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EXHIBIT 4
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made as of
February 13, 1998, by and among MANUGISTICS GROUP, INC., a Delaware corporation
("Manugistics"), XXXXXX XXX and XXXXXXXXXXX XXXX, each in his capacity as a
Paying Agent, and each of the other signatories hereto (individually, an
"Initial Seller" and collectively, the "Initial Sellers").
B A C K G R O U N D:
A. On the date hereof, the Initial Sellers constitute the holders
of all of the issued and outstanding shares of capital stock and all of the
issued and outstanding options to purchase capital stock of ProMIRA Software
Incorporated, a Nova Scotia limited liability company ("ProMIRA"). Pursuant to
a certain Stock Purchase Agreement dated as of the date hereof by and among
Manugistics Nova Scotia Company, a Nova Scotia unlimited liability company
which is an indirect, wholly-owned subsidiary of Manugistics ("Manugistics Nova
Scotia"), the Initial Sellers, and ProMIRA (the "Stock Purchase Agreement"),
the Initial Sellers have agreed to sell to Manugistics Nova Scotia, and
Manugistics Nova Scotia has agreed to purchase from the Initial Sellers, all of
such ProMIRA shares and options in consideration for which Manugistics has
issued and caused to be transferred to Manugistics Nova Scotia which, in turn,
has agreed, among other things, to deliver to or for the benefit of the Initial
Sellers, at the Closing under the Stock Purchase Agreement, a total of
1,550,000 shares of the common stock, par value $.002 per share, of Manugistics
(the "Manugistics Group Shares"); which shares will variously be distributed to
a Paying Agent, Escrow Agent or Custodian pursuant to Section 3.2(b) of the
Stock Purchase Agreement.
B. Pursuant to Section 3.2(b)(iii) of the Stock Purchase
Agreement, the parties have agreed that Manugistics shall effect the
registration of all of the Manugistics Group Shares with the United States
Securities and Exchange Commission under the Securities Act of 1933, as
amended, for resale by the Initial Sellers under the terms and conditions set
forth in this Agreement.
C. Pursuant to Section 3.3(c) of the Stock Purchase Agreement,
the Initial Sellers and the Paying Agent have executed and delivered that
certain Paying Agent Agreement dated as of the date hereof, pursuant to which
the Initial Sellers have appointed the Paying Agent as agent and
attorney-in-fact for the purposes set forth in said Section 3.3(c). The Paying
Agent is authorized, among other things, to take certain action and to receive
notices for and to provide information on behalf of the Initial Sellers in
connection with the Closing under the Stock Purchase Agreement and the
transactions contemplated thereby, including the registration of the
Manugistics Group Shares hereunder.
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D. All capitalized terms not otherwise defined herein shall have
the meanings ascribed to such terms in the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
promises and covenants set forth herein, the parties hereto, intending to be
legally bound, agree as follows:
1. Certain Definitions. As used in this Agreement, the following
terms shall have the meanings set forth below:
(a) "Business Day" shall mean a day that is not a
Saturday, a Sunday, or a day on which banking institutions in New York, New
York or Ottawa, Ontario are required to be closed.
(b) "Closing Documents" shall mean this Agreement, the
Stock Purchase Agreement, and each of the other agreements and documents
delivered at Closing.
(c) "Commission" shall mean the Securities and Exchange
Commission or any other federal agency at the time administering the Securities
Act.
(d) "Common Stock" shall mean the common stock, par value
$.002 per share, of Manugistics.
(e) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended, and the rules and regulations thereunder, all as the same
shall be in effect from time to time.
(f) "Nasdaq" means The Nasdaq Stock Market or any market
successor thereto.
(g) "Permitted Transfer" means:
(i) A Transfer of the interest of a Seller in all
or any part of the Registrable Securities to such Seller's spouse in connection
with the termination of the marital relationship of such Seller and such
Seller's spouse;
(ii) A Transfer by any Seller by gift to his or
her spouse, lineal descendants, spouses of his or her lineal descendants, or as
settlor of a trust or trusts solely for the benefit of such Seller's spouse
and/or any of such other persons, and thereafter any distribution by such trust
to the beneficiaries of such trust, provided, however, that any further
Transfer by any such transferee shall not be a Permitted Transfer.
(iii) A Transfer, in the event of the death of any
Seller or transferee of a type referred to in (ii), above, to his or her (A)
personal representatives (in their capacities as such), (B) estate and/or (C)
named beneficiaries (including trusts of the
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type referred to in (ii), above);
(iv) A Transfer by any Seller to a limited
partnership or limited liability company, which limited partnership or limited
liability company is controlled by such Seller, his or her spouse and/or such
Seller's lineal descendants and thereafter any distribution by any such limited
partnership or limited liability company to its partners or members,
respectively; which Transfer is made solely for estate planning, tax planning
or similar purposes; provided, however, that any further Transfer by any such
transferee shall not be a Permitted Transfer; and
(v) A Transfer by: (A) a partnership to its
partners; (B) a corporation to its stockholders; and (C) a limited liability
company to its members; provided, however, that any further Transfer by any
such transferee shall not be a Permitted Transfer; provided, however, that each
transferee shall, prior to the Transfer of Registrable Securities to such
transferee, execute and deliver to Manugistics a valid and binding agreement
satisfactory to Manugistics to the effect that such transferee shall thereafter
be deemed a "Seller" for the purposes of this Agreement.
(h) "Permitted Transferee" shall mean a transferee in a
transaction constituting a Permitted Transfer.
(i) "Person" means an individual, partnership, limited
liability company, corporation, trust or unincorporated organization or
government or agency or political subdivision thereof.
(j) "Prospectus" shall mean (i) each preliminary
prospectus included in the Registration Statement filed prior to the time it
becomes effective; (ii) the form of prospectus first filed with the Commission
pursuant to Rule 424(b); (iii) all supplements thereto; and (iv) amendments
thereto which shall have been declared effective by the Commission.
(k) "Registrable Securities" shall mean (i) the
Manugistics Group Shares; and (ii) any Common Stock and any other security
issued as a dividend or other distribution with respect to or in exchange for
or in replacement of the Manugistics Group Shares, provided, however, that
Registrable Securities shall not include any shares of Common Stock which have
been sold to the public either pursuant to the Registration Statement or
pursuant to Rule 144, or which have been sold in any other transaction in which
the transferor's rights under this Agreement are not assigned.
