<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
____________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): July 23, 1996
-------------
Marcam Corporation
----------------------------------------------------
(Exact name of registrant as specified in its charter)
Massachusetts 0-18674 04-2711580
- --------------------------------------------------------------------------------
(State or other jurisdiction of (Commission (IRS Employer
incorporation or organization) File Number) Identification No.)
95 Wells Avenue, Newton, Massachusetts 02159
--------------------------------------------
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (617) 965-0220
--------------
<PAGE>
-2-
Item 5. Other Events.
------------
Pursuant to the terms of a Convertible Preferred Stock and Warrant
Purchase Agreement, dated as of July 19, 1996 (the "Agreement"), by and among
---------
Marcam Corporation (the "Company"), General Atlantic Partners 32, L.P. ("GAP
------- ---
32") and GAP Coinvestment Partners, L.P. ("GAP Coinvestment" and, together with
- -- ----------------
GAP 32, the "Purchasers"), the Company issued and sold an aggregate of 100,000
----------
shares of Series E Convertible Preferred Stock, par value $1.00 per share
("Series E Convertible Preferred Stock"), of the Company to the Purchasers for
- --------------------------------------
an aggregate purchase price of $9,500,000 and warrants (the "Warrants") to
purchase an aggregate of 1,000,000 shares of Common Stock, $.01 par value per
share ("Common Stock"), of the Company for an aggregate purchase price of
$500,000. Each share of Series E Convertible Preferred Stock is convertible at
any time into 10 shares of Common Stock of the Company, subject to adjustment on
the event of a subdivision or combination of the Common Stock or certain
reorganizations or reclassifications of the capital stock of the Company. The
Warrants are exercisable at any time during the period commencing on July 23,
1996 and ending on July 23, 2003, at an exercise price of $15.36 per share of
Common Stock. In lieu of payment of the exercise price, a holder of a Warrant
may have its Warrant converted, in whole or in part, into that number of shares
of Common Stock equal to the quotient obtained by dividing (i) the aggregate
current market price of the shares of Common Stock issuable upon exercise of the
Warrant less the aggregate exercise price of the Warrant by (ii) the current
market price of one share of Common Stock.
The holders of the Series E Convertible Preferred Stock are generally
entitled to vote on an as converted basis with all other classes and series of
stock of the Company as a single class on all actions to be taken by the
shareholders of the Company. Without the approval of the holders of at least a
majority of the then outstanding shares of Series E Convertible Preferred Stock
voting separately as a class, however, the Company may not amend its articles of
organization to adversely affect the rights of the holders of the Series E
Convertible Preferred Stock or issue any additional class or series of capital
stock unless the same ranks junior to the Series E Convertible Preferred Stock
as to liquidation preference. Further, if GAP 32 and GAP Coinvestment (together
with their affiliates) own (i) less than a majority of the outstanding shares of
Series D Convertible Preferred Stock, $1.00 par value per share ("Series D
Convertible Preferred Stock"), (ii) at least a majority of the outstanding
shares of Series E Convertible Preferred Stock and (iii) in the aggregate shares
of Common Stock and/or Series D Convertible Preferred Stock and/or Series E
Convertible Preferred Stock or other securities of the Company convertible into
or exchangeable for shares of voting capital stock of the Company that represent
at least 10% of the total number of shares of Common Stock outstanding on an as
converted basis, the holders of the Series E Convertible Preferred Stock, voting
as a separate series, are entitled to elect one director of the Company.
Pursuant to a Convertible Preferred Stock Purchase Agreement dated as
of September 20, 1995 (the "Series D Agreement") among the Company, General
Atlantic Partners 21, L.P. ("GAP 21"), GAP Coinvestment and The Northwestern
Mutual Life Insurance Company ("Northwestern"), as long as GAP 21 and GAP
Coinvestment (together with their affiliates) own in the aggregate shares of
Common Stock and/or Series D Convertible Preferred Stock or other
<PAGE>
-3-
securities of the Company convertible into or exchangeable for shares of voting
capital stock of the Company that represent at least 10% of the total number of
shares of Common Stock outstanding on an as converted basis, GAP 21 is entitled
to designate one person for election as a director of the Company. The person
designated by GAP 21 may be elected by the holders of the Series D Convertible
Preferred Stock voting as a separate series if, in addition to meeting the 10%
voting stock ownership requirement specified above, GAP 21, GAP Coinvestment and
any of their affiliates own in the aggregate at least a majority of the
outstanding shares of Series D Convertible Preferred Stock. William E. Ford, a
general partner of General Atlantic Partners, LLC ("GAP, LLC"), the general
partner of both GAP 21 and GAP 32, has been elected to the Company's Board of
Directors as GAP 21's designee. Separately, William O. Grabe, a general partner
of GAP, LLC, was also elected by the Company's Board of Directors on October 4,
1995. Because GAP Coinvestment and GAP 21, an affiliate of GAP 32, currently own
a majority of the Series D Convertible Preferred Stock and meet the 10%
outstanding voting stock requirement referred to above, holders of the Series D
Convertible Preferred Stock have a right to elect a director as a separate
series, while holders of the Series E Convertible Preferred Stock do not. The
holders of the Series E Convertible Preferred Stock are entitled to vote
together with all other classes of stock of the Company as a single class with
respect to the election of all the other directors of the Company.
The holders of the Series E Convertible Preferred Stock are entitled
to receive dividends at the same rate as dividends (other than dividends paid in
additional shares of Common Stock) are paid with respect to the Common Stock
(treating each share of Series E Convertible Preferred Stock as being equal to
the number of shares of Common Stock into which each share of Series E
Convertible Preferred Stock is then convertible).
If, at any time after July 23, 1999, for a period of not less than
thirty (30) consecutive trading days, the market value of shares of Common Stock
on the principal securities exchange or market on which such shares are then
traded exceeds $40.00 per share, then the Company may elect that all the then
outstanding shares of Series E Convertible Preferred Stock be mandatorily
converted into shares of Common Stock.
The holders of the Series E Convertible Preferred Stock and the
Warrants have been granted certain registration rights in connection with the
transaction, including certain demand registration rights which are exercisable
only on or after July 23, 1998. In addition, the Agreement provides that GAP 32
and its affiliates will be bound by Article 9 of the Series D Agreement, which
Article 9 prohibits GAP 21, GAP Coinvestment or any of their respective
affiliates from acquiring voting securities of the Company in excess of 25% of
the total voting power of the Company or otherwise to act, directly or
indirectly, to seek to control the management, Board of Directors or policies or
affairs of the Company. The Company has also agreed to indemnify the Purchasers
from and against losses arising out of or relating to any breach of any
representation, warranty, covenant or agreement by the Company in the Agreement,
the Company's Certificate of Vote of Directors Establishing a Series of a Class
of Stock for the Series E Convertible Preferred Stock, as filed with the
Secretary of State of the Commonwealth of Massachusetts (the "Certificate of
Designation"), or the Amended and
<PAGE>
-4-
Restated Registration Rights Agreement dated as of July 23, 1996 among the
Company, the Purchasers, GAP 21 and Northwestern (the "Registration Rights
Agreement").
The terms of, and the consideration paid in, this transaction were the
result of arm's-length negotiations among the Company and GAP 32 and GAP
Coinvestment. A copy of the Agreement and the Registration Rights Agreement
entered into in connection with the Agreement are filed as Exhibits 10.1 and
10.2, respectively, to this report and are incorporated herein by this
reference. In addition, the Certificate of Designation is filed as Exhibit 4 to
this report and is incorporated herein by this reference.
Item 7. Exhibits.
--------
(c) Exhibits.
--------
Exhibit No. Description
- ----------- -----------
4 Certificate of Vote of Directors Establishing a Series of a Class
of Stock for the Series E Convertible Preferred Stock of Marcam
Corporation
10.1 Convertible Preferred Stock and Warrant Purchase Agreement, dated
as of July 19, 1996 among Marcam Corporation, General Atlantic
Partners 32, L.P. and GAP Coinvestment Partners, L.P., including
the form of Marcam Corporation Common Stock Purchase Warrant, the
form of Certificate of Vote of Directors Establishing a Series of a
Class of Stock for the Series E Convertible Preferred Stock of
Marcam Corporation, the form of Amended and Restated Registration
Rights Agreement and the form of legal opinion of Testa, Hurwitz &
Thibeault, LLP
10.2 Amended and Restated Registration Rights Agreement, dated as of
July 23, 1996 by and among Marcam Corporation, General Atlantic
Partners 21, L.P., General Atlantic Partners 32, L.P., GAP
Coinvestment Partners, L.P. and The Northwestern Mutual Life
Insurance Company
<PAGE>
SIGNATURE
---------
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Date: July 30, 1996 MARCAM CORPORATION
By: /s/ George A. Chamberlain, 3d
-----------------------------
George A. Chamberlain, 3d
Chief Financial Officer
<PAGE>
EXHIBIT INDEX
-------------
Exhibit
Number Description
- ------ -----------
4 Certificate of Vote of Directors Establishing a Series
of a Class of Stock for the Series E Convertible
Preferred Stock of Marcam Corporation.................
10.1 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, including the form
of Marcam Corporation Common Stock Purchase
Warrant, the form of Certificate of Vote of Directors
Establishing a Series of a Class of Stock for the
Series E Convertible Preferred Stock of Marcam
Corporation, the form of Amended and Restated
Registration Rights Agreement and the form of legal
opinion of Testa, Hurwitz & Thibeault, LLP............
10.2 Amended and Restated Registration Rights
Agreement dated July 23, 1996 by and among
Marcam Corporation, General Atlantic Partners 21,
L.P., General Atlantic Partners 32, L.P., GAP
Coinvestment Partners, L.P. and The Northwestern
Mutual Life Insurance Company.........................
<PAGE>
EXHIBIT 4
The Commonwealth of Massachusetts
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL JOSEPH CONNOLLY, Secretary FEDERAL IDENTIFICATION
ONE ASHBURTON PLACE, BOSTON, MASS. 02108 NO.04-2711580
CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING THE SECRETARY
A SERIES OF A CLASS OF STOCK OF THE COMMONWEALTH
96 JUL 23 AM 11:59
General Laws, Chapter 156B, Section 26
--------
We, Michael J. Quinlan , President and
Diane R. Tormey , Assistant Clerk of
Marcam Corporation
................................................................................
(Name of Corporation)
located at 95 Wells Avenue, Newton, MA 02159 do hereby certify that at a meeting
.................................
of the directors of the corporation held on June 26, 1996, the following vote
........
establishing and designating a series of a class of stock and determining the
relative rights and preferences thereof was duly adopted:
VOTED: That, subject to the approval by the holders of the Series D
Convertible Preferred Stock, par value $1.00 per share (the "Series D
Convertible Preferred Stock") of the Corporation and pursuant to
authority expressly granted to and vested in the Board of Directors by
the Corporation's Restated Articles of Organization, as amended, the
Board of Directors hereby creates a series of the Corporation's capital
stock consisting of 100,000 shares of the Corporation's preferred
stock, par value $1.00 per share, which is hereby designated as the
Series E Convertible Preferred Stock (the "Series E Convertible
Preferred Stock"), and hereby determines that the preferences, voting
rights, qualifications, and special and relative rights and privileges
of such Series E Convertible Preferred Stock shall be as set forth in
Exhibit A to this consent.
