, damage, liability or action, except insofar as the same are caused
by or contained in any information furnished in writing to the Company by 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 such number of copies
of the same as was previously requested by such holder. In connection with an
underwritten offering, the Company shall indemnify such underwriters, their
officers, directors, employees, agents and each Person who controls such
underwriters (within the meaning of the Securities Act and the Securities
Exchange Act) to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities, but the provisions of
the underwriting agreement with such underwriters, if different, shall govern.
(b) In connection with any registration statement in which a holder of
Registrable Securities is participating, each such holder shall furnish to the
Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, shall indemnify the Company, its
directors, officers, employees, agents, Affiliates and each Person who controls
the Company (within the meaning of the Securities Act and the Securities
Exchange 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; provided that the obligation to indemnify shall be individual and
ratable, not joint and several, for each holder and shall be limited to the net
amount of proceeds received by such holder from the sale of Registrable
Securities pursuant to such registration statement.
(c) Any Person entitled to indemnification hereunder shall (i) give
prompt written notice to the indemnifying party of any claim with respect to
which it seeks indemnification (provided that the failure to give prompt notice
shall not impair any Person's right to indemnification hereunder to the extent
such failure has not prejudiced the indemnifying party) and (ii) 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 shall not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent shall not be
unreasonably withheld). An indemnifying party who is
10
not entitled to, or elects not to, assume the defense of a claim shall not be
obligated to pay the fees and expenses of more than one 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. In such instance, the conflicting indemnified parties
shall have a right to retain one separate counsel, chosen by the holders of a
majority of the Registrable Securities included in the registration, at the
expense of the indemnifying party. No indemnifying party, in the defense of such
claim or litigation, shall, except with the consent of each indemnified party,
consent to the entry of any judgment or enter into any settlement which does not
include as an unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a release from all liability in respect to such
claim or litigation.
(d) The indemnification provided for under this Agreement shall remain
in full force and effect regardless of any investigation made by or on behalf of
the indemnified party or any officer, director, employee, agent, Affiliate or
controlling Person of such indemnified party and shall survive the transfer of
securities and the termination of this Agreement. The Company also agrees to
make such provisions, as are reasonably requested by any indemnified party, for
contribution to such party in the event the Company's indemnification is
unavailable for any reason.
7. Participation in Underwritten Registrations. No Person may
participate in any registration hereunder that is underwritten unless such
Person (i) agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements and (ii) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements in a timely manner;
provided that no holder of Registrable Securities 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, such holder's title to the securities and such holder's intended
method of distribution) or to undertake any indemnification obligations to the
Company or the underwriters with respect thereto, except as otherwise provided
in Section 6 hereof.
8. Definitions.
"Affiliate" of any particular Person means (i) any other Person
controlling, controlled by or under common control with such particular Person,
where "control" means the possession, directly or indirectly, of the power to
direct the management and policies of a Person whether through the ownership of
voting securities, contract or otherwise and (ii) if such Person is a
partnership or limited liability company, any partner or member thereof.
"Certificate of Designation" means the Certificate of Designation to
be filed with respect to the Company's Series A Preferred Stock as contemplated
by the Purchase Agreement, as such Certificate of Designation amended from time
to time in accordance with its terms.
"Company" has the meaning given to such term in the recitals.
11
"Demand Notice" has the meaning given to such term in Section 1(b).
"Demand Registration" has the meaning given to such term in Section
1(b).
"Governmental Entity" means a domestic (federal, state, municipal or
local) or foreign government or governmental, regulatory or administrative
subdivision, department, authority, agency, commission, board, bureau, court of
instrumentality or arbitrator of any kind.
"Investors" has the meaning given to such term in the recitals.
"Long-Form Registrations" has the meaning given to such term in
Section 1(b).
"Other Securities" has the meaning given to such term in Section 1(i).
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization or a Governmental Entity.
"Piggyback Registration" has the meaning given to such term in Section
2(a).
"Private Purchaser" has the meaning given to such term in Section
3(b).
"Purchase Agreement" has the meaning given to such term in the
recitals.
"Registration Expenses" has the meaning given to such term in Section
5(a).
