EXHIBIT 4.4
DOCUMENTUM, INC.
Registration Rights Agreement
JULY 16, 1998
ARTICLE 1 GENERAL................................. 1
1.1 Definitions................................. 1
ARTICLE 2 REGISTRATION; RESTRICTIONS ON TRANSFER.. 2
2.1 Restrictions on Transfer.................... 2
2.2 Form S-3 Registration....................... 3
2.3 Expenses of Registration.................... 3
2.4 Obligations of the Company.................. 3
2.5 Termination of Registration Rights.......... 4
2.6 Delay of Registration....................... 4
2.7 Assignment of Registration Rights........... 4
2.8 Indemnification............................. 4
2.9 Covenant of the Holders..................... 6
ARTICLE 3 MISCELLANEOUS........................... 7
3.1 Governing Law............................... 7
3.2 Successors and Assigns...................... 7
3.3 Separability................................ 7
3.4 Amendment and Waiver........................ 7
3.5 Delays or Omissions......................... 7
3.6 Notices..................................... 7
3.7 Titles and Subtitles........................ 7
3.8 Counterparts................................ 7
1.
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is entered into
as of the 16th day of July, 1998, by and among DOCUMENTUM INC., a Delaware
corporation (the "Company"), and the persons and entities set forth on Exhibit A
attached hereto. Such persons and entities shall be referred to hereinafter as
the "Stockholders" and each individually as a "Stockholder." Capitalized terms
used and not otherwise defined herein shall have the meanings assigned to them
in the Merger Agreement.
RECITALS
WHEREAS, the Company has entered into an Agreement and Plan of Merger
and Reorganization with Relevance Technologies, Inc. ("Relevance") of even date
herewith (the "Merger Agreement"), pursuant to which the Company will issue
shares of the Company's Common Stock (the "Shares") to the Stockholders in
connection with the merger of Relevance into RTI Acquisition Corp., a subsidiary
of the Company; and
WHEREAS, the Acquisition Agreement provides that the Stockholders be
granted certain registration rights with respect to the Shares as set forth in
the Agreement;
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement and in the Acquisition Agreement, the parties mutually agree as
follows:
ARTICLE 1
GENERAL
1.1 Definitions. As used in this Agreement the following terms shall
have the following respective meanings:
"Form S-3" means such form under the Securities Act as in effect on
the date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
"Holder" means any person owning of record Registrable Securities.
"Register," "registered," and "registration" refer to a registration
effected by preparing and filing a registration statement in compliance with the
Securities Act, and the declaration or ordering of effectiveness of such
registration statement or document.
"Registrable Securities" means (i) the Shares and (ii) any Common
Stock of the Company issued as (or issuable upon the conversion or exercise of
any warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, the
Shares. Notwithstanding the foregoing, Registrable Securities shall not include
any securities sold by a person to the public either pursuant to a registration
statement or Rule 144 or sold in a private transaction.
"Registration Expenses" shall mean all expenses incurred by the
Company in complying with Section 2.2 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel for the Company, blue sky fees and expenses, accounting fees and the
expense of any special audits incident to or required by any such registration.
1.
"SEC" or "Commission" means the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Selling Expenses" shall mean all underwriting discounts and selling
commissions applicable to the sale.
"Shares" shall mean the Company's Common Stock issued to the
Stockholders pursuant to the Merger Agreement (excluding the Escrow Shares).
ARTICLE 2
REGISTRATION; RESTRICTIONS ON TRANSFER
2.1 Restrictions on Transfer.
(a) Each Holder agrees not to make any disposition of all or any
portion of the Registrable Securities unless and until the transferee has agreed
in writing for the benefit of the Company to be bound by this Section 2.1,
provided and to the extent such Sections are then applicable and:
(i) There is then in effect a registration statement under
the Securities Act covering such proposed disposition and such disposition is
made in accordance with such registration statement; or
(ii) (A) Such Holder shall have notified the Company of the
proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (B) if
reasonably requested by the Company, such Holder shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration of such shares under the
Securities Act. It is agreed that the Company will not require notification or
opinions of counsel for transactions made pursuant to Rule 144.
