UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 2)
MARCAM CORPORATION
(NAME OF ISSUER)
COMMON STOCK ($.01 PAR VALUE)
(TITLE OF CLASS OF SECURITIES)
566140109
(CUSIP NUMBER)
STEPHEN P. REYNOLDS
C/O GENERAL ATLANTIC SERVICE CORPORATION
3 PICKWICK PLAZA
GREENWICH, CONNECTICUT 06830
TEL. NO. (203) 629-8600
(NAME, ADDRESS AND TELEPHONE NUMBER OF
PERSON AUTHORIZED TO RECEIVE NOTICES
AND COMMUNICATIONS)
JULY 23, 1996
(DATE OF EVENT WHICH REQUIRES FILING OF
THIS STATEMENT)
IF THE FILING PERSON HAS PREVIOUSLY FILED A STATEMENT ON SCHEDULE 13G TO REPORT
THE ACQUISITION WHICH IS THE SUBJECT OF THIS SCHEDULE 13D, AND IS FILING THIS
STATEMENT BECAUSE OF RULE 13D-1(B)(3) OR (4), CHECK THE FOLLOWING BOX [ ].
CHECK THE FOLLOWING BOX IF A FEE IS BEING PAID WITH THE STATEMENT [ ]. (A
FEE IS NOT REQUIRED ONLY IF THE REPORTING PERSON: (1) HAS A PREVIOUS STATEMENT
ON FILE REPORTING BENEFICIAL OWNERSHIP OF MORE THAN FIVE PERCENT OF THE CLASS
OF SECURITIES DESCRIBED IN ITEM 1; AND (2) HAS FILED NO AMENDMENT SUBSEQUENT
THERETO REPORTING BENEFICIAL OWNERSHIP OF FIVE PERCENT OR LESS OF SUCH CLASS.)
(SEE RULE 13D-7.)
NOTE: SIX COPIES OF THIS STATEMENT, INCLUDING ALL EXHIBITS, SHOULD BE FILED
WITH THE COMMISSION. SEE RULE 13D-1(A) FOR OTHER PARTIES TO WHOM COPIES ARE TO
BE SENT.
*THE REMAINDER OF THIS COVER PAGE SHALL BE FILLED OUT FOR A REPORTING PERSON'S
INITIAL FILING ON THIS FORM WITH RESPECT TO THE SUBJECT CLASS OF SECURITIES,
AND FOR ANY SUBSEQUENT AMENDMENT CONTAINING INFORMATION WHICH WOULD ALTER
DISCLOSURES PROVIDED IN A PRIOR COVER PAGE.
THE INFORMATION REQUIRED ON THE REMAINDER OF THIS COVER PAGE SHALL NOT BE
DEEMED TO BE "FILED" FOR THE PURPOSE OF SECTION 18 OF THE SECURITIES EXCHANGE
ACT OF 1934 ("ACT") OR OTHERWISE SUBJECT TO THE LIABILITIES OF THAT SECTION OF
THE ACT BUT SHALL BE SUBJECT TO ALL OTHER PROVISIONS OF THE ACT (HOWEVER, SEE
THE NOTES).
Page 1 of 75 Pages
Exhibit Index on Page 12
<PAGE>
SCHEDULE 13D
CUSIP NO. 566140109 Page 2 of 75 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
General Atlantic Partners 32, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) [ X ]
(B) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
SHARES 0
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
8 SHARED VOTING POWER
4,000,000
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
4,000,000
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,000,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
Not Applicable
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.9%
14 TYPE OF REPORTING PERSON
PN
<PAGE>
SCHEDULE 13D
CUSIP NO. 566140109 Page 3 of 75 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
General Atlantic Partners 21, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) [ X ]
(B) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
SHARES 0
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
8 SHARED VOTING POWER
4,000,000
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
4,000,000
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,000,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
Not Applicable
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.9%
14 TYPE OF REPORTING PERSON
PN
<PAGE>
SCHEDULE 13D
CUSIP NO. 566140109 Page 4 of 75 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
GAP Coinvestment Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) [ X ]
(B) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York
7 SOLE VOTING POWER
NUMBER OF
SHARES 0
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
8 SHARED VOTING POWER
4,000,000
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
4,000,000
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,000,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
Not Applicable
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.9%
14 TYPE OF REPORTING PERSON
PN
<PAGE>
SCHEDULE 13D
CUSIP NO. 566140109 Page 5 of 75 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
General Atlantic Partners, LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (A) [ X ]
(B) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
7 SOLE VOTING POWER
NUMBER OF
SHARES 0
BENEFICIALLY
OWNED BY
EACH
REPORTING
PERSON
WITH
8 SHARED VOTING POWER
4,000,000
9 SOLE DISPOSITIVE POWER
0
10 SHARED DISPOSITIVE POWER
4,000,000
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
4,000,000
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
Not Applicable
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
24.9%
14 TYPE OF REPORTING PERSON
OO
<PAGE>
CUSIP NO. 566140109 Page 6 of 75 Pages
AMENDMENT NO. 2 TO SCHEDULE 13D
This Amendment No. 2 to Schedule 13D (this "Amendment") is filed
by the undersigned to amend and supplement the Schedule 13D, filed October
6, 1995 (the "Original Schedule 13D"), as amended by Amendment No. 1 to
Schedule 13D, filed December 15, 1995, with respect to the shares of Common
Stock, par value $.01 per share (the "Common Stock"), of Marcam
Corporation, a Massachusetts corporation (the "Company").
ITEM 1.SECURITY AND ISSUER
This Amendment relates to the Common Stock of the Company.
Although no person identified in Item 2 has acquired any shares of Common
Stock, under Rule 13d-3(d) of the General Rules and Regulations of the
Securities and Exchange Act of 1934, as amended (the "Exchange Act"), such
persons may be deemed to be the beneficial owners of Common Stock by virtue
of the acquisition of the beneficial ownership of (a) an aggregate of
100,000 shares of Series E Convertible Preferred Stock, par value $1.00 per
share, of the Company (the "Series E Preferred Stock"), entitling the
holders thereof to convert (subject to adjustment) each share of Series E
Preferred Stock into ten shares of Common Stock and (b) the Warrants (as
defined in Item 3) entitling the holders thereof to exercise (subject to
adjustment) such Warrants for 1,000,000 shares of Common Stock. The
address of the principal executive offices of the Company is 95 Wells
Avenue, Newton, Massachusetts 02159.
ITEM 2.IDENTITY AND BACKGROUND
This Amendment is being filed by a group, as defined in Rule 13d-
5 of the Exchange Act. The members of the group are General Atlantic
Partners 32, L.P. ("GAP 32"), General Atlantic Partners 21, L.P. ("GAP
21"), GAP Coinvestment Partners, L.P. ("GAP Coinvestment") and General
Atlantic Partners, LLC ("GAP LLC" and, together with GAP 32, GAP 21 and GAP
Coinvestment, the "Reporting Persons"), all of whom are located at 3
Pickwick Plaza, Greenwich, Connecticut 06830. GAP 32, GAP 21 and GAP
Coinvestment are engaged in acquiring, holding and disposing of interests
in various companies for investment purposes. Each of GAP 32 and GAP 21 is
a limited partnership organized under the laws of the State of Delaware.
The general partner of GAP 32 and GAP 21 is GAP LLC. The managing members
of GAP LLC are Steven A. Denning, David C. Hodgson, Stephen P. Reynolds, J.
Michael Cline, William O. Grabe and William E. Ford (collectively, the "GAP
Managing Members"). GAP Coinvestment is a limited partnership organized
under the laws of the State of New York. The general partners of GAP
Coinvestment who are authorized and empowered to vote and dispose of the
securities held by GAP Coinvestment are the GAP Managing Members.
<PAGE>
CUSIP NO. 566140109 Page 7 of 75 Pages
None of the Reporting Persons has, during the last five years,
been convicted in a criminal proceeding or been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction
and as a result of such proceeding was or is subject to a judgement, decree
or final order enjoining future violations of, or prohibiting or mandating
activities subject to, federal or state securities laws or finding any
violation with respect to such laws.
ITEM 3.SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATIONS
This Amendment is being filed as a result of GAP 32 and GAP
Coinvestment entering into a Convertible Preferred Stock and Warrant
Purchase Agreement, dated July 19, 1996 (the "Series E Stock Purchase
Agreement"), with the Company, whereby the Company agreed to issue and sell
to (a) GAP 32 (i) an aggregate of 86,319 shares of Series E Preferred Stock
and (ii) a warrant (the "GAP 32 Warrant") to purchase, subject to the terms
and conditions thereof, an aggregate of 863,190 shares of Common Stock and
(b) GAP Coinvestment (i) an aggregate of 13,681 shares of Series E
Preferred Stock and (ii) a warrant (the "GAPCO Warrant" and, together with
the GAP 32 Warrant, the "Warrants") to purchase, subject to the terms and
conditions thereof, an aggregate of 136,810 shares of Common Stock. As
described in Item 1 above, each share of Series E Preferred Stock is
convertible (subject to adjustment) into ten shares of Common Stock. The
100,000 shares of Series E Preferred Stock purchased by GAP 32 and GAP
Coinvestment pursuant to the Series E Stock Purchase Agreement are
convertible (subject to adjustment) into an aggregate of 1,000,000 shares
of Common Stock and the Warrants purchased by GAP 32 and GAP Coinvestment
pursuant to the Series E Stock Purchase Agreement are exercisable (subject
to adjustment) for 1,000,000 shares of Common Stock.
ITEM 4.PURPOSE OF TRANSACTION
The Reporting Persons acquired the Series E Preferred Stock and
the Warrants for investment purposes. From time to time the Reporting
Persons may acquire shares of Common Stock upon the conversion of the
Series E Preferred Stock and/or exercise of the Warrants and/or under
certain circumstances, the Reporting Persons may dispose of some or all of
the Series E Preferred Stock and/or the Warrants and/or the Common Stock
(into which the Series E Preferred Stock is converted and the Warrants are
exercised) owned by them.
On July 23, 1996, the Company filed with the Secretary of the
Commonwealth of Massachusetts a Certificate of Designation with respect to
the Series E Preferred Stock. Pursuant to such Certificate of Designation,
if GAP 32, GAP Coinvestment and any affiliate thereof (as defined in Rule
12b-2 of the Exchange Act) own in the aggregate (i) less than a majority of
the outstanding shares of Series D Convertible Preferred Stock, par value
$1.00 per share, of the Company (the "Series D Preferred Stock"), (ii) at
least a majority of the outstanding Series E Preferred Stock and
(iii) shares of Common Stock and/or Series D Preferred Stock and/or Series
E Preferred Stock or other securities of the Company convertible into or
exchangeable for shares of voting capital stock of the Company that
represent (after giving effect to any adjustments) at least 10% of the
Common Stock outstanding on an as converted basis, then the holders of
Series E Preferred Stock, voting as a separate series, are entitled to
elect one director of the Company. However, if the conditions set forth in
the preceding sentence are not
<PAGE>
CUSIP NO. 566140109 Page 8 of 75 Pages
satisfied, then (i) the holders of Series E
Preferred Stock shall vote together with all other classes and series of
stock of the Company as a single class with respect to the election of
directors of the Company and (ii) pursuant to Section 8.5 of the Stock
Purchase Agreement, dated September 20, 1995 (the "Series D Stock Purchase
Agreement"), among the Company, GAP 21, GAP Coinvestment and The
Northwestern Mutual Life Insurance Company ("Northwestern Mutual"), the
Company has agreed to use its reasonable best efforts to cause the election
to the Board of Directors of the Company (the "Board") a designee of the
Reporting Persons so long as the Reporting Persons own shares of Common
Stock and/or other securities of the Company convertible into or
exchangeable for shares of voting capital stock of the Company that
represent (after giving effect to any adjustments) at least 10% of the
Common Stock outstanding on an as converted basis.
ITEM 5.INTEREST IN SECURITIES OF THE ISSUER
(a) The closing with respect to the purchase of the Series E
Preferred Stock and the Warrants by GAP 32 and GAP Coinvestment occurred on
July 23, 1996 (the "Closing"). At the Closing, (i) GAP 32 purchased an
aggregate of 86,319 shares of Series E Preferred Stock and the GAP 32
Warrant and (ii) GAP Coinvestment purchased an aggregate of 13,681 shares
of Series E Preferred Stock and the GAPCO Warrant.
In addition, as described in the Original Schedule 13D, pursuant
to the Series D Stock Purchase Agreement, (i) GAP 21 purchased from the
Company an aggregate of 176,058 shares of Series D Preferred Stock and
(ii) GAP Coinvestment purchased from the Company an aggregate of 23,942
shares of Series D Preferred Stock. By virtue of the fact that (x) GAP LLC
is the general partner of each of GAP 32 and GAP 21, (y) the managing
members of GAP LLC are the GAP Managing Members and (z) the GAP Managing
Members are also the general partners authorized and empowered to vote and
dispose of the securities held by GAP Coinvestment, GAP 32, GAP 21 and GAP
Coinvestment may be deemed to share voting power and the power to direct
the disposition of the shares of Series E Preferred Stock, Series D
Preferred Stock and the Warrants which each partnership owns of record.
Accordingly, as of July 23, 1996, the Reporting Persons may be deemed to
own beneficially (1) an aggregate of 100,000 shares of Series E Preferred
Stock or 100% of the issued and outstanding shares of Series E Preferred
Stock, (2) an aggregate of 200,000 shares of Series D Preferred Stock or
88.9% of the issued and outstanding shares of Series D Preferred Stock and
(3) 4,000,000 shares of Common Stock (issuable upon conversion of the
Series E Preferred Stock and the Series D Preferred Stock and upon exercise
of the Warrants) or 24.9% of the issued and outstanding shares of Common
Stock on an as converted basis.
(b) The Reporting Persons have the shared power to direct the
vote and the shared power to direct the disposition of (i) 100,000 shares
of Series E Preferred Stock, (ii) 200,000 shares of Series D Preferred
Stock and (iii) 4,000,000 shares of Common Stock (issuable upon conversion
of the Series E Preferred Stock and the Series D Preferred Stock and upon
exercise of the Warrants) that may be deemed to be beneficially owned by
each of them.
<PAGE>
CUSIP NO. 566140109 Page 9 of 75 Pages
(c) Prior to September 27, 1995, none of the Reporting Persons
owned beneficially and of record any shares of the Company's capital stock.
No transactions in the Series E Preferred Stock, the Series D Preferred
Stock, the Warrants or shares of Common Stock into which such shares of
Series E Preferred Stock and Series D Preferred Stock are convertible or
such Warrants are exercisable have been effected during the sixty days
prior to the date hereof.
(d) No person other than the Reporting Persons is known to have
the right to receive or the power to direct the receipt of dividends from,
or the proceeds from the sale of, any securities owned by any member of the
group.
(e) Not Applicable.
ITEM 6.CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO THE ISSUER
Pursuant to the Series E Stock Purchase Agreement, GAP 32 agreed
to abide by certain restrictions set forth in the Series D Stock Purchase
Agreement relating to (i) the percentage of voting securities of the
Company that may be owned by GAP 32, (ii) participation by the Reporting
Persons in any solicitation of proxies with respect to the Company and
(iii) certain other actions with respect to the Company. The foregoing
rights and restrictions are set forth in Article 9 of the Series D Stock
Purchase Agreement, which was included as Exhibit 1 to the Original
Schedule 13D.
As partial consideration for the obligations of GAP 32 and GAP
Coinvestment under the Series E Stock Purchase Agreement, the Company has
agreed to provide certain registration rights to the Reporting Persons
pursuant to an Amended and Restated Registration Rights Agreement, dated
July 23, 1996 (the "Registration Rights Agreement"), among the Company, GAP
32, GAP 21, GAP Coinvestment and Northwestern Mutual, which Registration
Rights Agreement is included as Exhibit 2 to this Amendment. The
Registration Rights Agreement amends and restates in its entirety the
Registration Rights Agreement, dated September 27, 1995 (the "Original
Registration Rights Agreement"), among the Company, GAP 21, GAP
Coinvestment and Northwestern Mutual, which was included as Exhibit 2 to
the Original Schedule 13D, by, among other things, granting registration
rights (in addition to those granted in the Original Registration Rights
Agreement) to the shares of Common Stock issuable upon conversion of the
Series E Preferred Stock and upon exercise of the Warrants.
As noted in Item 2 and Item 5(a), the GAP Managing Members are
the general partners authorized and empowered to vote and dispose of the
securities held by GAP Coinvestment. Accordingly, the GAP Managing Members
may, from time to time, consult among themselves and coordinate the voting
and disposition of the Series E Preferred Stock, the Series D Preferred
Stock and the Warrants, as well as such other action taken on behalf of the
Reporting Persons with respect to the Series E Preferred Stock, the Series
D Preferred Stock and the Warrants as they deem to be in the collective
interests of the Reporting Persons.
<PAGE>
CUSIP NO. 566140109 Page 10 of 75 Pages
ITEM 7.MATERIAL TO BE FILED AS EXHIBITS.
Exhibit 1:Convertible Preferred Stock and Warrant Purchase
Agreement, dated July 19, 1996, among Marcam
Corporation, General Atlantic Partners 32, L.P. and GAP
Coinvestment Partners, L.P.
Exhibit 2:Amended and Restated Registration Rights Agreement,
dated July 23, 1996, among Marcam Corporation, General
Atlantic Partners 32, L.P., General Atlantic 21, L.P.,
GAP Coinvestment Partners, L.P. and The Northwestern
Mutual Life Insurance Company.