"Registrable Securities" means (i) any Common Stock issued upon the
conversion of any Preferred Stock issued pursuant to the Purchase Agreement and
(ii) any Common Stock issued or issuable with respect to any Registrable
Securities by way of a stock dividend or stock split or in connection with a
combination of shares, recapitalization, merger, consolidation or other
reorganization. As to any particular Registrable Securities, such securities
shall cease to be Registrable Securities when they have been distributed to the
public pursuant to an offering registered under the Securities Act, sold to the
public through a broker, dealer or market maker in compliance with Rule 144
under the Securities Act (or any similar rule then in force) or repurchased by
the Company or any Subsidiary. For purposes of this Agreement, including
exercising any rights or meeting any threshold tests hereunder, a Person shall
be deemed to hold any Registrable Securities and such Registrable Securities
shall be deemed to be in existence, whenever such Person has the right to
acquire directly or indirectly such Registrable Securities (upon conversion or
exercise in connection with a transfer of securities or otherwise, but
disregarding any restrictions or limitations upon the exercise of such right),
whether or not such acquisition has actually been effected, and such Person
shall be entitled to exercise the rights of a holder of Registrable Securities
hereunder.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"SEC" includes any governmental body or agency succeeding to the
functions thereof.
12
"Securities Exchange Act" means the Securities Exchange Act of 1934,
as amended, or any similar federal law then in force.
"Shelf Registration" has the meaning given to such term in Section
1(c).
"Short-Form Registrations" has the meaning given to such term in
Section 1(b).
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a majority
of the partnership or other similar ownership interest thereof is at the time
owned or controlled, directly or indirectly, by that Person or one or more
Subsidiaries of that Person or a combination thereof. Notwithstanding the
foregoing, "Subsidiary" also shall include each "significant subsidiary" of the
Company, as such term is defined in Rule 1-02 of Regulation S-X. For purposes
hereof, a Person or Persons shall be deemed to have a majority ownership
interest in a limited liability company, partnership, association or other
business entity if such Person or Persons shall be allocated a majority of
limited liability company, partnership, association or other business entity
gains or losses or shall be or control any managing director or general partner
of such limited liability company, partnership, association or other business
entity. For purposes of this Agreement, if the context does not otherwise
specify in respect of which Person the term "Subsidiary" is used, the term
"Subsidiary" shall refer to a Subsidiary of the Company.
Unless otherwise stated, other capitalized terms contained herein have
the meanings set forth in the Purchase Agreement.
9. Termination. Except as otherwise provided herein, this Agreement
shall terminate at such time as no holder of Registrable Securities has any
rights hereunder.
10. Miscellaneous.
(a) Aggregation. For purposes of this Agreement, all holdings of
Registrable Securities by Persons who are Affiliates of each other shall be
aggregated for purposes of meeting any threshold tests under this Agreement. For
purposes of this Section 10(a), an "Affiliate" shall include any Persons which
have received distributions of securities from a partnership or limited
liability company holding such securities.
(b) No Inconsistent Agreements. The Company shall not hereafter enter
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the holders of Registrable Securities in this
Agreement.
(c) Current Public Information. The Company shall file all reports
required to be filed by it under the Securities Act and the Securities Exchange
Act and the rules and regulations adopted by the SEC thereunder and shall take
such further action as any holder or holders of Registrable Securities may
reasonably request, all to the extent required to enable such
13
holders to sell Registrable Securities pursuant to Rule 144 adopted by the SEC
under the Securities Act (as such rule may be amended from time to time) or any
similar rule or regulation hereafter adopted by the SEC. Upon request, the
Company shall deliver to any holder of Registrable Securities a written
statement as to whether it has complied with such requirements. The Company
shall at all times use its best efforts to cause the Common Stock into which the
Preferred Stock is convertible to be listed on one or more of the New York Stock
Exchange, the American Stock Exchange or the Nasdaq National Market System.
(d) Adjustments Affecting Registrable Securities. The Company shall
not take any action, or permit any change to occur, with respect to its
securities which would adversely affect the ability of the holders of
Registrable Securities to include such Registrable Securities in a registration
undertaken pursuant to this Agreement or which would adversely affect the
marketability of such Registrable Securities in any such registration
(including, without limitation, effecting a stock split or a combination of
shares).
(e) Remedies. Any Person having rights under any provision of this
Agreement shall be entitled to enforce such rights specifically (without posting
a bond or other security), to recover damages caused by reason of any breach of
any provision of this Agreement and to exercise all other rights granted by law.
The parties hereto agree and acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of this Agreement and that, in
addition to any other rights and remedies existing in its favor, any party shall
be entitled to specific performance and/or other injunctive relief from any
court of law or equity of competent jurisdiction (without posting any bond or
other security) in order to enforce or prevent violation of the provisions of
this Agreement.