NOTE: Votes for which the space provided above is not sufficient should be set
out on continuation sheets to be numbered 2A, 2B, etc.
Continuation sheets must have a left-hand margin 1 inch wide for binding
and shall be 8 1/2" x 11". Only one side should be used.
============
<PAGE>
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our
names this
23rd day of July in the year 1996.
/s/ Michael J. Quinlan
- ------------------------------------------------------, President
/s/ Diane R. Tormey
- ------------------------------------------------------, Assistant Clerk
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
Certificate of Vote of Directors Establishing
A Series of a Class of Stock
(General Laws, Chapter 156B, Section 26)
I hereby approve the within certificate and, the
filing fee in the amount of $
having been paid, said certificate is hereby filed this
day of ,
19 .
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILED IN BY CORPORATION
PHOTO COPY OF CERTIFICATE TO BE SENT
TO:
Mark H. Burnett, Esq.
...........................................
Testa, Hurwitz & Thibeault, LLP
High Street Tower
...........................................
125 High Street
Boston, MA 02110
...........................................
Telephone (617) 248-7000
<PAGE>
Exhibit A
---------
SERIES E CONVERTIBLE PREFERRED STOCK
1. Designation and Number of Shares. There shall be hereby established
--------------------------------
the series of Preferred Stock designated and known as "Series E Convertible
--------------------
Preferred Stock." The authorized number of shares of Series E Convertible
- ---------------
Preferred Stock shall be 100,000 shares.
2. Voting.
------
(a) General. Except as may be otherwise provided in these terms
-------
of the Series E Convertible Preferred Stock or by law, the Series E Convertible
Preferred Stock shall vote together with all other classes and series of stock
of the Corporation as a single class on all actions to be taken by the
stockholders of the Corporation. Each share of Series E Convertible Preferred
Stock shall entitle the holder thereof to such number of votes per share on each
such action as shall equal the number of shares of Common Stock (including
fractions of a share) into which each share of Series E Convertible Preferred
Stock is then convertible.
(b) Board Seats. If General Atlantic Partners 32, L.P., GAP
-----------
Coinvestment Partners, L.P. and any affiliate (as defined in Rule 12b-2 under
the Securities Exchange Act of 1934) thereof own in the aggregate (a) less than
a majority of the outstanding shares of Series D Convertible Preferred Stock,
(b) at least a majority of the outstanding shares of Series E Convertible
Preferred Stock, and (c) shares of Common Stock and/or Series D Convertible
Preferred Stock and/or Series E Convertible 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 total number of shares of Common Stock outstanding on an as
converted basis, the holders of the Series E Convertible Preferred Stock, voting
as a separate series, shall be entitled to elect one director of the
Corporation, which directorship shall be apportioned among the classes of
directors by the Board of Directors of the Corporation. The Series E
Convertible Preferred Stock shall vote together with all other classes and
series of stock of the Corporation as a single class with respect to the
election of all of the other directors of the Corporation; provided, however,
-----------------
that if the conditions specified in the first sentence of this paragraph 2(b)
necessary for the holders of the Series E Convertible Preferred Stock to have a
separate series vote for one director are not satisfied, the Series E
Convertible Preferred Stock shall vote together with all other classes and
series of stock of the Corporation as a single class with respect to the
election of all of the directors of the Corporation. At any meeting (or in a
written consent in lieu thereof) held for the purpose of electing directors, the
presence in person or by proxy (or the written consent) of the holders of a
majority of the shares of Series E Convertible Preferred Stock then outstanding
shall constitute a quorum of the Series E Convertible Preferred Stock for the
election of the director to be elected solely by the holders of the Series E
Convertible Preferred Stock. A vacancy in the directorship elected by the
holders of the Series E Convertible Preferred Stock shall be filled only by vote
or written consent of the holders of the Series E Convertible Preferred Stock.
<PAGE>
-2-
3. Dividends. The holders of the Series E Convertible Preferred Stock
---------
shall be entitled to receive, out of funds legally available therefor, dividends
at the same rate as dividends (other than dividends paid in additional shares of
Common Stock) are paid with respect to the Common Stock (treating each share of
Series E Convertible Preferred Stock as being equal to the number of shares of
Common Stock (including fractions of a share) into which each share of Series E
Convertible Preferred Stock is then convertible).
4. Liquidation. Upon any liquidation, dissolution or winding up of the
-----------
Corporation, whether voluntary or involuntary, the holders of the shares of
Series E Convertible Preferred Stock shall be entitled, before any distribution
or payment is made upon any stock ranking on liquidation junior to the Series E
Convertible Preferred Stock, to be paid an amount equal to the greater of (i)
$100 per share plus, in the case of each share, an amount equal to any dividends
declared but unpaid thereon, through the date payment thereof is made available,
or (ii) such amount per share as would have been payable had each such share
been converted to Common Stock pursuant to paragraph 6 immediately prior to such
liquidation, dissolution or winding up, and the holders of Series E Convertible
Preferred Stock shall not be entitled to any further payment (such amount
payable with respect to one share of Series E Convertible Preferred Stock being
sometimes referred to as the "Liquidation Payment" and with respect to all
-------------------
shares of Series E Convertible Preferred Stock being sometimes referred to as
the "Liquidation Payments"). If upon such liquidation, dissolution or winding
--------------------
up of the Corporation, whether voluntary or involuntary, the assets to be
distributed among the holders of Series E Convertible Preferred Stock shall be
insufficient to permit payment to the holders of Series E Convertible Preferred
Stock of the amount distributable as aforesaid, then the entire assets of the
Corporation to be so distributed shall be distributed ratably among the holders
of Series E Convertible Preferred Stock. Upon any such liquidation, dissolution
or winding up of the Corporation, after the holders of Series E Convertible
Preferred Stock shall have been paid in full the amounts to which they shall be
entitled, the remaining net assets of the Corporation may be distributed to the
holders of stock ranking on liquidation junior to the Series E Convertible
Preferred Stock. Written notice of such liquidation, dissolution or winding up,
stating a payment date, the amount of the Liquidation Payments and the place
where said Liquidation Payments shall be payable, shall be delivered in person,
mailed by certified or registered mail, return receipt requested, or sent by
telecopier or telex, not less than 10 days prior to the payment date stated
therein, to the holders of record of Series E Convertible Preferred Stock, such
notice to be addressed to each such holder at its address as shown by the
records of the Corporation. For purposes hereof, the Common Stock shall rank on
liquidation junior to the Series E Convertible Preferred Stock.
For purposes of this paragraph 4, a liquidation, dissolution or winding up
of the Corporation shall be deemed to include (i) the Corporation's sale of all
or substantially all of its assets or (ii)(x) the merger or consolidation of the
Corporation into or with any other corporation, or (y) the merger of any other
corporation into or with the Corporation, if the stockholders of the Corporation
prior to such merger or consolidation do not retain at least a majority of the
voting power of the surviving corporation. Nothing in this paragraph 4 shall
limit the rights of the holders of the Series E Convertible Preferred Stock to
convert their shares of Series E Convertible Preferred Stock in accordance with
the terms hereof.
<PAGE>
-3-
The Series E Convertible Preferred Stock shall, with respect to
distribution of assets and rights upon the liquidation, dissolution or winding
up of the Corporation, rank on a parity with (i) the Corporation's Series D
Convertible Preferred Stock, $1.00 par value per share, and (ii) any class or
series of capital stock of the Corporation hereafter created which expressly
provides that it ranks on a parity with the Series E Convertible Preferred Stock
with respect to distribution of assets and rights upon the liquidation,
dissolution or winding up of the Corporation. The Series E Convertible
Preferred Stock shall, with respect to distribution of assets and rights upon
the liquidation, dissolution or winding up of the Corporation, rank senior to
each class or series of capital stock of the Corporation hereafter created which
does not expressly provide that it ranks on a parity with or senior to the
Series E Convertible Preferred Stock with respect to distribution of assets and
rights upon the liquidation, dissolution or winding up of the Corporation.
5. Restrictions. At any time when shares of Series E Convertible
------------
Preferred Stock are outstanding, except where the vote or written consent of the
holders of a greater number of shares of the Corporation is required by law or
by the articles of organization, and in addition to any other vote required by
law or the articles of organization, without the approval of the holders of at
least a majority of the then outstanding shares of Series E Convertible
Preferred Stock, given in writing or by vote at a meeting, consenting or voting
(as the case may be) separately as a series, the Corporation will not:
(a) Create, issue or authorize the creation or issuance of any
additional class or series of shares of stock unless the same ranks junior to
the Series E Convertible Preferred Stock as to the distribution of assets on the
liquidation, dissolution or winding up of the Corporation, or increase the
authorized amount of the Series E Convertible Preferred Stock or increase the
authorized amount of any additional class or series of shares of stock unless
the same ranks junior to the Series E Convertible Preferred Stock as to the
distribution of assets on the liquidation, dissolution or winding up of the
Corporation, or create, issue or authorize the creation or issuance of any
obligation or security convertible into shares of Series E Convertible Preferred
Stock or into shares of any other class or series of stock unless the same ranks
junior to the Series E Convertible Preferred Stock as to the distribution of
assets on the liquidation, dissolution or winding up of the Corporation, whether
any such creation, issuance, authorization or increase shall be by means of
amendment to the articles of organization or by merger, consolidation or
otherwise; or
(b) Amend, alter or repeal its articles of organization to
adversely affect the rights of the holders of the Series E Convertible Preferred
Stock.
6. Conversions. The holders of shares of Series E Convertible Preferred
-----------
Stock shall have the following conversion rights:
(a) Right to Convert. Subject to the terms and conditions of
----------------
this paragraph 6, the holder of any share or shares of Series E Convertible
Preferred Stock shall have the right, at its option at any time, to convert any
such shares (or fractions thereof) of Series E Convertible Preferred Stock
(except that upon any liquidation of the Corporation the right of conversion
shall
<PAGE>
-4-
terminate at the close of business on the business day fixed for payment of the
amount distributable on the Series E Convertible Preferred Stock) into such
number of fully paid and nonassessable shares of Common Stock as is obtained by
(i) multiplying the number of shares of Series E Convertible Preferred Stock so
to be converted by $100 and (ii) dividing the result by the conversion price of
$10 per share or, in case an adjustment of such price has taken place pursuant
to the further provisions of this paragraph 6, then by the conversion price as
last adjusted and in effect at the date any share or shares of Series E
Convertible Preferred Stock are surrendered for conversion (such price, or such
price as last adjusted, being referred to as the "Conversion Price"). Such
----------------
rights of conversion shall be exercised by the holder thereof by giving written
notice that the holder elects to convert a stated number of shares of Series E
Convertible Preferred Stock into Common Stock and by surrender of a certificate
or certificates for the shares so to be converted to the Corporation at its
principal office (or such other office or agency of the Corporation as the
Corporation may designate by notice in writing to the holders of the Series E
Convertible Preferred Stock) at any time during its usual business hours on the
date set forth in such notice, together with a statement of the name or names
(with address) in which the certificate or certificates for shares of Common
Stock shall be issued.