<PAGE>
CUSIP NO. 566140109 Page 11 of 75 Pages
SIGNATURE
After reasonable inquiry and to the best of my knowledge and
belief, I certify that the information set forth in this statement is true,
complete and correct.
Dated: July 29, 1996
GENERAL ATLANTIC PARTNERS 32, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC, its
General Partner
By: /s/ STEPHEN P. REYNOLDS
----------------------------------
Name: Stephen P. Reynolds
Title: A Managing Member
GENERAL ATLANTIC PARTNERS 21, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC, its
General Partner
By: /s/ STEPHEN P. REYNOLDS
----------------------------------
Name: Stephen P. Reynolds
Title: A Managing Member
GAP COINVESTMENT PARTNERS, L.P.
By: /s/ STEPHEN P. REYNOLDS
-------------------------------
Name: Stephen P. Reynolds
Title: A General Partner
GENERAL ATLANTIC PARTNERS, LLC
By: /s/ STEPHEN P. REYNOLDS
-------------------------------
Name: Stephen P. Reynolds
Title: A Managing Member
<PAGE>
CUSIP NO. 566140109 Page 12 of 75 Pages
EXHIBIT INDEX
NUMBER DOCUMENT Page on which
Exhibit Appears
1 Convertible Preferred Stock and Warrant Purchase 13
Agreement, dated July 19, 1996, among Marcam
Corporation, General Atlantic Partners 32, L.P.
and GAP Coinvestment Partners, L.P.
2 Amended and Restated Registration Rights 52
Agreement, dated July 23, 1996, among Marcam
Corporation, General Atlantic Partners 32, L.P.,
General Atlantic Partners 21, L.P., GAP
Coinvestment Partners, L.P. and The Northwestern
Mutual Life Insurance Company.
CUSIP NO. 566140109 Page 13 of 75 Pages
____________________________________________________________
CONVERTIBLE PREFERRED STOCK AND
WARRANT PURCHASE AGREEMENT
among
MARCAM CORPORATION,
GENERAL ATLANTIC PARTNERS 32, L.P.
and
GAP COINVESTMENT PARTNERS, L.P.
______________________________
Dated: July 19, 1996
______________________________
____________________________________________________________
<PAGE>
CUSIP NO. 566140109 Page 14 of 75 Pages
TABLE OF CONTENTS
Page
ARTICLE 1 DEFINITIONS...................................2
1.1 Definitions...................................2
1.2 Accounting Terms; Financial Statements........6
ARTICLE 2 PURCHASE AND SALE OF SERIES E PREFERRED
STOCK AND WARRANTS............................7
2.1 Purchase and Sale of Series E Preferred Stock.7
2.2 Purchase and Sale of Warrants.................7
2.3 Certificate of Designation....................7
2.4 Closing.......................................8
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF
THE COMPANY...................................8
3.1 Corporate Existence and Power.................8
3.2 Corporate Authorization; No Contravention.....8
3.3 Governmental Authorization; Third Party
Consents......................................9
3.4 Binding Effect................................9
3.5 Litigation....................................9
3.6 Compliance with Laws.........................10
3.7 Capitalization...............................10
3.8 No Default or Breach.........................11
3.9 Taxes........................................11
3.10 Financial Statements.........................12
3.11 No Material Adverse Change; Ordinary Course
of Business..................................12
3.12 SEC Documents................................12
3.13 Investment Company...........................13
3.14 Private Offering.............................13
3.15 Employee Benefit Plans.......................13
3.16 Title to Assets..............................14
3.17 Intellectual Property........................14
3.18 Trade Relations..............................14
3.19 Contracts and Other Agreements...............15
3.20 Liabilities..................................15
3.21 Broker's, Finder's or Similar Fees...........15
3.22 Disclosure; Agreement and Other Documents....15
<PAGE>
CUSIP NO. 566140109 Page 15 of 75 Pages
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF
THE PURCHASERS...............................16
4.1 Existence and Power..........................16
4.2 Authorization; No Contravention..............16
4.3 Governmental Authorization; Third Party
Consents.....................................16
4.4 Binding Effect...............................16
4.5 Purchase for Own Account.....................17
4.6 Accreditation; Sophistication; Other
Securities Laws Matters......................18
4.7 Broker's, Finder's or Similar Fees...........18
ARTICLE 5 CONDITIONS TO THE OBLIGATION OF
THE PURCHASERS TO CLOSE .....................18
5.1 Representations and Warranties...............18
5.2 Compliance with this Agreement...............18
5.3 Clerk's Certificate..........................18
5.4 Officers' Certificate........................19
5.5 Documents....................................19
5.6 Filing of Certificate of Designation.........19
5.7 Amended and Restated Registration Rights
Agreement....................................19
5.8 Opinion of Counsel...........................19
5.9 Approval of Counsel to the Purchasers........19
5.10 Purchased Shares.............................20
5.11 Warrants.....................................20
5.12 Consents and Approvals.......................20
5.13 No Litigation................................20
5.14 No Material Judgment or Order................20
5.15 No Material Adverse Change...................21
5.16 Amendment to Note and Warrant Purchase
Agreements...................................21
5.17 Restructuring Charges........................21
ARTICLE 6 CONDITIONS TO THE OBLIGATION OF
THE COMPANY TO CLOSE.........................21
6.1 Representations and Warranties...............21
6.2 Compliance with this Agreement...............22
6.3 General Partners' Certificates...............22
6.4 Amended and Restated Registration Rights
Agreement....................................22
6.5 Approval of Counsel to the Company...........22
6.6 Consents and Approvals.......................22
6.7 No Litigation................................22
<PAGE>
CUSIP NO. 566140109 Page 16 of 75 Pages
6.8 Payment of Purchase Price....................23
6.9 No Material Judgment or Order................23
ARTICLE 7 INDEMNIFICATION..............................23
7.1 Indemnification..............................23
7.2 Notification.................................24
7.3 Amended and Restated Registration Rights
Agreement....................................25
ARTICLE 8 AFFIRMATIVE COVENANTS........................25
8.1 Preservation of Existence....................25
8.2 Financial Statements and Other Information...26
8.3 Reservation of Shares........................27
8.4 Registration and Listing.....................27
ARTICLE 9 TERMINATION OF AGREEMENT.....................28
9.1 Termination..................................28
9.2 Survival.....................................29
ARTICLE 10 MISCELLANEOUS................................29
10.1 Standstill Covenant..........................29
10.2 Survival of Representations and Warranties...29
10.3 Notices......................................29
10.4 Successors and Assigns.......................31
10.5 Amendment and Waiver.........................31
10.6 Counterparts.................................31
10.7 Headings.....................................31
10.8 GOVERNING LAW................................31
10.9 Severability.................................32
10.10 Rules of Construction........................32
10.11 Entire Agreement.............................32
10.12 Fees.........................................32
10.13 Publicity; Confidentiality...................32
10.14 Further Assurances...........................33
10.15 Schedules....................................33
<PAGE>
CUSIP NO. 566140109 Page 17 of 75 Pages
EXHIBITS
A Form of Warrant
B Certificate of Designation
C Amended and Restated Registration Rights Agreement
D Form of Testa, Hurwitz Opinion
SCHEDULES
1 Purchased Shares, Warrants and Purchase Price
3.5 Litigation of the Company
3.6(c) Material Expenditures to Comply with Existing Requirements
of Law
3.7 Options, Warrants, Conversion Privileges or
Other Rights
3.8 Defaults or Breaches of Contractual Obligations
3.11 Material Adverse Changes; Transaction Outside the
Ordinary Course
3.16 Title to Assets and Properties
3.17(a) Intellectual Property Not Owned or Licensed by the Company
3.17(b) Infringements of the Company
3.17(c) Intellectual Property Litigation
3.18 Trade Relations
3.19 Defaults under Contractual Obligations
<PAGE>
CUSIP NO. 566140109 Page 18 of 75 Pages
CONVERTIBLE PREFERRED STOCK AND
WARRANT PURCHASE AGREEMENT
AGREEMENT, dated July 19, 1996 (this "Agreement"), among Marcam
Corporation, a Massachusetts corporation (the "Company"), General
Atlantic Partners 32, L.P., a Delaware limited partnership ("GAP LP"),
and GAP Coinvestment Partners, L.P., a New York limited partnership ("GAP
Coinvestment" and, together with GAP LP, the "Purchasers").
WHEREAS, upon the terms and conditions set forth in this
Agreement, the Company proposes to issue and sell to (a) GAP LP (i) for
an aggregate purchase price of $8,200,305, an aggregate of 86,319 shares
of Series E Convertible Preferred Stock, par value $1.00 per share, of
the Company (the "Series E Preferred Stock") and (ii) for an aggregate
purchase price of $431,595, a warrant (the "GAP LP Warrant") to purchase,
subject to the terms and conditions thereof, an aggregate of 863,190
shares of Common Stock, par value $.01 per share, of the Company (the
"Common Stock") for an aggregate exercise price of $15.36 per share,
containing the terms and conditions set forth in the form of warrant
attached hereto as EXHIBIT A, and (b) GAP Coinvestment (i) for an
aggregate purchase price of $1,299,695, an aggregate of 13,681 shares of
Series E Preferred Stock and (ii) for an aggregate purchase price of
$68,405, a warrant (the "GAPCO Warrant" and, together with the GAP LP
Warrant, the "Warrants") to purchase, subject to the terms and conditions
thereof, an aggregate of 136,810 shares of Common Stock for an aggregate
exercise price of $15.36 per share, containing the terms and conditions
set forth in the form of warrant attached hereto as EXHIBIT A; and
WHEREAS, each share of Series E Preferred Stock is convertible
(subject to adjustment) into ten (10) shares of Common Stock and all of
the shares of Series E Preferred Stock being purchased by the Purchasers
pursuant to this Agreement are convertible (subject to adjustment) into
1,000,000 shares of Common Stock.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
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CUSIP NO. 566140109 Page 19 of 75 Pages
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. As used in this Agreement, and unless the
context requires a different meaning, the following terms have the
meanings indicated:
"AFFILIATE" shall mean any Person who is an "affiliate" as
defined in Rule 12b-2 of the General Rules and Regulations under the
Exchange Act. In addition, the following shall be deemed to be
Affiliates of GAP LP: (a) GAP LLC, the members of GAP LLC, the limited
partners of GAP LP and the limited partners of GAP 21; (b) any Affiliate
of GAP LLC, the members of GAP LLC, the limited partners of GAP LP and
the limited partners of GAP 21; (c) any limited liability company or
partnership a majority of whose members or partners, as the case may be,
are members, former members, consultants or key employees of GAP LLC. In
addition, GAP LP, GAP 21 and GAP Coinvestment shall be deemed to be
Affiliates of one another.
"AGREEMENT" means this Agreement as the same may be amended,
supplemented or modified in accordance with the terms hereof.
"AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT" means the
Amended and Restated Registration Rights Agreement substantially in the
form attached hereto as EXHIBIT C.
"AUDITED FINANCIAL STATEMENTS" has the meaning set forth in
Section 3.10 of this Agreement.
"BOARD OF DIRECTORS" means the Board of Directors of the
Company.
"BUSINESS DAY" means any day other than a Saturday, Sunday or
other day on which commercial banks in the State of New York or the
Commonwealth of Massachusetts are authorized or required by law or
executive order to close.
"BY-LAWS" means the amended and restated by-laws of the
Company, as the same may have been amended and as in effect on the
Closing Date.
"CAPITAL LEASE OBLIGATIONS" of any Person shall mean, as of the
date of determination, the obligations of such Person to pay rent or
other amounts under any lease of (or other arrangement conveying the
right to use) real or personal property, or a combination thereof, which
obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP and, for the purposes
of this Agreement, the amount of such obligations, as of the date of
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CUSIP NO. 566140109 Page 20 of 75 Pages
determination, shall be the capitalized amount thereof at such time
determined in accordance with GAAP consistently applied.
"CERTIFICATE OF DESIGNATION" means the Certificate of
Designation with respect to the Series E Preferred Stock adopted by the
Board of Directors and filed with the Secretary of State of the
Commonwealth of Massachusetts on or before the Closing Date substantially
in the form attached hereto as EXHIBIT B.
"CERTIFICATE OF INCORPORATION" means the articles of
organization of the Company, as the same may have been amended and as in
effect on the Closing Date.
"CLOSING" has the meaning set forth in Section 2.4 of this
Agreement.
"CLOSING DATE" means the date specified in Section 2.4 of this
Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended, or
any successor statute thereto.
"COMMISSION" means the Securities and Exchange Commission or
any similar agency then having jurisdiction to enforce the Securities
Act.
"COMMON STOCK" means the Common Stock, par value $.01 per
share, of the Company and any other capital stock of the Company into
which such stock is reclassified or reconstituted.
"COMPANY" has the meaning ascribed to such term in the recital
to this Agreement.
"CONDITION OF THE COMPANY" means the assets, business,
properties, operations or financial condition of the Company and the
Subsidiaries, taken as a whole.
"CONTRACTUAL OBLIGATIONS" means as to any Person, any provision
of any security issued by such Person or of any agreement, undertaking,
contract, indenture, mortgage, deed of trust or other instrument to which
such Person is a party or by which it or any of its property is bound.
"ENVIRONMENTAL LAWS" means federal, state and local laws,
principles of common law, regulations and codes, as well as orders,
decrees, judgments or injunctions issued, promulgated, approved or
entered thereunder relating to pollution, protection of the environment
or public health and safety.
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CUSIP NO. 566140109 Page 21 of 75 Pages
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended (or any successor statute thereto).
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, (or any successor statute thereto) and the rules and regulations
of the Commission promulgated thereunder.
"FINANCIAL STATEMENTS" has the meaning set forth in
Section 3.10 of this Agreement.
"GAAP" means generally accepted United States accounting
principles in effect from time to time.
"GAP COINVESTMENT" has the meaning ascribed to such term in the
recital to this Agreement.
"GAP LLC" means General Atlantic Partners, LLC, a Delaware
limited liability company and the general partner of GAP LP and GAP 21.
"GAP LP" has the meaning ascribed to such term in the recital
to this Agreement.
"GAP LP WARRANT" has the meaning ascribed to such term in the
recital to this Agreement.
"GAP 21" means General Atlantic Partners 21, L.P., a Delaware
limited partnership.
"GAPCO WARRANT" has the meaning ascribed to such term in the
recital to this Agreement.
"GOVERNMENTAL AUTHORITY" means the government of any state,
city, locality or other political subdivision thereof, any entity
exercising executive, legislative, judicial, regulatory or administrative
functions of or pertaining to government, and any corporation or other
entity owned or controlled, through stock or capital ownership or
otherwise, by any of the foregoing.
"LIABILITIES" has the meaning set forth in Section 3.20 of this
Agreement.
"LIEN" means any mortgage, deed of trust, pledge,
hypothecation, assignment, encumbrance, lien (statutory or other) or
preference, priority, right or other security interest or preferential
arrangement of any kind or nature whatsoever
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CUSIP NO. 566140109 Page 22 of 75 Pages
(excluding preferred stock
and equity related preferences) including, without limitation, those
created by, arising under or evidenced by any conditional sale or other
title retention agreement, the interest of a lessor under a Capital Lease
Obligation, or any financing lease having substantially the same economic
effect as any of the foregoing.
"NASDAQ" means the Nasdaq National Market of the National
Association of Securities Dealers, Inc. Automated Quotation System.
"NORTHWESTERN MUTUAL" means The Northwestern Mutual Life
Insurance Company, a Wisconsin corporation.
"PERSON" means any individual, firm, corporation, partnership,
limited liability company, trust, incorporated or unincorporated
association, joint venture, joint stock company, Governmental Authority
or other entity of any kind, and shall include any successor (by merger
or otherwise) of such entity.
"PURCHASED SHARES" has the meaning set forth in Section 2.1 of
this Agreement.
"PURCHASERS" has the meaning ascribed to such term in the
recital to this Agreement.
"REQUIREMENTS OF LAW" means as to any Person, any law, treaty,
rule, regulation, right, privilege, qualification, license or franchise
or determination of an arbitrator or a court or other Governmental
Authority or a stock exchange, in each case applicable or binding upon
such Person or any of its property or to which such Person or any of its
property is subject or pertaining to any or all of the transactions
contemplated or referred to herein.
"SEC DOCUMENTS" means all registration statements, proxy
statements, reports and other documents required to be filed by the
Company under the Securities Act or the Exchange Act, and all amendments
and supplements thereto, filed by the Company with the Commission since
September 27, 1995, and with respect to all registration statements,
proxy statements, reports and other documents required to be filed by the
Company under the Securities Act or the Exchange Act since October 1,
1994, any amendments or supplements thereto, filed by the Company with
the Commission since September 27, 1995.
"SECURITIES" means the Purchased Shares, the shares of Common
Stock issuable upon conversion of the Purchased Shares, the Warrants and
the Warrant Shares.
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CUSIP NO. 566140109 Page 23 of 75 Pages
"SECURITIES ACT" means the Securities Act of 1933, as amended,
(or any successor or statute thereto) and the rules and regulations of
the Commission promulgated thereunder.
"SERIES D AGREEMENT" means the Convertible Preferred Stock
Purchase Agreement, dated September 20, 1995, among the Company, GAP 21,
GAP Coinvestment and Northwestern Mutual.
"SERIES D PREFERRED STOCK" means the Series D Convertible
Preferred Stock of the Company, par value $1.00 per share.
"SERIES E PREFERRED STOCK" has the meaning assigned to such
term in the recital to this Agreement.
