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Exhibit 10.2
REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
COMMERCE ONE, INC.,
FORD MOTOR COMPANY,
GENERAL MOTORS CORPORATION
AND
NEW COMMERCE ONE HOLDING, INC.
DECEMBER 8, 2000
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TABLE OF CONTENTS
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PAGE
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1. Definitions..................................................................................................1
2. Registration Rights..........................................................................................3
2.1 Shelf Registration.................................................................................3
2.2 Demand Registration................................................................................4
2.3 Piggyback Registration.............................................................................5
2.4 Underwriting Requirements..........................................................................6
3. Registration Procedures......................................................................................6
3.1 Blue Sky Compliance................................................................................6
3.2 Furnishing of Prospectus...........................................................................7
3.3 Maintenance of Effectiveness.......................................................................7
3.4 Notification of Certain Events.....................................................................7
3.5 Other Agreements...................................................................................8
4. Conditions and Limitations on Registration Rights............................................................8
4.1 Delays and Suspension..............................................................................8
4.2 Amended or Supplemented Prospectus.................................................................8
5. Indemnification..............................................................................................8
6. Information from Manufacturers..............................................................................11
7. Expenses of Registration....................................................................................11
8. Reports Under the 1934 Act..................................................................................11
9. Rule 144....................................................................................................11
10. Market Stand-Off............................................................................................12
11. Miscellaneous...............................................................................................12
11.1 Notices..........................................................................................12
11.2 Interpretation...................................................................................12
11.3 Facsimile; Counterparts..........................................................................13
11.4 Entire Agreement; No Third Party Beneficiaries...................................................13
11.5 Assignment.......................................................................................13
11.6 Severability.....................................................................................13
11.7 Certain Company Representations..................................................................14
11.8 Attorneys' Fees..................................................................................14
11.9 Governing Law....................................................................................14
11.10 Term.............................................................................................14
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made as of
December 8, 2000 by and among Commerce One, Inc., a Delaware corporation (the
"Company"), Ford Motor Company, a Delaware corporation (together with any
assignee or transferee to which its rights and obligations have been assigned
pursuant to Section 11.5, "Ford"), General Motors Corporation, a Delaware
corporation (together with any assignee or transferee to which its rights and
obligations have been assigned pursuant to Section 11.5, "GM" and, together with
Ford, the "Manufacturers") and New Commerce One Holding, Inc., a Delaware
corporation ("Holdco").
WHEREAS, subject to the terms and conditions of that certain Formation
Agreement, dated as of December 8, 2000, by and among the Company, Ford, GM,
Holdco, (for the purposes of Section 11.3 thereof only) DaimlerChrysler AG, a
stock corporation (aktiengesellschaft) organized under the laws of the Federal
Republic of Germany and (for the purposes of Sections 2.4, 11.2 and 11.9 only)
Covisint, LLC, a Delaware limited liability company (the "Formation Agreement"),
Holdco has issued to each of the Manufacturers shares of its common stock, and
the Company has agreed under certain circumstances provided for in the Formation
Agreement to issue shares of its common stock (as applicable, the "Shares") to
each of the Manufacturers; and
WHEREAS, subject to the terms and conditions set forth herein, the
Company or Holdco, as applicable, has agreed to grant certain registration
rights to each of the Manufacturers with respect to the common stock of the
Company or Holdco, as applicable.
NOW, THEREFORE, in consideration of the promises, mutual covenants and
conditions herein contained, and of other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following
terms shall have the following respective meanings:
"CVX Guaranty" means the Guaranty, dated as of December 8, 2000, given
by DC, Ford, GM, Renault S.A., a company organized under the laws of France, and
Nissan Motor Co., Ltd., a corporation organized under the laws of Japan, on
behalf of Covisint, LLC, a Delaware limited liability company, in favor of CVX
Holdco, LLC, a Delaware limited liability company "CVX Holdco").
"DC" shall mean DaimlerChrysler AG, a stock corporation
(aktiengesellschaft) organized under the laws of the Federal Republic of
Germany.
"Demand Rights Termination Date" shall mean the first anniversary of
the effective date of the Registration Statement filed pursuant to Section
2.1(a) hereof.
"Existing Registration Rights Agreement" means the Sixth Amended and
Restated Registration Rights Agreement, dated December 8, 2000 and as it may
hereafter be amended from time to time, by and among the Company and certain of
its stockholders.
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"Governmental Authority" shall mean any nation or government, any state
or other political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"1933 Act" means the Securities Act of 1933, as amended.
"1934 Act" means the Securities Exchange Act of 1934, as amended.
"OEM Covisint Equity Agreement" shall mean the Contribution and Unit
Holders Agreement, dated as of December 8, 2000, among Ford, GM, DC, Renault
S.A. and Nissan Motor Co., Ltd.