(b) Issuance of Certificates; Time Conversion Effected. Promptly
--------------------------------------------------
after the receipt of the written notice referred to in subparagraph 6(a) and
surrender of the certificate or certificates for the share or shares of Series E
Convertible Preferred Stock to be converted, the Corporation shall issue and
deliver, or cause to be issued and delivered, to the holder, registered in such
name or names as such holder may direct, a certificate or certificates for the
number of whole shares of Common Stock issuable upon the conversion of such
share or shares of Series E Convertible Preferred Stock. To the extent
permitted by law, such conversion shall be deemed to have been effected and the
Conversion Price shall be determined as of the close of business on the date on
which such written notice shall have been received by the Corporation and the
certificate or certificates for such share or shares shall have been surrendered
as aforesaid, and at such time the rights of the holder of such share or shares
of Series E Convertible Preferred Stock shall cease, and the person or persons
in whose name or names any certificate or certificates for shares of Common
Stock shall be issuable upon such conversion shall be deemed to have become the
holder or holders of record of the shares of Common Stock represented thereby.
(c) Fractional Shares; Dividends; Partial Conversion. No
------------------------------------------------
fractional shares of Common Stock shall be issued upon conversion of Series E
Convertible Preferred Stock into Common Stock and no payment or adjustment shall
be made upon any conversion on account of any cash dividends on the Common Stock
issued upon such conversion. At the time of each conversion, the Corporation
shall pay in cash an amount equal to all dividends (other than dividends paid in
additional shares of Common Stock) declared but unpaid on the shares of Series E
Convertible Preferred Stock surrendered for conversion to the date upon which
such conversion is deemed to take place as provided in subparagraph 6(b). If the
number of shares of Series E Convertible Preferred Stock represented by the
certificate or certificates surrendered pursuant to subparagraph 6(a) exceeds
the number of shares converted, the Corporation shall, upon such conversion,
execute and deliver to the holder, at the expense of the Corporation, a new
certificate or certificates for the number of shares (or fractions thereof) of
Series E Convertible Preferred Stock represented by the certificate or
certificates surrendered which are not to be
<PAGE>
-5-
converted. If any fractional share of Common Stock would, except for the
provisions of the first sentence of this subparagraph 6(c), be delivered upon
such conversion, the Corporation, in lieu of delivering such fractional share,
shall pay to the holder surrendering the Series E Convertible Preferred Stock
for conversion an amount in cash equal to the current market price of such
fractional share as determined in good faith by the Board of Directors of the
Corporation.
(d) Subdivision or Combination of Common Stock. In case the
------------------------------------------
Corporation shall at any time subdivide (by any stock split, stock dividend or
otherwise) its outstanding shares of Common Stock into a greater number of
shares, the Conversion Price in effect immediately prior to such subdivision
shall be proportionately reduced, and, conversely, in case the outstanding
shares of Common Stock shall be combined into a smaller number of shares, the
Conversion Price in effect immediately prior to such combination shall be
proportionately increased.
(e) Reorganization or Reclassification. If any capital
----------------------------------
reorganization or reclassification of the capital stock of the Corporation
(other than a merger or consolidation of the Corporation in which the
Corporation is the surviving corporation and which does not result in a
reclassification or change of outstanding shares of Common Stock or a merger or
consolidation which is deemed to be a liquidation, dissolution or winding up of
the Corporation pursuant to paragraph 4) shall be effected in such a way that
holders of Common Stock shall be entitled to receive stock, securities or assets
with respect to or in exchange for Common Stock, then, as a condition of such
reorganization or reclassification, lawful and adequate provisions shall be made
whereby each holder of a share or shares of Series E Convertible Preferred Stock
shall thereupon have the right to receive, upon the basis and upon the terms and
conditions specified herein and in lieu of the shares of Common Stock
immediately theretofore receivable upon the conversion of such share or shares
of Series E Convertible Preferred Stock, such shares of stock, securities or
assets as may be issued or payable with respect to or in exchange for a number
of outstanding shares of such Common Stock equal to the number of shares of such
Common Stock immediately theretofore receivable upon such conversion had such
reorganization or reclassification not taken place, and in any such case
appropriate provisions shall be made with respect to the rights and interests of
such holder to the end that the provisions hereof (including without limitation
provisions for adjustments of the Conversion Price) shall thereafter be
applicable, as nearly as may be, in relation to any shares of stock, securities
or assets thereafter deliverable upon the exercise of such conversion rights.
(f) Notice of Adjustment. Upon any adjustment of the Conversion
--------------------
Price, then and in each such case the Corporation shall give written notice
thereof, by delivery in person, certified or registered mail, return receipt
requested, telecopier or telex, addressed to each holder of shares of Series E
Convertible Preferred Stock at the address of such holder as shown on the books
of the Corporation, which notice shall state the Conversion Price resulting from
such adjustment, setting forth in reasonable detail the method upon which such
calculation is based.
(g) Other Notices. In case at any time:
-------------
(1) the Corporation shall declare any dividend upon its Common
Stock payable in cash or stock or make any other distribution to the holders
of its Common Stock;
<PAGE>
-6-
(2) the Corporation shall offer for subscription pro rata to the
--- ----
holders of its Common Stock any additional shares of stock of any class or
other rights;
(3) there shall be any capital reorganization or reclassification
of the capital stock of the Corporation, or a consolidation or merger of the
Corporation with or into another entity or entities, or a sale, lease,
abandonment, transfer or other disposition of all or substantially all its
assets; or
(4) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Corporation;
then, in any one or more of said cases, the Corporation shall give, by delivery
in person, certified or registered mail, return receipt requested, telecopier or
telex, addressed to each holder of any shares of Series E Convertible Preferred
Stock at the address of such holder as shown on the books of the Corporation,
(i) at least 10 days' prior written notice of the date on which the books of the
Corporation shall close or a record shall be taken for such dividend,
distribution or subscription rights or for determining rights to vote in respect
of any such reorganization, reclassification, consolidation, merger,
disposition, dissolution, liquidation or winding up and (ii) in the case of any
such reorganization, reclassification, consolidation, merger, disposition,
dissolution, liquidation or winding up, at least 10 days' prior written notice
of the date when the same shall take place. Such notice in accordance with the
foregoing clause (i) shall also specify, in the case of any such dividend,
distribution or subscription rights, the date on which the holders of Common
Stock shall be entitled thereto and such notice in accordance with the foregoing
clause (ii) shall also specify the date on which the holders of Common Stock
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, disposition, dissolution, liquidation or winding up, as the case may be.
(h) Stock to be Reserved. The Corporation will at all times
--------------------
reserve and keep available out of its authorized shares of Common Stock, solely
for the purpose of issuance upon the conversion of Series E Convertible
Preferred Stock as herein provided, such number of shares of Common Stock as
shall then be issuable upon the conversion of all outstanding shares of Series E
Convertible Preferred Stock. The Corporation covenants that all shares of Common
Stock which shall be so issued shall be duly authorized, validly issued, fully
paid and nonassessable and free from all taxes, liens and charges with respect
to the issue thereof, and, without limiting the generality of the foregoing, the
Corporation covenants that it will from time to time take all such action as may
be requisite to assure that the par value per share of the Common Stock is at
all times equal to or less than the Conversion Price in effect at the time. The
Corporation will take all such action as may be necessary to assure that all
such shares of Common Stock may be so issued without violation of any applicable
law or regulation, or of any requirement of any national securities exchange
upon which the Common Stock may be listed. The Corporation will not take any
action which results in any adjustment of the Conversion Price if the total
number of shares of Common Stock issued and issuable after such action upon
<PAGE>
-7-
conversion of the Series E Convertible Preferred Stock would exceed the total
number of shares of Common Stock then authorized by the articles of
organization.
(i) No Reissuance of Series E Convertible Preferred Stock.
-----------------------------------------------------
Shares of Series E Convertible Preferred Stock which are converted into shares
of Common Stock as provided herein shall not be reissued as shares of Series E
Convertible Preferred Stock.
(j) Issue Tax. The issuance of certificates for shares of Common
---------
Stock upon conversion of Series E Convertible Preferred Stock shall be made
without charge to the holders thereof for any issuance tax in respect thereof,
provided that the Corporation shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of any
certificate in a name other than that of the holder of the Series E Convertible
Preferred Stock which is being converted.
(k) Closing of Books. The Corporation will at no time close its
----------------
transfer books against the transfer of any Series E Convertible Preferred Stock
or of any shares of Common Stock issued or issuable upon the conversion of any
shares of Series E Convertible Preferred Stock in any manner which interferes
with the timely conversion of such Series E Convertible Preferred Stock, except
as may otherwise be required to comply with applicable securities laws.
(l) Mandatory Conversion. If, at any time after July 23, 1999,
--------------------
for a period of not less than thirty (30) consecutive trading days, the market
value of shares of Common Stock on the principal securities exchange or market
on which such shares are then traded exceeds $40 per share (appropriately
adjusted to reflect the occurrence of any event referred to in paragraph 6(d)),
then the Corporation may elect that all then outstanding shares of Series E
Convertible Preferred Stock be mandatorily converted into shares of Common Stock
in accordance with this paragraph 6 by providing written notice thereof, by
delivery in person, certified or registered mail, return receipt requested,
telecopier or telex, addressed to each holder of shares of Series E Convertible
Preferred Stock at the address of such holder as shown on the books of the
Corporation, which notice shall state that the Corporation has made such
election and shall specify a date not more than 10 days nor less than 20 days
after the date of such notice on which all then outstanding shares of Series E
Convertible Preferred Stock shall be mandatorily converted into shares of Common
Stock in accordance with this paragraph 6. Effective at the close of business on
the date specified in such notice, all outstanding shares of Series E
Convertible Preferred Stock shall automatically convert to shares of Common
Stock on the basis set forth in this paragraph 6. Holders of shares of Series E
Convertible Preferred Stock so converted may deliver to the Corporation at its
principal office (or such other office or agency of the Corporation as the
Corporation may designate by notice in writing to such holders) during its usual
business hours, the certificate or certificates for the shares so converted. As
promptly as practicable thereafter, the Corporation shall issue and deliver to
such holder a certificate or certificates for the number of whole shares of
Common Stock to which such holder is entitled, together with any cash dividends
and payment in lieu of fractional shares to which such holder may be entitled
pursuant to subparagraph 6(c). Until such time as a holder of shares of Series E
Convertible Preferred Stock shall surrender his or its certificates therefor as
provided above, such certificates shall be
<PAGE>
EXHIBIT 10.1
-----------------------------------------------------------
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>
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
i
<PAGE>
Page
----
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
ii
<PAGE>
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
iii
<PAGE>
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
iv
<PAGE>
1
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:
<PAGE>
2
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
<PAGE>
3
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.