"SUBSIDIARY" means, as of the relevant date of determination,
with respect to any Person, a corporation or other entity of which 50% or
more of the voting power of the outstanding voting equity securities or
50% or more of the outstanding economic equity interest is held, directly
or indirectly, by such Person. Unless otherwise qualified, or the
context otherwise requires, all references to a "Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of the Company.
"TRANSACTION DOCUMENTS" means collectively, this Agreement, the
Certificate of Designation and the Amended and Restated Registration
Rights Agreement.
"UNAUDITED FINANCIAL STATEMENTS" has the meaning set forth in
Section 3.10 of this Agreement.
"WARRANT SHARES" has the meaning set forth in Section 2.2 of
this Agreement.
"WARRANTS" has the meaning ascribed to such term in the recital
to this Agreement.
1.2 ACCOUNTING TERMS; FINANCIAL STATEMENTS. All accounting
terms used herein not expressly defined in this Agreement shall have the
respective meanings given to them in accordance with sound accounting
practice. The term "sound accounting practice" shall mean such
accounting practice as, in the opinion of the independent certified
public accountants regularly retained by the Company, conforms at the
time to GAAP applied on a consistent basis except for changes with which
such accountants concur. If any changes in accounting principles are
hereafter occasioned by promulgation of rules, regulations,
pronouncements or opinions of or
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CUSIP NO. 566140109 Page 24 of 75 Pages
are otherwise required by, the Financial
Accounting Standards Board or the American Institute of Certified Public
Accountants (or successors thereto or agencies with similar functions),
and any of such changes results in a change in the method of calculation
of, or affects the results of such calculation of, any of the standards
or terms found herein, then the parties hereto agree to enter into and
diligently pursue negotiations in order to amend such standards or terms
so as to reflect fairly and equitably such changes, with the desired
result that the criteria for evaluating the Company's financial condition
and results of operations shall be the same after such changes as if such
changes had not been made.
ARTICLE 2
PURCHASE AND SALE OF
SERIES E PREFERRED STOCK AND WARRANTS
2.1 PURCHASE AND SALE OF SERIES E PREFERRED STOCK. Subject to
the terms and conditions herein set forth, the Company agrees to issue
and sell to each of the Purchasers, and each of the Purchasers agrees
that it will purchase from the Company, on the Closing Date, the
aggregate number of shares of Series E Preferred Stock set forth opposite
such Purchaser's name on SCHEDULE 1 hereto, for the aggregate purchase
price set forth opposite such Purchaser's name on SCHEDULE 1 hereto (all
of the shares of Series E Preferred Stock being purchased pursuant hereto
being referred to herein as "Purchased Shares").
2.2 PURCHASE AND SALE OF WARRANTS. Subject to the terms and
conditions herein set forth, the Company agrees to issue and sell to each
of the Purchasers, and each of the Purchasers agrees that it will
purchase from the Company, on the Closing Date, for the aggregate
purchase price set forth opposite such Purchaser's name on SCHEDULE 1
hereto, the Warrants to purchase the aggregate number of shares of Common
Stock set forth opposite such Purchaser's name on SCHEDULE 1 hereto (all
of the shares of Common Stock issuable upon exercise of the Warrants
being purchased pursuant hereto being referred to herein as the "Warrant
Shares").
2.3 CERTIFICATE OF DESIGNATION. The Purchased Shares will
have the rights and preferences set forth in the Certificate of
Designation.
2.4 CLOSING. Unless this Agreement shall have terminated
pursuant to Article 9 and subject to the satisfaction or waiver of the
conditions set forth in Articles 5 and 6 (except for Sections 5.10, 5.11
and 6.8 which shall occur simultaneously with the Closing (as hereinafter
defined)), the closing of the purchase and issuance of the Purchased
Shares and the Warrants (the "Closing") shall take
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CUSIP NO. 566140109 Page 25 of 75 Pages
place at the offices
of Paul, Weiss, Rifkind, Wharton & Garrison, at 10:00 a.m., local time,
on July 23, 1996, or at such time and on such date that the Company and
the Purchasers may agree in writing (the "Closing Date"). On the Closing
Date, the Company shall deliver to the Purchasers (a) stock certificates
representing the Purchased Shares and (b) the Warrants, against delivery
by the Purchasers to the Company of the aggregate purchase price therefor
by wire transfer of immediately available funds.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchasers as
follows:
3.1 CORPORATE EXISTENCE AND POWER. Each of the Company and
its Subsidiaries (a) is a corporation duly incorporated and organized,
validly existing and in good standing under the laws of the jurisdiction
of its incorporation; (b) has all requisite corporate power and authority
to own and operate its property, to lease the property it operates as
lessee and to conduct the business in which it is currently engaged as
described in the SEC Documents; (c) is duly qualified as a foreign
corporation, licensed and in good standing under the laws of each
jurisdiction in which its ownership, lease or operation of property or
the conduct of its business requires such qualification, except to the
extent that the failure to do so or be so would not have a material
adverse effect on the Condition of the Company; and (d) has the requisite
corporate power and authority to execute, deliver and perform its
obligations under this Agreement and each of the other Transaction
Documents.
3.2 CORPORATE AUTHORIZATION; NO CONTRAVENTION. The
execution, delivery and performance by the Company of this Agreement and
each of the other Transaction Documents and the transactions contemplated
hereby and thereby, including, without limitation, the sale, issuance and
delivery of the Securities (a) are within the Company's corporate power
and have been duly authorized by all necessary corporate action of the
Company; (b) do not contravene the terms of the Certificate of
Incorporation or By-laws, or any organizational or governing documents,
or any amendment thereof, of the Subsidiaries; (c) do not violate,
conflict with or result in any breach or contravention of or the creation
of any Lien under, any material Contractual Obligation of the Company or
any of its Subsidiaries, or any Requirement of Law applicable to the
Company or any of its Subsidiaries; and (d) do not violate any judgment,
injunction, writ, award, decree or order of any nature (collectively,
"Orders") of any Governmental Authority against, or binding upon, the
Company or any of the Subsidiaries except for those Orders, the violation
of which would not have a material adverse effect on the Condition of the
Company.
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CUSIP NO. 566140109 Page 26 of 75 Pages
Neither the Company nor any of its Subsidiaries previously
entered into any agreement which is currently in effect or by which the
Company is currently bound, granting any rights to any Person which are
inconsistent with the rights to be granted by the Company in this
Agreement and each of the other Transaction Documents.
3.3 GOVERNMENTAL AUTHORIZATION; THIRD PARTY CONSENTS. Other
than (a) the filing and approval of an application for the listing on
NASDAQ of the shares of Common Stock issuable upon conversion of the
Purchased Shares and exercise of the Warrants, (b) the filing of the
Certificate of Designation, (c) those required pursuant to the applicable
state securities or "blue sky" laws, with respect to the offer and sale
of the Securities and (d) with respect to the performance by the Company
of the Registration Rights Agreement, the registration of the Registrable
Securities (as defined in the Registration Rights Agreement) covered
thereby with the Commission and the registration or qualification of such
Registrable Securities and other filings pursuant to applicable state
securities or "blue sky" laws, no approval, consent, compliance,
exemption, authorization, or other action by, or notice to, or filing
with, any Governmental Authority or any other Person, including, without
limitation, any approval or authorization of the Company's stockholders,
any further approval of the Board of Directors or any approval of NASDAQ,
and no lapse of a waiting period under a Requirement of Law, is necessary
or required in connection with the execution, delivery or performance
(including, without limitation, the sale, issuance and delivery of the
Securities) by the Company of this Agreement, each of the other
Transaction Documents and the transactions contemplated hereby or
thereby.
3.4 BINDING EFFECT. This Agreement and each of the other
Transaction Documents have been duly executed and delivered by the
Company and constitute the legal, valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium
or similar laws affecting the enforcement of creditors' rights generally
and by general principles of equity relating to enforceability
(regardless of whether considered in a proceeding at law or in equity).
3.5 LITIGATION. Except as set forth in the SEC Documents or
SCHEDULE 3.5, there are no actions, suits, proceedings, claims,
complaints, disputes or investigations pending or, to the knowledge of
the Company, threatened, at law, in equity, in arbitration or before any
Governmental Authority against the Company or any of its Subsidiaries and
with respect to which the Company or any of its Subsidiaries is
responsible by way of indemnity or otherwise, which would, if adversely
determined, (a) have a material adverse effect on the Condition of the
Company or (b) have an adverse effect on the ability of the Company to
perform its obligations under this Agreement and each of the other
Transaction Documents. No Order has been issued by any court or other
Governmental Authority against the
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CUSIP NO. 566140109 Page 27 of 75 Pages
Company or any of its Subsidiaries
purporting to enjoin or restrain the execution, delivery or performance
of this Agreement or any of the other Transaction Documents.
3.6 COMPLIANCE WITH LAWS.
(a) Each of the Company and its Subsidiaries is in
compliance with all Requirements of Law in all respects, except to the
extent that the failure to comply with such Requirements of Law would not
have a material adverse effect on the Condition of the Company.
(b) (i)Each of the Company and its Subsidiaries has all
licenses, permits, orders or approvals of any Governmental Authority
(collectively, "Permits") that are material to or necessary for the
conduct of the business of the Company in the manner described in the SEC
Documents, except to the extent that the failure to have such Permits
would not have a material adverse effect on the Condition of the Company;
(ii) such Permits are in full force and effect; and (iii) no violations
are or have been recorded in respect of any Permit.
(c) Except as set forth on SCHEDULE 3.6(C), no material
expenditure is presently required by the Company or any of its
Subsidiaries to comply with any existing Requirement of Law.
(d) The property, assets and operations at any time owned
or leased by the Company have been in compliance in all material respects
with all applicable Environmental Laws, while so owned or leased.
3.7 CAPITALIZATION. On the Closing Date, the authorized
capital stock of the Company shall consist of (a) 30,000,000 shares of
Common Stock, of which 11,426,068 shares are issued and outstanding as of
the close of business on July 17, 1996 and (b) 1,000,000 shares of
preferred stock, par value $1.00 per share, of which (i) one share has
been designated as Series A Preferred Stock, of which no shares are
issued and outstanding, (ii) one share has been designated as Series B
Preferred Stock, of which no shares are issued and outstanding, (iii) one
share has been designated as Series C Preferred Stock, of which one share
is issued and outstanding, (iv) 225,000 shares have been designated as
Series D Preferred Stock, of which 225,000 shares are issued and
outstanding on the date hereof and on the Closing Date and held by GAP
LP, GAP Coinvestment and Northwestern Mutual and (v) 100,000 shares have
been designated as Series E Preferred Stock, of which no shares are
issued and outstanding on the date hereof and of which 100,000 shares
shall be issued and outstanding after giving effect to the transactions
contemplated hereby. The Company has reserved an aggregate of 1,000,000
shares of Common Stock for issuance upon conversion of the Purchased
Shares and 1,000,000 shares of
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CUSIP NO. 566140109 Page 28 of 75 Pages
Common Stock for issuance upon exercise of
the Warrants. Except as set forth in SCHEDULE 3.7 and except for the
Warrants and stock options and other stock rights authorized for issuance
pursuant to the Company's stock plans and employee purchase plans
described in the SEC Documents, there are no options, warrants,
conversion privileges or other rights presently outstanding to purchase
or otherwise acquire any authorized but unissued or unauthorized shares
or treasury shares of the Company's capital stock. The Purchased Shares
are duly authorized and, when issued and sold to the Purchasers after
payment therefor, will be validly issued, fully paid and nonassessable.
The shares of Common Stock issuable upon conversion of the Purchased
Shares and the exercise of the Warrants are duly authorized and, when
issued in compliance with the provisions of this Agreement, the
Certificate of Incorporation, the Certificate of Designation (in the case
of the shares of Common Stock issuable upon conversion of the Purchased
Shares) and the Warrants (in the case of the Warrant Shares) will be
validly issued, fully paid and nonassessable. The issued and outstanding
shares of Common Stock are all duly authorized, validly issued, fully
paid and nonassessable, and were issued in compliance with the
registration and qualification requirements of all applicable federal
securities laws.
3.8 NO DEFAULT OR BREACH. Except as set forth in SCHEDULE
3.8, neither the Company nor any of its Subsidiaries has received notice
of, and is not in, default under or with respect to any, Contractual
Obligation in any respect, which, individually or together with all such
defaults, could have a material adverse effect on the Condition of the
Company, or which could materially adversely affect the ability of the
Company to perform its obligations under this Agreement or any of the
other Transaction Documents.
3.9 TAXES. Each of the Company and its Subsidiaries has filed
or caused to be filed, or has properly filed extensions for, all tax
returns which are required to be filed for federal, state, local and
foreign tax purposes and has paid or caused to be paid all taxes required
to be paid by it and all assessments received by it to the extent that
such taxes have become due, except taxes the validity or amount of which
is being contested in good faith by appropriate proceedings and with
respect to which adequate reserves have been set aside. Each of the
Company and its Subsidiaries has paid or caused to be paid, or has
established reserves that are adequate in all material respects, for all
tax liabilities applicable to the Company and its Subsidiaries for all
fiscal years which have not been examined and reported on by the taxing
authorities (or closed by applicable statutes).
3.10 FINANCIAL STATEMENTS. The Company has heretofore
delivered to the Purchasers true and correct copies of its audited
consolidated financial statements of the Company and its Subsidiaries
(balance sheet and statements of operations, cash flows and shareholders'
equity, together with the notes thereto) for the fiscal year ended and as
at September 30, 1995 (the "Audited Financial Statements"), and the
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CUSIP NO. 566140109 Page 29 of 75 Pages
unaudited consolidated financial statements (balance sheet and statement
of operations) for the six (6) months ended and as at March 31, 1996 (the
"Unaudited Financial Statements"; the Audited Financial Statements and
Unaudited Financial Statements being collectively referred to as the
"Financial Statements"). The Financial Statements comply in all material
respects with the requirements of the Exchange Act and have been prepared
in accordance with GAAP applied on a consistent basis throughout the
periods indicated and with each other, except as may be indicated therein
or in the notes thereto and except that the Unaudited Financial
Statements do not contain full footnotes or typical year-end adjustments.
The Financial Statements fairly present the consolidated financial
condition, operating results and cash flows of the Company as of the
respective dates and for the respective periods indicated in accordance
with GAAP, subject, in the case of the Unaudited Financial Statements, to
normal year-end audit adjustments.
3.11 NO MATERIAL ADVERSE CHANGE; ORDINARY COURSE OF BUSINESS.
Except as set forth in the SEC Documents or SCHEDULE 3.11 hereto and
except as previously disclosed to the Purchasers in writing, (i) since
September 27, 1995, there has not been any material adverse change in the
Condition of the Company and (ii) since March 31, 1996, neither the
Company nor any of its Subsidiaries has participated in any transaction
or acted outside the ordinary course of business.
3.12 SEC DOCUMENTS.
(a) The Company has (i) filed all SEC Documents required
to be filed by it since September 27, 1995 under the Securities Act or
the Exchange Act, and all amendments thereto and (ii) delivered to the
Purchasers true and complete copies of (v) its Annual Report on Form 10-K
for the fiscal year ended September 30, 1995 (as amended on February 7,
1996 and June 28, 1996), as filed with the Commission, (w) the Company's
Quarterly Report on Form 10-Q for each of the quarters ended December 31,
1995, and March 31, 1996, each as filed with the Commission, (x) its
Current Reports on Form 8-K filed with the Commission since September 27,
1995, (y) its proxy or information statements relating to meetings of, or
actions without a meeting by, the stockholders of the Company held since
September 27, 1995 and (z) all other SEC Documents.
(b) As of its filing date, each SEC Document (including
all exhibits and schedules thereto and documents incorporated by
reference therein), in each case as amended, referred to in subsection
(a)(ii) above (i) complied in all material respects with the applicable
requirements of the Exchange Act and (ii) did not contain any untrue
statement of a material fact or omit to state any material fact necessary
in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading.
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CUSIP NO. 566140109 Page 30 of 75 Pages
(c) The Company has (i) delivered to the Purchasers true
and complete copies of (x) all correspondence relating to the Company
between the Commission and the Company or its legal counsel and, to the
knowledge of the Company, accountants since September 27, 1995 (other
than routine filing packages and cover letters) and (y) all
correspondence between the Company or its counsel and the Company's
auditors since September 27, 1995, relating to any audit, financial
review or preparation of financial statements of the Company (other than
correspondence which the Company reasonably believes is subject to a
privilege), and (ii) disclosed to the Purchasers the content of all
material discussions between the Commission and the Company or its legal
counsel and, to the Company's knowledge, accountants concerning the
adequacy or form of any SEC Document filed with the Commission since
September 27, 1995. The Company is not aware of any issues raised by the
Commission with respect to any of the SEC Documents, other than those
disclosed to the Purchasers pursuant to this subsection (c).
3.13 INVESTMENT COMPANY. The Company is not an "investment
company" within the meaning of the Investment Company Act of 1940, as
amended.
3.14 PRIVATE OFFERING. No form of general solicitation or
general advertising was used by the Company or its representatives in
connection with the offer or sale of the Purchased Shares or the
Warrants. No registration of the Purchased Shares or the Warrants,
pursuant to the provisions of the Securities Act or any state securities
or "blue sky" laws, is required on the date hereof or on the Closing Date
by the offer, sale or issuance of the Securities. The Company hereby
agrees that neither it nor anyone acting on its behalf, will offer to
sell the Purchased Shares or the Warrants or any other security so as to
require the registration of the Purchased Shares or the Warrants,
pursuant to the provisions of the Securities Act or any state securities
or "blue sky" laws, unless such securities are so registered.