"person" shall mean an individual, corporation, partnership, limited
liability company, association, trust, or other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Register," "registered," and "registration" refers to a registration
effected by preparing and filing a registration statement or similar document in
compliance with the 1933 Act, and the declaration or ordering of effectiveness
of such registration statement or document.
"Registration Expenses" shall have the meaning set forth in Section 7.
"Registrable Securities" shall have the meaning ascribed to it in the
Existing Registration Rights Agreement.
"Registrable Shares" means the shares of common stock of the Company
issued or issuable to each of the Manufacturers in accordance with the terms and
conditions of the Formation Agreement, and any securities of the Company issued
as a dividend on or other distribution with respect to, or in exchange for or
replacement of, such common stock.
"Registration Rights Commencement Date" shall mean the earliest to
occur of (i) a Change of Control of the Company involving a Company Competitor
or a Ford/GM Competitor (all of the capitalized terms in this subparagraph (i)
shall have the meaning ascribed to them in the Standstill Agreement), or (ii)
the third anniversary of the date of this Agreement.
"Registration Statement" means any registration statement described in
Sections 2.1, 2.2 or Section 2.3 of this Agreement.
"Rule 144" means Rule 144 promulgated under the 1933 Act.
"Rule 145" means Rule 145 promulgated under the 1933 Act.
"Rule 145 transaction" means a transaction contemplated by Rule 145.
"Shelf Rules" shall mean Rule 415 (or any successor rule) under the
1933 Act and the rules and regulations promulgated thereunder for the
distribution of securities of certain issuers on a continuous or delayed basis.
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"Standstill Agreement" shall mean that Standstill and Stock Restriction
Agreement, of even date herewith, by and among Holdco, the Company and the
Manufacturers.
"SEC" means the United States Securities and Exchange Commission.
2. REGISTRATION RIGHTS.
2.1 SHELF REGISTRATION.
(a) Subject to Section 4.1 hereof, the Company shall file with the SEC
on or before the date that is thirty (30) days prior to the third anniversary of
the date hereof a Registration Statement for an offering to be made pursuant to
the Shelf Rules to register under the 1933 Act resales or other dispositions of
the Registrable Shares by the Manufacturers. As promptly as practicable after
filing such Registration Statement, the Company shall use its best efforts to
cause such Registration Statement to be declared effective by the SEC on or
before the third anniversary of the date hereof, or as soon thereafter as is
practicable, and maintain the effectiveness of the Registration Statement for
sixty (60) days. The Company shall not permit any holder of Registrable
Securities or any other holder of registration rights to "piggyback" on such
Registration Statement without the written consent of each of the Manufacturers.
(b) Subject to Section 4.1 hereof, and provided that the Manufacturers
are entitled to transfer Shares pursuant to Section 2.2(a)(vi) of the Standstill
Agreement, if either Manufacturer requests in writing prior to the date that is
one year from the date that the Alternative Transaction is consummated that the
Company file a Registration Statement pursuant to this Section 2.1(b), the
Company shall promptly give notice of such requested registration to the other
Manufacturer and shall file with the SEC within thirty (30) days of such request
(PROVIDED that if such Registration Statement is not ultimately utilized by the
Manufacturer so requesting, such Manufacturer shall pay the Company's reasonable
Registration Expenses in connection therewith) a Registration Statement for an
offering to be made pursuant to the Shelf Rules to register under the 1933 Act
resales or other dispositions of up to that number of Registrable Shares that
the Manufacturers are entitled to transfer pursuant to Section 2.2(a)(vi) of the
Standstill Agreement; PROVIDED, HOWEVER, that the Company shall not be obligated
to effect more than one (1) registration pursuant to this Section 2.1(b). The
Company shall use its best efforts to cause such Registration Statement to be
declared effective by the SEC as soon as is practicable, and maintain the
effectiveness of such Registration Statement for as long as necessary to dispose
of such Registrable Shares under Section 2.2 of the Standstill Agreement, but in
any event for no more than sixty (60) days. The Company shall not permit any
holder of Registrable Securities or any other holder of registration rights to
"piggyback" on such Registration Statement without the written consent of each
of the Manufacturers.
