EXHIBIT 10(c)
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is dated as of
November 30, 1994 by and among Sterling Software, Inc., a Delaware corporation
(the "Buyer"), and the former stockholders of KnowledgeWare, Inc., a Georgia
corporation (the "Corporation"), listed on the signature page hereto (the
"Stockholders").
WHEREAS, the Buyer, SSI Corporation, a Georgia corporation and a wholly
owned subsidiary of the Buyer ("Merger Sub") and the Corporation entered into an
Amended and Restated Agreement and Plan of Merger dated as of August 31, 1994 to
be effective as of July 31 (the "Merger Agreement"; capitalized terms not
defined herein shall have the meanings set forth in the Merger Agreement); and
WHEREAS, Section 7.13 of the Merger Agreement contemplates that Buyer will
enter into this Agreement; and
WHEREAS, certain of the Stockholders executed Amended and Restated
Stockholders Agreements (the "Stockholder Agreements") dated as of August 31,
1994 providing that such Stockholders would vote in favor of the transactions
contemplated by the Merger Agreement, and to induce such Stockholders to enter
into the Stockholders Agreement, the Buyer has agreed to grant such Stockholders
certain registration rights as set forth herein;
NOW THEREFORE, in consideration of the foregoing and the covenants set
forth herein, in the Merger Agreement and the Stockholders Agreements, the
Stockholder and Buyer agree as follows:
1. REGISTRATION RIGHTS. The Buyer shall prepare and file a registration
statement (on an appropriate form) under the Securities Act to permit the sale
or other disposition, on a delayed or continuous basis, of any or all shares of
Buyer Common Stock that have been acquired by or are issuable to the
Stockholders with respect to the Shares and the Corporation Options (if such
Stockholder is not otherwise able to sell such shares free from restriction
under the federal securities laws). The Buyer shall use its reasonable efforts
to cause such registration statement to become effective as promptly as
reasonably practicable following the filing thereof, and to obtain all consents
or waivers of other parties which are required thereof and to keep such
registration statement effective for such period as may be reasonably necessary
to effect such sale or other disposition; provided, however, Buyer shall not be
obligated to keep such registration statement effective after such time as all
Stockholders are eligible to sell their shares of Buyer Common Stock pursuant to
Rule 144 or 145 under the Securities Act without being subject to volume resale
limitations; and provided, further, the Buyer shall not be required to prepare
audited financial statements (other than annual audited financial statements) in
order to maintain the effectiveness of the registration statement. In
connection with any sale by any
Stockholder of Buyer Common Stock pursuant to such registration statement, such
Stockholder must give and the Buyer must receive written notice of such
Stockholder's intention to make such a sale no less than two (2) nor more than
twenty (20) business days prior to the date of the proposed sale, which notice
shall include the number of shares proposed to be sold, the proposed plan of
distribution and the time period during the thirty (30) days following the date
of such notice during which the shares may be sold (the "Sale Period"), and such
Stockholder shall not, during any Sale Period, deliver any prospectus that is
part of such registration statement during any period of time when, but only so
long as, the Buyer gives such Stockholder written notice (a "Delay Notice") that
the Buyer is in possession of material non-public information that, in the
exercise of its reasonable judgement, would be required to be disclosed in such
registration statement in order to comply with the Securities Act and the rules
and regulations of the SEC thereunder; provided that the Buyer shall promptly
provide written notice to such Stockholder when such delay is no longer
applicable; provided further that no stockholder shall be so prevented from
selling such Buyer Common Stock for a period longer than ninety (90) consecutive
days (a "Delay Period") following receipt of a Delay Notice and any two Delay
Periods must be at least fifteen (15) days apart.
2. INDEMNIFICATION; CONTRIBUTION.
(a) Indemnification by the Buyer. The Buyer agrees to indemnify and hold
harmless each Stockholder, its officers, directors, agents, employees,
representatives and each person or entity who controls such Stockholder (within
the meaning of the Securities Act), against all losses, claims, damages,
liabilities and expenses (including reasonable costs of investigation) arising
out of or based upon any untrue or alleged untrue statement of material fact
contained in any registration statement, any amendment or supplement thereto,
any prospectus or preliminary prospectus 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, except insofar as the same arise out of
or are based upon any such untrue statement or omission contained in any
information furnished in writing to the Buyer by such Stockholder for use in the
preparation thereof. In connection with an underwritten offering, the Buyer will
indemnify the underwriters thereof, their officers and directors and each person
who controls such underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification of the
Stockholders.