3.15 EMPLOYEE BENEFIT PLANS. All employee benefit plans (as
defined in Section 3(3) of ERISA) or arrangements of the Company or any
of the Subsidiaries are in substantial compliance with all applicable
Requirements of Law. The execution and delivery of this Agreement and
each of the other Transaction Documents, the purchase and sale of the
Purchased Shares and the Warrants hereunder and the consummation of the
transactions contemplated hereby and thereby will not result in any
prohibited transaction within the meaning of Section 406 of ERISA or
Section 4975 of the Code, assuming that none of the consideration
received by the Company pursuant to this Agreement is derived from the
assets of any employee benefit plan.
3.16 TITLE TO ASSETS. Except as set forth in SCHEDULE 3.16,
each of the Company and its Subsidiaries has good and marketable title to
all of its properties and assets used in the business described in the
SEC Documents and reflected as
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CUSIP NO. 566140109 Page 31 of 75 Pages
owned on the Financial Statements or so
described in any Schedule hereto, in each case free and clear of any
Lien, except for (a) Liens specifically described on the notes to the
Financial Statements and (b) Liens not material to the Condition of the
Company.
3.17 INTELLECTUAL PROPERTY.
(a) Except as set forth in SCHEDULE 3.17(A), the Company
owns or is licensed or otherwise has the right to use, and will continue
to own, be licensed or have the right to use immediately following the
Closing, all trademarks, service marks, trade names, copyrights, trade
secrets, licenses, franchises and other rights, all products, processes
and methods, computer software, computer programs and similar intangible
assets of the Company (collectively, "Intellectual Property") that are
necessary for the operation of its business as described in the SEC
Documents.
(b) Except as set forth on SCHEDULE 3.17(B), to the
knowledge of the Company, none of the Intellectual Property currently
sold or licensed to third parties by the Company infringes upon or
otherwise violates any Intellectual Property rights of others.
(c) Except as set forth on SCHEDULE 3.17(C), no
litigation is pending and no claim has been made in writing against the
Company or, to the knowledge of the Company, is threatened, contesting
the right of the Company to sell or license to third parties or use the
Intellectual Property presently sold or licensed to third parties or used
by the Company.
3.18 TRADE RELATIONS. Except as set forth in the SEC Documents
and SCHEDULE 3.18, there exists no actual or threatened termination,
cancellation or limitation of, or any adverse modification or change in,
the business relationship of the Company or any of its Subsidiaries with,
or the Company's or any of the Subsidiaries' business with, any customer
or any group of customers whose purchases are individually or in the
aggregate material to the business of the Company or any of its
Subsidiaries as described in the SEC Documents, or with any material
supplier, and there exists no present condition or state of fact or
circumstances that would materially adversely affect the Condition of the
Company or prevent the Company from conducting its business after the
consummation of the transactions contemplated by this Agreement and each
of the other Transaction Documents, in substantially the same manner in
which such business has heretofore been conducted and described in the
SEC Documents.
3.19 CONTRACTS AND OTHER AGREEMENTS. All of the Contractual
Obligations of the Company or any of its Subsidiaries that are currently
in effect and
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CUSIP NO. 566140109 Page 32 of 75 Pages
are required to be described in the SEC Documents or to be
filed as exhibits thereto are (a) described in the SEC Documents or filed
as exhibits thereto and (b) valid, subsisting, in full force and effect
and binding upon the Company or its Subsidiaries, as the case may be,
and, to the knowledge of the Company, the other parties thereto, in
accordance with their terms. Except as set forth on SCHEDULE 3.19, the
Company has paid in full or accrued all material amounts due thereunder
and has satisfied in full or provided for all of its currently matured
liabilities and obligations thereunder, and is not in default under any
of them. Except as set forth on SCHEDULE 3.19, no other party to any
such Contractual Obligation is in breach thereof or in default
thereunder, nor to the knowledge of the Company, does any condition exist
that with notice or lapse of time or both will constitute a breach
thereof or default thereunder by such other party, except for such
breaches or defaults that would not have a material adverse effect on the
Condition of the Company.
3.20 LIABILITIES. As at March 31, 1996, neither the Company
nor any of its Subsidiaries had any direct or indirect obligation or
liability required by GAAP to be set forth on its financial statements or
the footnotes thereto (the "Liabilities") that were not fully and
adequately reflected or reserved against in the Financial Statements.
3.21 BROKER'S, FINDER'S OR SIMILAR FEES. There are no
brokerage commissions, finder's fees or similar fees or commissions
payable by the Company in connection with the transactions contemplated
hereby based on any agreement, arrangement or understanding with the
Company or any of its Subsidiaries or any action taken by any such
entity.
3.22 DISCLOSURE; AGREEMENT AND OTHER DOCUMENTS. This
Agreement, each of the other Transaction Documents and each of the
certificates furnished to the Purchasers by the Company in connection
with the purchase and sale of the Purchased Shares and the Warrants at or
prior to the Closing, taken as a whole, do not contain any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements contained herein or therein, in the light
of the circumstances under which they were made, not misleading.
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CUSIP NO. 566140109 Page 33 of 75 Pages
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
Each of the Purchasers hereby represents and warrants
(severally as to itself and not jointly) to the Company as follows:
4.1 EXISTENCE AND POWER. Such Purchaser (a) is a partnership
duly organized and validly existing under the laws of the jurisdiction of
its formation and (b) has the requisite power and authority to execute,
deliver and perform its obligations under this Agreement and each of the
other Transaction Documents to which it is a party.
4.2 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery
and performance by such Purchaser of this Agreement and each of the other
Transaction Documents to which it is a party and the transactions
contemplated hereby and thereby, including, without limitation, the
purchase of the Purchased Shares and the Warrants, (a) have been duly
authorized by all necessary partnership action, (b) do not contravene the
terms of such Purchaser's organizational documents, or any amendment
thereof, and (c) do not violate, conflict with or result in any breach or
contravention of or the creation of any Lien under, any Contractual
Obligation of such Purchaser, or any Requirement of Law applicable to
such Purchaser.
4.3 GOVERNMENTAL AUTHORIZATION; THIRD PARTY CONSENTS. No
approval, consent, compliance, exemption, authorization, or other action
by, or notice to, or filing with, any Governmental Authority or any other
Person, and no lapse of a waiting period under a Requirement of Law, is
necessary or required in connection with the execution, delivery or
performance (including, without limitation, the purchase of the Purchased
Shares and the Warrants) by, or enforcement against, such Purchaser of
this Agreement, each of the other Transaction Documents to which it is a
party and the transactions contemplated hereby or thereby.
4.4 BINDING EFFECT. This Agreement and each of the other
Transaction Documents to which it is a party have been duly executed and
delivered by such Purchaser and constitute the legal, valid and binding
obligations of such Purchaser, enforceable against it in accordance with
its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability (regardless of whether considered in a proceeding at law
or in equity).
4.5 PURCHASE FOR OWN ACCOUNT. The Purchased Shares and the
Warrants to be acquired by such Purchaser pursuant to this Agreement are
being or
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CUSIP NO. 566140109 Page 34 of 75 Pages
will be acquired for its own account and with no intention of
distributing or reselling such Purchased Shares or Warrants or any part
thereof in any transaction that would be in violation of the securities
laws of the United States of America, or any state, without prejudice,
however, to the rights of such Purchaser at all times to sell or
otherwise dispose of all or any part of such Purchased Shares or Warrants
under an effective registration statement under the Securities Act, or
under an exemption from such registration available under the Securities
Act, and subject, nevertheless, to the disposition of such Purchaser's
property being at all times within its control. If such Purchaser should
in the future decide to dispose of any of the Securities, such Purchaser
understands and agrees that it may do so only in compliance with the
Securities Act and applicable state securities laws, as then in effect.
Such Purchaser agrees to the imprinting, so long as required by law, of a
legend on certificates representing the Securities substantially to the
following effect:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR THE SECURITIES LAWS OF ANY STATE AND MAY NOT BE SOLD OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE ACT."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY BE ENTITLED
TO THE BENEFITS OF A REGISTRATION RIGHTS AGREEMENT AMONG MARCAM
CORPORATION AND THE ORIGINAL PURCHASERS OF THE PREFERRED STOCK
REPRESENTED HEREBY. TRANSFEREES OF SUCH SECURITIES SHOULD
REVIEW SUCH AGREEMENT TO DETERMINE THEIR RIGHTS."
The Company will, at the request of any Purchaser accompanied
by the stock certificates governed by such request, promptly issue new
stock certificates replacing the certificates so surrendered, which new
stock certificates shall not bear the legend set forth above in this
Section 4.5; PROVIDED, that the Company shall not be obligated to remove
such legend until the Company receives an opinion from counsel to such
Purchaser (which may be such Purchaser's in-house counsel) to the effect
that the Purchased Shares represented by such certificates may be sold by
such Purchaser in accordance with Rule 144 under the Securities Act, or
that such legend may be lawfully removed.
4.6 ACCREDITATION; SOPHISTICATION; OTHER SECURITIES LAWS
MATTERS. Such Purchaser (a) is an "accredited investor" within the
meaning of Rule 501 under
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CUSIP NO. 566140109 Page 34 of 75 Pages
the Securities Act; (b) has sufficient
knowledge and experience in investing in companies similar to the Company
in terms of the Company's stage of development so as to be able to
evaluate the risks and merits of its investment in the Company and it is
able financially to bear the risks thereof; and (c) has had an
opportunity to discuss the Company's business, management and financial
affairs with the Company's management.
4.7 BROKER'S, FINDER'S OR SIMILAR FEES. There are no
brokerage commissions, finder's fees or similar fees or commissions
payable by the Purchasers or any of them, in connection with the
transactions contemplated hereby based on any agreement, arrangement or
understanding with such Purchaser or any action taken by such Purchaser.
ARTICLE 5
CONDITIONS TO THE OBLIGATION
OF THE PURCHASERS TO CLOSE
The obligation of the Purchasers to purchase the Purchased
Shares and the Warrants, to pay the purchase price therefor at the
Closing and to perform any obligations hereunder shall be subject to the
satisfaction as determined by, or waiver by, the Purchasers of the
following conditions on or before the Closing Date.
5.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in Article 3 hereof shall be true and
correct in all material respects at and on the Closing Date as if made at
and on such date, except to the extent that any representation and
warranty expressly speaks as of an earlier date, in which case such
representation and warranty is true and correct as of such date and
except for any activities or transactions which may have taken place
after the date hereof which are contemplated by this Agreement.
5.2 COMPLIANCE WITH THIS AGREEMENT. The Company shall have
performed and complied in all material respects with all of its
agreements and conditions set forth herein that are required to be
performed or complied with by the Company on or before the Closing Date.
5.3 CLERK'S CERTIFICATE. The Purchasers shall have received a
certificate from the Company, in form and substance satisfactory to the
Purchasers, dated the Closing Date and signed by the Clerk or an
Assistant Clerk of the Company, certifying (a) that the attached copies
of the Certificate of Incorporation, the By-laws and resolutions of the
Board of Directors of the Company approving this Agreement, each of the
other Transaction Documents and the transactions contemplated hereby and
thereby, are all true, complete and correct and remain
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CUSIP NO. 566140109 Page 36 of 75 Pages
unamended and in full force and effect, and (b) as to the incumbency and
specimen signature of each officer of the Company executing this Agreement,
each of the other Transaction Documents and any other document delivered in
connection herewith on behalf of the Company.
5.4 OFFICERS' CERTIFICATE. The Purchasers shall have received
a certificate from the Company, in form and substance satisfactory to the
Purchasers, dated the Closing Date and signed by the Company's Chief
Executive Officer and its Chief Financial Officer, certifying that
(a) the representations and warranties of the Company contained in
Article 3 hereof are true and correct in all material respects on the
Closing Date and (b) the Company has performed and complied with in all
material respects all of the agreements and conditions set forth or
contemplated herein that are required to be performed or complied with by
the Company on or before the Closing Date.
5.5 DOCUMENTS. The Purchasers shall have received true,
complete and correct copies of such documents as they may reasonably
request in connection with or relating to the issue and sale of the
Purchased Shares and the transactions contemplated hereby, all in form
and substance reasonably satisfactory to the Purchasers.
5.6 FILING OF CERTIFICATE OF DESIGNATION. The Certificate of
Designation shall have been duly filed by the Company with the Secretary
of State of the Commonwealth of Massachusetts in accordance with the
Massachusetts Business Corporation Law.
5.7 AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT. The
Company and Northwestern Mutual shall have duly executed and delivered
the Amended and Restated Registration Rights Agreement, substantially in
the form attached hereto as EXHIBIT C.
5.8 OPINION OF COUNSEL. The Purchasers shall have received an
opinion of counsel to the Company, dated the Closing Date, relating to
the transactions contemplated hereby or referred to herein, substantially
in the form attached hereto as EXHIBIT D.
5.9 APPROVAL OF COUNSEL TO THE PURCHASERS. All actions and
proceedings hereunder and all documents required to be delivered by the
Company hereunder or in connection with the consummation of the
transactions contemplated hereby, and all other related matters, shall
have been acceptable to Paul, Weiss, Rifkind, Wharton & Garrison, counsel
to the Purchasers, in their reasonable judgment as to their form and
substance.
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CUSIP NO. 566140109 Page 37 of 75 Pages
5.10 PURCHASED SHARES. The Company shall have delivered to
each of the Purchasers stock certificates in definitive form representing
the number of Purchased Shares set forth opposite such Purchaser's name
on SCHEDULE 1 hereto and registered in the name of such Purchaser.
5.11 WARRANTS. The Company shall have duly executed and
delivered to GAP LP the GAP LP Warrant and to GAP Coinvestment the GAPCO
Warrant, each substantially in the form attached hereto as EXHIBIT A.
5.12 CONSENTS AND APPROVALS. All consents, exemptions,
authorizations, or other actions by, or notices to, or filings with,
Governmental Authorities and other Persons in respect of all Requirements
of Law and with respect to those Contractual Obligations of the Company
which are necessary or required in connection with the execution,
delivery or performance (including, without limitation, the issuance of
the Purchased Shares, the Warrants, shares of Common Stock issuable upon
conversion of the Purchased Shares and the exercise of the Warrants) by,
or enforcement against, the Company of this Agreement and each of the
other Transaction Documents shall have been obtained and be in full force
and effect, and each of the Purchasers shall have been furnished with
appropriate evidence thereof.
5.13 NO LITIGATION. No action, suit, proceeding, claim or
dispute shall have been brought or otherwise arisen at law, in equity, in
arbitration or before any Governmental Authority against the Company or
any of its Subsidiaries which would, if adversely determined, (a) have a
material adverse effect on the Condition of the Company or (b) have a
material adverse effect on the ability of the Company to perform its
obligations under this Agreement or any of the other Transaction
Documents.
5.14 NO MATERIAL JUDGMENT OR ORDER. There shall not be on the
Closing Date any Order of a court of competent jurisdiction or any ruling
of any Governmental Authority or any condition imposed under any
Requirement of Law which would, in the judgment of the Purchasers, (a)
prohibit or restrict (i) the purchase of the Purchased Shares or (ii) the
consummation of the transactions contemplated by this Agreement, (b)
subject the Purchasers to any penalty or other onerous condition under or
pursuant to any Requirement of Law if the Purchased Shares were to be
purchased hereunder or (c) restrict the operation of the business of the
Company or any of the Subsidiaries as conducted on the date hereof in a
manner that would have a material adverse effect on the Condition of the
Company.
5.15 NO MATERIAL ADVERSE CHANGE. Since the date hereof, there
shall have been no material adverse change in the Condition of the
Company.
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CUSIP NO. 566140109 Page 38 of 75 Pages
5.16 AMENDMENT TO NOTE AND WARRANT PURCHASE AGREEMENTS. The
Company and the holders of at least 61% in principal amount of the
Company's 9.82% Subordinated Notes due April 30, 2001 outstanding shall
have duly executed and delivered to the Purchasers an amendment to
Section 6.10 of the Note and Warrant Purchase Agreements, each dated May
12, 1994 (as amended, the "Note and Warrant Purchase Agreements"), among
the Company and the each of the parties listed on Annex 1 thereto,
stating that the Company will not at the end of any fiscal quarter permit
Consolidated Net Worth (as defined in the Note and Warrant Purchase
Agreements) to be less than (i) $1,000,000 PLUS (ii) on a cumulative
basis, 50% of the Company's Consolidated Net Income (as defined in the
Note and Warrant Purchase Agreements), if positive, for each fiscal
quarter ending after March 31, 1996.
5.17 RESTRUCTURING CHARGES. The Company shall have
(a) completed the planning of its restructuring program, begun its
implementation and determined the aggregate amount of charges
attributable to such restructuring, which amount shall be satisfactory to
GAP LP and GAP Coinvestment, (b) determined that such restructuring
charges shall be taken in the third and fourth quarters of its fiscal
year ending September 30, 1996, and (c) agreed to make a public
announcement that such restructuring charges will be taken in the third
and fourth quarters of fiscal year 1996.
ARTICLE 6
CONDITIONS TO THE OBLIGATION
OF THE COMPANY TO CLOSE
The obligations of the Company to issue and sell the Purchased
Shares and the Warrants and to perform its other obligations hereunder,
shall be subject to the satisfaction as determined by, or waiver by, the
Company of the following conditions on or before the Closing Date:
6.1 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Purchasers contained in Article 4 hereof shall be true
and correct on at and on the Closing Date as if made at and on such date,
except to the extent that any representation and warranty expressly
speaks as of an earlier date, in which case such representation and
warranty is true and correct as of such date and except for any
activities or transactions which may have taken place after the date
hereof which are contemplated by this Agreement.