(c) Subject to Section 4.1 hereof, and provided that (i) the
Manufacturers are entitled to transfer Shares pursuant to Section 2.2(a)(vii) of
the Standstill Agreement, (ii) CVX Holdco, LLC has sought or received payments
from the Manufacturers under the CVX Guaranty that exceed five million dollars
($5,000,000) in the aggregate (excluding any amounts previously paid with the
proceeds of Registrable Shares released pursuant to Section 2.2(a)(vii) of the
Standstill Agreement and any amounts previously paid upon the expiration of the
30-day period of effectiveness of a prior Registration Statement under this
Section 2.1(c) for resales of
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Registrable Shares referred to in Section 2.1(b)(ii)(A) of the CVX Guaranty
because a Manufacturer failed or refused to sell Registrable Securities under
such Registration Statement) (the "Requested Payments") and (iii) the
Manufacturers are not at the time of such request permitted under Rule 144 to
sell Registrable Shares with an aggregate fair market value at such time equal
to or greater than the Requested Payments, the Company shall as soon as
practicable file with the SEC a Registration Statement for an offering to be
made pursuant to the Shelf Rules to register under the 1933 Act resales or other
dispositions of a number of Registrable Shares with a fair market value that is
equal to the sum of one hundred twenty percent (120%) of the payment obligation
incurred to CVX Holdco, LLC under the CVX Guaranty by the Manufacturers entitled
to transfer Registrable Shares and the amount of Registration Expenses to be
paid by the Manufacturers in connection with such registration. The fair market
value of the Registrable Shares shall be the average closing price of the
Company Common Stock on the Nasdaq Stock Market (or, if not so traded, on such
other national or foreign stock market or automated quotation system on which
the Company's Common Stock is regularly traded) for the five (5) trading day
period ending two (2) trading days prior to the effectiveness of such
Registration Statement. The Company shall use its reasonable best efforts to
cause such Registration Statement to be declared effective by the SEC as soon as
is practicable, and maintain the effectiveness of such Registration Statement
for as long as necessary to dispose of such Registrable Shares under Section 2.2
of the Standstill Agreement, but in any event for no more than fifty (50) days.
In no event shall the net aggregate value (exclusive of underwriter's fees and
brokerage commissions and the amount of Registration Expenses to be paid by the
Manufacturers in connection with such registration) of the Registrable Shares
sold under a Registration Statement filed pursuant to Section 2.2(a)(vii) of the
Standstill Agreement be greater than the payment obligation to CVX Holdco, LLC
incurred under the CVX Guaranty. The Manufacturer or Manufacturers entitled to
sell Registrable Shares under a Registration Statement filed pursuant to Section
2.2(a)(vii) of the Standstill Agreement shall promptly pay the Company's
reasonable Registration Expenses in connection with such Registration Statement.
The Company shall not permit any holder of Registrable Securities or any other
holder of registration rights to "piggyback" on such Registration Statement
without the written consent of each of the Manufacturers. This Section 2.1(c)
shall be applicable each time a Requested Payment or Requested Payments exceed
five million dollars ($5,000,000) in the aggregate.
2.2 DEMAND REGISTRATION.
(a) If, on or after the Registration Rights Commencement Date, either
Manufacturer (in such capacity, an "Initiating Holder") requests in writing (the
"Demand") that the Company file a registration statement on Form S-3 (or any
successor form to Form S-3) for a public offering of Registrable Shares the
Company shall promptly give written notice of such requested registration to the
other Manufacturer (in such capacity, the "Non-Initiating Holder") and thereupon
shall, as expeditiously as possible, but in any event within thirty (30) days
after its receipt of such request, subject to Section 4.1, file such
Registration Statement with the SEC to effect the registration under the 1933
Act of: (i) such Registrable Shares which the Company has been so requested to
register by the Initiating Holder; and (ii) the Registrable Shares of the
Non-Initiating Holder which the Company has been requested to register by
written request given to the Company within 15 days after the giving of such
written notice by the Company (which request shall specify the amount and
intended method of disposition of such securities). The Company shall use its
best efforts to cause such Registration Statement to be declared effective
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as soon thereafter as practicable and keep such Registration Statement effective
until the Initiating Holder and, if applicable, the Non-Initiating Holder,
notify the Company in writing that the Company is no longer required to keep
such Registration Statement effective. In no event, however, shall the Company
be required, in any twelve-month period, to (i) effect more than two (2)
registrations pursuant to this Section 2.2 or (ii) keep one or more Registration
Statements filed pursuant to this Section 2.2 effective for more than an
aggregate of ninety (90) days. The Company shall not permit any holder of
Registrable Securities or any other holder of registration rights (other than a
Manufacturer) to "piggyback" on such Registration Statement without the written
consent of each Manufacturer participating in such registration.
(b) Notwithstanding the foregoing, the Company shall not be obligated
to take any action pursuant to subparagraph (a):
(i) if the Company, within ten (10) days of the receipt of a
Demand, gives written notice to each of the Manufacturers of its bona fide
intention to effect the filing of a registration statement with the SEC relating
to a firm commitment underwriting of equity securities by the Company within
sixty (60) days of receipt of such Demand (other than with respect to a
registration statement relating to a Rule 145 transaction, the resale of
securities issued in a Rule 145 transaction, an offering solely to employees,
the registration of debt securities, or any other registration which is not
appropriate for the registration of Registrable Shares), PROVIDED, HOWEVER, that
if such registration statement is not filed by the Company within 60 days of
receipt of such Demand and declared effective by the SEC within 120 days after
the Company's receipt of the Demand, the Company shall be obligated to cause
such Registrable Shares of the Initiating Holder and, if applicable, the
Non-Initiating Holder, to be registered in accordance with the provisions of
this Section 2.2; and FURTHER PROVIDED that (x) any such registration statement
shall be subject to Section 2.3 and 2.4 hereof and (y) the Company's right under
this Section 2.2(b)(i) is subject to the Company actively employing in good
faith all reasonable efforts to cause such registration statement to become
effective; or
(ii) during the period starting with the Company's date of filing
of, and ending on the date ninety (90) days immediately following, the effective
date of any registration statement pertaining to equity securities by the
Company (other than a registration of securities in a Rule 145 transaction, the
resale of securities issued in a Rule 145 transaction or with respect to an
offering solely to employees, the registration of debt securities, or any other
registration which is not appropriate for the registration of Registrable
Shares), which registration was either filed as a result of the exercise by a
Manufacturer of its rights pursuant to Section 2.1 hereof or this Section 2.2 or
was subject to Section 2.3 hereof.