(l) The terms "register," "registered" and "registration"
shall refer to a registration effected by preparing and filing with the
Commission a registration statement in
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compliance with the Securities Act and applicable rules and regulations
thereunder, and the declaration or ordering of the effectiveness of such
registration statement by the Commission.
(m) "Registration Expenses" shall mean all expenses
incurred in effecting any registration pursuant to this Agreement, including
all registration, qualification and filing fees, reproduction and printing
expenses, expenses incurred by Manugistics in the preparation of any
registration statement, fees and disbursements of counsel for Manugistics and
those of Manugistics' other independent professional advisors and experts,
listing fees and other costs incurred in listing Registrable Securities for
trading on Nasdaq or on any stock exchange, blue sky fees and expenses (if
any), expenses of any regular or special accounting services provided to
Manugistics or ProMIRA incident to or required by any such registration, and
the reasonable fees and disbursements of one counsel selected by the Paying
Agent for the Sellers resident in the United States and one counsel selected by
the Paying Agent for the Sellers resident in Canada, but shall not include
Selling Expenses.
(n) "Registration Statement" shall mean the registration
statement to be filed or filed by Manugistics with the Commission pursuant to
Section 2, below (including all (a) amendments and supplements thereto, (b)
each Prospectus contained therein, and (c) all exhibits thereto or incorporated
by reference therein).
(o) "Rule 144" shall mean Rule 144 as promulgated by the
Commission under the Securities Act, as such rule may be amended from time to
time, or any similar successor rule that may be promulgated by the Commission.
(p) "Securities Act" shall mean the Securities Act of
1933, as amended, and regulations thereunder, all as the same shall be in
effect from time to time.
(q) "Seller" shall mean each Initial Seller, each
Permitted Transferee, and any other holder of Registrable Securities to whom
the registration rights conferred by this Agreement have been transferred in
compliance with Section 12(a) hereof.
(r) "Selling Expenses" shall mean all brokerage fees,
selling commissions and underwriting discounts (if any), and stock transfer
taxes applicable to the sale of Registrable Securities and fees and
disbursements of counsel for any Seller (other than the fees and disbursements
of such counsel included in Registration Expenses).
(s) "Transfer" means any sale, transfer, encumbrance,
gift, donation, assignment, pledge, hypothecation or other disposition of any
Securities or any interest therein, whether
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voluntary or involuntary, including, but not limited to, any disposition by
operation of law, by court order, by judicial process or by foreclosure, levy
or attachment.
1A. Duties of Paying Agent.
(a) Pursuant to Section 1 of the Paying Agent Agreement,
the Sellers have appointed Xxxxxx Xxx and Xxxxxxxxxxx Xxxx, or each of them
alone, as paying agent to act as their agent, attorney-in-fact and
representative under, among other agreements, the Stock Purchase Agreement and
this Agreement for the purposes set forth in said Section 1. Subject to the
terms and conditions of the Paying Agent Agreement, the Paying Agent has the
power, without limitation, to take any and all actions which may be required or
permitted by the Paying Agent on behalf of Manugistics or the Sellers under
this Agreement, to execute, deliver and disseminate any notice or other
document required by this Agreement and to perform all other acts required or
which the Paying Agent deems advisable in connection with carrying out the
purpose and intent of this Closing Agreement.
(b) Without limitation of the foregoing, and by way of
example only, the Paying Agent is authorized and directed to take the following
actions under this Agreement on behalf of and for the benefit of Manugistics
and each Seller:
(i) to select legal counsel for the Sellers
pursuant to Section 1(m) hereof;
(ii) to make, send or receive written requests or
certificates and make or cause any other
communications to or from Manugistics or the
Sellers pursuant to Sections 2, 4, 5, 10 and
12 of this Agreement;
(iii) to receive notices and documents from
Manugistics pursuant to Section 4(a), (e),
(f), Section 9(c) and Section 10(c) hereof,
which the Paying Agent shall promptly forward
or transmit to such Seller; and
(iv) to provide promptly to Manugistics all
notices and information furnished by such
Seller pursuant to Section 5, Section 8(c)
and (d) and Section 9(c) hereof.
(c) The Paying Agent shall promptly disseminate to all
Sellers as many Prospectuses as reasonably necessary and required from time to
time under applicable securities laws during the Applicable Period.
Manugistics shall bear the expenses of printing and production of such
Prospectuses and dissemination thereof to the Sellers.
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2. Registration. As soon as practicable after the Closing,
Manugistics shall effect (i) the registration for offer and sale under the
Securities Act of all of the Manugistics Group Shares; and (ii) appropriate
qualifications (if any), required under applicable state "blue-sky" securities
laws of such jurisdictions as the Paying Agent, on behalf of the Sellers, or
any of them, shall reasonably request in writing from time to time; Manugistics
shall effect or obtain each such qualification as promptly as reasonably
practicable after receipt of written request therefor from the Paying Agent
(collectively, the "Registration"). In furtherance thereof, Manugistics shall
file with the Commission within fifteen (15) days of Closing a registration
statement on an appropriate form (which form shall comply as to form in all
material respects with the requirements of the applicable form) under the
Securities Act covering the Manugistics Group Shares and/or any other
securities which then constitute Registrable Securities, as appropriate.
However, Manugistics shall not be obligated to effect, or to take any action to
effect, the Registration if:
(a) in any particular jurisdiction, Manugistics would be
required to execute a general consent to service of process in effecting such
Registration, qualification, or compliance, unless Manugistics is already
subject to service in such jurisdiction and except as may be required by the
Securities Act; or if
(b) (i) in the good faith judgment of the Board of
Directors of Manugistics, such Registration would be seriously detrimental to
Manugistics and the Board of Directors of Manugistics concludes, as a result,
that it is essential to defer the filing of the Registration Statement at such
time, and (ii) Manugistics shall furnish to the Paying Agent a certificate
signed by the President of Manugistics stating that, in the good faith judgment
of the Board of Directors of Manugistics, it would be seriously detrimental to
Manugistics for such Registration Statement to be filed in the near future and
that it is, therefore, essential to defer the filing of such Registration
Statement, then Manugistics shall have the right to defer such filing for a
period of not more than forty-five (45) days after the Closing Date.