<PAGE>
4
"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
<PAGE>
5
(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.
<PAGE>
6
"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
<PAGE>
7
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
<PAGE>
8
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 corpo ration, 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. Neither
<PAGE>
9
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
<PAGE>
10
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
<PAGE>
11
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
<PAGE>
12
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.
<PAGE>
13
(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
<PAGE>
14
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 Subsidi aries' 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
<PAGE>
15
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 circum stances under which they were made, not
misleading.
<PAGE>
16
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
<PAGE>
17
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 repre senting 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 REGISTRA TION 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 REPRE SENTED 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
<PAGE>
18
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
<PAGE>
19
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.
<PAGE>
20
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.
<PAGE>
21
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.
<PAGE>
22
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.
<PAGE>
23
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 con nection 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
<PAGE>
24
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
<PAGE>
25
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 Indem nified 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>
26
(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>
27
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 Com pany 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>
28
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>
29
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>
30
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>
31
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>
32
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
con templated 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>
33
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>
34
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
<PAGE>
Schedule 1
----------
Purchased Shares, Warrants and Purchase Price
---------------------------------------------
Shares of
Series E Preferred Stock
Purchased From
Purchaser the Company Purchase Price
- --------- -------------- --------------
GAP LP 86,319 $8,200,305
GAP Coinvestment 13,681 1,299,695
--------- ----------
Total: 100,000 $9,500,000
Shares of
Common Stock
Issuable Upon
Exercise of
Purchaser the Warrants Purchase Price
- --------- ------------- --------------
GAP LP 863,190 $ 431,595
GAP Coinvestment 136,810 68,405
--------- ----------
Total: 1,000,000 $ 500,000
<PAGE>
Exhibit A
---------
THIS WARRANT AND ANY SECURITIES ACQUIRED UPON THE EXERCISE OF THIS
WARRANT HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES
NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE
DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH
ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS
THAT, IN THE OPINION OF COUNSEL FOR THE HOLDER, WHICH COUNSEL AND OPINION ARE
REASONABLY SATISFACTORY TO COUNSEL FOR THIS CORPORATION, IS AVAILABLE.
WC -- ___
-------------------------------------
MARCAM CORPORATION
COMMON STOCK PURCHASE WARRANT
-------------------------------------
This certifies that, for good and valuable consideration, Marcam
Corporation, a Massachusetts corporation (the "Company"), grants to ____________
(the "Warrantholder"), the right to subscribe for and purchase from the Company
__________________ ( ) validly issued, fully paid and nonassessable shares
(the "Warrant Shares") of the Company's Common Stock, par value $.01 per share
(the "Common Stock"), at the purchase price per share of $15.36 (the "Exercise
Price"), at any time prior to 5:00 p.m., New York City time, on the Expiration
Date, all subject to the terms, conditions and adjustments herein set forth.
This Warrant was issued in connection with the Convertible Preferred
Stock and Warrant Purchase Agreement, dated July 19, 1996 (the "Stock Purchase
Agreement"), among the Company, General Atlantic Partners 32, L.P. ("GAP 32")
and GAP Coinvestment Partners, L.P. ("GAP Coinvestment"), and is subject to the
terms thereof. The warrantholder is entitled to the rights and subject to the
obligations contained in the Stock Purchase Agreement and the Amended and
Restated Registration Rights Agreement, dated the date hereof (the "Registration
Rights Agreement"), among the Company, GAP 32, GAP 21, GAP Coinvestment and The
<PAGE>
2
Northwestern Mutual Life Insurance Company, in each case relating to this
Warrant and the Warrant Shares.
1. Duration and Exercise of Warrant;
Limitation on Exercise: Payment of Taxes.
----------------------------------------
1.1 Duration and Exercise of Warrant. Subject to the terms
--------------------------------
and conditions set forth herein, this Warrant may be exercise, in whole or in
part, by the Warrantholder by:
(a) the surrender of this Warrant to the Company, with a
duly executed Exercise Form specifying the number of Warrant Shares to be
purchased, during normal business hours on any Business Day prior to the
Expiration Date; and
(b) the delivery of payment to the Company, for the
account of the Company, by cash, wire transfer, certified or official bank check
or any other means approved by the Company, of the Exercise Price for the number
of Warrant Shares specified in the Exercise Form in lawful money of the United
States of America.
The Company agrees that such Warrant Shares shall be deemed to be issued to the
Warrantholder as the record holder of such Warrant Shares as of the close of
business on the date on which this Warrant shall have been surrendered and
payment made for the Warrant Shares as aforesaid (or as provided in Section 1.2
below). Notwithstanding the foregoing, no such surrender shall be effective to
constitute the Person entitled to receive such shares as the record holder
thereof while the transfer books of the Company for the Common Stock are closed
for any purpose (but not for any period in excess of five days); but any such
surrender of this Warrant for exercise during any period while such books are so
closed shall become effective for exercise immediately upon the reopening of
such books, as if the exercise had been made on the date this Warrant was
surrendered and for the number of shares of Common Stock and at the Exercise
Price in effect at the date of such surrender.
1.2 Conversion Right.
----------------
(a) In lieu of the payment of the Exercise Price, the
Warrantholder shall have the right (but not the obligation), to require the
Company to convert this Warrant, in whole or in part, into shares of Common
Stock (the "Conversion Right") as provided for in this Section 1.2. Upon
exercise of the Conversion Right, the Company shall deliver to the Warrantholder
(without payment by the Warrantholder of any of the Exercise Price) in
accordance with Section 1.1 that number of shares of Common Stock equal to the
quotient obtained by dividing (i) the value of the Warrant at the time the
Conversion Right is exercised (determined by subtracting the aggregate Exercise
Price in effect immediately prior to the exercise
<PAGE>
3
of the Conversion Right from the aggregate Current Market Price (as defined
herein) for the shares of Common Stock issuable upon exercise of the Warrant
immediately prior to the exercise of the Conversion Right) by (ii) the
Current Market Price of one share of Common Stock immediately prior to the
exercise of the Conversion Right.
(b) The Conversion Right may be exercised by the
Warrantholder on any Business Day prior to the Expiration Date by delivering the
Warrant Certificate, with a duly executed Exercise Form with the conversion
section completed, to the Company, exercising the Conversion Right and
specifying the total number of shares of Common Stock that the Warrantholder
will be issued pursuant to such conversion.
(c) Current Market Price of a share of Common Stock
as of a particular date (the "Determination Date") shall mean:
(i) If the Common Stock is listed or admitted
for trading on a national securities exchange (including The Nasdaq Stock
Market, Inc.), then the Current Market Price shall be the average of the
last 30 "daily sales prices" of the Common Stock on the principal national
securities exchange on which the Common Stock is listed or admitted for
trading on the last 30 Business Days prior to the Determination Date, or
if not listed or traded on any such exchange, then the Current Market
Price shall be the average of the last 30 "daily sales prices" of the
Common Stock on the over-the-counter market on the last 30 Business Days
prior to the Determination Date. The "daily sales price" shall be the
closing price of the Common Stock at the end of each day; or
(ii) If the Common Stock is not so listed or
admitted to unlisted trading privileges or if no such sale is made on at
least 25 of such days, then the Current Market Price shall be as
reasonably determined in good faith by the Company's Board of Directors or
a duly appointed committee of the Board of Directors (which determination
shall be reasonably described in the written notice delivered to the
Warrantholder together with the Common Stock certificates).
1.3 Warrant Shares Certificate. A stock certificate or
--------------------------
certificates for the Warrant Shares specified in the Exercise Form shall be
delivered to the Warrantholder within five Business Days after receipt of the
Exercise Form by the Company and, if the Conversion Right is not exercised,
payment of the purchase price; provided, however, that if a determination by the
-------- -------
Board of Directors is necessary pursuant to Section 1.2(c)(ii) such delivery
shall be made promptly after such determination made (such determination shall
be made with reasonable promptness but no more frequently than on a quarterly
basis). No fractional shares shall be issued upon the exercise of this Warrant,
provided that the Warrantholder shall receive, in lieu of any fractional shares,
cash in an amount equal to the product of the
<PAGE>
4
fraction multiplied by the Current Market Price of a share of Common Stock. If
this Warrant shall have been exercised only in part, the Company shall, at the
time of delivery of the stock certificate or certificates, deliver to the
Warrantholder a new Warrant evidencing the rights to purchase the remaining
Warrant Shares, which new Warrant shall in all other respects be identical with
this Warrant.
1.4 Payment of Taxes. The issuance of certificates for Warrant
----------------
Shares shall be made without charge to the Warrantholder for any stock transfer
or other issuance tax in respect thereto; provided, however, that the
-------- -------
Warrantholder shall be required to pay any and all taxes that may be payable in
respect of any transfer involved in the issuance and delivery of any certificate
in a name other than that of the then Warrantholder as reflected upon the books
of the Company.
2. Restrictions on Transfer: Restrictive Legends.
---------------------------------------------
2.1 This Warrant may not be offered, sold, transferred, pledged
or otherwise disposed of, in whole or in part, to any Person other than an
Affiliate of the Warrantholder without the prior written consent of the Company,
which shall not be unreasonably withheld.
2.2 Except as otherwise permitted by this Section 2, each stock
certificate for Warrant Shares issued upon the exercise of any Warrant and each
stock certificate issued upon the direct or indirect transfer of any such
Warrant Shares shall be stamped or otherwise imprinted with a legend in
substantially the following form:
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER
THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED,
PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER
SUCH ACT AND SUCH LAWS THAT, IN THE OPINION OF COUNSEL FOR THE HOLDER, WHICH
COUNSEL AND OPINION ARE REASONABLY SATISFACTORY TO COUNSEL FOR THIS
CORPORATION, IS AVAILABLE.
Notwithstanding the foregoing, the Warrantholder may require the Company to
issue a Warrant or a stock certificate for Warrant Shares, in each case without
a legend, if either (i) such Warrant or such Warrant Shares, as the case may be,
have been registered for resale under the Securities Act, (ii) the
Warrantholder has delivered to the Company an opinion of legal counsel (from a
firm reasonably satisfactory to the Company) which opinion shall be addressed
to the Company and be
<PAGE>
5
reasonably satisfactory in form and substance to the Company's counsel, to the
effect that such registration is not required with respect to such Warrant or
such Warrant Shares, as the case may be, (iii) such Warrant or Warrant Shares
are sold in compliance with Rule 144 (or any successor provision then in effect)
under the Securities Act, the Company receives customary representations to such
effect and the Company receives an opinion of counsel to the Company in
customary form that such legend may be removed or (iv) the legend may be removed
pursuant to Rule 144(k) (or any successor provision then in effect) under the
Securities Act, the Company receives customary representations to such effect
and the Company receives an opinion of counsel to the Company in customary form
that such legend may be removed.
3. Reservation and Registration of Shares, Etc.
-------------------------------------------
The Company covenants and agrees as follows:
(a) All Warrant Shares that are issued upon the exercise of this
Warrant shall, upon issuance, be validly issued, fully paid and nonassessable,
not subject to any preemptive rights, and free from all taxes, liens, security
interests, charges, and other encumbrances with respect to the issuance thereof,
other than taxes in respect of any transfer occurring contemporaneously with
such issue.