2.3 PIGGYBACK REGISTRATION. If, on or after the Registration Rights
Commencement Date, the Company proposes to register (for its own account, on
behalf of its existing stockholders or a combination of the foregoing) any of
its common stock under the 1933 Act in connection with a public offering of such
common stock solely for cash (other than a registration relating primarily to
the sale of securities to participants in a Company stock plan, a Rule 145
transaction or the resale of securities issued in a Rule 145 transaction, a
registration in which the only stock being registered is common stock issuable
upon conversion or exchange of debt securities which are also being registered,
or any registration on any form which does not include substantially the same
information as would be required to be included in a Registration
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Statement covering the sale of the Registrable Shares), the Company shall, at
such time, give the Manufacturers notice of such registration in accordance with
Section 11.1. Upon the written request of a Manufacturer given within ten (10)
days after such notice has been given by the Company, the Company shall, subject
to Section 2.4, cause to be registered under the 1933 Act all of the Registrable
Shares that such Manufacturer has requested to be registered.
2.4 UNDERWRITING REQUIREMENTS.
(a) In connection with any underwritten public offering, the Company
shall not be required to include any of the Registrable Shares of a Manufacturer
in such underwriting unless such Manufacturer accepts the terms of the
underwriting as agreed upon between the Company and the underwriters for the
offering (which underwriters shall be selected by the Company).
(b) If the total amount of securities, including Registrable Shares,
requested to be included in an underwritten public offering exceeds the amount
of securities that the underwriters determine in their sole discretion is
compatible with the success of the offering, then the Company shall be required
subject to the provisions of this Section 2.4(b) to include in the offering only
that number of such securities, including Registrable Shares, which the
underwriters determine in their sole discretion will not jeopardize the success
of the offering. In such event, the Company may reduce the number of Registrable
Shares to be included in the offering prior to reducing or excluding the shares
proposed to be offered by the Company. In the event that the number of
Registrable Shares is reduced, the Registrable Shares to be included shall be
apportioned pro rata among the Manufacturers and the holders of "Registrable
Securities" under the Existing Registration Rights Agreement according to the
aggregate number of the Registrable Shares held by the Manufacturers and the
aggregate number of shares of "Registrable Securities" held by Holders (as
defined in the Existing Registration Rights Agreement) under the Existing
Registration Rights Agreement as of the time of filing of the Registration
Statement (e.g., the piggyback rights of the holders of Registrable Shares and
the holders of Registrable Securities under the Existing Registration Rights
Agreement shall be pari passu with each other); PROVIDED, HOWEVER, that, during
the period from the Registration Rights Commencement Date until the Demand
Rights Termination Date, the aggregate number of Registrable Shares shall in no
event be reduced to an amount less than twenty-five percent (25%) of the
aggregate number of shares of common stock of the Company being offered in the
offering; PROVIDED FURTHER, HOWEVER, that from the Demand Rights Termination
Date until the first anniversary of the Demand Rights Termination Date, the
Registrable Shares to be included in the offering shall be apportioned pro rata
among all stockholders proposing to sell shares of common stock of the Company
in the offering (based on the proportionate number of shares of common stock of
the Company beneficially owned by each selling stockholder on the date the
Registration Statement relating to the offering is filed with the SEC relative
to the aggregate number of shares of common stock of the Company beneficially
owned by all selling stockholders on such date).
3. REGISTRATION PROCEDURES.
3.1 BLUE SKY COMPLIANCE. The Company shall, as soon as reasonably
possible after the effectiveness of a Registration Statement, use its best
efforts to register and qualify the
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Registrable Shares covered by the Registration Statement under such other
securities or "blue sky" laws of such jurisdictions as shall be reasonably
requested by the Manufacturers, 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 unless the Company is already subject to service in such
jurisdiction and except as may be required by the 1933 Act.