6.2 COMPLIANCE WITH THIS AGREEMENT. The Purchasers shall have
performed and complied in all material respects with all of its
agreements and conditions set forth herein that are required to be
performed or complied with by the Purchasers on or before the Closing
Date.
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CUSIP NO. 566140109 Page 39 of 75 Pages
6.3 GENERAL PARTNERS' CERTIFICATES. The Company shall have
received a certificate from the general partner of each of GAP LP and GAP
Coinvestment, in form and substance satisfactory to the Company, dated
the Closing Date and signed by such general partner(s), certifying that
(a) the representations and warranties of the GAP LP or GAP Coinvestment,
as the case may be, contained in Article 4 hereof are true and correct in
all material respects on the Closing Date and (b) GAP LP or GAP
Coinvestment, as the case may be, has performed and complied with in all
material respects all of its agreements and conditions set forth or
contemplated herein that are required to be performed or complied with by
GAP LP or GAP Coinvestment, as the case may be, on or before the Closing
Date.
6.4 AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT. The
Purchasers shall have duly executed and delivered the Amended and
Restated Registration Rights Agreement, substantially in the form
attached hereto as EXHIBIT C.
6.5 APPROVAL OF COUNSEL TO THE COMPANY. All actions and
proceedings hereunder and all documents required to be delivered by the
Purchasers hereunder or in connection with the consummation of the
transactions contemplated hereby, and all other related matters, shall
have been acceptable to Testa, Hurwitz & Thibeault, LLP, counsel to the
Company, in their reasonable judgment as to their form and substance.
6.6 CONSENTS AND APPROVALS. All consents, exemptions,
authorizations, or other actions by, or notices to, or filings with,
Governmental Authorities and other Persons in respect of all Requirements
of Law and with respect to those Contractual Obligations of the
Purchasers which are necessary or required in connection with the
execution, delivery or performance (including, without limitation, the
purchase of the Purchased Shares, the Warrants, the shares of Common
Stock issuable upon conversion of the Purchased Shares and the exercise
of the Warrants) by, or enforcement against, the Purchasers of this
Agreement shall have been obtained and be in full force and effect, and
the Company shall have been furnished with appropriate evidence thereof.
6.7 NO LITIGATION. No action, suit, proceeding, claim or
dispute shall have been brought or otherwise arisen at law, in equity, in
arbitration or before any Governmental Authority which would, if
adversely determined, have a material adverse effect on the ability of
the Purchasers to perform their obligations under this Agreement or any
of the other Transaction Documents to which they are a party.
6.8 PAYMENT OF PURCHASE PRICE. The Company shall have
received the aggregate purchase price for the Purchased Shares and the
Warrants.
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CUSIP NO. 566140109 Page 40 of 75 Pages
6.9 NO MATERIAL JUDGMENT OR ORDER. There shall not be on the
Closing Date any Order of a court of competent jurisdiction or any ruling
of any Governmental Authority or any condition imposed under any
Requirement of Law which would, in the judgment of the Company,
(a) prohibit or restrict (i) the sale of the Purchased Shares or the
Warrants or (ii) the consummation of the transactions contemplated by
this Agreement or (b) subject the Company to any penalty or other onerous
condition under or pursuant to any Requirement of Law if the Purchased
Shares or the Warrants were to be sold hereunder.
ARTICLE 7
INDEMNIFICATION
7.1 INDEMNIFICATION. Except as otherwise provided in this
Article 7, the Company (the "Indemnifying Party"), agrees to indemnify,
defend and hold harmless each of the Purchasers and their Affiliates and
their respective officers, directors, agents, employees, subsidiaries,
members, partners and controlling persons (each, an "Indemnified Party")
to the fullest extent permitted by law from and against any and all
Losses (as hereinafter defined) resulting from, arising out of or
relating to any breach of any representation, warranty, covenant or
agreement by the Company in this Agreement or the other Transaction
Documents, including, without limitation, Losses arising out of or
relating to any legal, administrative or other actions (including actions
brought by the Purchasers or the Company or any equity holders of the
Company or derivative actions brought by any Person claiming through or
in the Company's name), proceedings or investigations (whether formal or
informal), or written threats thereof, based upon, relating to or arising
out of this Agreement, each of the other Transaction Documents, the
transactions contemplated hereby and thereby, or any Indemnified Party's
role therein or in transactions contemplated hereby or thereby; PROVIDED,
HOWEVER, that the Indemnifying Parties shall not be liable under this
Section 7.1 to an Indemnified Party to the extent that it is finally
judicially determined that such Losses resulted primarily from the
material breach by such Indemnified Party of any representation,
warranty, covenant or other agreement of such Indemnified Party contained
in this Agreement; and PROVIDED, FURTHER, that if and to the extent that
such indemnification is unenforceable for any reason, the Indemnifying
Parties shall make the maximum contribution to the payment and
satisfaction of such Losses which shall be permissible under applicable
laws. In connection with the obligation of the Indemnifying Parties to
indemnify for expenses as set forth above, the Indemnifying Parties
shall, upon presentation of appropriate invoices containing reasonable
detail, reimburse each Indemnified Party for all such expenses (including
reasonable fees, disbursements and other charges of counsel) as they are
incurred by such Indemnified Party; PROVIDED, HOWEVER, that if an
Indemnified Party is reimbursed hereunder for any expenses, such
reimbursement of
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CUSIP NO. 566140109 Page 41 of 75 Pages
expenses shall be refunded to the extent it is finally
judicially determined that the Losses in question resulted primarily from
the willful misconduct or gross negligence of such Indemnified Party.
Losses means all losses, claims (including any claim by a third party),
damages, expenses (including reasonable fees, disbursements and other
charges of counsel incurred by the Indemnified Party in any action
between the Indemnifying Party and the Indemnified Party or between the
Indemnified Party and any third party or otherwise) or other liabilities;
PROVIDED, HOWEVER, that Losses shall include only (a) direct out-of-
pocket payments of judgments and settlements, costs and expenses of the
Indemnified Parties and (b) diminution in value of the Purchased Shares
directly attributable to a breach of any representation, warranty,
covenant or agreement by the Company in this Agreement or the other
Transaction Documents.
7.2 NOTIFICATION. Each Indemnified Party under this Article 7
will, promptly after the receipt of notice of the commencement of any
action, investigation, claim or other proceeding against such Indemnified
Party in respect of which indemnity may be sought from the Indemnifying
Party under this Article 7, notify the Indemnifying Party in writing of
the commencement thereof. The omission of any Indemnified Party to so
notify the Indemnifying Party of any such action shall not relieve the
Indemnifying Party from any liability which they may have to such
Indemnified Party (a) other than pursuant to this Article 7 or (b) under
this Article 7 unless, and only to the extent that, such omission results
in the Indemnifying Party's forfeiture of substantive rights or defenses.
In case any such action, claim or other proceeding shall be brought
against any Indemnified Party and it shall notify the Indemnifying Party
of the commencement thereof, the Indemnifying Party shall be entitled to
assume the defense thereof at its own expense, with counsel satisfactory
to such Indemnified Party in its reasonable judgment; PROVIDED, HOWEVER,
that any Indemnified Party may, at its own expense, retain separate
counsel to participate in such defense at its own expense.
Notwithstanding the foregoing, in any action, claim or proceeding in
which both the Indemnifying Party, on the one hand, and an Indemnified
Party, on the other hand, are, or are reasonably likely to become, a
party, such Indemnified Party shall have the right to employ separate
counsel at the expense of the Indemnifying Party and to control its own
defense of such action, claim or proceeding if, in the reasonable opinion
of counsel to such Indemnified Party, a conflict or potential conflict
exists between the Indemnifying Party, on the one hand, and such
Indemnified Party, on the other hand, that would make such separate
representation advisable; PROVIDED, HOWEVER, that the Indemnifying Party
shall not be liable for the fees and expenses of more than one counsel to
all Indemnified Parties. The Indemnifying Party agrees that it will not,
without the prior written consent of the Purchasers, settle, compromise
or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding relating to the matters contemplated hereby
(if any Indemnified Party is a party thereto or has been actually
threatened to be made a party thereto) unless such settlement, compromise
or consent includes an unconditional release of the Purchasers and each
other
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CUSIP NO. 566140109 Page 42 of 75 Pages
Indemnified Party from all liability arising or that may arise out
of such claim, action or proceeding and imposes no obligations upon such
Indemnified Party. The Indemnifying Party shall not be liable for any
settlement of any claim, action or proceeding effected against an
Indemnified Party without its written consent, which consent shall not be
unreasonably withheld. The rights accorded to each Indemnified Party
hereunder shall be the sole rights that such Indemnified Party may have
at common law, by separate agreement or otherwise; PROVIDED, HOWEVER,
that notwithstanding the foregoing or anything to the contrary contained
in this Agreement, nothing in this Article 7 shall restrict or limit any
rights that any Indemnified Party may have to seek equitable relief.
7.3 AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT.
Notwithstanding anything to the contrary contained in this Article 7, the
indemnification and contribution provisions of the Amended and Restated
Registration Rights Agreement shall govern any claim made with respect to
registration statements filed pursuant thereto or sales made thereunder.
ARTICLE 8
AFFIRMATIVE COVENANTS
The Company hereby covenants and agrees with the Purchasers
with respect to this Article 8 so long as any shares of Preferred Stock,
shares of Common Stock issuable upon the conversion thereof, the Warrants
or the Warrant Shares are outstanding, except to the extent that a
particular section of this Article 8 provides for an earlier termination
as follows:
8.1 PRESERVATION OF EXISTENCE. From the date hereof until the
Closing Date, the Company shall, and shall use its best efforts to cause
its Subsidiaries to:
(a) preserve and maintain in full force and effect its
existence and good standing under the laws of its jurisdiction of
formation or organization;
(b) take all reasonable action to preserve and maintain
in full force and effect all material rights, privileges, qualifications,
applications, estimates, licenses and franchises necessary in the normal
conduct of its business;
(c) use its reasonable efforts to preserve its business
organization;
<PAGE>
CUSIP NO. 566140109 Page 43 of 75 Pages
(d) conduct its business in accordance with sound
business practices, keep its useful and necessary properties in good
working order and condition (normal wear and tear excepted);
(e) comply with all Requirements of Law and with the
directions of any Governmental Authority having jurisdiction over the
Company or any of the Subsidiaries or their respective business or
property except to the extent that the failure to comply with any
Requirements of Law would not have a material adverse effect on the
Condition of the Company; and
(f) file or cause to be filed in a timely manner all
reports, applications, estimates and licenses that shall be required by a
Governmental Authority and that, if not timely filed, would have a
material adverse effect on the Condition of the Company.
8.2 FINANCIAL STATEMENTS AND OTHER INFORMATION. The Company
shall deliver to the Purchasers, in form and substance satisfactory to
the Purchasers:
(a) as soon as available, but not later than ninety (90)
days after the end of each fiscal year of the Company, a copy of the
audited consolidated balance sheet of the Company and its Subsidiaries as
of the end of such year and the related statements of operations and cash
flows for such fiscal year, setting forth in each case in comparative
form the figures for the previous year, all in reasonable detail and
accompanied by a management summary and analysis of the operations of the
Company and its Subsidiaries for such fiscal year and by the opinion of a
nationally recognized independent certified public accounting firm which
report shall state without qualification that such consolidated financial
statements present fairly the financial condition as of such date and
results of operations and cash flows for the periods indicated in
conformity with GAAP applied on a consistent basis; PROVIDED, HOWEVER,
that the delivery to each of the Purchasers of a copy of the Company's
Annual Report on Form 10-K for each fiscal year shall satisfy the
requirements of this Section 8.2(a);
(b) commencing with the fiscal period ending on June 30,
1996, as soon as available, but in any event not later than forty-five
(45) days after the end of each of the first three fiscal quarters of
each fiscal year, the unaudited consolidated balance sheet of the Company
and its Subsidiaries, and the related statements of operations and cash
flows for such quarter and for the period commencing on the first day of
the fiscal year and ending on the last day of such quarter, all certified
by an appropriate officer of the Company as presenting fairly the
financial condition as of such date and results of operations and cash
flows for the periods indicated in conformity with GAAP applied on a
consistent basis, subject to normal year-end audit adjustments and the
absence of footnotes required by GAAP;
<PAGE>
CUSIP NO. 566140109 Page 44 of 75 Pages
PROVIDED, HOWEVER, that the
delivery to each of the Purchasers of a copy of the Company's Quarterly
Report on Form 10-Q for each fiscal quarter shall satisfy the
requirements of this Section 8.2(b);
(c) at any time when it is not subject to Section 13 or
15(d) of the Exchange Act, upon request, to the Purchasers, information
of the type that would satisfy the requirement of subsection (d)(4)(i) of
Rule 144A (or any similar successor provision) under the Securities Act;
and
(d) except as otherwise provided in Sections 8.2(a) and
(b), promptly after the same are filed, copies of all registration
statements, proxy statements, reports and other documents required to be
filed by the Company under the Securities Act or the Exchange Act, and
all amendments thereto.
8.3 RESERVATION OF SHARES. The Company shall at all times
reserve and keep available out of its authorized shares of Common Stock,
solely for the purpose of issue or delivery upon conversion of the
Purchased Shares, as provided in the Certificate of Designation and the
Certificate of Incorporation, and the exercise of the Warrants, the
maximum number of shares of Common Stock that may be issuable or
deliverable upon such conversion or exercise. Such shares of Common
Stock are duly authorized and, when issued or delivered in accordance
with the Certificate of Designation (in the case of the shares of Common
Stock issuable upon conversion of the Purchased Shares) and the Warrants
(in the case of the Warrant Shares), against payment therefor, shall be
validly issued, fully paid and non-assessable. The Company shall issue
such shares of Common Stock in accordance with the terms of this
Agreement, the Certificate of Incorporation, the Certificate of
Designation (in the case of the shares of Common Stock issuable upon
conversion of the Purchased Shares) and the Warrants (in the case of the
Warrant Shares), as the case may be, and otherwise comply with the terms
hereof and thereof.
8.4 REGISTRATION AND LISTING. If any shares of Common Stock
required to be reserved for purposes of conversion of the Purchased
Shares, as provided in the Certificate of Designation, or exercise of the
Warrants, as provided in the Warrants, require registration with or
approval of any Governmental Authority under any Federal or state or
other applicable law before such shares of Common Stock may be issued or
delivered upon conversion or exercise, the Company will in good faith and
as expeditiously as possible cause such shares of Common Stock to be duly
registered or approved, as the case may be, unless such registration or
approval is required solely because of a breach of the Purchasers'
representation contained in Section 4.5. So long as the shares of Common
Stock are quoted on the NASDAQ or listed on any national securities
exchange, the Company will, if permitted by the rules of such system or
exchange, quote or list and keep quoted or listed on such system or
<PAGE>
CUSIP NO. 566140109 Page 45 of 75 Pages
exchange, upon official notice of issuance, all shares of Common Stock
issuable or deliverable upon conversion of the Preferred Shares and
exercise of the Warrants.
ARTICLE 9
TERMINATION OF AGREEMENT
9.1 TERMINATION. This Agreement may be terminated prior to
the Closing as follows:
(a) at any time on or prior to the Closing Date, by
mutual written consent of the Company and the Purchasers; or
(b) at the election of the Company or the Purchasers by
written notice to the other parties hereto after 5:00 p.m., New York City
time on July 26, 1996, if the transactions contemplated by this Agreement
shall not have been consummated pursuant hereto, unless (i) the failure
to consummate the transactions contemplated by this Agreement shall be as
a result of the failure to obtain, or a delay in obtaining, the consents,
exemptions, authorizations or other actions required to be obtained from
Governmental Authorities pursuant to Sections 5.12 and 6.6, in which case
such date shall be extended for a reasonable period of time or (ii) such
date is extended by the mutual written consent of the Company and the
Purchasers; or
(c) at the election of the Company, if any one or more of
the conditions to its obligation to close set forth in Article 6 has not
been satisfied or waived and the Closing shall not have occurred on or
before the scheduled Closing Date; or
(d) at the election of the Purchasers, if any one or more
of the conditions to its obligation to close set forth in Article 5 has
not been satisfied or waived and the Closing shall not have occurred on
or before the scheduled Closing Date; or
(e) at the election of the Company, if there has been a
material breach of any representation, warranty, covenant or agreement on
the part of the Purchasers contained in this Agreement, which breach has
not been cured within ten (10) Business Days of notice to the Purchasers
of such breach; or
(f) at the election of the Purchasers, if there has been
a material breach of any representation, warranty, covenant or agreement
on the part of the Company contained in this Agreement, which breach has
not been cured within ten (10) Business Days notice to the Company of
such breach.
<PAGE>
CUSIP NO. 566140109 Page 46 of 75 Pages
If this Agreement so terminates, it shall become null and void and have
no further force or effect, except as provided in Section 9.2.
9.2 SURVIVAL. If this Agreement is terminated and the
transactions contemplated hereby are not consummated as described above,
this Agreement shall become void and of no further force and effect;
PROVIDED, HOWEVER, that (i) none of the parties hereto shall have any
liability in respect of a termination of this Agreement pursuant to
Section 9.1(a) or Section 9.1(b) and (ii) nothing shall relieve any party
from any liability for actual damages resulting from a termination of
this Agreement pursuant to Section 9.1(e) or 9.1(f); and PROVIDED
FURTHER, that none of the parties hereto shall have any liability for
speculative, indirect, unforeseeable or consequential damages resulting
from a termination of this Agreement pursuant to Article 9.