(b) During the period within which this Warrant may be
exercised, the Company shall at all times have authorized and reserved, and keep
available free from preemptive rights, a sufficient number of shares of Common
Stock to provide for the exercise of the rights represented by this Warrant.
4. Loss or Destruction of Warrant.
------------------------------
Subject to the terms and conditions hereof, upon receipt by the
Company of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant and, in the case of loss, theft or
destruction, of such bond or indemnification as the Company may reasonably
require, and, in the case of such mutilation, upon surrender and cancellation of
this Warrant, the Company will execute and deliver a new Warrant of like tenor.
5. Ownership of Warrant.
--------------------
The Company may deem and treat the person in whose name this
Warrant is registered as the holder and owner hereof (notwithstanding any
notations of ownership or writing hereon made by anyone other than the Company)
for all purposes and shall not be affected by any notice to the contrary, until
presentation of this Warrant for registration of transfer.
<PAGE>
6
6. Certain Adjustments.
-------------------
6.1 The number of Warrant Shares purchasable upon the exercise
of this Warrant and the Exercise Price shall be subject to adjustment as
follows:
(a) Stock Dividend, Splits, Combinations. If at any time
------------------------------------
after the date of the issuance of this Warrant the Company (i) declares a
dividend of other distribution payable in shares of Common Stock or securities
convertible into Common Stock or subdivides its outstanding shares of Common
Stock into a larger number or (ii) combines it outstanding shares of Common
Stock into a smaller number, then (x) the number of Warrant Shares to be
delivered upon exercise of this Warrant will, upon the occurence of an event set
forth in clause (i) above, be increased and, upon the occurrence of an event set
forth in clause (ii) above, be decreased so that such Warrantholder will be
entitled to receive the number of shares of Common Stock that such Warrantholder
would have owned immediately following such action had this Warrant been
exercised immediately prior thereto and (y) the Exercise Price in effect
immediately prior to such dividend, other distribution, subdivision or
combination, as the case may be, shall be adjusted proportionately by
multiplying such Exercise Price by a fraction, of which the numerator shall be
the number of Warrant Shares purchasable upon exercise to this Warrant
immediately prior to such adjustment, and of which the denominator shall be the
number of Warrant Shares purchasable immediately thereafter.
(b) Distributions of Stock, Other Securities, Evidence of
-----------------------------------------------------
Indebtedness, Etc. In case the Company shall distribute to the holders of
- -----------------
Common Stock shares of its capital stock (other than Common Stock or shares
convertible into Common Stock for which adjustment is made under Section
6.1(a)), stock or other securities of the Company or any other Person, evidences
of indebtedness issued by the Company or any other Person, assets (excluding
cash dividends) or options, warrants or rights to subscribe for or purchase the
foregoing, then, and in each such case, immediately following the record date
fixed for the determination of the holders of Common Stock entitled to receive
such distribution, the Exercise Price then in effect shall be adjusted by
multiplying the Exercise Price in effect immediately prior to such record date
by a fraction (i) the numerator of which shall be such Current Market Price of
the Common Stock less the then Fair Market Value (as determined by the Board of
Directors) of the portion of the stock, other securities, evidences of
indebtedness so distributed or of such options, warrants or rights applicable to
one share of Common Stock (but such numerator shall not to be less than one) and
(ii) the denominator of which shall be the Current Market Price of the Common
Stock on such record date. Such adjustment shall become effective at the opening
of business on the Business Day following the record date for the determination
of stockholders entitled to such distribution.
<PAGE>
7
(c) Reorganization, Merger, Sale of Assets. In case of any
--------------------------------------
capital reorganization or reclassification or other change of outstanding shares
of Common Stock (other than a change in par value), any consolidation or merger
of the Company with or into another Person (other than a consolidation or merger
of the Company in which the Company is the resulting or surviving Person and
which does not result in any reclassification or change of outstanding Common
Stock) or the sale of all or substantially all of the assets of the Company to
another Person, upon exercise of this Warrant, the Warrantholder shall have the
right to receive the kind and amount of shares of stock or other securities or
property to which a holder of the number of shares of Common Stock of the
Company deliverable upon exercise of this Warrant would have been entitled upon
such reorganization, reclassification, consolidation, merger or sale had this
Warrant been exercised immediately prior to such event; and, in such case,
appropriate adjustment (as determined in good faith by the Board of Directors)
shall be made in the application of the provisions of this Section 6 with
respect to the rights and interest thereafter of the Warrantholder, to the end
that the provisions set forth in this Section 6 (including provisions with
respect to changes in and other adjustments of the Exercise Price) shall
thereafter be applicable, as nearly as reasonably may be, in relation to any
shares of stock or other property thereafter deliverable upon exercise of this
Warrant.
(d) Carryover. Notwithstanding any other provision of this
---------
Section 6.1, no adjustment shall be made to the number of shares of Common Stock
to be delivered to the Warrantholder (or to the Exercise Price) if such
adjustment represents less than 1% of the number of shares to be so delivered,
but any lesser adjustment shall be carried forward and shall be made at the time
and together with the next subsequent adjustment that together with any
adjustments so carried forward shall amount to 1% or more of the number of
shares to be so delivered.
6.2 No Adjustment for Dividends. Except as provided in Section
---------------------------
6.1, no adjustment in respect of any dividends shall be made during the term of
this Warrant or upon the exercise of this Warrant. Notwithstanding any other
provision hereof, no adjustments shall be made on Warrant Shares issuable on the
exercise of this Warrant for any cash dividends paid or payable to holders of
record of Common Stock prior to the date as of which the Warrantholder shall be
deemed to be the record holder of such Warrant Shares.
6.3 Notice of Adjustment. Whenever the number of Warrant Shares
--------------------
or the Exercise Price of such Warrant Shares shall be adjusted, as provided in
Section 6.1, the Company shall forthwith file, at the principal office of the
Company (or at such other place as may be designated by the Company), a
statement, certified by the chief financial officer of the Company, showing in
detail the facts requiring such adjustment, the computation by which such
adjustment was made and the Exercise Price that shall be in effect after such
adjustment. The Company shall also cause a copy of such statement to be sent by
first class mail, postage prepaid, to the
<PAGE>
Warrantholder, at such Warrantholder's address as shown in the records of the
Company.
7. Amendments.
----------
Any provision of this Warrant may be amended and the observance thereof
waived only with the written consent of the Company and the Warrantholder.
8. Notices of Corporate Action.
---------------------------
So long as this Warrant has not been exercised in full, in the event of
(a) any taking by the Company of a record of all holders of
Common Stock for the purpose of determining the holders thereof who are entitled
to receive any dividend (other than cash dividends or distributions paid from
the retained earnings of the Company) or other distribution, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, or to receive any other right;
(b) any capital reorganization of the Company, any
reclassification (other than a change in par value of the Common Stock) or
recapitalization of the capital stock of the Company or any consolidation or
merger involving the Company and any other Person or any transfer of all or
substantially all the assets of the Company to any other Person; or
(c) any voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
the Company will mail to the Warrantholder a notice specifying (i) the date or
expected date on which any such record is to be taken for the purpose of such
dividend, distribution or right and the amount and character of any such
dividend, distribution or right or (ii) the date or expected date on which any
such reorganization, reclassification, recapitalization, consolidation, merger,
transfer, dissolution, liquidation or winding-up is to take place and the time,
if any such time is to be fixed, as of which the holders of record of Common
Stock shall be entitled to exchange their shares of Common Stock for the
securities or other property, if any, deliverable upon such reorganization,
reclassification, recapitalization, consolidation, merger, transfer,
dissolution, liquidation or winding-up. Such notice shall be delivered at least
10 days prior to the date therein specified (unless such date is beyond the
control of the Company, in which case, as soon as practicable thereafter, but in
no event more than 5 days thereafter), in the case of any date referred to in
the foregoing subdivisions (i) and (ii).
<PAGE>
9
9. Definitions.
-----------
As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
"Affiliate" shall mean any Person who is in "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 32 and GAP 21:
(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.
"Business Day" means any day other than a Saturday, Sunday or a day
------------
on which national banks are authorized by law to close in the State of New York.
"Common Stock" has the meaning specified on the cover of this
------------
Warrant.
"Company" has the meaning specified on the cover of this Warrant.
-------
"Current Market Price" has the meaning specified in Section 1.2(c).
--------------------
"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.
"Exercise Form" means an Exercise Form in the form annexed hereto
-------------
as Exhibit A.
"Exercise Price" has the meaning specified on the cover of this
--------------
Warrant.
"Expiration Date" means July 23, 2003.
---------------
"Fair Market Value" means the amount which a willing buyer would
-----------------
pay a willing seller in an arm's length transaction.
"GAP LLC" means General Atlantic Partners, LLC, a Delaware limited
-------
liability company and the general partner of GAP 21 and GAP 32.
"GAP 32" means General Atlantic Partners 32, L.P., a Delaware
------
limited partnership.
<PAGE>
10
"GAP 21" means General Atlantic Partners 21, L.P. a Delaware limited
------
partnership.
"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.
"Registration Rights Agreement" has the meaning specified on the cover of
-----------------------------
this Warrant.
"Securities" has the meaning specified in Section 6.1(d)(ii).
----------
"Securities Act" has the meaning specified on the cover of this Warrant, or
--------------
any similar Federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Act, shall include a reference to the
comparable section, if any, of any such similar Federal statue.
"Stock Purchase Agreement" has the meaning specified on the cover of this
------------------------
Warrant.
"Warrantholder" has the meaning specified on the cover of this Warrant.
-------------
"Warrant Shares" has the meaning specified on the cover of this Warrant.
--------------
10. Miscellaneous.
-------------
10.1 Entire Agreement. This Warrant, together with the Stock Purchase
----------------
Agreement and the Registration Rights Agreement, constitute the entire agreement
between the Company and the Warrantholder with respect to this Warrant.
10.2 Binding Effect: Benefits. This Warrant shall inure to the benefit
------------------------
of and shall be binding upon the Company and the Warrantholder and their
respective successors and assigns. Nothing in this Warrant, expressed or
implied, is intended to or shall confer on any person other than the Company and
the Warrantholder, or their respective successors or assigns, any rights,
remedies, obligations or liabilities under or by reason of this Warrant.
10.3 Section and Other Headings. The section and other headings
--------------------------
contained in this Warrant are for reference purposed only and shall not be
deemed to be a part of this Warrant or to affect the meaning or interpretation
of this Warrant.
<PAGE>
11
10.4 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
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. Any party may by notice given in accordance with this Section 10.4
designate another address or Person for receipt of notices hereunder.
<PAGE>
12
10.5 Severability. Any term or provision of this Warrant which is
------------
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the terms and provisions of this Warrant or
affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
10.6 GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF MASSACHUSETTS, WITHOUT REGARD TO
THE CONFLICTS OF LAW PRINCIPLES THEREOF.