3.2 FURNISHING OF PROSPECTUS. With respect to a Registration
Statement filed pursuant to Sections 2.1, 2.2 or 2.3, the Company shall furnish
to each Manufacturer selling Registrable Shares pursuant to such Registration
Statement such number of copies of a prospectus in conformity with the
requirements of the 1933 Act, and of each amendment and supplement thereto, such
number of copies of the prospectus included in such Registration Statement
(including each preliminary prospectus and summary prospectus), in conformity
with the requirements of the 1933 Act, and such other documents as such
Manufacturer may reasonably request in order to facilitate the disposition of
the Registrable Shares by such Manufacturer.
3.3 MAINTENANCE OF EFFECTIVENESS. With respect to a Registration
Statement filed pursuant to Sections 2.1, 2.2 or 2.3, the Company shall 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 not less than the applicable
period specified in this Agreement.
3.4 NOTIFICATION OF CERTAIN EVENTS. With respect to a
Registration Statement filed pursuant to Sections 2.1, 2.2 or 2.3, the
Company shall notify each seller of any such Registrable Shares covered by
such Registration Statement, at any time when a prospectus relating thereto
is required to be delivered under the 1933 Act, of the Company's becoming
aware that 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, and at the request of any such seller, prepare and furnish to such
seller a reasonable number of copies of an amended or supplemental prospectus
as may be necessary so that, as thereafter delivered to the sellers of such
Registrable Shares, such prospectus shall not include an untrue statement of
a material fact or omit 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. In addition, the Company shall
notify counsel for the holders of Registrable Shares included in such
Registration Statement (i) when the Registration Statement, or any
post-effective amendment to the Registration Statement, shall have become
effective, or any supplement to the prospectus or any amendment to the
prospectus shall have been filed, (ii) of any request of the SEC after
effectiveness of the Registration Statement to amend the Registration
Statement or amend or supplement the prospectus or for additional
information, and (iii) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or of any order
preventing or suspending the use of any prospectus, or of the suspension of
the qualification of the Registration Statement for offering or sale in any
jurisdiction, or of the institution or threatening of any proceedings for any
of such purposes (collectively, a "Stop Order"). The Company shall use its
commercially reasonable best efforts to prevent the issuance of a Stop Order
specifically threatened by the SEC, and, if a Stop Order is
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issued, use its commercially reasonable best efforts to obtain the withdrawal of
such Stop Order as soon as practicable.
3.5 OTHER AGREEMENTS. With respect to a Registration Statement filed
pursuant to Sections 2.1, 2.2, or 2.3, if requested by a Manufacturer including
Registrable Shares therein, the Company shall use commercially reasonable best
efforts to obtain, at the expense of such Manufacturer, a "cold comfort" letter
or letters from the Company's independent public accountants in customary form
and covering matters of the type customarily covered by "cold comfort" letters.
4. CONDITIONS AND LIMITATIONS ON REGISTRATION RIGHTS.
The registration rights granted by this Agreement are subject to the
following additional conditions and limitations:
4.1 DELAYS AND SUSPENSION. The Company may delay the filing of, or
suspend or delay the effectiveness of a Registration Statement, if the Company
shall furnish to the Manufacturers a certificate signed by the Chief Executive
Officer of the Company stating that in the good faith judgment of the Board of
Directors it would be seriously detrimental to the Company or its stockholders
for such a Registration Statement to be filed or declared effective or for an
effective Registration Statement not to be suspended. In such event, the
Company's obligation under this Agreement to file a Registration Statement, seek
effectiveness of a Registration Statement or keep such Registration Statement
effective shall be deferred for a period not to exceed sixty (60) days, provided
that the Company may not exercise this right of deferral for an aggregate of in
excess of seventy-five (75) days in any one year period. If the Company suspends
the effectiveness of a Registration Statement, the Company will promptly deliver
notice to the Manufacturer or Manufacturers participating in such registration
of such suspension and will again deliver notice to such Manufacturer or
Manufacturers when such suspension is no longer necessary. The duration for
which the Company is required to keep a Registration Statement effective shall
be extended by an additional number of days equal to the length of any
suspension period.
4.2 AMENDED OR SUPPLEMENTED PROSPECTUS. Each of the Manufacturers
agrees that, upon receipt of any notice from the Company described in Section
4.1 hereof that suspends an effective Registration Statement, such Manufacturer
shall forthwith discontinue disposition of Registrable Shares pursuant to the
Registration Statement covering such Registrable Shares until such Stockholder's
receipt of copies of a supplemented or amended prospectus from the Company, or
until it is advised in writing by the Company that the use of the prospectus may
be resumed, and has received copies of any additional or supplemental filings
which are incorporated by reference in the prospectus. If so directed by the
Company, the Manufacturers will deliver to the Company all copies of the
prospectus covering such Registrable Shares current at the time of receipt of
such notice of suspension.