(iii) Notwithstanding the provisions of paragraphs (i) and
(ii) above, no such registration statement or opinion of counsel shall be
necessary for a transfer by a Holder which is (A) a partnership to its partners
or former partners in accordance with partnership interests, (B) a corporation
to its shareholders in accordance with their interest in the corporation, (C) a
limited liability company to its members or former members in accordance with
their interest in the limited liability company, or (D) to the Holder's family
member or trust for the benefit of an individual Holder; provided that in each
case the transferee will be subject to the terms of this Agreement to the same
extent as if he were an original Holder hereunder.
(b) Each certificate representing the Shares shall (unless
otherwise permitted by the provisions of the Agreement) be stamped or otherwise
imprinted with legends substantially similar to the following (in addition to
any legend required under applicable state securities laws or as provided
elsewhere in the Agreement):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS. THESE SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND MAY NOT
BE SOLD OR
2.
OTHERWISE TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT
FOR THESE SHARES UNDER THE SECURITIES ACT AND APPLICABLE STATE SECURITIES
LAWS, OR AN OPINION OF COUNSEL SATISFACTORY TO THE COMPANY THAT
REGISTRATION IS NOT REQUIRED AND THAT AN APPLICABLE EXEMPTION IS AVAILABLE.
(c) The Company shall be obligated to reissue promptly unlegended
certificates at the request of any holder thereof if the holder shall have
obtained an opinion of counsel (which counsel may be counsel to the Company)
reasonably acceptable to the Company to the effect that the securities proposed
to be disposed of may lawfully be so disposed of without registration,
qualification or legend.
(d) Any legend endorsed on an instrument pursuant to applicable
state securities laws and the stop-transfer instructions with respect to such
securities shall be removed upon receipt by the Company of an order of the
appropriate blue sky authority authorizing such removal.
2.2 Form S-3 Registration. Within one (1) day of the date of this
Agreement, the Company shall file with the SEC a Form S-3 registration statement
covering the Registrable Securities and as soon as practicable thereafter,
effect such registration and all such qualifications and compliances as would
permit or facilitate the sale and distribution of the Registrable Securities;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 2.2 in any
particular jurisdiction in which the Company would be required to qualify to do
business or to execute a general consent to service of process in effecting such
registration, qualification or compliance.
Notwithstanding any other provision of this Agreement, the Stockholders
understand that there may be periods during which the Company's Board of
Directors may determine, in good faith, that it is in the best interest of the
Company and its stockholders to defer disclosure of material non-public
information and that during such periods sales of Registrable Securities and the
effectiveness of any registration statement covering Registrable Securities may
be suspended or delayed. Each holder of Registrable Securities agrees by
acquisition of such Registrable Securities that upon receipt of any notice from
the Company of the development of any material non-public information, such
holder will forthwith discontinue such holder's disposition of Registrable
Securities pursuant to the registration statement relating to such Registrable
Securities until such holder's receipt of copies of an appropriately
supplemented or amended prospectus (the "Blackout Period") and, if so directed
by the Company, such holder will use its best efforts to deliver to the Company
(at the Company's expense) all copies, other than permanent file copies then in
such holder's possession, of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice. Notwithstanding the
foregoing, (i) the aggregate duration of all Blackout Periods in any ninety (90)
day period shall not exceed thirty (30) days, and (ii) no Blackout Period will
be imposed during the five (5) trading days following the effectiveness of the
registration statement.
2.3 Expenses of Registration. All Registration Expenses incurred in
connection with any registration pursuant to Section 2.2 shall be borne by the
Company. All Selling Expenses incurred in connection with any registrations
hereunder, shall be borne by the Holders registered pro rata on the basis of the
number of shares so registered.
2.4 Obligations of the Company. In connection with the registration of
the Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
3.