3. Registration Expenses. All Registration Expenses shall be
borne by Manugistics.
4. Registration Procedures. Manugistics shall, at Manugistics'
expense:
(a) notify the Sellers as to: (i) the initial filing of
the Registration Statement; (ii) the receipt of any comments thereon from the
Commission; (iii) any request from the Commission or any state regulatory
authority for amendment of the Registration Statement or for supplement to any
Prospectus or for any additional information in connection therewith; (iv) the
filing of each
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amendment thereto, including any post-effective amendment; (v) the
effectiveness of the Registration Statement or any post-effective amendment
thereto; and (vi) the issuance by the Commission or any state regulatory
authority of any stop order suspending the effectiveness of the Registration
Statement or the use of any Prospectus or the institution of any proceedings
for that purpose;
(b) use its best efforts to prevent the issuance of any
stop order preventing or suspending the use of any Prospectus and to obtain as
soon as possible the lifting or withdrawal thereof, if issued;
(c) keep the Registration effective from the effective
date thereof to and including the first to occur of: (i) thirty-six (36) months
from the Closing Date; (ii) the date on which the Sellers have completed the
distribution of Registrable Securities described in the Registration Statement;
or (iii) the date on which all of the Registrable Securities held by Sellers
shall be eligible to be sold pursuant to Rule 144(k) (or any similar successor
provision), provided, however, that, in the event that Manugistics shall have
deferred the filing of the Registration Statement in accordance with Section
2(b), above, Manugistics shall extend the period during which it will keep the
Registration Statement effective under this Section 4(c) by the same number of
days by which Manugistics has deferred the filing of the Registration Statement
(the "Applicable Period"). Upon the request of the Paying Agent delivered to
Manugistics not less than thirty (30) days nor more than sixty (60) days in
advance of the second anniversary of the Closing Date, Manugistics shall, not
later than ten (10) days in advance of the second anniversary of the Closing
Date, provide the Transfer Agent with an opinion of its counsel as to whether
the Registerable Securities will be eligible for sale under Rule 144(k)
commencing on the second anniversary of the Closing Date;
(d) promptly prepare and file with the Commission such
amendments and supplements to the Registration Statement and the prospectus
used in connection with the Registration Statement as shall be necessary to
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by the Registration Statement and
thereafter use its reasonable best efforts to cause any such post-effective
amendment to be declared effective by the Commission as promptly as permitted
by the Commission;
(e) furnish to the Paying Agent: (i) such number of
Prospectuses and other documents incident thereto, including any amendment of
or supplement to the Prospectus, as the Paying Agent may reasonably request
(for dissemination or otherwise) from time to time; (ii) two signed copies of
the Registration Statement and all amendments thereto, including all exhibits
filed therewith; and (iii) such number of conformed copies of the Registration
Statement
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(including such number of copies of the exhibits filed therewith as may
reasonably be requested), including documents incorporated by reference
therein, as the Paying Agent may reasonably request from time to time;
(f) notify the Sellers of Registrable Securities covered
by the Registration Statement at any time
(i) when a prospectus relating thereto is
required to be delivered under the Securities Act of the happening of any event
or the failure of any event to occur or the discovery of any facts as a result
of which the Prospectus included in the Registration Statement, as then in
effect, includes any untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or incomplete in the light of the circumstances then
existing, and at the request of the Paying Agent or any Seller, prepare and
furnish to the Paying Agent or any such Seller, as appropriate, a reasonable
number of copies of a supplement to or an amendment of such Prospectus as may
be necessary so that, as thereafter delivered to the purchaser(s) of such
shares, such Prospectus shall not include any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading or incomplete in the
light of the circumstances then existing;
(ii) if, during the Applicable Period, the
representations and warranties of Manugistics contained in this Agreement or in
the Stock Purchase Agreement cease to be true and correct in any material
respect;
(iii) if Manugistics receives any notification of
the issuance of a stop order or the suspension of the registration or
qualification of the Registrable Securities in any jurisdiction or the
initiation of any proceeding for such purpose; and
(iv) that, in Manugistics' reasonable
determination, a post-effective amendment to the Registration Statement would
be appropriate;
(g) Manugistics shall provide one copy of each notice or
document given or furnished to the Paying Agent pursuant to Section 4(a), (e)
and (f), above, concurrently with the provision thereof to the Paying Agent or
as promptly thereafter as practicable to legal counsel designated by the Paying
Agent in a written notice given to Manugistics;
(h) list the Registrable Securities registered pursuant
to this Agreement on Nasdaq and any securities exchange on which shares of the
Common Stock are then listed;
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(i) make generally available to its security holders, as
soon as reasonably practicable, an earnings statement covering the period of at
least twelve (12) months, but not more than eighteen (18) months, beginning
with the first month after the effective date of the registration statement,
which earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act);
(j) make every reasonable effort to obtain the withdrawal
or removal of any order suspending the effectiveness of the Registration
Statement as promptly as practicable under the circumstances; and
(k) upon the effectiveness of the Registration Statement,
deliver to the Paying Agent on behalf of each Seller an opinion of counsel in
substantially in the form attached hereto as Exhibit A.
5. Information by Sellers.
(a) Each Seller shall furnish to Manugistics such
information regarding such Seller, the Registrable Securities held by such
Seller and the sale or other Transfer thereof proposed by such Seller as
Manugistics may request in writing and as shall be reasonably required in
connection with the Registration.
(b) Each Seller shall furnish to Manugistics such
certificates and documents confirming as of the effective date of the
Registration Statement the representations and warranties and performance of
the covenants made herein by such Seller.
6. Representations and Warranties of Manugistics. Manugistics
represents and warrants to the Sellers as follows:
(a) Organization. Manugistics is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware, and has all requisite corporate power and authority to enter into and
perform this Agreement and the transactions to be performed by it hereunder.
(b) Authorization. This Agreement constitutes the legal,
valid and binding obligation of Manugistics. The execution and delivery by
Manugistics of this Agreement, and the performance by it of its obligations
hereunder, have been duly authorized by all necessary corporate actions of
Manugistics.