5. INDEMNIFICATION.
(a) The Company will indemnify the Manufacturers, each of their
respective officers, directors and partners, legal counsel, agents and each
person controlling the
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Manufacturers within the meaning of Section 15 of the 1933 Act, with respect to
which registration, qualification or compliance has been effected pursuant to
this Agreement, and each underwriter, if any, and each person who controls any
underwriter within the meaning of Section 15 of the 1933 Act (collectively, the
"Manufacturer Indemnified Parties"), against all expenses, claims, losses,
damages and liabilities (or actions in respect thereof) to which any such
Manufacturer Indemnified Party may become subject, including any of the
foregoing incurred in settlement of any litigation, (commenced or threatened),
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any Registration Statement, prospectus, or other
document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or any violation by the Company of
the 1933 Act, the 1934 Act, and any state securities laws or any rule,
regulation or qualification promulgated thereunder, and the Company will
reimburse such Manufacturer Indemnified Party for any legal and any other
expenses reasonably incurred, in connection with investigating, preparing or
defending any such claim, loss, damage, liability or action; provided, however,
that the Company will not be liable in any such case to the extent that any such
claim, loss, damage, liability or expense arises out of or is based on any
untrue statement or omission or alleged untrue statement or omission in or from
any Registration Statement, made in reliance upon and in conformity with written
information furnished to the Company by any Manufacturer Indemnified Party
expressly for use therein.
(b) The foregoing indemnity is subject to the condition that, insofar
as it relates to any such untrue statement, alleged untrue statement, omission
or alleged omission made in a preliminary prospectus on file with the SEC at the
time the Registration Statement becomes effective or the amended prospectus
filed with the SEC pursuant to Rule 424(b), as amended from time to time (the
"Final Prospectus"), such indemnity shall not inure to the benefit of (A) any
Manufacturer Indemnified Party (i) if a copy of the Final Prospectus (as amended
or supplemented, if applicable) was not furnished by a Manufacturer to the
person asserting the loss, liability, claim or damage at or prior to the time
such action as required by the 1933 Act and such Final Prospectus (as so amended
or supplemented, if applicable) would have cured the defect giving rise to the
loss, liability, claim or damage and the Company shall have previously and
timely furnished to such Manufacturer sufficient copies of the Final Prospectus
(as so amended or supplemented, if applicable), or (ii) to the extent that such
untrue statement, alleged untrue statement, omission or alleged omission is made
in reliance upon and in conformity with written information furnished to the
Company by a Manufacturer Indemnified Party expressly for use therein, or (B)
any underwriter, (i) if a copy of the Final Prospectus (as amended or
supplemented, if applicable) was not furnished to the person asserting the loss,
liability, claim or damage at or prior to the time such action as required by
the 1933 Act and the Final Prospectus (as so amended or supplemented, if
applicable) would have cured the defect giving rise to the loss, liability,
claim or damage and the Company shall have previously and timely furnished to
such underwriter sufficient copies of the Final Prospectus (as so amended or
supplemented, if applicable), or (ii) to the extent that such untrue statement,
alleged untrue statement, omission or alleged omission is made in reliance on
and in conformity with written information furnished to the Company by the
underwriter for use therein.
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(c) Each Manufacturer will, if Registrable Shares held by such
Manufacturer are included in the securities as to which such registration,
qualification or compliance is being effected, indemnify the Company, each of
its directors and officers, legal counsel, agents, each underwriter, if any, of
the Company's securities covered by such a Registration Statement, each person
who controls the Company or such underwriter within the meaning of Section 15 of
the 1933 Act (collectively, the "Company Indemnified Parties"), against all
expenses, claims, losses, damages and liabilities (or actions in respect
thereof) to which any such Company Indemnified Party may become subject,
including any of the foregoing incurred in settlement of any litigation
(commenced or threatened), arising out of or based on any untrue statement (or
alleged untrue statement) of a material fact contained in any such Registration
Statement, prospectus, offering circular or other document, or any amendment or
supplement thereto, incident to such registration, qualification or compliance,
or any omission (or alleged omission) to state therein a material fact required
to be stated therein or necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading, and, severally,
and not jointly, will reimburse such Company Indemnified Party for any legal and
any other expenses reasonably incurred, in connection with investigating or
defending any such claim, loss, damage, liability or action, in each case to the
extent, but only to the extent, that such untrue statement (or alleged untrue
statement) or omission (or alleged omission) is made in such Registration
Statement, prospectus, offering circular or other document in reliance upon and
in conformity with written information furnished to the Company by any
Manufacturer Indemnified Party expressly for use therein. Notwithstanding the
foregoing, the liability of such Manufacturer under this Section 5 shall be
limited to an amount equal to the net proceeds received by such Manufacturer
from the sale of shares in such registration.
(d) Each party entitled to indemnification under this Section 5 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not unreasonably be
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Agreement, unless the failure to give such notice is
materially prejudicial to an Indemnifying Party's ability to defend such action,
and provided further that an Indemnified Party shall have the right to retain
its own counsel, with the fees and expenses of such counsel 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. 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.