(a) Prepare and file with the SEC a registration statement within
one (1) day of the date of this Agreement with respect to such Registrable
Securities and use its best efforts to cause such registration statement to
become effective, and, keep such registration statement continuously effective
until the earlier of (i) one (1) year after the date of this Agreement, or (ii)
the date on which all Registrable Securities covered by the registration
statement have been sold.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Securities Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions.
(e) Notify each Holder of Registrable Securities covered by such
registration statement 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, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
2.5 Termination of Registration Rights. All registration rights granted
under this Article II shall terminate and be of no further force and effect on
the earlier of (i) one (1) year after the date of this Agreement, or (ii) the
date on which all Registrable Securities covered by the registration statement
have been sold.
2.6 Delay of Registration. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Article II.
2.7 Assignment of Registration Rights. The rights to cause the Company
to register Registrable Securities pursuant to this Section 2 may be assigned by
a Holder to a transferee or assignee of Registrable Securities which (a) is a
subsidiary, parent, shareholder, general partner, limited partner, retired
partner, member or former member of a Holder, or (b) is a Holder's family member
or trust for the benefit of an individual Holder; provided, however, (i) the
transferor shall, within ten (10) days after such transfer, furnish to the
Company written notice of the name and address of such transferee or assignee
and the securities with respect to which such registration rights are being
assigned and (ii) such transferee shall agree to be subject to all restrictions
set forth in this Agreement.
2.8 Indemnification.
4.
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, the partners, officers, directors and legal counsel
of each Holder, any underwriter (as defined in the Securities Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the Securities Act or the Exchange Act, against any losses,
claims, damages, or liabilities (joint or several) to which they may become
subject under the Securities Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "Violation") by the Company: (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law in
connection with the offering covered by such registration statement; and the
Company will reimburse each such Holder, partner, officer, director, legal
counsel, underwriter or controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided however, that the
indemnity agreement contained in this Section 2.8(a) shall not apply to amounts
paid in settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the prior written consent of the Company, which
consent shall not be unreasonably withheld, nor shall the Company be liable in
any such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with written information furnished expressly for
use in connection with such registration by such Holder, partner, officer,
director, legal counsel, underwriter or controlling person of such Holder.
(b) To the extent permitted by law, each Holder will, if
Registrable Securities held by such Holder are included in the securities as to
which such registration qualifications or compliance is being effected,
indemnify and hold harmless the Company, each of its directors, its officers,
and legal counsel and each person, if any, who controls the Company within the
meaning of the Securities Act, any underwriter and any other Holder selling
securities under such registration statement or any of such other Holder's
partners, directors or officers or any person who controls such Holder, against
any losses, claims, damages or liabilities (joint or several) to which the
Company or any such director, officer, controlling person, underwriter or other
such Holder, or partner, director, officer or controlling person of such other
Holder may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation occurs in
reliance upon and in conformity with written information furnished by such
Holder under an instrument duly executed by such Holder and stated to be
specifically for use in connection with such registration; and each such Holder
will reimburse any legal or other expenses reasonably incurred by the Company or
any such director, officer, legal counsel, controlling person, underwriter or
other Holder, or partner, officer, director, legal counsel or controlling person
of such other Holder in connection with investigating or defending any such
loss, claim, damage, liability or action if it is judicially determined that
there was such a Violation; provided, however, that the indemnity agreement
contained in this Section 2.8(b) shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability or action if such settlement is
effected without the consent of the Holder, which consent shall not be
unreasonably withheld; provided further, that in no event shall any indemnity
under this Section 2.8 exceed the proceeds from the offering received by such
Holder.
5.
(c) Promptly after receipt by an indemnified party under this
Section 2.8 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2.8, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action, if materially prejudicial to its ability to
defend such action, shall relieve such indemnifying party of any liability to
the indemnified party under this Section 2.8, but the omission so to deliver
written notice to the indemnifying party will not relieve it of any liability
that it may have to any indemnified party otherwise than under this Section 2.8.