(c) Freedom to Contract. The execution and delivery of
this Agreement by Manugistics do not, and the performance by it of its
obligations hereunder will not, (a) violate or conflict with any provision of
the Amended and Restated Certificate of Incorporation or the By-laws of
Manugistics as in effect on the
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date hereof, (b) violate any of the terms, conditions or provisions of any
applicable law, rule, regulation, order, writ, injunction, judgment or decree
of any court, governmental authority, or regulatory agency, or (c) result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default (or give rise to any right of termination, cancellation
or acceleration) under, any of the terms, conditions or provisions of any note,
bond, indenture, debenture, security agreement, trust agreement, lien,
mortgage, lease, agreement, license, franchise, permit, guaranty, joint venture
agreement, or other agreement, instrument or obligation, oral or written, to
which Manugistics is a party (whether as an original party or as an assignee or
successor) or by which it or any of its properties is bound.
(d) Litigation.
(i) Manugistics is not a party to any suit,
action, arbitration or legal, administrative, governmental or other proceeding
or investigation pending or, to the knowledge of Manugistics, threatened, which
might adversely affect or restrict the ability of Manugistics to consummate the
transactions contemplated by this Agreement or to perform its obligations
hereunder.
(ii) There is no judgment, order, injunction or
decree of any court, governmental authority or regulatory agency to which
Manugistics is subject which might adversely affect or restrict the ability of
Manugistics to consummate the transactions contemplated by this Agreement or to
perform its obligations hereunder.
(e) The Manugistics Group Shares are duly authorized,
validly issued, fully paid and non-assessable. The certificates evidencing any
such shares issued at Closing are in due and proper form.
(f) Manugistics complies with the conditions for the use
of Form S-3 under the Securities Act.
(g) The Registration Statement will contain, and the
Prospectus and any amendments or supplements thereto will contain, all
statements which are required to be stated therein by, and will conform to, the
requirements of the Securities Act. The documents incorporated by reference in
the Prospectus, at the time filed with the Commission, conformed in all
material respects to the then applicable requirements of the Exchange Act or
the Securities Act. The Registration Statement will not contain any untrue
statement of a material fact and will not omit to state any material fact
required to be stated therein or necessary to make the statements therein not
misleading. The Prospectus and any amendments and supplements thereto will not
contain as of the date of such Prospectus, any untrue statement of material
fact; and will not
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omit as of the date of such Prospectus, to state any material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading; provided,
however, that Manugistics makes no representations or warranties as to
information contained in or omitted from the Registration Statement or the
Prospectus, in reliance upon, and in conformity with, written information
furnished to Manugistics by or on behalf of ProMIRA, any predecessor of
ProMIRA, or any Initial Seller or any other Seller, specifically for use in the
preparation thereof or in any report or other document incorporated therein by
reference, including, without limitation, any Current Report on Form 8-K under
the Exchange Act which Manugistics may file in connection with the transactions
contemplated by the Stock Purchase Agreement.
(h) The consolidated financial statements of Manugistics
and its subsidiaries, together with related notes and schedules as set forth or
incorporated by reference in the Registration Statement, present fairly the
financial position and the results of operations and cash flows of Manugistics
and the consolidated subsidiaries, at the indicated dates and for the indicated
periods. Such financial statements and related schedules have been prepared in
accordance with generally accepted principles of accounting, consistently
applied throughout the periods involved, and all adjustments necessary for a
fair presentation of results for such periods have been made.
(i) No approval, consent, order, authorization,
designation, or filing by or with any regulatory, administrative or other
governmental body is necessary to be made by or on behalf of Manugistics in
connection with the execution and delivery by Manugistics of this Agreement and
the consummation of the transactions herein contemplated except (i) as required
under the Securities Act or the Exchange Act; (ii) in connection with the
listing of the Registrable Securities on Nasdaq; or (iii) as may be necessary
to qualify the Registrable Securities for public offering under state
securities or Blue Sky laws.
(j) The information that appears in the Offering
Memorandum referred to in Section 4B.6(a)(iv) of the Stock Purchase Agreement
regarding Manugistics (including, without limitation, Manugistics' financial
statements) (the "Information"): (a) is accurate and complete at and as of the
Closing Date, and (b) satisfies the disclosure requirements of Regulation D
under the Securities Act regarding Manugistics.
(k) Upon the issuance of the Manugistics Group Shares at
Closing, no holder of record of Common Stock who is a resident of the Province
of Ontario owned more than ten percent of the shares of Common Stock then
outstanding.
7. Representations and Warranties of Sellers. Each of the
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Sellers represents and warrants, as to such Seller only, the following:
(a) Each Seller who is an Initial Seller has, and each
Seller will, upon the effectiveness of the Registration Statement and at the
time of any sale or other Transfer thereunder, have good and marketable title
to the Registrable Securities held by such Seller, free and clear of any liens,
encumbrances and claims, at law or in equity, with the exception of those
liens, encumbrances and claims which may arise pursuant to or be made under the
Stock Purchase Agreement, this Agreement or any of the other Closing Documents,
and full right, power and authority to effect the sale and delivery of such
Registrable Securities and upon the delivery of, against payment for, such
Registrable Securities, the purchaser will acquire good and marketable title
thereto, free and clear of any liens, encumbrances and claims, at law or in
equity.
(b) Such Seller has full right, power and authority to
execute and deliver this Agreement, and to perform its obligations under this
Agreement. Such Seller, if a corporation, partnership, trust or other entity,
is duly authorized to execute, deliver and perform this Agreement by all
necessary actions on the part of such Seller, and the person signing this
Agreement on behalf of such Seller has been duly authorized to do so. This
Agreement constitutes the legal, valid and binding obligation of such Seller.
(c) The execution and delivery of this Agreement, and the
consummation by such Seller of the transactions herein contemplated and the
fulfillment by such Seller of the terms hereof, will not require any consent,
approval, authorization, or order of, notice to or filing with, any court,
regulatory body, administrative agency or other governmental body (except as
may be required under the Securities Act or state blue sky or provincial
securities laws) and will not result in a breach of any of the terms and
provisions of, or constitute a default under, the organizational documents of
such Seller, if not an individual, or any indenture, mortgage, deed of trust or
other agreement or instrument to which such Seller is a party, or of any order,
rule or regulation applicable to such Seller of any court or of any regulatory
body or administrative agency or other governmental body having jurisdiction.