10.7 No Rights or Liabilities as Stockholder. Nothing contained in
---------------------------------------
this Warrant shall be determined as conferring upon the Warrantholder any rights
as a stockholder of the Company or as imposing any liabilities on the
Warrantholder to purchase any securities whether such liabilities are asserted
by the Company or by creditors or stockholders of the Company or otherwise.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
MARCAM CORPORATION
By:
----------------------------
Name:
Title:
Dated: July __, 1996
<PAGE>
Exhibit A
---------
EXERCISE FORM
-------------
(To be executed upon exercise of this Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant, to purchase __________ of the Warrant Shares and
[herewith tenders payment for such Warrant Shares to the order of Marcam
Corporation in the amount of $______][hereby exercises its Conversion Right] in
accordance with the terms of this Warrant. The undersigned requests that a
certificate for [such Warrant Shares][that number of Warrant Shares to which the
undersigned is entitled as calculated pursuant to Section 1.2] be registered in
the name of the undersigned and that such certificates be delivered to the
undersigned's address below.
The undersigned represents that it is acquiring such Warrant Shares for
its own account for investment and not with a view to or for sale in connection
with any distribution thereof (subject, however, to any requirement of law that
the disposition thereof shall at all times be within its control).
Dated:
-------------------------
Signature
----------------------------------------
---------------------------------------
(Print Name)
---------------------------------------
(Street Address)
---------------------------------------
(City) (State) (Zip Code)
Signed in the presence of:
- -------------------------------------
NOTE: The above signature must correspond with the name as written upon
the face of this Warrant in ever particular way, without any alteration
whatsoever.
Any unexercised Warrants evidenced by the Warrant Certificate are to be
issued to:
Name: (please print)
-----------------------------
Address:
--------------------------
Taxpayer Identification or Social Security Number:
----------------------------
<PAGE>
Exhibit B
---------
The Commonwealth of Massachusetts
OFFICE OF THE MASSACHUSETTS SECRETARY OF STATE
MICHAEL JOSEPH CONNOLLY, Secretary FEDERAL IDENTIFICATION
NO. 04-2711580
ONE ASHBURTON PLACE, BOSTON, MASS. 02108
CERTIFICATE OF VOTE OF DIRECTORS ESTABLISHING
A SERIES OF A CLASS OF STOCK
General Laws, Chapter 156B, Section 26
--------------------
We, Michael J. Quinlan , President, and
Diane R. Tormey , Assistant Clerk of
Marcam Corporation
................................................................................
(Name of Corporation)
located at 95 Wells Avenue, Newton, MA 02159 do hereby certify that at a meeting
..................................
of the directors of the corporation held on , the following vote
.............
establishing and designating a series of a class of stock and determining the
relative rights and preferences thereof was duly adopted:--
VOTED: That, subject to the approval by the holders of the Series D Convertible
Preferred Stock, par value $1.00 per share (the "Series D Convertible
Preferred Stock") of the Corporation and pursuant to authority expressly
granted to and vested in the Board of Directors by the Corporation's
Restated Articles of Organization, as amended, the Board of Directors
hereby creates a series of the Corporation's capital stock consisting of
100,000 shares of the Corporation's preferred stock, par value $1.00 per
share, which is hereby designated as the Series E Convertible Preferred
Stock (the "Series E Convertible Preferred Stock"), and hereby
determines that the preferences, voting rights, qualifications, and
special and relative rights and privileges of such Series E Convertible
Preferred Stock shall be as set forth in Exhibit A to this consent.
NOTE: Votes for which the space provided above is not sufficient should be set
on continuation sheets to be numbered 2A, 2B, etc. Continuation sheets
must have a left-hand margin 1 inch wide for binding and shall be
8 1/2" x 11". Only one side should be used.
============
<PAGE>
IN WITNESS WHEREOF AND UNDER THE PENALTIES OF PERJURY, we have hereto signed our
names this
day of in the year 1996.
, President
.........................................................
, Assistant Clerk
.........................................................
<PAGE>
THE COMMONWEALTH OF MASSACHUSETTS
Certificate of Vote of Directors Establishing
A Series of a Class of Stock
(General Laws, Chapter 156B, Section 26)
I hereby approve the within certificate and, the
filing fee in the amount of $
having been paid, said certificate is hereby filed this
day of ,
19 .
MICHAEL JOSEPH CONNOLLY
Secretary of State
TO BE FILLED IN BY CORPORATION
PHOTO COPY OF CERTIFICATE TO BE SENT
TO:
Mark H. Burnett, Esq.
...........................................
Testa, Hurwitz & Thibeault, LLP
High Street Tower
...........................................
125 High Street
Boston, MA 02110
...........................................
Telephone (617) 248-7000
..................................
<PAGE>
Exhibit A
---------
SERIES E CONVERTIBLE PREFERRED STOCK
1. Designation and Number of Shares. There shall be hereby established
--------------------------------
the series of Preferred Stock designated and known as "Series E Convertible
--------------------
Preferred Stock." The authorized number of shares of Series E Convertible
- ---------------
Preferred Stock shall be 100,000 shares.
2. Voting.
------
(a) General. Except as may be otherwise provided in these terms
-------
of the Series E Convertible Preferred Stock or by law, the Series E Convertible
Preferred Stock shall vote together with all other classes and series of stock
of the Corporation as a single class on all actions to be taken by the
stockholders of the Corporation. Each share of Series E Convertible Preferred
Stock shall entitle the holder thereof to such number of votes per share on each
such action as shall equal the number of shares of Common Stock (including
fractions of a share) into which each share of Series E Convertible Preferred
Stock is then convertible.
(b) Board Seats. If General Atlantic Partners 32, L.P., GAP
-----------
Coinvestment Partners, L.P. and any affiliate (as defined in Rule 12b-2 under
the Securities Exchange Act of 1934) thereof own in the aggregate (a) less than
a majority of the outstanding shares of Series D Convertible Preferred Stock,
(b) at least a majority of the outstanding shares of Series E Convertible
Preferred Stock, and (c) shares of Common Stock and/or Series D Convertible
Preferred Stock and/or Series E Convertible 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 total number of shares of Common Stock outstanding on an as
converted basis, the holders of the Series E Convertible Preferred Stock, voting
as a separate series, shall be entitled to elect one director of the
Corporation, which directorship shall be apportioned among the classes of
directors by the Board of Directors of the Corporation. The Series E
Convertible Preferred Stock shall vote together with all other classes and
series of stock of the Corporation as a single class with respect to the
election of all of the other directors of the Corporation; provided, however,
-----------------
that if the conditions specified in the first sentence of this paragraph 2(b)
necessary for the holders of the Series E Convertible Preferred Stock to have a
separate series vote for one director are not satisfied, the Series E
Convertible Preferred Stock shall vote together with all other classes and
series of stock of the Corporation as a single class with respect to the
election of all of the directors of the Corporation. At any meeting (or in a
written consent in lieu thereof) held for the purpose of electing directors, the
presence in person or by proxy (or the written consent) of the holders of a
majority of the shares of Series E Convertible Preferred Stock then outstanding
shall constitute a quorum of the Series E Convertible Preferred Stock for the
election of the director to be elected solely by the holders of the Series E
Convertible Preferred Stock. A vacancy in the directorship elected by the
holders of the Series E Convertible Preferred Stock shall be filled only by vote
or written consent of the holders of the Series E Convertible Preferred Stock.
<PAGE>
-2-
3. Dividends. The holders of the Series E Convertible Preferred Stock
---------
shall be entitled to receive, out of funds legally available therefor, dividends
at the same rate as dividends (other than dividends paid in additional shares of
Common Stock) are paid with respect to the Common Stock (treating each share of
Series E Convertible Preferred Stock as being equal to the number of shares of
Common Stock (including fractions of a share) into which each share of Series E
Convertible Preferred Stock is then convertible).
4. Liquidation. Upon any liquidation, dissolution or winding up of the
-----------
Corporation, whether voluntary or involuntary, the holders of the shares of
Series E Convertible Preferred Stock shall be entitled, before any distribution
or payment is made upon any stock ranking on liquidation junior to the Series E
Convertible Preferred Stock, to be paid an amount equal to the greater of (i)
$100 per share plus, in the case of each share, an amount equal to any dividends
declared but unpaid thereon, through the date payment thereof is made available,
or (ii) such amount per share as would have been payable had each such share
been converted to Common Stock pursuant to paragraph 6 immediately prior to such
liquidation, dissolution or winding up, and the holders of Series E Convertible
Preferred Stock shall not be entitled to any further payment (such amount
payable with respect to one share of Series E Convertible Preferred Stock being
sometimes referred to as the "Liquidation Payment" and with respect to all
-------------------
shares of Series E Convertible Preferred Stock being sometimes referred to as
the "Liquidation Payments"). If upon such liquidation, dissolution or winding
--------------------
up of the Corporation, whether voluntary or involuntary, the assets to be
distributed among the holders of Series E Convertible Preferred Stock shall be
insufficient to permit payment to the holders of Series E Convertible Preferred
Stock of the amount distributable as aforesaid, then the entire assets of the
Corporation to be so distributed shall be distributed ratably among the holders
of Series E Convertible Preferred Stock. Upon any such liquidation, dissolution
or winding up of the Corporation, after the holders of Series E Convertible
Preferred Stock shall have been paid in full the amounts to which they shall be
entitled, the remaining net assets of the Corporation may be distributed to the
holders of stock ranking on liquidation junior to the Series E Convertible
Preferred Stock. Written notice of such liquidation, dissolution or winding up,
stating a payment date, the amount of the Liquidation Payments and the place
where said Liquidation Payments shall be payable, shall be delivered in person,
mailed by certified or registered mail, return receipt requested, or sent by
telecopier or telex, not less than 10 days prior to the payment date stated
therein, to the holders of record of Series E Convertible Preferred Stock, such
notice to be addressed to each such holder at its address as shown by the
records of the Corporation. For purposes hereof, the Common Stock shall rank on
liquidation junior to the Series E Convertible Preferred Stock.
For purposes of this paragraph 4, a liquidation, dissolution or winding up
of the Corporation shall be deemed to include (i) the Corporation's sale of all
or substantially all of its assets or (ii)(x) the merger or consolidation of the
Corporation into or with any other corporation, or (y) the merger of any other
corporation into or with the Corporation, if the stockholders of the Corporation
prior to such merger or consolidation do not retain at least a majority of the
voting power of the surviving corporation. Nothing in this paragraph 4 shall
limit the rights of the holders of the Series E Convertible Preferred Stock to
convert their shares of Series E Convertible Preferred Stock in accordance with
the terms hereof.