ARTICLE 10
MISCELLANEOUS
10.1 STANDSTILL COVENANT. Each of the Company and GAP LP
hereby covenants and agrees that (a) it shall abide and be restricted by
the provisions of Article 9 of the Series D Agreement as if GAP LP had
been a signatory to such Series D Agreement and (b) for purposes of
Article 9 of the Series D Agreement, all Affiliates of GAP LP shall be
deemed to be Affiliates of GAP 21.
10.2 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations and warranties made herein shall survive the execution
and delivery of this Agreement, any investigation by or on behalf of the
Purchasers, acceptance of the Purchased Shares and the Warrants,
conversion of the Purchased Shares or exercise of the Warrants.
10.3 NOTICES. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be
by registered or certified first-class mail, return receipt requested,
telecopier, courier service, overnight mail or personal delivery:
(a) if to GAP LP or GAP Coinvestment:
c/o General Atlantic Service Corporation
3 Pickwick Plaza
Greenwich, Connecticut 06830
Telecopy: (203) 622-8818
Attention: Mr. Stephen P. Reynolds
<PAGE>
CUSIP NO. 566140109 Page 47 of 75 Pages
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Telecopy: (212) 757-3990
Attention: Matthew Nimetz, Esq.
(b) if to the Company:
Marcam Corporation
95 Wells Avenue
Newton, Massachusetts 02159
Telecopy: (617) 964-5614
Attention: Mr. George A. Chamberlain 3d
with a copy to:
Testa, Hurwitz & Thibeault, LLP
High Street Tower
125 High Street
Boston, Massachusetts 02110
Telecopy: (617) 248-7100
Attention: Mark H. Burnett, Esq.
All such notices and communications shall be deemed to have
been duly given when delivered by hand, if personally delivered; when
delivered by courier or overnight mail, if delivered by commercial
courier service or overnight mail; five (5) Business Days after being
deposited in the mail, postage prepaid, if mailed; and when receipt is
mechanically acknowledged, if telecopied.
10.4 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the successors and permitted assigns of
the parties hereto. Subject to applicable securities laws, each of the
Purchasers may assign any of its rights under this Agreement to any of
its Affiliates. The Company may not assign any of its rights under this
Agreement and each of the other Transaction Documents, except to a
successor-in-interest to the Company, without the written consent of all
of the Purchasers. Except as provided in Article 7, no Person other than
the parties hereto and their successors and permitted assigns is intended
to be a beneficiary of this Agreement and each of the other Transaction
Documents.
<PAGE>
CUSIP NO. 566140109 Page 48 of 75 Pages
10.5 AMENDMENT AND WAIVER.
(a) No failure or delay on the part of the Company or the
Purchasers in exercising any right, power or remedy hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of
any such right, power or remedy preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. The
remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to the Company or the Purchasers at law,
in equity or otherwise.
(b) Any amendment, supplement or modification of or to
any provision of this Agreement, any waiver of any provision of this
Agreement, and any consent to any departure by the Company or the
Purchasers from the terms of any provision of this Agreement, shall be
effective (i) only if it is made or given in writing and signed by the
Company and the Purchasers, and (ii) only in the specific instance and
for the specific purpose for which made or given. Except where notice is
specifically required by this Agreement, no notice to or demand on the
Company in any case shall entitle the Company to any other or further
notice or demand in similar or other circumstances.
10.6 COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the
same agreement.
10.7 HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
10.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF
MASSACHUSETTS, WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW
THEREOF.
10.9 SEVERABILITY. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall not be in any
way impaired, unless the provisions held invalid, illegal or
unenforceable shall substantially impair the benefits of the remaining
provisions hereof.
<PAGE>
CUSIP NO. 566140109 Page 49 of 75 Pages
10.10 RULES OF CONSTRUCTION. Unless the context otherwise
requires, "or" is not exclusive, and references to sections or
subsections refer to sections or subsections of this Agreement.
10.11 ENTIRE AGREEMENT. This Agreement and the Series D
Agreement, together with the exhibits and schedules hereto and thereto,
and the Amended and Restated Registration Rights Agreement are intended
by the parties as a final expression of their agreement and intended to
be a complete and exclusive statement of the agreement and understanding
of the parties hereto in respect of the subject matter contained herein
and therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein or
therein.
10.12 FEES. Upon the Closing, the Company shall reimburse the
Purchasers for their reasonable out-of-pocket expenses (including
attorney's fees, disbursements and other charges) incurred in connection
with the transactions contemplated by this Agreement; PROVIDED, HOWEVER,
that the Company shall not be obligated to reimburse the Purchasers for
any reasonable out-of-pocket expenses in excess of $20,000.
10.13 PUBLICITY; CONFIDENTIALITY. Except as may be required by
applicable law or the rules of any securities exchange or market on which
shares of Common Stock are traded, none of the parties hereto shall issue
a publicity release or public announcement or otherwise make any
disclosure concerning this Agreement, the transactions contemplated
hereby or the business and financial affairs of the Company, without
prior approval by the other parties hereto; PROVIDED, HOWEVER, that
nothing in this Agreement shall restrict any Purchaser from disclosing
information (a) that is already publicly available, (b) that was known to
such Purchaser on a non-confidential basis prior to its disclosure by the
Company, (c) that may be required or appropriate in response to any
summons or subpoena or in connection with any litigation, PROVIDED that
such Purchaser will use reasonable efforts to notify the Company in
advance of such disclosure so as to permit the Company to seek a
protective order or otherwise contest such disclosure, and such Purchaser
will use reasonable efforts to cooperate, at the expense of the Company,
with the Company in pursuing any such protective order, (d) to the extent
that such Purchaser reasonably believes it appropriate in order to
protect its investment in the Purchased Shares in order to comply with
any Requirement of Law, (e) to such Purchaser's officers, directors,
agents, employees, members, partners, controlling persons, auditors or
counsel, (f) to Persons who are parties to similar confidentiality
agreements or (g) to the prospective transferee in connection with any
contemplated transfer of any of the Securities. If any announcement is
required by law or the rules of any securities exchange or market on
which shares of Common Stock are traded to be made by any party hereto,
prior to making such announcement such party will deliver a draft of
<PAGE>
CUSIP NO. 566140109 Page 50 of 75 Pages
such announcement to the other parties and shall give the other parties
reasonable opportunity to comment thereon.
10.14 FURTHER ASSURANCES. Each of the parties shall execute
such documents and perform such further acts (including, without
limitation, obtaining any consents, exemptions, authorizations or other
actions by, or giving any notices to, or making any filings with, any
Governmental Authority or any other Person) as may be reasonably required
or desirable to carry out or to perform the provisions of this Agreement.
10.15 SCHEDULES. Anything disclosed on any schedule attached
hereto shall be deemed disclosed on all schedules attached hereto.
<PAGE>
CUSIP NO. 566140109 Page 51 of 75 Pages
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed and delivered by their respective officers
hereunto duly authorized on the date first above written.
MARCAM CORPORATION
By: /s/ GEORGE A. CHAMBERLAIN 3D
---------------------------------
Name: George A. Chamberlain 3d
Title: Chief Financial Officer
GENERAL ATLANTIC PARTNERS 32, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
Its General Partner
By: /s/ STEPHEN P. REYNOLDS
-------------------------------
Name: Stephen P. Reynolds
Title: A Managing Member
GAP COINVESTMENT PARTNERS, L.P.
By: /s/ STEPHEN P. REYNOLDS
-------------------------------
Name: Stephen P. Reynolds
Title: A General Partner
CUSIP No. 566140109 Page 52 of 75 Pages
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
among
MARCAM CORPORATION,
GENERAL ATLANTIC PARTNERS 32, L.P.,
GENERAL ATLANTIC PARTNERS 21, L.P.,
GAP COINVESTMENT PARTNERS, L.P.
and
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY
___________________________________
Dated: July 23, 1996
__________________________________
<PAGE>
CUSIP No. 566140109 Page 53 of 75 Pages
TABLE OF CONTENTS
PAGE
1.Definitions...........................................2
2.General; Securities Subject to this Agreement.........5
(a) Grant of Rights....................................5
(b) Registrable Securities.............................5
(c) Holders of Registrable Securities..................5
3.Demand Registration...................................5
(a) Request for Demand Registration....................5
(b) Effective Demand Registration......................6
(c) Expenses...........................................7
(d) Underwriting Procedures............................7
(e) Selection of Underwriters..........................7
4.Piggy-Back Registration...............................7
(a) Piggy-Back Rights..................................7
(b) Expenses...........................................9
5.Holdback Agreements...................................9
(a) Restrictions on Public Sale by Designated Holders..9
(b) Restrictions on Public Sale by the Company.........9
6.Registration Procedures..............................10
(a) Obligations of the Company........................10
(b) Seller Information................................13
(c) Notice to Discontinue.............................13
(d) Registration Expenses.............................14
7.Indemnification; Contribution........................14
(a) Indemnification by the Company....................14
(b) Indemnification by Designated Holders.............15
(c) Conduct of Indemnification Proceedings............15
(d) Contribution......................................16
<PAGE>
CUSIP No. 566140109 Page 54 of 75 Pages
8.Rule 144.............................................16
9.Miscellaneous........................................17
(a) Recapitalizations, Exchanges, etc.................17
(b) No Inconsistent Agreements........................17
(c) Remedies..........................................17
(d) Amendments and Waivers............................17
(e) Notices...........................................17
(f) Successors and Assigns; Third Party Beneficiaries.19
(g) Counterparts......................................19
(h) Headings..........................................19
(I) GOVERNING LAW.....................................20
(j) Severability......................................20
(k) Entire Agreement..................................20
(l) Further Assurances................................20
<PAGE>
CUSIP No. 566140109 Page 55 of 75 Pages
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT, dated July
23, 1996 (this "AGREEMENT"), among MARCAM CORPORATION, a Massachusetts
corporation (the "COMPANY"), GENERAL ATLANTIC PARTNERS 32, L.P., a
Delaware limited partnership ("GAP 32"), GENERAL ATLANTIC PARTNERS 21,
L.P., a Delaware limited partnership ("GAP 21"), GAP COINVESTMENT
PARTNERS, L.P., a New York limited partnership ("GAP COINVESTMENT"), and
THE NORTHWESTERN MUTUAL LIFE INSURANCE COMPANY, a Wisconsin corporation
("NORTHWESTERN MUTUAL").
WHEREAS, on the date hereof, (a) GAP 21 owns an aggregate of
176,058 shares of Series D Convertible Preferred Stock, par value $1.00
per share, of the Company (the "SERIES D PREFERRED STOCK"), (b) GAP
Coinvestment owns an aggregate of 23,942 shares of Series D Preferred
Stock and (c) Northwestern Mutual owns an aggregate of 25,000 shares of
Series D Preferred Stock, all of such shares of Series D Preferred Stock
having been acquired pursuant to the Convertible Preferred Stock Purchase
Agreement, dated September 20, 1995, among the Company, GAP 21, GAP
Coinvestment and Northwestern Mutual (the "SERIES D AGREEMENT");
WHEREAS, this Agreement is made in connection with the
Convertible Preferred Stock and Warrant Purchase Agreement, dated July
19, 1996 (the "SERIES E AGREEMENT"), among the Company, GAP 32 and GAP
Coinvestment, pursuant to which the Company has agreed to issue and sell
to (a) GAP 32, and GAP 32 has agreed to purchase from the Company, (i) an
aggregate of 86,319 shares of Series E Convertible Preferred Stock, par
value $1.00 per share, of the Company (the "SERIES E PREFERRED STOCK")
and (ii) a warrant (the "GAP 32 WARRANT") to purchase, subject to the
terms and conditions thereof, an aggregate of 863,190 shares of Common
Stock, par value $.01 per share, of the Company (the "COMMON STOCK") and
(b) GAP Coinvestment, and GAP Coinvestment has agreed to purchase from
the Company, (i) an aggregate of 13,681 shares of Series E Preferred
Stock and (ii) a warrant (the "GAPCO WARRANT" and, together with the GAP
32 Warrant, the "WARRANTS") to purchase, subject to the terms and
conditions thereof, an aggregate of 136,810 shares of Common Stock;
WHEREAS, each share of Series E Preferred Stock is convertible
(subject to adjustment) into ten (10) shares of Common Stock; and
WHEREAS, in order to induce (a) GAP 32 and GAP Coinvestment to
purchase its shares of Series E Preferred Stock and the Warrants and (b)
GAP 21 and Northwestern Mutual to enter into this Agreement, the parties
hereto have agreed to amend and restate the Original Registration Rights
Agreement (as hereinafter defined)
<PAGE>
CUSIP No. 566140109 Page 56 of 75 Pages
by entering into this Agreement
pursuant to which the Company has agreed to grant registration rights
with respect to the Registrable Securities (as hereinafter defined).
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the
receipt and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. DEFINITIONS. As used in this Agreement the following
terms have the meanings indicated:
"ACT" means the Securities Act of 1933, as amended.
"AFFILIATE" shall mean any Person who is an "affiliate" as
defined in Rule 12b-2 of the General Rules and Regulations under the
Exchange Act. In addition, the following shall be deemed to be
Affiliates of GAP LP: (a) GAP LLC, the members of GAP LLC, the limited
partners of GAP 32 and the limited partners of GAP 21; (b) any Affiliate
of GAP LLC, the members of GAP LLC, the limited partners of GAP 32 and
the limited partners of GAP 21; and (c) any limited liability company or
partnership a majority of whose members or partners, as the case may be
are members, former members, consultants or key employees of GAP LLC. In
addition, GAP 32, GAP 21 and GAP Coinvestment shall be deemed to be
Affiliates of one another.
"APPROVED UNDERWRITER" has the meaning assigned such term
in Section 3(e).
"COMMON STOCK" means the Common Stock, par value $.01 per
share, of the Company or any other equity securities of the Company into
which such securities are converted, reclassified, reconstituted or
exchanged.
"COMPANY UNDERWRITER" has the meaning assigned such term
in Section 4(a).
"DEMAND REGISTRATION" has the meaning assigned such term
in Section 3(a).
"DESIGNATED HOLDER" means each of the General Atlantic
Stockholders, Northwestern Mutual and any transferee of any of them to
whom Registrable Securities have been transferred in accordance with the
provisions of this Agreement, other than a transferee to whom such
securities have been transferred pursuant to a registration statement
under the Securities Act or Rule 144 or Regulation S under the Securities
Act.
"EXCHANGE ACT" means the Securities Exchange Act of 1934,
as amended, and the rules and regulations promulgated thereunder.
<PAGE>
CUSIP No. 566140109 Page 57 of 75 Pages
"EXISTING RIGHTHOLDERS" means the stockholders of the
Company who have obtained registration rights pursuant to agreements
existing on the date hereof.
"GAP COINVESTMENT" means GAP Coinvestment Partners, L.P.,
a New York limited partnership.
"GAP LLC" means General Atlantic Partners, LLC, a Delaware
limited liability company and the general partner of each of GAP 32 and
GAP 21, and any successor to such entity.
"GAP 32" means General Atlantic Partners 32, L.P., a
Delaware limited partnership.
"GAP 32 WARRANT" has the meaning assigned such term in the
recital to this Agreement.
"GAP 21" means General Atlantic Partners 21, L.P., a
Delaware limited partnership.
"GAPCO WARRANT" has the meaning assigned such term in the
recital to this Agreement.
"GENERAL ATLANTIC STOCKHOLDERS" means GAP 32, GAP 21, GAP
Coinvestment and any Affiliate thereof to whom Registrable Securities are
transferred.
"INITIATING HOLDERS" has the meaning assigned such term in
Section 3(a).
"INSPECTOR" has the meaning assigned such term in Section
6(a)(viii).
"NASD" has the meaning assigned such term in
Section 6(a)(xiv).
"NORTHWESTERN MUTUAL" means The Northwestern Mutual Life
Insurance Company, a Wisconsin corporation.
"ORIGINAL REGISTRATION RIGHTS AGREEMENT" means the
Registration Rights Agreement, dated September 27, 1995, among the
Company, GAP 21, GAP Coinvestment and Northwestern Mutual.
"PERSON" means any individual, firm, corporation,
partnership, trust, incorporated or unincorporated association, joint
venture, joint stock company, limited liability company, government (or
an agency or political subdivision thereof)
<PAGE>
CUSIP No. 566140109 Page 58 of 75 Pages
or other entity of any kind,
and shall include any successor (by merger or otherwise) of such entity.
"REGISTRABLE SECURITIES" means each of the following:
(a) any shares of Common Stock owned by the General Atlantic Stockholders
or Northwestern Mutual or issued or issuable upon conversion of shares of
Series D Preferred Stock or Series E Preferred Stock or upon exercise of
the Warrants, (b) any shares of Common Stock issued or issuable by the
Company to any or all of the General Atlantic Stockholders or
Northwestern Mutual during the time that any of such Persons is a holder
of shares of Common Stock or shares of Series D Preferred Stock or Series
E Preferred Stock and (c) any shares of Common Stock issued or issuable
with respect to shares of Common Stock, shares of Series D Preferred
Stock or Series E Preferred Stock by way of stock dividend or stock split
or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization or otherwise and shares of Common
Stock issuable upon conversion, exercise or exchange thereof.
"REGISTRATION EXPENSES" has the meaning set forth in
Section 6(d).
"SEC" means the Securities and Exchange Commission or any
similar agency then having jurisdiction to enforce the Securities Act.
"SECURITIES ACT" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"SERIES D AGREEMENT" has the meaning assigned such term in
the recital to this Agreement.