(d) Each Seller is not and, to the knowledge of such
Seller, nether the Company nor the Subsidiary is, a party to any suit, action,
arbitration or legal, administrative, governmental or other proceeding or
investigation pending or threatened which might have an adverse effect or
restrict the ability of such Seller to consummate the transactions contemplated
hereby or to perform his obligations hereunder.
(e) Such Seller has not taken and will not take, directly
or indirectly, any action designed to, or which has
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constituted, or which might reasonably be expected to cause or result in the
manipulation or stabilization of the price of the Common Stock and, other than
as permitted by the Securities Act, the Seller will not distribute any
prospectus (as defined in the Securities Act) or other offering material in
connection with the offering of the Registrable Securities.
(f) The information pertaining to such Seller provided or
which will be provided to Manugistics by or on behalf of such Seller for
inclusion under the caption "Selling Stockholders" in each Prospectus will be
complete and accurate in all material respects as of the date of such
Prospectus.
(g) Such Seller acknowledges and agrees that Manugistics
has relied and will rely on the representations, warranties and agreements made
by such Seller in the Stock Purchase Agreement as if such representations,
warranties and agreements were made to and with Manugistics.
8. Covenants of the Sellers and Paying Agent. Each Seller
covenants and agrees as follows:
(a) Such Seller shall not make or effect any Transfer,
directly or indirectly, of any Manugistics Group Shares or other Registrable
Securities, owned of record or beneficially by such Seller, (i) prior to the
effectiveness of the Registration Statement, or (ii) thereafter, except as
permitted by and in accordance with the respective terms and conditions of this
Agreement (including Section 8(b), below) and the other Closing Documents.
(b) Subsequent to the effectiveness of the Registration
Statement, such Seller shall not make or effect any Transfer of Registrable
Securities except: (i) Permitted Transfers; (ii) Transfers pursuant to the
Prospectus and as provided under the caption "Plan of Distribution" therein;
and (iii) Transfers in accordance with Rule 144(k); provided, however, that if,
for any reason, the Registration Statement shall not have become effective
prior to the first anniversary of Closing, Transfers of Registrable Securities
may be effected in accordance with Rule 144; and provided, further, however,
that if the Registration Statement shall become effective but the Prospectus
shall thereafter become unusable to effect sales of Registrable Securities
during the Applicable Period due to the entry of a stop order, the filing of a
post-effective amendment which has not been declared effective or for any other
reason, then Transfers of Registrable Securities may be effected pursuant to
the provisions of Rule 144.
(c) Such Seller shall promptly notify the Paying Agent of
each Transfer (other than Transfers effected pursuant to the Prospectus or Rule
144) of Registrable Securities made or effected by such Seller, but in no event
later than three Business Days
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after such Transfer. The Seller shall specify the name, address and tax
identification number of each transferee, together with the amount of
Registrable Securities transferred to such transferee. The Paying Agent shall
notify Manugistics of such Transfer, promptly after receipt of such notice, but
in no event later than three Business Days after receipt of such notice from
the Seller.
(d) Such Seller shall promptly notify each of Manugistics
and the Paying Agent if it shall have become an "affiliate" of Manugistics
within the meaning of Rule 144(a).
(e) Such Seller has not taken and will not take, directly
or indirectly, any action designed to cause or result in, or which has
constituted or might reasonably be expected to constitute, the manipulation or
stabilization of the price of Common Stock or of any other securities of
Manugistics.
9. Indemnification With Respect to Securities Matters.
(a) Manugistics will indemnify each Seller, each of its
officers, directors and partners, agents, representatives, legal counsel, and
accountants and each person controlling such Seller within the meaning of
Section 15 of the Securities Act with respect to which Registration has been
effected pursuant to this Section 9 against all expenses, claims, losses,
damages, and liabilities (or actions, proceedings, or settlements in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus, offering circular,
or other document (including any related registration statement, notification,
or the like) incident to any such Registration, or based on any omission (or
alleged omission) to state therein a material fact required to be stated
therein or necessary to make the statement therein not misleading, or any
violation by Manugistics of the Securities Act or any rule or regulation
thereunder applicable to Manugistics and relating to action or inaction
required of Manugistics in connection with any such Registration, and will
reimburse each such Seller, its officers, directors, partners, agents,
representatives, legal counsel, and accountants and each person controlling
such Seller for any legal and any other expenses reasonably incurred in
connection with investigating and defending or settling any such claim, loss,
damage, liability, or action; provided, however, that Manugistics will not be
liable in any such case to the extent that any such claim, loss, damage,
liability, or expense arises out of or is based on any untrue statement or
omission based upon written information furnished to Manugistics by such Seller
and stated to be specifically for use therein. It is agreed that the indemnity
agreement contained in this Section 9 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability, or action if such
settlement is effected without the consent of Manugistics (which consent shall
not be unreasonably withheld).
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(b) Each Seller, severally and not jointly, will
indemnify Manugistics, each of its directors, officers, partners, agents,
representatives, legal counsel, and accountants and each person who controls
Manugistics within the meaning of Section 15 of the Securities Act, each other
Seller, and each of their respective officers, directors, partners, agents and
representatives and each person controlling such other Seller, against all
claims, losses, damages and liabilities (or actions in respect thereof) arising
out of or based on any untrue statement (or alleged untrue statement) of a
material fact contained in the Registration Statement, Prospectus, offering
circular, or other document, or 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, and will reimburse Manugistics and such
other Sellers, directors, officers, partners, agents, representatives, legal
counsel, and accountants and control persons for any legal or any other
expenses reasonably incurred in connection with investigating or defending any
such claim, loss, damage, liability, or action, in each case to the extent, but
only to the extent, that such untrue statement (or alleged untrue statement) or
omission (or alleged omission) is made in such Registration Statement,
Prospectus, offering circular, or the document in reliance upon and in
conformity with written information furnished to Manugistics by the Seller or
authorized by such Seller to be furnished to Manugistics on behalf of such
Seller, whether by the Paying Agent or otherwise, and stated to be specifically
for use therein; provided, however, that the obligations of such Seller
hereunder shall not apply to amounts paid in settlement of any such claims,
losses, damages, or liabilities (or actions in respect thereof) if such
settlement is effected without the consent of such Seller (which consent shall
not be unreasonably withheld). The maximum liability of any Seller for
indemnity pursuant to this Section 9(b) shall not exceed the net proceeds that
such Seller realized from the sale of its Manugistics Group Shares pursuant to
the Prospectus or, if the Seller has not yet sold any Manugistics Group Shares
pursuant to the Prospectus at the time that indemnification is required
pursuant to this Agreement then the Seller's maximum liability hereunder shall
be the value of the Manugistics Group Shares beneficially held by such Seller
covered by the Prospectus measured by the closing price of such Manugistics
Group Shares on Nasdaq or other market or exchange on which the Manugistics
Group Shares are traded, or, if not so traded, by a fair market value standard
reasonably approved by Manugistics' then current Board of Directors.