(e) If the indemnification provided for in this Section 5 is held by a
court of competent jurisdiction to be unavailable to an Indemnified Party with
respect to any losses,
<PAGE>
11
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 expense, claim, loss, 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 expense, claim, loss,
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 Manufacturer hereunder
exceed the net proceeds from the offering received by such Manufacturer.
(f) The obligations of the Company and the Manufacturers under this
Section 5 shall survive completion of any offering of Registrable Shares in a
Registration Statement and the termination of this Agreement.
6. INFORMATION FROM MANUFACTURERS. It shall be a condition
precedent to the obligations of the Company to take any action pursuant to this
Agreement with respect to the Registrable Shares of a Manufacturer that such
Manufacturer shall furnish to the Company such information regarding itself, the
Registrable Shares held by it and the intended method of disposition of such
securities as shall be required to effect the registration of the Registrable
Shares.
7. EXPENSES OF REGISTRATION. The Company shall pay all
registration, filing and qualification fees (including SEC filing fees and the
listing fees of The Nasdaq Stock Market or any stock exchange on which the
Company securities are traded) attributable to the Registrable Shares registered
under this Agreement, and any legal, accounting or other professional fees or
expenses incurred by the Company (the "Registration Expenses"). The
Manufacturers shall pay all underwriting discounts, selling commissions and
stock transfer taxes, if any, attributable to the sale of such securities
registered by the Manufacturers and any legal, accounting or other professional
fees incurred by the Manufacturers.
8. REPORTS UNDER THE 1934 ACT. The Company agrees to file with the
SEC in a timely manner all reports and other documents and information required
of the Company under the 1934 Act, and take such other actions as may be
necessary to assure the availability of Form S-3 for use in connection with the
registration rights provided in this Agreement and Rule 144 for use in
connection with resales of the Registrable Shares.
9. RULE 144.
(a) In the event that a Manufacturer and its Affiliates collectively
hold Registrable Shares representing less than one percent (1%) of the issued
and outstanding common stock of the Company and all of such Manufacturer's
Registrable Shares may, under Rule 144, be resold or otherwise disposed of in a
ninety (90) day period without registration
<PAGE>
12
under the 1933 Act, the registration rights granted under Sections 2.1, 2.2 and
2.3 to such Manufacturer, and the obligations of the Company thereunder to such
Manufacturer, shall automatically terminate in their entirety and be of no
further force and effect whatsoever without any further action on the part of
the Company or such Manufacturer.
(b) If after the Demand Rights Termination Date, all of a Manufacturer
and its Affiliates' Registrable Shares may, under Rule 144(k), be resold or
otherwise disposed of, then the registration rights granted under Sections 2.1,
2.2 and 2.3 hereof to such Manufacturer and the obligations of the Company
thereunder to such Manufacturer shall automatically terminate in their entirety
and be of no further force and effect whatsoever without any further action on
the part of the Company or such Manufacturer; PROVIDED, HOWEVER, that the
Piggyback Registration Rights granted pursuant to Section 2.3 shall survive
until the first anniversary of the Demand Rights Termination Date.
10. MARKET STAND-OFF. Each of the Manufacturers agrees that, at any
time that it owns Shares (as defined in the Standstill Agreement) that represent
two and one-half percent (2.5%) or more of the Total Current Voting Power (as
defined in the Standstill Agreement) of the Company, upon the request of the
underwriters managing any underwritten public offering of the Company's
securities in connection with an effective Registration Statement under the 1933
Act, not to offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase, or otherwise transfer or dispose of, directly or
indirectly, the Registrable Shares held by such Manufacturer, other than those
included in the registration, without the prior written consent of such
underwriters, for such period of time, not to exceed ninety (90) days (or such
lesser period as officers or directors of the Company are so restricted with
respect to the transfer of shares of common stock of the Company held by them)
after the effective date of the Registration Statement relating thereto;
PROVIDED that (x) such registration was filed as a result of the exercise by
such Manufacturer of its rights pursuant to Section 2.1 or 2.2 hereof or such
Manufacturer participated in or had the right to participate in such
Registration Statement pursuant to Section 2.3 hereof and (y) such
Manufacturer's registration rights under this Agreement shall not have been
terminated pursuant to Section 9. Each of the Manufacturers agrees that the
Company may instruct its transfer agent to place stop-transfer notations in its
records to enforce the provisions of this Section 10.
11. MISCELLANEOUS.
11.1 NOTICES. All notices and other communications required or
permitted hereunder shall be made in the manner and to addresses set forth in
the Formation Agreement.
11.2 INTERPRETATION. The various section headings are inserted for
purposes of reference only and shall not affect the meaning or interpretation of
this Agreement or any provision hereof. The definitions contained in this
Agreement are applicable to the singular as well as the plural forms of such
terms and to the masculine as well as to the feminine and neuter genders of such
terms.