"SERIES D PREFERRED STOCK" has the meaning assigned such
term in the recital to this Agreement.
"SERIES E AGREEMENT" has the meaning assigned such term in
the recital to this Agreement.
"SERIES E PREFERRED STOCK" has the meaning assigned such
term in the recital to this Agreement.
"TOTAL SECURITIES" has the meaning set forth in
Section 4(a).
"WARRANTS" has the meaning assigned such term in the
recital to this Agreement.
<PAGE>
CUSIP No. 566140109 Page 59 of 75 Pages
2. GENERAL; SECURITIES SUBJECT TO THIS AGREEMENT.
(a) GRANT OF RIGHTS. The Company hereby grants
registration rights to the General Atlantic Stockholders and Northwestern
Mutual upon the terms and conditions set forth in this Agreement.
(b) REGISTRABLE SECURITIES. For the purposes of this
Agreement, (i) Registrable Securities will cease to be Registrable
Securities when a registration statement covering such Registrable
Securities has been declared effective under the Securities Act by the
SEC and such Registrable Securities have been disposed of pursuant to
such effective registration statement and (ii) the securities of a
Designated Holder shall be deemed not to be Registrable Securities at any
time when the Company is registered pursuant to Section 12 of the
Exchange Act and the entire amount of such Securities proposed to be sold
in a single sale are or, in the opinion of counsel satisfactory to the
Company and the Designated Holder, each in their reasonable judgment, may
be distributed to the public pursuant to Rule 144 (or any successor
provision then in effect) under the Securities Act; PROVIDED HOWEVER,
that notwithstanding the foregoing clause (ii), securities of
Northwestern Mutual or its transferees shall be deemed to be Registrable
Securities for purposes of Section 3 of this Agreement in any instance
wherein the Demand Registration sought by the Initiating Holders is
underwritten on a firm commitment basis.
(c) HOLDERS OF REGISTRABLE SECURITIES. A Person is
deemed to be a holder of Registrable Securities whenever such Person owns
of record Registrable Securities, or holds an option to purchase, or a
security convertible into or exercisable or exchangeable for, Registrable
Securities whether or not such acquisition or conversion has actually
been effected and disregarding any legal restrictions upon the exercise
of such rights. If the Company receives conflicting instructions,
notices or elections from two or more Persons with respect to the same
Registrable Securities, the Company may act upon the basis of the
instructions, notice or election received from the registered owner of
such Registrable Securities. Registrable Securities issuable upon
exercise of an option or upon conversion of another security shall be
deemed outstanding for the purposes of this Agreement.
3. DEMAND REGISTRATION.
(a) REQUEST FOR DEMAND REGISTRATION. At any time on or
after the second anniversary of the date hereof, the General Atlantic
Stockholders holding more than 50% of the Registrable Securities then
held by all of the General Atlantic Stockholders may make a written
request for registration (such Designated Holders making such request
being deemed to be "INITIATING HOLDERS") of Registrable Securities under
the Securities Act, and under the securities or "blue sky" laws of any
jurisdiction designated by such holder or holders (a "DEMAND
REGISTRATION"); PROVIDED, HOWEVER, that the Company shall not be required
to effect more than two Demand Registrations at the request of the
General Atlantic Stockholders pursuant to this Section 3. If at the time
of any request to register Registrable Securities pursuant to
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CUSIP No. 566140109 Page 60 of 75 Pages
this Section 3(a), the Company is engaged in, or has fixed plans to engage in
within ninety (90) days of the time of such request, a registered public
offering or is engaged in any other activity which, in the good faith
determination of the Board of Directors of the Company, would be
adversely affected by the requested registration to the material
detriment of the Company, then the Company may at its option direct that
such request be delayed for a reasonable period not in excess of three
(3) months from the effective date of such offering or the date of
completion of such other material activity, as the case may be, such
right to delay a request to be exercised by the Company not more than
once in any one-year period. In addition, the Company shall not be
required to effect any registration within three (3) months after the
effective date of any other Registration Statement of the Company. Each
such request for a Demand Registration by the Initiating Holders shall
state the amount of the Registrable Securities proposed to be sold, the
intended method of disposition thereof and the jurisdictions in which
registration is desired. Upon a request for a Demand Registration, the
Company shall promptly take such steps as are necessary or appropriate to
prepare for the registration of the Registrable Securities to be
registered. Unless all of the Initiating Holders holding the
Registerable Securities to be included in the Demand Registration consent
in writing, no other party, including the Company, shall be permitted to
offer securities under any such Demand Registration, except that
(i) Northwestern Mutual or its transferees may, in accordance with
Section 4, include in such Demand Registration Registrable Securities
obtained pursuant to the Series D Agreement by timely responding to the
Company's notice given pursuant to Section 4(a), and (ii) the Existing
Rightholders shall be permitted to offer securities under any Demand
Registration in accordance with the agreements pursuant to which they
have registration rights.
(b) EFFECTIVE DEMAND REGISTRATION. The Company shall use
its best efforts to cause any such Demand Registration to become
effective not later than ninety (90) days after it receives a request
under Section 3(a) hereof. A registration shall not constitute a Demand
Registration until it has become effective and remains continuously
effective for the lesser of (i) the period during which all Registrable
Securities registered in the Demand Registration are sold and (ii) thirty
(30) days; PROVIDED, HOWEVER, that if the Initiating Holders request the
Company to withdraw such registration, it shall constitute a Demand
Registration unless the Initiating Holders promptly pay all of the
Company's costs and expenses incurred in connection with such
registration.
(c) EXPENSES. In any registration initiated as a Demand
Registration, the Company shall pay all Registration Expenses (other than
underwriting discounts and commissions) in connection therewith, whether
or not such Demand Registration becomes effective; PROVIDED, HOWEVER,
that each Designated Holder participating in such Demand Registration
shall bear the costs of its own legal counsel.
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CUSIP No. 566140109 Page 61 of 75 Pages
(d) UNDERWRITING PROCEDURES. If the Initiating Holders
holding a majority of the Registrable Securities held by all of the
Initiating Holders to which the requested Demand Registration relates so
elect, the offering of such Registrable Securities pursuant to such
Demand Registration shall be in the form of a firm commitment
underwritten offering and the managing underwriter or underwriters
selected for such offering shall be the Approved Underwriter (as
hereinafter defined) selected in accordance with Section 3(e). In such
event, if the Approved Underwriter advises the Company in writing that in
its opinion the aggregate amount of such Registrable Securities requested
to be included in such offering is sufficiently large to have a material
adverse effect on the success of such offering, subject to the rights of
the Existing Rightholders, the Company shall include in such registration
only the aggregate amount of Registrable Securities that in the opinion
of the Approved Underwriter may be sold without any such material adverse
effect and shall reduce, first as to the Company and any stockholders who
are not Designated Holders as a group, if any, and then as to the
Designated Holders as a group, pro rata within each group based on the
number of Registrable Securities included in the request for Demand
Registration, the amount of Registrable Securities to be included by each
Designated Holder in such registration.
(e) SELECTION OF UNDERWRITERS. If any Demand
Registration of Registrable Securities is in the form of an underwritten
offering, the Initiating Holders holding a majority of the Registrable
Securities held by all such Initiating Holders shall select and obtain an
investment banking firm of national reputation to act as the managing
underwriter of the offering (the "APPROVED UNDERWRITER"); PROVIDED,
HOWEVER, that the Approved Underwriter shall, in any case, be acceptable
to the Company in its reasonable judgment.
4. PIGGY-BACK REGISTRATION.
(a) PIGGY-BACK RIGHTS. If on or after January 1, 1996
the Company proposes to file a registration statement under the
Securities Act with respect to an offering by the Company for its own
account or for the account of an Initiating Holder pursuant to Section 3
of any class of security (other than a registration statement on Form S-4
or S-8 or any successor thereto), then the Company shall give written
notice of such proposed filing to each of the Designated Holders of
Registrable Securities (other than any Initiating Holders), and such
notice shall describe in detail the proposed registration and
distribution and offer such Designated Holders (other than any Initiating
Holders) the opportunity to register the number of Registrable Securities
as each such holder may request. The Company shall, and shall use its
best efforts (within ten (10) days of the notice provided for in the
preceding sentence) to cause the managing underwriter or underwriters of
a proposed underwritten offering (the "COMPANY UNDERWRITER") to, permit
the Designated Holders of Registrable Securities who have requested in
writing (within ten (10) days of the giving of the notice of the proposed
filing by the Company) to participate in the registration for such
offering to include such Registrable Securities in such offering on
<PAGE>
CUSIP No. 566140109 Page 62 of 75 Pages
the same terms and conditions as the securities of the Company included
therein. In connection with any offering under this Section 4(a)
involving an underwriting, the Company shall not be required to include
any Registrable Securities in such underwriting unless (i) the holders
thereof accept the terms of the underwriting as agreed upon between the
Company and the underwriters selected by it, (ii) if such underwriting
has been initiated by the Company or requested by another party that has
contractual registration rights, all of the shares of Common Stock, held
by the parties making such request or entitled to include shares of
Common Stock pursuant to the same rights as the requesting parties, have
been included in such registration and (iii) all of the shares of Common
Stock held by Existing Rightholders for which such registration has been
requested by such Existing Rightholders have been included in such
registration, and then only in such quantity as will not, in the opinion
of the underwriters, jeopardize the success of the offering by the
Company. If in the opinion of the Company Underwriter the registration
of all, or part, of the Registrable Securities which the Designated
Holders have requested to be included would materially and adversely
affect such public offering, then the Company shall be required to
include in the underwriting only that number of Registrable Securities,
if any, which the Company Underwriter believes may be sold without
causing such adverse effect; PROVIDED, HOWEVER, that if securities are
proposed to be offered in the underwriting for the account of Persons who
have registration rights other than the Company and the Existing
Rightholders, the number of Registrable Securities to be offered pursuant
to such underwriting may not be reduced unless no securities held by such
other Persons are included in such underwriting. If the number of
Registrable Securities to be included in the underwriting in accordance
with the foregoing is less than the total number of shares which the
Designated Holders of Registrable Securities have requested to be
included, then the Designated Holders of Registrable Securities who have
requested registration shall participate in the underwriting pro rata
based upon their total ownership of the Registrable Securities. If any
Designated Holder would thus be entitled to include more shares than such
holder requested to be registered, the excess shall be allocated among
other requesting Designated Holders pro rata based upon their total
ownership of Registrable Securities.
(b) EXPENSES. The Company shall bear all Registration
Expenses (other than underwriting discounts and commissions) in
connection with any registration pursuant to this Section 4; PROVIDED,
HOWEVER, that each Designated Holder participating in such registration
shall bear the costs of its own legal counsel.
5. HOLDBACK AGREEMENTS.
(a) RESTRICTIONS ON PUBLIC SALE BY DESIGNATED HOLDERS.
Each Designated Holder of Registrable Securities agrees not to effect any
public sale or distribution of any Registrable Securities being
registered or of any securities convertible into or exchangeable or
exercisable for such Registrable Securities, including a sale pursuant to
Rule 144 under the Securities Act, during the ninety (90) day period
beginning on the effective date of such registration statement (except
<PAGE>
CUSIP No. 566140109 Page 63 of 75 Pages
as part of such registration), if and to the extent requested by the Company
in the case of a non-underwritten public offering or if and to the extent
requested by the Company Underwriter in the case of an underwritten
public offering, except to the extent that such Designated Holder is
prohibited by applicable law or exercise of fiduciary duties from
agreeing to withhold Registrable Securities from sale or is acting in its
capacity as a fiduciary or investment adviser. Without limiting the
scope of the term "fiduciary," a Designated Holder shall be deemed to be
acting as a fiduciary or an investment adviser if its actions or the
Registrable Securities proposed to be sold are subject to the Employee
Retirement Income Security Act of 1974, as amended, or the Investment
Company Act of 1940, as amended, or if such Registrable Securities are
held in a separate account under applicable insurance law or regulation.
Nothing in this Section 5(a) shall prohibit Northwestern Mutual from
selling Registrable Securities acquired pursuant to the exercise of
warrants issued under that certain Warrant Agreement, dated May 12, 1994,
among the Company and each of the parties listed on Annex 1 thereto.
(b) RESTRICTIONS ON PUBLIC SALE BY THE COMPANY. The
Company agrees not to effect any public sale or distribution of any of
its securities, or any securities convertible into or exchangeable or
exercisable for such securities (except pursuant to registrations on
Form S-4 or S-8 or any successor thereto), during the period beginning on
the effective date of any registration statement in which the Designated
Holders of Registrable Securities are participating and ending on the
earlier of (i) the date on which all shares of Common Stock registered on
such registration statement are sold and (ii) the date ninety (90) days
after the effective date of such registration statement.
6. REGISTRATION PROCEDURES.
(a) OBLIGATIONS OF THE COMPANY. Whenever registration of
Registrable Securities has been requested pursuant to Section 3 or 4 of
this Agreement, the Company shall use its best efforts to effect the
registration and sale of such Registrable Securities in accordance with
the intended method of distribution thereof as quickly as practicable,
and in connection with any such request, the Company shall, as
expeditiously as possible:
(i) use its best efforts to prepare and file with the
SEC a registration statement on any form for which the Company then
qualifies or which counsel for the Company shall deem appropriate and
which form shall be available for the sale of such Registrable Securities
in accordance with the intended method of distribution thereof, and use
its best efforts to cause such registration statement to become
effective; PROVIDED, HOWEVER, that (x) before filing a registration
statement or prospectus or any amendments or supplements thereto, the
Company shall provide counsel selected by the Designated Holders holding
a majority of the Registrable Securities being registered in such
registration ("HOLDERS' COUNSEL") and any other Inspector (as hereinafter
defined) with an adequate and appropriate opportunity to
<PAGE>
CUSIP No. 566140109 Page 64 of 75 Pages
participate in
the preparation of such registration statement and each prospectus
included therein (and each amendment or supplement thereto) to be filed
with the SEC, which documents shall be subject to the review of Holders'
Counsel, and (y) the Company shall notify the Holders' Counsel and each
seller of Registrable Securities of any stop order issued or threatened
by the SEC and take all reasonable action required to prevent the entry
of such stop order or to remove it if entered;
(ii) prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for the lesser of (x) ninety (90) days and (y) such
shorter period which will terminate when all Registrable Securities
covered by such registration statement have been sold, and comply with
the provisions of the Securities Act with respect to the disposition of
all securities covered by such registration statement during such period
in accordance with the intended methods of disposition by the sellers
thereof set forth in such registration statement;
(iii) as soon as reasonably possible, furnish to each
seller of Registrable Securities, prior to filing a registration
statement, copies of such registration statement as is proposed to be
filed, and thereafter such number of copies of such registration
statement, each amendment and supplement thereto (in each case including
all exhibits thereto), the prospectus included in such registration
statement (including each preliminary prospectus) and such other
documents as each such seller may reasonably request in order to
facilitate the disposition of the Registrable Securities owned by such
seller;
(iv) use its best efforts to register or qualify such
Registrable Securities under such other securities or "blue sky" laws of
such jurisdictions as any seller of Registrable Securities may request,
and to continue such qualification in effect in such jurisdiction for as
long as permissible pursuant to the laws of such jurisdiction, or for as
long as any such seller requests or until all of such Registrable
Securities are sold, whichever is shortest, and do any and all other acts
and things which may be reasonably necessary or advisable to enable any
such seller to consummate the disposition in such jurisdictions of the
Registrable Securities owned by such seller; PROVIDED, HOWEVER, that the
Company shall not be required to (x) qualify generally to do business in
any jurisdiction where it would not otherwise be required to qualify but
for this Section 6(a)(iv), (y) subject itself to taxation in any such
jurisdiction or (z) consent to general service of process in any such
jurisdiction;
(v) use its best efforts to cause the Registrable
Securities covered by such registration statement to be registered with
or approved by such other governmental agencies or authorities as may be
necessary by virtue of the business and operations of the Company to
enable the seller or sellers of Registrable Securities to consummate the
disposition of such Registrable Securities;
<PAGE>
CUSIP No. 566140109 Page 65 of 75 Pages
(vi) notify each seller of Registrable Securities at
any time when a prospectus relating thereto is required to be delivered
under the Securities Act, upon discovery that, or upon the happening of
any event as a result of which, the prospectus included in such
registration statement contains an untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances under which they were made, and the Company shall promptly
prepare a supplement or amendment to such prospectus and furnish to each
seller a reasonable number of copies of a supplement to or an amendment
of such prospectus as may be necessary so that, after delivery to the
purchasers of such Registrable Securities, such prospectus shall not
contain an untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances under
which they were made;
(vii) enter into and perform customary agreements
(including an underwriting agreement in customary form with the Approved
Underwriter or Company Underwriter, if any, selected as provided in
Sections 3 or 4) and take such other actions as are prudent and
reasonably required in order to expedite or facilitate the disposition of
such Registrable Securities;
(viii) make available for inspection by any seller of
Registrable Securities, any managing underwriter participating in any
disposition pursuant to such registration statement, Holders' Counsel and
any attorney, accountant or other agent retained by any such seller or
any managing underwriter (each, an "INSPECTOR" and collectively, the
"INSPECTORS"), all financial and other records, pertinent corporate
documents and properties of the Company and its subsidiaries
(collectively, the "RECORDS") as shall be reasonably necessary to enable
them to exercise their due diligence responsibility, and cause the
Company's and its subsidiaries' officers, directors and employees, and
the independent public accountants of the Company, to supply all
information reasonably requested by any such Inspector in connection with
such registration statement. Records that the Company determines, in
good faith, to be confidential and which it notifies the Inspectors are
confidential shall not be disclosed by the Inspectors unless (x) the
disclosure of such Records is necessary to avoid or correct a
misstatement or omission in the registration statement, (y) the release
of such Records is ordered pursuant to a subpoena or other order from a
court of competent jurisdiction or is requested by any regulatory body
(including the National Association of Insurance Commissioners) or
(z) the information in such Records was known to the Inspectors on a non-
confidential basis prior to its disclosure by the Company or has been
made generally available to the public. Notwithstanding the foregoing,
the confidentiality standards imposed by this Section 6(a)(viii) shall in
no event be more restrictive than the standard imposed by Section 10.12
of the Series D Agreement or Section 9.13 of the Series E Agreement and
the provisions of such Sections 10.12 and 9.13 are hereby incorporated by
reference. Each seller of Registrable Securities agrees that it shall,
upon learning that disclosure of such Records is sought in a court of
competent jurisdiction, give notice
to the Company and allow the Company, at the Company's expense, to undertake
appropriate action to prevent disclosure of the Records deemed confidential;
(ix) if such sale is pursuant to an underwritten
offering, use its best efforts to obtain a "cold comfort" letter from the
Company's independent public accountants in customary form and covering
such matters of the type customarily covered by "cold comfort" letters as
Holders' Counsel or the managing underwriter reasonably request;
PROVIDED, HOWEVER, that the Company shall not be required to obtain such
a letter from its former independent public accountants;
(x) use its best efforts to furnish, at the request of
any seller of Registrable Securities on the date such securities are
delivered to the underwriters for sale pursuant to such registration or,
if such securities are not being sold through underwriters, on the date
the registration statement with respect to such securities becomes
effective, an opinion, dated such date, of counsel representing the
Company for the purposes of such registration, addressed to the
underwriters, if any, and to the seller making such request, covering
such legal matters with respect to the registration in respect of which
such opinion is being given as such seller may reasonably request and are
customarily included in such opinions;
(xi) otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make available to its
security holders, as soon as reasonably practicable but no later than
fifteen (15) months after the effective date of the registration
statement, an earnings statement covering a period of twelve (12) months
beginning after the effective date of the registration statement, in a
manner which satisfies the provisions of Section 11(a) of the Securities
Act and Rule 158 thereunder;
(xii) cause all such Registrable Securities to be listed
on each securities exchange on which similar securities issued by the
Company are then listed, PROVIDED, that the applicable listing
requirements are satisfied;
(xiii) keep Holders' Counsel advised in writing as to the
initiation and progress of any registration under Section 3 or 4
hereunder;
(xiv) cooperate with each seller of Registrable
Securities and each underwriter participating in the disposition of such
Registrable Securities and their respective counsel in connection with
any filings required to be made with the National Association of
Securities Dealers, Inc. (the "NASD"); and
(xv) use best efforts to take all other steps necessary
to effect the registration of the Registrable Securities contemplated
hereby.