(f) Consent to Amendments. Except as otherwise expressly provided
herein, the provisions of this Agreement may be amended or modified and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company has obtained the written
consent of the holders of a majority of the Registrable Securities outstanding
at the time the amendment or waiver becomes effective; provided that if any such
amendment, modification or waiver is to a provision in this Agreement that
requires a specific vote to take an action thereunder or to take an action with
respect to the matters described therein, such amendment, modification or waiver
shall not be effective unless such vote is obtained with respect to such
amendment, modification or waiver. No other course of dealing between the
Company and the holder of any Registrable Securities or any delay in exercising
any rights hereunder shall operate as a waiver of any rights of any such
holders. For purposes of this Agreement, Registrable Securities held by the
Company or any Subsidiaries shall not be deemed to be outstanding.
(g) Successors and Assigns. All covenants and agreements in this
Agreement by or on behalf of any of the parties hereto shall bind and inure to
the benefit of the respective successors and assigns of the parties hereto
whether so expressed or not. In addition, whether or not any express assignment
has been made, the provisions of this Agreement which are for the benefit of
purchasers or holders of Registrable Securities are also for the benefit of, and
enforceable by, any subsequent holder of Registrable Securities.
14
(h) Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(i) Counterparts. This Agreement may be executed simultaneously in two
or more counterparts (including by means of telecopied signature pages), any one
of which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same Agreement.
(j) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a substantive part of
this Agreement. Whenever required by the context, any pronoun used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular forms of nouns, pronouns, and verbs shall include the plural
and vice versa. Reference to any agreement, document, certificate, or instrument
means such agreement, document, certificate or instrument as the same is
amended, waived or otherwise modified from time to time in accordance with the
terms thereof and, if applicable, hereof. Except as otherwise provided in this
Agreement, words such as "herein," "hereunder," "hereof" and the like shall be
deemed to refer to this Agreement as a whole and not to any particular document
or article, Section, paragraph or other portion of a document. The use of the
words "include" or "including" in this Agreement shall be by way of example
rather than by limitation. The use of the words "or," "either" or "any" shall
not be exclusive.
(k) Governing Law. The corporate law of the State of Delaware shall
govern all issues and questions concerning the relative rights of the Company
and its stockholders. All other issues and questions concerning the
construction, validity, interpretation and enforcement of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of Delaware, without giving effect to any choice of
law or conflict of law rules or provisions (whether of the State of Delaware or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
(l) Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, telecopied to the recipient (with hard copy sent by overnight courier
in the manner provided hereunder) if sent prior to 4:00 p.m. Chicago time on a
business day (and otherwise, on the immediately succeeding business day), one
business day after being sent to the recipient by reputable overnight courier
service (charges prepaid) or three business days after being mailed to the
recipient by certified or registered mail, return receipt requested and postage
prepaid. Such notices, demands and other communications shall be sent to each
Investor at the address indicated on the Schedule of Investors and to the
Company at the address indicated below:
JDA Software Group, Inc.
▇▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
15
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
DLA ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ US LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇., ▇▇▇. ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
(m) Business Days. If any time period for giving notice or taking
action hereunder expires on a day which is a Saturday, Sunday or legal holiday
in the State of Illinois or the jurisdiction in which the Company's principal
office is located, the time period shall automatically be extended to the
business day immediately following such Saturday, Sunday or legal holiday.
(n) Delivery by Facsimile. This Agreement, the agreements referred to
herein and each other agreement or instrument entered into in connection
herewith or therewith or contemplated hereby or thereby, and any amendments
hereto or thereto, to the extent signed and delivered by means of a facsimile
machine, shall be treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal effect as if
it were the original signed version thereof delivered in person. At the request
of any party hereto or to any such agreement or instrument, each other party
hereto or thereto shall reexecute originals forms thereof and deliver them to
all other parties. No party hereto or to any such agreement or instrument shall
raise the use of a facsimile machine to deliver a signature or the fact that any
signature or agreement or instrument was transmitted or communicated through the
use of a facsimile machine as a defense to the formation or enforceability of a
contract and each such party forever waives any such defense.
* * * * *
16
IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first written above.
JDA SOFTWARE GROUP, INC.
By: /s/ Hamish ▇. ▇▇▇▇▇▇
------------------------------------
Its: President and Chief Executive Officer
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇ FUND VII, L.P.
By: TC Partners VII, L.P.
Its: General Partner
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Equity Partners Inc.
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Its: Managing Director
▇▇▇▇▇ ▇▇▇▇▇▇▇ FRIENDS FUND VII, L.P.
By: TC Partners VII, L.P.
Its: General Partner
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Equity Partners Inc.
Its: General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Its: Managing Director
SCHEDULE OF INVESTORS
▇▇▇▇▇ ▇▇▇▇▇▇▇ Fund VII, ▇.▇.
▇▇▇▇▇ ▇▇▇▇▇▇▇ Friends Fund VII, L.P.
c/o ▇▇▇▇▇ ▇▇▇▇▇▇▇ Equity Partners
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