<PAGE>
-3-
The Series E Convertible Preferred Stock shall, with respect to
distribution of assets and rights upon the liquidation, dissolution or winding
up of the Corporation, rank on a parity with (i) the Corporation's Series D
Convertible Preferred Stock, $1.00 par value per share, and (ii) any class or
series of capital stock of the Corporation hereafter created which expressly
provides that it ranks on a parity with the Series E Convertible Preferred Stock
with respect to distribution of assets and rights upon the liquidation,
dissolution or winding up of the Corporation. The Series E Convertible
Preferred Stock shall, with respect to distribution of assets and rights upon
the liquidation, dissolution or winding up of the Corporation, rank senior to
each class or series of capital stock of the Corporation hereafter created which
does not expressly provide that it ranks on a parity with or senior to the
Series E Convertible Preferred Stock with respect to distribution of assets and
rights upon the liquidation, dissolution or winding up of the Corporation.
5. Restrictions. At any time when shares of Series E Convertible
------------
Preferred Stock are outstanding, except where the vote or written consent of the
holders of a greater number of shares of the Corporation is required by law or
by the articles of organization, and in addition to any other vote required by
law or the articles of organization, without the approval of the holders of at
least a majority of the then outstanding shares of Series E Convertible
Preferred Stock, given in writing or by vote at a meeting, consenting or voting
(as the case may be) separately as a series, the Corporation will not:
(a) Create, issue or authorize the creation or issuance of any
additional class or series of shares of stock unless the same ranks junior to
the Series E Convertible Preferred Stock as to the distribution of assets on the
liquidation, dissolution or winding up of the Corporation, or increase the
authorized amount of the Series E Convertible Preferred Stock or increase the
authorized amount of any additional class or series of shares of stock unless
the same ranks junior to the Series E Convertible Preferred Stock as to the
distribution of assets on the liquidation, dissolution or winding up of the
Corporation, or create, issue or authorize the creation or issuance of any
obligation or security convertible into shares of Series E Convertible Preferred
Stock or into shares of any other class or series of stock unless the same ranks
junior to the Series E Convertible Preferred Stock as to the distribution of
assets on the liquidation, dissolution or winding up of the Corporation, whether
any such creation, issuance, authorization or increase shall be by means of
amendment to the articles of organization or by merger, consolidation or
otherwise; or
(b) Amend, alter or repeal its articles of organization to
adversely affect the rights of the holders of the Series E Convertible Preferred
Stock.
6. Conversions. The holders of shares of Series E Convertible Preferred
-----------
Stock shall have the following conversion rights:
(a) Right to Convert. Subject to the terms and conditions of
----------------
this paragraph 6, the holder of any share or shares of Series E Convertible
Preferred Stock shall have the right, at its option at any time, to convert any
such shares (or fractions thereof) of Series E Convertible Preferred Stock
(except that upon any liquidation of the Corporation the right of conversion
shall
<PAGE>
-4-
terminate at the close of business on the business day fixed for payment of the
amount distributable on the Series E Convertible Preferred Stock) into such
number of fully paid and nonassessable shares of Common Stock as is obtained by
(i) multiplying the number of shares of Series E Convertible Preferred Stock so
to be converted by $100 and (ii) dividing the result by the conversion price of
$10 per share or, in case an adjustment of such price has taken place pursuant
to the further provisions of this paragraph 6, then by the conversion price as
last adjusted and in effect at the date any share or shares of Series E
Convertible Preferred Stock are surrendered for conversion (such price, or such
price as last adjusted, being referred to as the "Conversion Price"). Such
----------------
rights of conversion shall be exercised by the holder thereof by giving written
notice that the holder elects to convert a stated number of shares of Series E
Convertible Preferred Stock into Common Stock and by surrender of a certificate
or certificates for the shares so to be converted to the Corporation at its
principal office (or such other office or agency of the Corporation as the
Corporation may designate by notice in writing to the holders of the Series E
Convertible Preferred Stock) at any time during its usual business hours on the
date set forth in such notice, together with a statement of the name or names
(with address) in which the certificate or certificates for shares of Common
Stock shall be issued.
(b) Issuance of Certificates; Time Conversion Effected. Promptly
--------------------------------------------------
after the receipt of the written notice referred to in subparagraph 6(a) and
surrender of the certificate or certificates for the share or shares of Series E
Convertible Preferred Stock to be converted, the Corporation shall issue and
deliver, or cause to be issued and delivered, to the holder, registered in such
name or names as such holder may direct, a certificate or certificates for the
number of whole shares of Common Stock issuable upon the conversion of such
share or shares of Series E Convertible Preferred Stock. To the extent
permitted by law, such conversion shall be deemed to have been effected and the
Conversion Price shall be determined as of the close of business on the date on
which such written notice shall have been received by the Corporation and the
certificate or certificates for such share or shares shall have been surrendered
as aforesaid, and at such time the rights of the holder of such share or shares
of Series E Convertible Preferred Stock shall cease, and the person or persons
in whose name or names any certificate or certificates for shares of Common
Stock shall be issuable upon such conversion shall be deemed to have become the
holder or holders of record of the shares of Common Stock represented thereby.
(c) Fractional Shares; Dividends; Partial Conversion. No
------------------------------------------------
fractional shares of Common Stock shall be issued upon conversion of Series E
Convertible Preferred Stock into Common Stock and no payment or adjustment shall
be made upon any conversion on account of any cash dividends on the Common Stock
issued upon such conversion. At the time of each conversion, the Corporation
shall pay in cash an amount equal to all dividends (other than dividends paid in
additional shares of Common Stock) declared but unpaid on the shares of Series E
Convertible Preferred Stock surrendered for conversion to the date upon which
such conversion is deemed to take place as provided in subparagraph 6(b). If the
number of shares of Series E Convertible Preferred Stock represented by the
certificate or certificates surrendered pursuant to subparagraph 6(a) exceeds
the number of shares converted, the Corporation shall, upon such conversion,
execute and deliver to the holder, at the expense of the Corporation, a new
certificate or certificates for the number of shares (or fractions thereof) of
Series E Convertible Preferred Stock represented by the certificate or
certificates surrendered which are not to be
<PAGE>
-5-
converted. If any fractional share of Common Stock would, except for the
provisions of the first sentence of this subparagraph 6(c), be delivered upon
such conversion, the Corporation, in lieu of delivering such fractional share,
shall pay to the holder surrendering the Series E Convertible Preferred Stock
for conversion an amount in cash equal to the current market price of such
fractional share as determined in good faith by the Board of Directors of the
Corporation.
(d) Subdivision or Combination of Common Stock. In case the
------------------------------------------
Corporation shall at any time subdivide (by any stock split, stock dividend or
otherwise) its outstanding shares of Common Stock into a greater number of
shares, the Conversion Price in effect immediately prior to such subdivision
shall be proportionately reduced, and, conversely, in case the outstanding
shares of Common Stock shall be combined into a smaller number of shares, the
Conversion Price in effect immediately prior to such combination shall be
proportionately increased.
(e) Reorganization or Reclassification. If any capital
----------------------------------
reorganization or reclassification of the capital stock of the Corporation
(other than a merger or consolidation of the Corporation in which the
Corporation is the surviving corporation and which does not result in a
reclassification or change of outstanding shares of Common Stock or a merger or
consolidation which is deemed to be a liquidation, dissolution or winding up of
the Corporation pursuant to paragraph 4) shall be effected in such a way that
holders of Common Stock shall be entitled to receive stock, securities or assets
with respect to or in exchange for Common Stock, then, as a condition of such
reorganization or reclassification, lawful and adequate provisions shall be made
whereby each holder of a share or shares of Series E Convertible Preferred Stock
shall thereupon have the right to receive, upon the basis and upon the terms and
conditions specified herein and in lieu of the shares of Common Stock
immediately theretofore receivable upon the conversion of such share or shares
of Series E Convertible Preferred Stock, such shares of stock, securities or
assets as may be issued or payable with respect to or in exchange for a number
of outstanding shares of such Common Stock equal to the number of shares of such
Common Stock immediately theretofore receivable upon such conversion had such
reorganization or reclassification not taken place, and in any such case
appropriate provisions shall be made with respect to the rights and interests of
such holder to the end that the provisions hereof (including without limitation
provisions for adjustments of the Conversion Price) shall thereafter be
applicable, as nearly as may be, in relation to any shares of stock, securities
or assets thereafter deliverable upon the exercise of such conversion rights.
(f) Notice of Adjustment. Upon any adjustment of the Conversion
--------------------
Price, then and in each such case the Corporation shall give written notice
thereof, by delivery in person, certified or registered mail, return receipt
requested, telecopier or telex, addressed to each holder of shares of Series E
Convertible Preferred Stock at the address of such holder as shown on the books
of the Corporation, which notice shall state the Conversion Price resulting from
such adjustment, setting forth in reasonable detail the method upon which such
calculation is based.
(g) Other Notices. In case at any time:
-------------
(1) the Corporation shall declare any dividend upon its Common
Stock payable in cash or stock or make any other distribution to the holders
of its Common Stock;
<PAGE>
-6-
(2) the Corporation shall offer for subscription pro rata to the
--- ----
holders of its Common Stock any additional shares of stock of any class or
other rights;
(3) there shall be any capital reorganization or reclassification
of the capital stock of the Corporation, or a consolidation or merger of the
Corporation with or into another entity or entities, or a sale, lease,
abandonment, transfer or other disposition of all or substantially all its
assets; or
(4) there shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Corporation;
then, in any one or more of said cases, the Corporation shall give, by delivery
in person, certified or registered mail, return receipt requested, telecopier or
telex, addressed to each holder of any shares of Series E Convertible Preferred
Stock at the address of such holder as shown on the books of the Corporation,
(i) at least 10 days' prior written notice of the date on which the books of the
Corporation shall close or a record shall be taken for such dividend,
distribution or subscription rights or for determining rights to vote in respect
of any such reorganization, reclassification, consolidation, merger,
disposition, dissolution, liquidation or winding up and (ii) in the case of any
such reorganization, reclassification, consolidation, merger, disposition,
dissolution, liquidation or winding up, at least 10 days' prior written notice
of the date when the same shall take place. Such notice in accordance with the
foregoing clause (i) shall also specify, in the case of any such dividend,
distribution or subscription rights, the date on which the holders of Common
Stock shall be entitled thereto and such notice in accordance with the foregoing
clause (ii) shall also specify the date on which the holders of Common Stock
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reorganization, reclassification, consolidation,
merger, disposition, dissolution, liquidation or winding up, as the case may be.
(h) Stock to be Reserved. The Corporation will at all times
--------------------
reserve and keep available out of its authorized shares of Common Stock, solely
for the purpose of issuance upon the conversion of Series E Convertible
Preferred Stock as herein provided, such number of shares of Common Stock as
shall then be issuable upon the conversion of all outstanding shares of Series E
Convertible Preferred Stock. The Corporation covenants that all shares of Common
Stock which shall be so issued shall be duly authorized, validly issued, fully
paid and nonassessable and free from all taxes, liens and charges with respect
to the issue thereof, and, without limiting the generality of the foregoing, the
Corporation covenants that it will from time to time take all such action as may
be requisite to assure that the par value per share of the Common Stock is at
all times equal to or less than the Conversion Price in effect at the time. The
Corporation will take all such action as may be necessary to assure that all
such shares of Common Stock may be so issued without violation of any applicable
law or regulation, or of any requirement of any national securities exchange
upon which the Common Stock may be listed. The Corporation will not take any
action which results in any adjustment of the Conversion Price if the total
number of shares of Common Stock issued and issuable after such action upon
<PAGE>
-7-
conversion of the Series E Convertible Preferred Stock would exceed the total
number of shares of Common Stock then authorized by the articles of
organization.