(a) Each party hereto acknowledges that it has been represented by
competent counsel and participated in the drafting of this Agreement, and agrees
that any applicable rule of
<PAGE>
13
construction to the effect that ambiguities are to be resolved against the
drafting party shall not be applied in connection with the construction or
interpretation of this Agreement.
(b) When a reference is made in this Agreement to a Section, Exhibit or
Schedule, such reference shall be to a Section of, Exhibit to or Schedule to
this Agreement unless otherwise indicated.
(c) All references to Commerce One in this Agreement shall be deemed to
be references to Holdco upon the consummation of the Merger contemplated by
Article II of the Formation Agreement, and, thereupon, all references herein to
"the Company" shall mean and refer to Holdco and all references to common stock
of the Company shall mean and refer to common stock of Holdco.
(d) Any reference to a statute, rule, regulation, form or schedule
under either the 1933 Act or the 1934 Act contained in this Agreement shall be
deemed to include any successor or replacement statute, rule, regulation, form
or schedule.
11.3 FACSIMILE; COUNTERPARTS. This Agreement may be executed by
facsimile and in one or more counterparts, all of which shall be considered one
and the same agreement and shall become effective when one or more counterparts
have been signed by each of the parties and delivered to the other party, it
being understood that all parties need not sign the same counterpart.
11.4 ENTIRE AGREEMENT; NO THIRD PARTY BENEFICIARIES. This Agreement,
the Formation Agreement and the other agreements referenced herein and therein,
and the other documents delivered pursuant hereto and thereto, constitute the
full and entire understanding and agreement between the parties with regard to
the subject matter hereof and no party shall be liable or bound to any other in
any manner by any representations, warranties, covenants and agreements except
as specifically set forth herein and therein. Except as expressly provided
herein, this Agreement is not intended to confer upon any other person any
rights or remedies hereunder.
11.5 ASSIGNMENT. The Manufacturers may transfer or assign their
respective rights and obligations hereunder together with any Registrable Shares
transferred or assigned in accordance with the terms of the Standstill
Agreement, as long as such transferee or assignee of the Registrable Shares
executes and delivers a counterpart copy of this Agreement thereby agreeing to
be bound by the terms and provisions set forth herein. Except as permitted
herein, any assignment of rights or delegation of duties under this Agreement by
a party without the prior written consent of the other parties, if such consent
is required hereby, shall be void. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
permitted assigns.
11.6 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
<PAGE>
14
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.
11.7 CERTAIN COMPANY REPRESENTATIONS. This Agreement has been duly
authorized by all necessary action by the Board of Directors of the Company and
the stockholders of the Company, and the Company's execution, delivery and
performance of this Agreement does not violate any other agreement or instrument
to which it is currently a party. As of the date hereof, the Company has not
granted registration rights to any holder of its securities except pursuant to
this Agreement, pursuant to (i) the Existing Registration Rights Agreement, (ii)
with respect to 5,059,546 shares of its common stock issued to SAP AG pursuant
to that certain Share Purchase Agreement between the Company and SAP AG dated
June 14, 2000 and (iii) with respect to up to 9,000,000 shares of its common
stock which may be issued to Group Financiero Banamex Accival, S.A. de C.V. The
Company hereby agrees to not grant any registration rights to any person that
conflict with the registration rights granted to the Manufacturers hereunder.
11.8 ATTORNEYS' FEES. In any action at law or suit in equity in
relation to this Agreement, the prevailing party in such action or suit shall be
entitled to receive a reasonable sum for its attorneys' fees and all other
reasonable costs and expenses incurred in such action or suit.
11.9 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, regardless of the laws
that might otherwise govern under applicable principles of conflicts of laws
thereof.
11.10 TERM. Except as expressly provided herein, the rights and
obligations hereunder shall terminate ten (10) years from the date of this
Agreement (if not terminated sooner pursuant to Section 9). This Agreement shall
terminate and be null and void and of no further force or effect in the event
(i) that the Formation Agreement is terminated prior to the Merger Effective
Date (as defined in the Formation Agreement) and the closing of the Alternative
Transaction (as defined in the Formation Agreement) or (ii) upon the mutual
agreement of the parties hereto.
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15
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date first above written.
COMMERCE ONE, INC.
By: /s/ Mark B. Hoffman
--------------------------------------
Name: Mark B. Hoffman
Title: Chairman of the Board and
Chief Executive Officer
FORD MOTOR COMPANY
By: /s/ Kathryn S. Lamping
--------------------------------------
Name: Kathryn S. Lamping
Title: Assistant Secretary
GENERAL MOTORS CORPORATION
By: /s/ Michael G. Lukas
--------------------------------------
Name: Michael G. Lukas
Title: Attorney-in-Fact for Eric A.
Feldstein, Vice President and
Treasurer
NEW COMMERCE ONE HOLDING, INC.
By: /s/ Mark B. Hoffman
--------------------------------------
Name: Mark B. Hoffman
Title: Chief Executive Officer