(c) Each party entitled to indemnification under this
Section 9 (the "Indemnified Party") shall give notice to the party required to
provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may
be sought, and shall permit the Indemnifying Party to assume the defense of
such claim or any litigation resulting therefrom, provided that counsel for the
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Indemnifying Party, who shall conduct the defense of such claim or any
litigation resulting therefrom, shall be approved by the Indemnified Party
(whose approval shall not unreasonably be withheld), and the Indemnified Party
may participate in such defense at such party's expense, and provided further
that the failure of any Indemnified Party to give notice as provided herein
shall not relieve the Indemnifying Party of its obligations under this
Agreement to the extent such failure is not prejudicial. No Indemnifying
Party, in the defense of any such claim or litigation, shall, except with the
consent of each Indemnified Party, consent to entry of any judgment or enter
into any settlement that does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such Indemnified Party of a release from
all liability in respect to such claim or litigation. Each Indemnified Party
shall furnish such information regarding itself or the claim in question as an
Indemnifying Party may reasonably request in writing and as shall be reasonably
required in connection with defense of such claim and litigation resulting
therefrom.
(d) If the indemnification provided for in this Section 9
is unavailable to or insufficient to hold harmless an Indemnified Party with
respect to any loss, liability, claim, damage, or expense (or actions or
proceedings in respect thereof) referred to therein, then the Indemnifying
Party, in lieu of indemnifying such Indemnified Party hereunder, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such loss, liability, claim, damage, or expense (or actions or proceedings
in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party, on the one hand, and of the
Indemnified Party on the other, in connection with the statement or omissions
that resulted in such loss, liability, claim, damage, or expense (or actions or
proceedings in respect thereof), as well as any other relevant equitable
considerations; provided, however, that no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contributions from any Person that was not guilty of such
fraudulent misrepresentation. The relative fault of the Indemnifying Party and
of the Indemnified Party shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Indemnifying Party or by the Indemnified Party and
the parties' relative intent, knowledge, access to information, and opportunity
to correct or prevent such statement or omission.
The parties hereto agree that it would not be just and equitable if
contributions pursuant to this Section 9(d) were determined by pro rata
allocation (even if the Sellers were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to above in this Section 9(d). The amount
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paid or payable by an Indemnified Party as a result of any loss, liability,
claim, damage, or expense (or actions or proceedings in respect thereof)
referred to above in this Section 9(d) shall be deemed to include any legal or
other expenses reasonably incurred by such Indemnified Party in connection with
investigating or defending any such action or claim. The Sellers' obligations
in this Section 9(d) to contribute are several and not joint.
(e) The obligations of each Seller to indemnify and hold
harmless Manugistics and each other person entitled to indemnity as an
Indemnified Party under Section 9(b) is independent of any provision of the
Stock Purchase Agreement, whether regarding the Escrow Funds or otherwise and
the right of Manugistics and each such other person to be indemnified under
Section 9(b), above, shall not be limited by or otherwise subject to any
provision of the Stock Purchase Agreement. Specifically, by way of example,
and not by way of limitation, such claims shall not be subject to any minimum
amount and such claims may not be asserted against any of the Escrow Funds.
10. Reporting Requirements. Manugistics agrees that:
(a) during the Applicable Period, for so long as
Manugistics is subject to the reporting requirements of Section 13 or 15 of the
Exchange Act, Manugistics will file the reports required to be filed by it
under the Securities Act and Section 13(a) or 15(d) of the Exchange Act and the
rules and regulations adopted by the Commission thereunder;
(b) if Manugistics shall cease to be so required to file
such reports, it will, upon the request of the Paying Agent, take such further
action that is reasonable in the circumstances, including, without limitation,
the provision of current public information as required by Rule 144(c) (or any
similar successor provision), to enable such Seller to sell its Registrable
Securities pursuant to Rule 144; and
(c) periodically furnish to the Paying Agent forthwith
upon written request a written statement by Manugistics as to its compliance
with the reporting requirements of the Securities Act, the Exchange Act and/or
Rule 144, as appropriate.
11. Restrictive Legends.
(a) Each certificate evidencing Manugistics Group Shares
delivered at Closing shall bear the following legends:
The shares represented by this certificate have been acquired
for investment purposes only and have not been registered
under the Securities Act of 1933, as amended, or registered or
qualified under any applicable
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state, provincial or other securities laws. Such shares may
not be sold, assigned or otherwise transferred unless so
registered and qualified or unless, in the opinion of counsel,
which opinion is acceptable to Manugistics Group, Inc., an
exemption from such registration and any such qualification is
available.
The shares represented by this certificate are subject to
certain restrictions on transferability and to the other terms
and conditions of that certain Registration Rights Agreement
dated as of February ___, 1998, by and among Manugistics
Group, Inc., Xxxxxx Xxx and Xxxxxxxxxxx Xxxx, or either of
them acting alone, as Paying Agent, and the former holders of
all of the issued and outstanding shares of the capital stock
and all of the issued and outstanding options for the purchase
of shares of the capital stock of ProMIRA Software
Incorporated, copies of which are on file and may be obtained
upon written request directed to the attention of the
Secretary of Manugistics Group, Inc. Under said Agreement,
such shares may not be sold, pledged, donated or otherwise
transferred or encumbered except as expressly permitted
thereunder.
(b) Upon the effectiveness of the Registration Statement,
the restrictive legend referring to the Securities Act of 1933 set forth in
Section 11(a), above, shall be removed from each certificate representing
Manugistics Group Shares. The legend in Section 11(a), above, referring to
this Registration Rights Agreement shall be removed from each certificate
evidencing Registrable Securities upon the first to occur of: (i) the sale or
other Transfer of such securities pursuant to the Prospectus; and (ii) the sale
of such securities pursuant to Rule 144 (including Rule 144(k)).