(d) If the indemnification provided for in this Section 2.8 is held
by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any losses, claims, damages or liabilities referred to herein,
the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability in such proportion as is appropriate to reflect the
relative fault of the indemnifying party on the one hand and of the indemnified
party on the other in connection with the Violation(s) that resulted in such
loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law by reference to, among
other things, whether the untrue or alleged untrue statement of a material fact
or the omission to state a material fact relates to information supplied by the
indemnifying party or by the indemnified party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission; provided, that in no event shall any contribution by a
Holder hereunder exceed the proceeds from the offering received by such Holder.
(e) The obligations of the Company and Holders under this Section
2.8 shall survive completion of any offering of Registrable Securities in a
registration statement and the termination of this agreement. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to 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.
2.9 Covenant of the Holders. Each of the Holders agrees not to make
any disposition of any Registrable Securities pursuant to the Form S-3
registration statement contemplated by Section 2.2 prior to the date (the
"Trading Date") that is two (2) business days after the public release of the
Company's financial results for the quarter ended June 30, 1998. Each of the
Holders further agrees that the Company may impose stop-transfer instructions to
such effect and may refuse to permit the transfer of any Registrable Securities
in violation of this Section 2.9.
6.
ARTICLE 3
MISCELLANEOUS
3.1 Governing Law. This Agreement shall be governed by and construed under
the laws of the State of California as applied to agreements among California
residents entered into and to be performed entirely within California.
3.2 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors, and administrators of the
parties hereto.
3.3 Separability. In case any provision of the Agreement shall be invalid,
illegal, or unenforceable, the validity, legality, and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.
3.4 Amendment and Waiver.
(a) Except as otherwise expressly provided, this Agreement may be
amended or modified only upon the written consent of the Company and the holders
of a majority of the Registrable Securities.
(b) Except as otherwise expressly provided, the obligations of the
Company and the rights of the Holders under this Agreement may be waived only
with the written consent of the holders of at least a majority of the
Registrable Securities.
3.5 Delays or Omissions. It is agreed that no delay or omission to
exercise any right, power, or remedy accruing to any Holder, upon any breach,
default or noncompliance of the Company under this Agreement shall impair any
such right, power, or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of any
similar breach, default or noncompliance thereafter occurring. It is further
agreed that any waiver, permit, consent, or approval of any kind or character on
any Holder's part of any breach, default or noncompliance under the Agreement or
any waiver on such Holder's part of any provisions or conditions of this
Agreement must be in writing and shall be effective only to the extent
specifically set forth in such writing. All remedies, either under this
Agreement, by law, or otherwise afforded to Holders, shall be cumulative and not
alternative.
3.6 Notices. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed telex or facsimile if sent
during normal business hours of the recipient; if not, then on the next business
day, (iii) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (iv) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery.
All communications shall be sent to the party to be notified at the address as
set forth on Exhibit A or at such other address as such party may designate by
ten (10) days advance written notice to the other parties hereto.
3.7 Titles and Subtitles. The titles of the sections and subsections of
this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
3.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
7.
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date set forth in the first paragraph hereof.
DOCUMENTUM, INC. STOCKHOLDER:
By:
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Print Name
Title:
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Signature
Address:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Title (if applicable)
REGISTRATION RIGHTS AGREEMENT
SCHEDULE OF STOCKHOLDERS
NAME NUMBER OF SHARES OF STOCK
----------------------------------- ----------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 75,985
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 75,985
CE Software Holdings, Inc. 99,880
▇▇▇▇ ▇▇▇▇ 4,756
▇▇▇▇▇ ▇▇▇▇▇ 2,378
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 8,493
▇▇▇▇▇▇▇ ▇▇▇▇▇ 9,173
▇▇▇▇▇▇ Law 339
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1,783
G & H Partners 2,191
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1,358
Venture Lending & Leasing 1,628
IAI U.S. Venture Fund II, L.P. 75,933
Eagle Ventures II, LLC 2,811
Crosspoint Venture Partners (1996) 143,338