(i) No Reissuance of Series E Convertible Preferred Stock.
-----------------------------------------------------
Shares of Series E Convertible Preferred Stock which are converted into shares
of Common Stock as provided herein shall not be reissued as shares of Series E
Convertible Preferred Stock.
(j) Issue Tax. The issuance of certificates for shares of Common
---------
Stock upon conversion of Series E Convertible Preferred Stock shall be made
without charge to the holders thereof for any issuance tax in respect thereof,
provided that the Corporation shall not be required to pay any tax which may be
payable in respect of any transfer involved in the issuance and delivery of any
certificate in a name other than that of the holder of the Series E Convertible
Preferred Stock which is being converted.
(k) Closing of Books. The Corporation will at no time close its
----------------
transfer books against the transfer of any Series E Convertible Preferred Stock
or of any shares of Common Stock issued or issuable upon the conversion of any
shares of Series E Convertible Preferred Stock in any manner which interferes
with the timely conversion of such Series E Convertible Preferred Stock, except
as may otherwise be required to comply with applicable securities laws.
(l) Mandatory Conversion. If, at any time after July 23, 1999,
--------------------
for a period of not less than thirty (30) consecutive trading days, the market
value of shares of Common Stock on the principal securities exchange or market
on which such shares are then traded exceeds $40 per share (appropriately
adjusted to reflect the occurrence of any event referred to in paragraph 6(d)),
then the Corporation may elect that all then outstanding shares of Series E
Convertible Preferred Stock be mandatorily converted into shares of Common Stock
in accordance with this paragraph 6 by providing written notice thereof, by
delivery in person, certified or registered mail, return receipt requested,
telecopier or telex, addressed to each holder of shares of Series E Convertible
Preferred Stock at the address of such holder as shown on the books of the
Corporation, which notice shall state that the Corporation has made such
election and shall specify a date not more than 10 days nor less than 20 days
after the date of such notice on which all then outstanding shares of Series E
Convertible Preferred Stock shall be mandatorily converted into shares of Common
Stock in accordance with this paragraph 6. Effective at the close of business on
the date specified in such notice, all outstanding shares of Series E
Convertible Preferred Stock shall automatically convert to shares of Common
Stock on the basis set forth in this paragraph 6. Holders of shares of Series E
Convertible Preferred Stock so converted may deliver to the Corporation at its
principal office (or such other office or agency of the Corporation as the
Corporation may designate by notice in writing to such holders) during its usual
business hours, the certificate or certificates for the shares so converted. As
promptly as practicable thereafter, the Corporation shall issue and deliver to
such holder a certificate or certificates for the number of whole shares of
Common Stock to which such holder is entitled, together with any cash dividends
and payment in lieu of fractional shares to which such holder may be entitled
pursuant to subparagraph 6(c). Until such time as a holder of shares of Series E
Convertible Preferred Stock shall surrender his or its certificates therefor as
provided above, such certificates shall be
<PAGE>
-8-
deemed to represent the shares of Common Stock to which such holder shall be
entitled upon the surrender thereof.
<PAGE>
Exhibit C
---------
================================================================================
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 , 1996
---
-----------------------------------
================================================================================
<PAGE>
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
i
<PAGE>
(d) Contribution.................................................... 16
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
ii
<PAGE>
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
<PAGE>
2
amend and restate the Original Registration Rights Agreement (as hereinafter
defined) 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.
<PAGE>
3
"Exchange Act" means the Securities Exchange Act of 1934, as
------------
amended, and the rules and regulations promulgated thereunder.
"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.
<PAGE>
4
"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) 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.
<PAGE>
5
"Total Securities" has the meaning set forth in Section 4(a).
----------------
"Warrants" has the meaning assigned such term in the recital to this
--------
Agreement.
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
<PAGE>
6
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 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
registra tion 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
<PAGE>
7
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.
(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
<PAGE>
8
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 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.
<PAGE>
9
(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 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.
<PAGE>
10
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 distri bution 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 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
<PAGE>
11
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;
(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;
<PAGE>
12
(viii) make available for inspection by any seller of
Registrable Securities, any managing underwriter participating in any
disposition pursu ant 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 Sec tions 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
<PAGE>
13
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
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
<PAGE>
14
(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 indepen dent 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 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
<PAGE>
15
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 forego ing 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 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
<PAGE>
16
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.
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
<PAGE>
17
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 suc cessor 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.
(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:
<PAGE>
18
(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
(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
<PAGE>
19
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 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.
<PAGE>
20
(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>
IN WITNESS WHEREOF, the undersigned have executed, or have caused to
be executed, this Agreement on the date first written above.
MARCAM CORPORATION
By:
-------------------------------
Name:
Title:
GENERAL ATLANTIC PARTNERS 32, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By:
-------------------------------
Name:
Title: A Managing Member
GENERAL ATLANTIC PARTNERS 21, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By:
-------------------------------
Name:
Title: A Managing Member
GAP COINVESTMENT PARTNERS, L.P.
By:
-------------------------------
Name:
Title: A General Partner
<PAGE>
22
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By:
-----------------------------------------
Name:
Title:
<PAGE>
Exhibit D
---------
FORM OF TESTA, HURWITZ &
THIBEAULT, LLP LEGAL OPINION
----------------------------
(1) The Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the Commonwealth of
Massachusetts with the corporate power and authority to own and operate its
properties and to conduct its business as it is now being conducted as
described in the SEC Documents.
(2) The Company has the requisite corporate power and authority to
execute, deliver and perform the Agreement, the Warrants and the Amended and
Restated Registration Rights Agreement and to offer, issue and sell the
Preferred Shares and the Warrants.
(3) The execution, delivery and performance by the Company of the
Agreement, the Warrants and the Amended and Restated Registration Rights
Agreement and the offering, issuance and sale of the Preferred Shares and
the Warrants have been duly authorized by all necessary corporate action on
the part of the Company.
(4) Each of the Agreement, the Warrants and the Amended and Restated
Registration Rights Agreement has been duly executed and delivered by the
Company, and constitutes a valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
(5) Neither the execution, delivery and performance by the Company of
the Agreement, the Warrants and the Amended and Restated Registration Rights
Agreement, nor the offering, issuance and sale of the Preferred Shares and
Warrants, will (a) contravene the terms of the Articles of Organization or
By-laws, (b) assuming compliance with clauses (i) through (v) of paragraph
(6) below, violate, conflict with, or result in a breach of any law, rule or
regulation to which the Company is subject, or (c) violate, result in a
breach of, or result in the creation of any Lien upon any property of the
Company under, any material agreement to which the Company is a party.
<PAGE>
(6) Other than (i) the filing of a current report on Form 8-K under
the Exchange Act, (ii) the filing and approval of an application for the
listing of the shares of Common Stock issuable upon conversion of the
Preferred Shares and issuable upon exercise of the Warrants on the Nasdaq
National Market, (iii) the filing of the Certificate of Designation, (iv)
those required pursuant to applicable state securities or "Blue Sky" laws
with respect to the offer and sale of the Preferred Shares and the Warrants,
and (v) with respect to the performance by the Company of the Amended and
Restated Registration Rights Agreement, the registration of the Registrable
Securities (as defined in the Amended and Restated 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 consent, approval and
authorization of, and or filing, registration or qualification with, any
Governmental Authority is required on the part of the Company in connection
with the execution, delivery and performance by the Company of the
Agreement, the Warrants and the Amended and Restated Registration Rights
Agreement and the offering, issuance and sale of the Preferred Shares and
the Warrants.
(7) The Preferred Shares are duly authorized and, when the Preferred
Shares are issued and delivered to the Purchasers pursuant to the Agreement
against payment of the consideration therefor as provided in the Agreement,
will be validly issued, fully paid and nonassessable, free and clear of any
statutory or similar preemptive rights arising under the laws of the
Commonwealth of Massachusetts or the Certificate of Incorporation or By-laws
of the Company or, to our knowledge, any contractual preemptive rights and
free and clear of any Liens imposed by or through the Company.
(8) The shares of Common Stock issuable upon conversion of the
Preferred Shares, when issued and delivered upon conversion of the Preferred
Shares in accordance with the Certificate of Designation and the Articles of
Organization, will be validly issued, fully paid and nonassessable, free and
clear of any statutory or similar preemptive rights arising under the
laws of the Commonwealth of Massachusetts or the Certificate of
Incorporation or By-laws of the Company or, to our knowledge, any
contractual preemptive rights and free and clear of any Liens imposed by
or through the Company. The shares of Common Stock issuable upon exercise
of the Warrants, when issued and delivered upon exercise of the Warrants in
accordance with the Warrants, will be validly issued, fully paid and
nonassessable, free and clear of any statutory or similar preemptive
rights arising under the laws of the Commonwealth of Massachusetts or the
Certificate of Incorporation or By-laws of the Company or, to our knowledge,
any contractual preemptive rights and free and clear of any Liens
imposed by or through the Company.
(9) Assuming that the representations and warranties of each of the
Purchasers set forth in Article 4 of the Agreement are true and correct, the
offering, issuance and sale of the Preferred Shares and the Warrants will be
exempt from the registration requirements of the Securities Act.
<PAGE>
(10) The Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended.
(11) To our knowledge, there are no actions or suits pending or
threatened against the Company before any Governmental Authority other than
those set forth on Exhibit A.
<PAGE>
============================================================
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>
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
i
<PAGE>
Page
----
8. Rule 144...............................................................16
9. Miscellaneous..........................................................17
(a) Recapitalizations, Exchanges, etc................................17
(b) No Inconsistent Agreements.......................................17
(c) Remedies.........................................................17
(d) Amendments.......................................................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
ii
<PAGE>
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>
2
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 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 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>
3
"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>
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, recapitalizing, 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>
5
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 and has 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
<PAGE>
this Section 3. If at the time of any request to register Registrable Securities
pursuant to 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
Registrable 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.
<PAGE>
7
(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 releases 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>
the same terms and conditions as the securities of the Company included therein.
In connection with any offering under this Section 4(a) involving, 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 share 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>
9
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 Empire
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>
10
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 or (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 it best efforts to register or qualify such
Registrable Securities under such other securities or "blue sky" laws of such
jurisdictions as any seller or 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 or Registrable Securities to consummate the disposition of such
Registrable Securities;
<PAGE>
(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
<PAGE>
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 make 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
<PAGE>
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
<PAGE>
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 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 provided, the
Indemnifying Party shall be entitled to participate in and, to the extent it may
wish, jointly with any other Indemnifying
<PAGE>
Partly 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 defence 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.
<PAGE>
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) Recapitalization, 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, recapitalization 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.
<PAGE>
(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>
(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>
19
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>
20
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>
21
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: /s/ John E. Schlifske
-------------------------------
Name: John E. Schlifske
Title: Vice President