12. Miscellaneous.
(a) Benefits Non-transferrable. Notwithstanding anything
to the contrary contained elsewhere in this Agreement or in any other Closing
Document, the obligation of Manugistics to effect the Registration and,
thereafter, to maintain the effectiveness of the Registration Statement is
solely for the benefit of each Initial Seller and, subject to Section 1(g),
Permitted Transferees.
(b) Governing Law. This Agreement shall be governed by
and interpreted and enforced in accordance with the laws of the
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State of Delaware as applied to contracts made and fully performed therein.
(c) Section Headings. All section headings are for
convenience only and shall in no way modify or restrict any of the terms or
provisions hereof.
(d) Interpretation. The masculine (or neuter) pronoun
and the singular number shall include the masculine, feminine and neuter
genders and the singular and plural numbers. A reference to a person shall
mean a natural person, a trustee, a corporation, a partnership and any other
form of legal entity. All references in the singular or plural shall be deemed
to have been made, respectively, in the plural or singular number as well, as
the context may require.
(e) Counterparts. This Agreement may be executed in two
or more counterparts, including, without limitation, execution by facsimile,
each of which shall be deemed an original, and all of which when taken together
shall be deemed to be one and the same instrument. It shall not be necessary
in making proof of this Agreement or any counterpart hereof to produce or
account for any of the other counterparts.
(f) [RESERVED]
(g) Amendments and Waivers. The provisions of this
Agreement, including provisions of this Section 12(g), may not be amended,
modified or supplemented, otherwise than with the prior written consent of
Manugistics, Insight Venture Partners I, L.P. ("Insight") and Wexford Insight
Canada, L.P. ("Wexford") (but, with respect to Insight and Wexford, their
respective prior consent is required only in the event that they have not sold,
distributed or otherwise effected the Transfer of more than 50% of the
Registrable Securities respectively allocated to them at Closing) and of
Sellers holding a majority of the Registrable Securities then outstanding
(including Registrable Securities held by Insight and Wexford).
(h) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing by hand delivery,
registered first class mail, telex, telecopier, or any courier guaranteeing
overnight delivery: (i) if to a Seller, to the Paying Agent addressed as
follows: Xxxxxx Xxx/Xxxxxxxxxxx Xxxx, Miralta Capital Inc., 000 Xxxxxx Xxxxxx,
Xxxxx 000, Xxxxxx, Xxxxxx X0X 0X0, or if required to be given hereunder
directly to the Seller, to the most current address given by such Seller to the
Paying Agent by means of a notice given in accordance with the provisions of
this Section 12(h), which address initially is, with respect to the Sellers,
the address set forth in the Schedules and Exhibits to the Stock Purchase
Agreement, and (ii) if to Manugistics, initially at Manugistics' address as set
forth in the
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Stock Purchase Agreement, and thereafter at such other address, notice of which
is given in accordance with the provisions of this Section 12(h).
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt is acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
(i) Successors and Assigns. This Agreement shall inure
to the benefit of and be binding upon the successors, assigns and transferees
of the parties hereto, subject to Section 12(a), above, provided, however, that
nothing herein shall be deemed to permit any assignment, transfer or other
disposition of Registrable Securities in violation of the terms of this
Agreement, the Stock Purchase Agreement or applicable law. If any transferee
of any Seller shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Registrable Securities, such Person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement
and such Person shall be entitled to receive the benefits hereof.
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto, intending to be legally bound
hereby, have duly executed this Registration Rights Agreement on the date first
above written.
Attest: MANUGISTICS GROUP, INC.
By:
--------------------- -----------------------
Title: Name:
Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
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------------------------------
XXXXXX XXX, Paying Agent
------------------------------
XXXXXXXXXXX XXXX, Paying Agent
[SIGNATURES CONTINUED ON NEXT PAGE]
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INSIGHT VENTURE PARTNERS I, L.P.
Attest: BY: Insight Venture Associates,
LLC, a Delaware limited
liability company, Its General
Partner
BY:
------------------------ ----------------------
Title: Title:
WEXFORD INSIGHT CANADA, L.P.
Attest: BY: Wexford Management LLC, a
Delaware limited liability
company, Its General Partner
BY:
------------------------ ----------------------
Title: Title:
Attest: ARCA INVESTMENTS INC.
BY:
------------------------ ----------------------
Title: Title:
Attest: CAPITAL D'AMERIQUE CDPQ INC.
BY:
------------------------ ----------------------
Title: Title:
Attest: CBC PENSION BOARD OF TRUSTEES
BY:
------------------------ ----------------------
Title: Title:
Attest: GEE & CO.
BY:
------------------------ ----------------------
Title: Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
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Attest: THE CANADA TRUST COMPANY A/C
000-000000-0
BY:
------------------------ ----------------------
Title: Title:
Attest: XXXXXX UNIVERSITY PENSION FUND
BY:
------------------------ ----------------------
Title: Title:
Attest: ROYAL TRUST CORPORATION OF CANADA
IN TRUST FOR ACCOUNT NO.
029361001
BY:
------------------------ ----------------------
Title: Title:
Attest: ROYAL TRUST CORPORATION OF CANADA
IN TRUST FOR ACCOUNT NO.
083166009
BY:
------------------------ ----------------------
Title: Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
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Attest: ASSOCIATION DE BIENFAISANCE ET DE
RETRAITE DES POLICIERS DE LA
COMMUNAUTE URBAINE DE MONTREAL
BY:
------------------------ ----------------------
Title: Title:
Attest: ONTARIO HYDRO IN TRUST FOR THE
PENSION FUND
BY:
------------------------ ----------------------
Title: Title:
Attest: SUN LIFE ASSURANCE COMPANY
OF CANADA
BY:
------------------------ ----------------------
Title: Title:
Attest: THE CANADA TRUST COMPANY
ACCOUNT NO. 000-000000-0
BY:
------------------------ ----------------------
Title: Title:
Attest: ALTACAP INVESTORS INC.