(b) SELLER INFORMATION. The Company may require each
seller of Registrable Securities as to which any registration is being
effected to furnish
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CUSIP No. 566140109 Page 67 of 75 Pages
to the Company such information regarding the
distribution of such securities as the Company may from time to time
reasonably request in writing.
(c) NOTICE TO DISCONTINUE. Each Designated Holder of
Registrable Securities agrees that, upon receipt of any notice from the
Company of the happening of any event of the kind described in Section
6(a)(vi), such Designated Holder shall forthwith discontinue disposition
of Registrable Securities pursuant to the registration statement covering
such Registrable Securities until such Designated Holder's receipt of the
copies of the supplemented or amended prospectus contemplated by
Section 6(a)(vi) and, if so directed by the Company, such Designated
Holder shall deliver to the Company (at the Company's expense) all
copies, other than permanent file copies then in such Designated Holder's
possession, of the prospectus covering such Registrable Securities which
is current at the time of receipt of such notice. If the Company shall
give any such notice, the Company shall extend the period during which
such registration statement shall be maintained effective pursuant to
this Agreement (including, without limitation, the period referred to in
Section 6(a)(ii)) by the number of days during the period from and
including the date of the giving of such notice pursuant to
Section 6(a)(vi) to and including the date when the Designated Holder
shall have received the copies of the supplemented or amended prospectus
contemplated by and meeting the requirements of Section 6(a)(vi).
(d) REGISTRATION EXPENSES. The Company shall pay all
expenses (other than as set forth in Sections 3(c) and 4(b)) arising from
or incident to the performance of, or compliance with, this Agreement,
including, without limitation, (i) SEC, stock exchange and NASD
registration and filing fees, (ii) all fees and expenses incurred in
complying with securities or "blue sky" laws (including reasonable fees,
charges and disbursements of counsel in connection with "blue sky"
qualifications of the Registrable Securities), (iii) all printing,
messenger and delivery expenses, (iv) the fees, charges and disbursements
of counsel to the Company and of its independent public accountants and
any other accounting and legal fees, charges and expenses incurred by the
Company (including, without limitation, any expenses arising from any
special audits incident to or required by any registration or
qualification) and (v) any liability insurance or other premiums for
insurance obtained in connection with any Demand Registration or piggy-
back registration pursuant to the terms of this Agreement, regardless of
whether such registration statement is declared effective. All of the
expenses described in this Section 7 are referred to herein as
"REGISTRATION EXPENSES."
7. INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. The Company agrees
to indemnify and hold harmless, to the fullest extent permitted by law,
each Designated Holder, its officers, directors, trustees, partners,
employees, advisors and agents and each Person who controls (within the
meaning of the Securities Act or the
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CUSIP No. 566140109 Page 68 of 75 Pages
Exchange Act) such Designated Holder
from and against any and all losses, claims, damages, liabilities and
expenses (including reasonable costs of investigation) arising out of or
based upon any untrue, or allegedly untrue, statement of a material fact
contained in any registration statement, prospectus or preliminary
prospectus or notification or offering circular (as amended or
supplemented if the Company shall have furnished any amendments or
supplements thereto) or arising out of or based upon any omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
except insofar as the same are caused by or contained in any information
concerning such Designated Holder furnished in writing to the Company by
such Designated Holder expressly for use therein. The Company shall also
provide customary indemnities to any underwriters of the Registrable
Securities, their officers, directors and employees and each Person who
controls such underwriters (within the meaning of the Securities Act and
the Exchange Act) to the same extent as provided above with respect to
the indemnification of the Designated Holders of Registrable Securities.
(b) INDEMNIFICATION BY DESIGNATED HOLDERS. In connection
with any registration statement in which a Designated Holder is
participating pursuant to Section 3 or 4 hereof, each such Designated
Holder shall furnish to the Company in writing such information with
respect to such Designated Holder as the Company may reasonably request
or as may be required by law for use in connection with any such
registration statement or prospectus and each Designated Holder agrees to
indemnify and hold harmless, to the fullest extent permitted by law, the
Company, any underwriter retained by the Company and their respective
directors, officers, employees and each Person who controls the Company
or such underwriter (within the meaning of the Securities Act and the
Exchange Act) to the same extent as the foregoing indemnity from the
Company to the Designated Holders, but only with respect to any such
information with respect to such Designated Holder furnished in writing
to the Company by such Designated Holder expressly for use therein;
PROVIDED, HOWEVER, that the total amount to be indemnified by such
Designated Holder pursuant to this Section 8(b) shall be limited to the
net proceeds received by such Designated Holder in the offering to which
the registration statement or prospectus relates.
(c) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any Person
entitled to indemnification hereunder (the "INDEMNIFIED PARTY") agrees to
give prompt written notice to the indemnifying party (the "INDEMNIFYING
PARTY") after the receipt by the Indemnified Party of any written notice
of the commencement of any action, suit, proceeding or investigation or
threat thereof made in writing for which the Indemnified Party intends to
claim indemnification or contribution pursuant to this Agreement;
PROVIDED, HOWEVER, that the failure so to notify the Indemnifying Party
shall not relieve the Indemnifying Party of any liability that it may
have to the Indemnified Party hereunder. If notice of commencement of
any such action is given to the Indemnifying Party as above provided, the
Indemnifying Party shall be entitled to participate in and, to the extent
it may wish, jointly with any other Indemnifying
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CUSIP No. 566140109 Page 69 of 75 Pages
Party similarly
notified, to assume the defense of such action at its own expense, with
counsel chosen by it and satisfactory to such Indemnified Party. The
Indemnified Party shall have the right to employ separate counsel in any
such action and participate in the defense thereof, but the fees and
expenses of such counsel (other than reasonable costs of investigation)
shall be paid by the Indemnified Party unless (i) the Indemnifying Party
agrees to pay the same, (ii) the Indemnifying Party fails to assume the
defense of such action with counsel satisfactory to the Indemnified Party
in its reasonable judgment or (iii) the named parties to any such action
(including any impleaded parties) have been advised by such counsel that
representation of such Indemnified Party and the Indemnifying Party by
the same counsel would be inappropriate under applicable standards of
professional conduct. In such case, the Indemnifying Party shall not
have the right to assume the defense of such action on behalf of such
Indemnified Party. No Indemnifying Party shall be liable for any
settlement entered into without its written consent, which consent shall
not be unreasonably withheld.
(d) CONTRIBUTION. If the indemnification provided for in
this Section 8 from the Indemnifying Party is unavailable to an
Indemnified Party hereunder in respect of any losses, claims, damages,
liabilities or expenses referred to therein, then the Indemnifying Party,
in lieu of indemnifying such Indemnified Party, shall contribute to the
amount paid or payable by such Indemnified Party as a result of such
losses, claims, damages, liabilities or expenses in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and
Indemnified Party in connection with the actions which resulted in such
losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative faults of such
Indemnifying Party and Indemnified Party shall be determined by reference
to, among other things, whether any action in question, including any
untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact, has been made by, or relates
to information supplied by, such Indemnifying Party or Indemnified Party,
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. The amount paid or
payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in Sections 7(a), 7(b) and 7(c), any
legal or other fees, charges or expenses reasonably incurred by such
party in connection with any investigation or proceeding; PROVIDED that
the total amount to be indemnified by such Designated Holder shall be
limited to the net proceeds received by such Designated Holder in the
offering.
The parties hereto agree that it would not be just and
equitable if contribution pursuant to this Section 8(d) were determined
by pro rata allocation or by any other method of allocation which does
not take account of the equitable considerations referred to in the
immediately preceding paragraph. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person.
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CUSIP No. 566140109 Page 70 of 75 Pages
8. RULE 144.
The Company covenants that it shall file any reports required
to be filed by it under the Exchange Act; and that it shall take such
further action as each Designated Holder of Registrable Securities may
reasonably request (including providing any information necessary to
comply with Rules 144 and 144A under the Securities Act), all to the
extent required from time to time to enable such Designated Holder to
sell Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by (a) Rule 144 under
the Securities Act, as such rules may be amended from time to time, or
(b) any similar rules or regulations hereafter adopted by the SEC. The
Company shall, upon the request of any Designated Holder of Registrable
Securities, deliver to such Designated Holder a written statement as to
whether it has complied with such requirements.
9. MISCELLANEOUS.
(a) RECAPITALIZATIONS, EXCHANGES, ETC. The provisions of
this Agreement shall apply, to the full extent set forth herein with
respect to (i) the shares of Common Stock and (ii) to any and all equity
securities of the Company or any successor or assign of the Company
(whether by merger, consolidation, sale of assets or otherwise) which may
be issued in respect of, in conversion of, in exchange for or in
substitution of, the shares of Common Stock and shall be appropriately
adjusted for any stock dividends, splits, reverse splits, combinations,
recapitalizations and the like occurring after the date hereof.
(b) NO INCONSISTENT AGREEMENTS. The Company shall not
enter into any agreement with respect to its securities that is
inconsistent with the rights granted to the Designated Holders in this
Agreement or grant any additional registration rights to any Person or
with respect to any securities which are not Registrable Securities which
are prior in right to or inconsistent with the rights granted in this
Agreement.
(c) REMEDIES. The Designated Holders, in addition to
being entitled to exercise all rights granted by law, including recovery
of damages, shall be entitled to specific performance of their rights
under this Agreement. The Company agrees that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by
it of the provisions of this Agreement and hereby agrees to waive in any
action for specific performance the defense that a remedy at law would be
adequate.
(d) AMENDMENTS AND WAIVERS. Except as otherwise provided
herein, the provisions of this Agreement may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions
hereof may not be given unless consented to in writing by all of the
parties hereto.
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CUSIP No. 566140109 Page 71 of 75 Pages
(e) NOTICES. All notices, demands and other
communications provided for or permitted hereunder shall be made in
writing and shall be made by registered or certified first-class mail,
return receipt requested, telecopier, overnight courier service or
personal delivery:
(i) if to the Company:
Marcam Corporation
95 Wells Avenue
Newton, Massachusetts 02159
Attention: Mr. George A. Chamberlain 3d
Facsimile: (617) 964-5614
with a copy to:
Testa, Hurwitz & Thibeault, LLP
High Street Tower
125 High Street
Boston, Massachusetts 02110
Attention: Mark H. Burnett, Esq.
Facsimile: (617) 248-7100
(ii)if to GAP 32, GAP 21 or GAP Coinvestment:
c/o General Atlantic Service Corporation
3 Pickwick Plaza
Greenwich, Connecticut 06830
Attention: Mr. Stephen P. Reynolds
Facsimile: (212) 593-5192
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Matthew Nimetz, Esq.
Facsimile: (212) 757-3990
<PAGE>
CUSIP No. 566140109 Page 72 of 75 Pages
(iii)if the Northwestern Mutual:
The Northwestern Mutual Life Insurance Company
720 East Wisconsin Avenue
Milwaukee, Wisconsin 53202-4797
Attention: Securities Department,
Mr. John E. Schlifske
Facsimile: (414) 299-7124
with a copy to:
Hebb & Gitlin
One State Street
Hartford, Connecticut 06103
Attn: Gary S. Hammersmith, Esq.
Facsimile: (203) 278-8968
(iv)if to any other Designated Holder, at its address
as it appears on the transfer books of the Company
All such notices and communications shall be deemed to have
been duly given when delivered by hand, if personally delivered; when
delivered by courier, if delivered by commercial courier service; five
(5) Business Days after being deposited in the mail, postage prepaid, if
mailed; and when receipt is acknowledged, if telecopied.
(f) SUCCESSORS AND ASSIGNS; THIRD PARTY BENEFICIARIES.
This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties hereto. The registration
rights and the other rights of the Designated Holders contained in this
Agreement shall be, with respect to any Registrable Security, (i)
automatically transferred from GAP 32, GAP 21 or GAP Coinvestment, as the
case may be, to any Affiliate thereof, or among Affiliates of GAP LLC,
(ii) transferred from Northwestern Mutual to any accredited institutional
investors, PROVIDED that (x) each such transferee acquires not less than
7,500 shares of Series D Preferred Stock (or its Common Stock equivalent)
in the aggregate and (y) no such transferee will have registration rights
unless and until such transferee shall give notice to the Company of the
identity of such transferee and the date upon which such transfer shall
be effective, and (iii) in all other cases, transferred by the Designated
Holders only with the consent of the Company. All of the obligations of
the Company hereunder shall survive any such transfer. No Person other
than the parties hereto and their successors and permitted assigns is
intended to be a beneficiary of any of the rights granted hereunder.
(g) COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate
counterparts, each of
<PAGE>
CUSIP No. 566140109 Page 73 of 75 Pages
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MASSACHUSETTS,
WITHOUT REGARD TO THE PRINCIPLES OF CONFLICTS OF LAW THEREOF.
(j) SEVERABILITY. If any one or more of the provisions
contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every
other respect and of the remaining provisions hereof shall not be in any
way impaired, it being intended that all of the rights and privileges of
the Designated Holders shall be enforceable to the fullest extent
permitted by law.
(k) ENTIRE AGREEMENT. This Agreement is intended by the
parties as a final expression of their agreement and intended to be a
complete and exclusive statement of the agreement and understanding of
the parties hereto in respect of the subject matter contained herein.
There are no restrictions, promises, warranties or undertakings, other
than those set forth or referred to herein and in the Series D Agreement
and the Series E Agreement. This Agreement supersedes all prior
agreements and understandings between the parties with respect to such
subject matter.
(l) FURTHER ASSURANCES. Each of the parties shall
execute such documents and perform such further acts as may be reasonably
required or desirable to carry out or to perform the provisions of this
Agreement.
<PAGE>
CUSIP No. 566140109 Page 74 of 75 Pages
IN WITNESS WHEREOF, the undersigned have executed, or have
caused to be executed, this Agreement on the date first written above.
MARCAM CORPORATION
By: /s/ GEORGE A.CHAMBERLAIN 3D
-----------------------------------
Name: George A. Chamberlain 3d
Title: Chief Financial Officer
GENERAL ATLANTIC PARTNERS 32, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By: /s/ STEPHEN P. REYNOLDS
-------------------------------
Name: Stephen P. Reynolds
Title: A Managing Member
GENERAL ATLANTIC PARTNERS 21, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By: /s/ STEPHEN P. REYNOLDS
---------------------------------
Name: Stephen P. Reynolds
Title: A Managing Member
GAP COINVESTMENT PARTNERS, L.P.
By: /s/ STEPHEN P. REYNOLDS
--------------------------------
Name: Stephen P. Reynolds
Title: A General Partner
<PAGE>
CUSIP No. 566140109 Page 75 of 75 Pages
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: /s/ JOHN E. SCHLIFSKE
-----------------------------
Name: John E. Schlifske
Title: Vice President