BY:
------------------------ ----------------------
Title: Title:
--------------------------
Xxxxx Xxxxx
--------------------------
Xxxxxx Xxxxx
--------------------------
Xxxxxx Xxxxx
[SIGNATURES CONTINUED ON NEXT PAGE]
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--------------------------------
Xxx Xxxxx
--------------------------------
The Xxxxx Family Trust
By:
-----------------------------
--------------------------------
Xxx XxXxxxxx
--------------------------------
Xxxxx XxXxxxxx
--------------------------------
Xxxxx Xxxxxxx
--------------------------------
Xxxxx Xxxxxxx
---------------------------------
Xxxxx Xxxxxx
---------------------------------
Xxxxxxx Xxxxxx
Attest: Laurentian Bank of Canada
ITF Xxxxxxx X. Xxxxxxx
By:
------------------------ ------------------------------
Title: Title:
Attest: RBC Dominion Securities
ITF Xxxxxx Xxxxx
By:
------------------------- -----------------------------
Title: Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
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Attest: RBC Dominion Securities
ITF Xxxxx Xxxxxx
By:
-------------------------- ------------------------------
Title: Title:
Attest: RBC Dominion Securities
ITF Xxx XxXxxxxx
By:
--------------------------- ------------------------------
Title: Title:
--------------------------------
Xxxxx Xxxx
--------------------------------
Xxxx Xxxx
--------------------------------
Xxxxxx Xxxxxxxx
XXXXX AND XXXX XXXX IN TRUST FOR
XXXXXXX XXXX
BY:
----------------------------
Xxxxx Xxxx, Trustee
BY:
-----------------------------
Xxxx Xxxx, Trustee
XXXXX AND XXXX XXXX IN TRUST
FOR XXXXXXX XXXX
BY:
-----------------------------
Xxxxx Xxxx, Trustee
BY:
------------------------------
Xxxx Xxxx, Trustee
[SIGNATURES CONTINUED ON NEXT PAGE]
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--------------------------- ----------------------------------
Xxxx Xxxxx Xxxxx Xxxxxx
--------------------------- ----------------------------------
Xxxxxx Xxxxxxxx Xxxxx Xxxxxx
--------------------------- ----------------------------------
Xxxxx Xxxxxx Xxxxxx Xxxxxxxx
--------------------------- ----------------------------------
Xxxxxx Xxxxxxx Xxxxx Xxxxxxxxx
--------------------------- ----------------------------------
Xxx Xxxx Xxxx Xxxxx
--------------------------- ----------------------------------
Xxxxxx Xxxxxxxx Xxxxxx XxXxxxxxxx
--------------------------- ----------------------------------
Xxxx Xxxxxxxxxx Xxxxxxx Xxxxxxxxx
--------------------------- -----------------------------------
Xxxxxx Xxxx Xxxxxxx Xxxxx
-------------------------- -----------------------------------
Xxxx Xxxxx Xxxxxx Xxxxxx
--------------------------- ----------------------------------
Xxx Xxxx Xxxxxx XxxXxxxxx
--------------------------- ----------------------------------
Xxx Xxxxxx Xxxx XxXxxxx
---------------------------
Xxxxx XxXxxxx
[SIGNATURES CONTINUED ON NEXT PAGE]
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--------------------------- -----------------------------------
Xxx XxXxxxxx Xxxxx Xxxxx
--------------------------- -----------------------------------
Sinisa Removic Xxxx Xxxxx
--------------------------- -----------------------------------
Xxxxxx Xxxxx Xxxx Xxxxx
--------------------------- -----------------------------------
Isabelle Saint-Laurent Xxxxxx Xxxxxxx
--------------------------- -----------------------------------
Xxxxxx Xxxxxx Xxx Xxxxxx
--------------------------- -----------------------------------
Sirpa Tarssanen Xxxxx Xxxxxx
--------------------------- -----------------------------------
Xxxxxxx Xxxxxx Xxxx van Galder
--------------------------- -----------------------------------
Xxxxx Xxxxxxx Xxxxxxx Xxxxx
--------------------------- -----------------------------------
Xxx Xxxx Xxxx Xxxxxxxx
--------------------------- -----------------------------------
Xxxxx Xxxxxx Xxxxxx Xxxxx
Attest: RBC Dominion Securities ITF
Xxxxx XxXxxxx
BY:
--------------------------------
Title: Title:
[SIGNATURES CONTINUED ON NEXT PAGE]
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Attest: Xxxxx Xxxxxx, XXX
C/F Xxxxxx XxXxxxxxxx
BY:
--------------------------------
Title: Title:
--------------------------- -----------------------------------
Xxx Xxxxx Xxxxx Xxxxxxx
--------------------------- -----------------------------------
Xxxxx Xxxxxx Xxx Xxxxxxx
--------------------------- -----------------------------------
Xxxx Xxxxxxx Xxxx Xxxxxx
--------------------------- -----------------------------------
Xxxxx Xxxxxxxxx Xxx Xxxxxx
--------------------------- -----------------------------------
Xxxx Xxxxxx Xxxxx Xxxxxxx
--------------------------- -----------------------------------
Xxxxx Xxxxxxxxx Xxxx Xxxx
--------------------------- -----------------------------------
Xxxxx Xxxxxxxx Xxxx Xxxxxxxx
--------------------------- -----------------------------------
Xxxxx Xxxxx Hie Xxxx Xxxx
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Exhibit A
Form of Opinion of Counsel
1. Each of the Registration Statement and the prospectus (other
than the financial statements, notes or schedules thereto and other financial
and statistical information and supplemental schedules included or referred to
therein [or omitted therefrom], as to which such counsel needs express no
opinion), complies as to form in all material respects with the applicable
requirements of the Securities Act and the applicable rule and regulations
promulgated under the Securities Act.
2. We have participated in the preparation of the Registration
Statement and the Prospectus, and, although we have not undertaken to verify or
determine independently, and do not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, on the basis of the foregoing
(relying as to materiality to a large extent upon representations and opinions
of officers and other representatives of Manugistics), no facts have come to
such counsel's attention which has caused such counsel to believe that the
Registration Statement or the Prospectus, at the time the Registration
Statement became effective under the Securities Act, contains or contained on
the relevant date an untrue statement of a material fact or omits or omitted on
the relevant date to state a material fact required to be stated therein or
necessary to make the statements contained therein not misleading (it being
understood that we express no belief or view with respect to the financial
statements and the notes thereto, schedules and other financial, statistical
and operating information and information regarding ProMIRA (including, without
limitation, information regarding ProMIRA's financial condition, business and
operations or regarding any of the Sellers contained or referred to therein).
31