(b) Indemnification by Stockholders. In connection with any registration
statement in which a Stockholder is participating, each such Stockholder will
furnish to the Buyer in writing such information with respect to the name and
address of such Stockholder, the amount of Buyer Common Stock held by such
Stockholder and the nature of such holdings, and such other information as is
required by the Buyer for use in connection with any such registration statement
or prospectus and agrees to indemnify and hold harmless the Buyer, its
directors, officers, agents, employees, representatives and each person or
entity who controls the Buyer (within the meaning of the Securities Act),
against all losses, claims, damages, liabilities and expenses (including
reasonable costs of investigation) arising out of or based upon any untrue or
alleged untrue statement of material fact contained in any registration
statement, any
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amendment or supplement thereto, any prospectus or preliminary prospectus or any
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, to the extent that such
untrue statement is contained in or omission arises from any information
furnished in writing by such Stockholder for use in the preparation thereof. In
no event shall the liability of any selling Stockholder of Buyer Common Stock
hereunder be greater in amount than the dollar amount of the proceeds received
by such Stockholder upon the sale of the Buyer Common Stock giving rise to such
indemnification obligation.
(c) Conduct of Indemnification Proceedings. Any person entitled to
indemnification hereunder agrees to give prompt written notice to the
indemnifying party after the receipt by such person of any written notice of the
commencement of any action, suit, proceeding or investigation or threat thereof
made in writing for which such person will claim indemnification or contribution
pursuant to this Agreement and, unless in the reasonable judgment of such
indemnified party (i) a conflict of interest may exist between such indemnified
party and the indemnifying party with respect to such claim or (ii) the named
parties to any such action, suit, proceeding or investigation (including any
impleaded parties) include both an indemnifying party and an indemnified party,
and such indemnified party shall have been advised by counsel that there may be
one or more legal defenses available to it which are different from or
additional to those available to the indemnifying party, permit the indemnifying
party to assume the defense of such claim with counsel reasonably satisfactory
to such indemnified party. Whether or not such defense is assumed by the
indemnifying party, the indemnifying party will not be subject to any liability
for any settlement made without its consent (but such consent will not be
unreasonably withheld). No indemnifying party will consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect of such claim or litigation. If the
indemnifying party is not entitled to, or elects not to, assume the defense of a
claim, it will not be obligated to pay the fees and expenses of more than one
counsel with respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such claim, in
which event the indemnifying party shall be obligated to pay the fees and
expenses of one additional counsel.
(d) Contribution. If the indemnification provided for in this Section 2
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 parties 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 fault of such indemnifying
party and indemnified parties shall be determined by reference to, among other
things, whether any 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 parties, and the parties' relative
intent, knowledge, access to information and
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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 Section 2(c), any legal or other fees or expenses reasonably incurred
by such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 2(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.
Notwithstanding the provisions of this Section 2(d), no selling Stockholder
shall be required to contribute any amount in excess of the amount by which the
total price at which the Buyer Common Stock of such selling Stockholder were
offered to the public exceeds the amount of any damages which such selling
Stockholder has otherwise been required to pay by reason of such untrue
statement or omission. 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 who was not guilty of such fraudulent
misrepresentation.
If indemnification is available under this Section 2, the indemnifying
parties shall indemnify each indemnified party to the full extent provided in
Section 2(a) and (b) without regard to the relative fault of said indemnifying
party or indemnified party or any other equitable consideration provided for in
this Section 2(d).
3. MISCELLANEOUS.
(a) Expenses. Except as otherwise provided herein, each of the parties
hereto shall bear and pay all costs and expenses incurred by it or on its behalf
in connection with the exercise of registration rights granted hereunder,
including fees and expenses of its own counsel.
(b) Waiver and Amendment. Any provision of this Agreement may be waived at
any time by the party that is entitled to the benefits of such provision. This
Agreement may not be modified, amended, altered or supplemented except upon the
execution and delivery of a written agreement executed by the parties hereto.
(c) Entire Agreement; No Third-Party Beneficiary; Severability. Except as
otherwise set forth in the Merger Agreement, this Agreement (including other
documents and instruments referred to herein or therein) (i) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof
and (ii) is not intended to confer upon any person other than the parties hereto
any rights or remedies hereunder. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or a
governmental entity to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or invalidated.
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(d) Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to any
applicable conflicts of law rules.
(e) Descriptive Headings. The descriptive headings contained herein are
for convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) Notices. All notices and other communications hereunder shall be in
writing and shall be given by overnight courier, by delivering the same in
person, by telecopy (with confirmation) or by registered or certified mail
(return receipt requested) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
If to the Buyer to:
Sterling Software, Inc.
0000 X. Xxxxxxx Xxxxxxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Attention: President
with a copy to:
Xxxxxxx & Xxxxxx, L.L.P.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Xx.
If to the Stockholder to:
Such address as appears on the signature page hereof
Such notice shall be deemed delivered and received on the date on which it is
received if sent by overnight courier, hand-delivered or telecopy, or on the
fifth business day following the date on which it is so mailed.
(g) Counterparts. This Agreement and any amendments hereto may be executed
in two counterparts, each of which shall be considered one and the same
agreement and shall become effective when both counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
both parties need not sign the same counterpart.
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(h) Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any party hereto.
(i) Specific Performance. The parties hereto agree that this Agreement may
be enforced by either party through specific performance, injunctive relief and
other equitable relief. The parties further agree to waive any requirement for
the securing or posting of any bond in connection with the obtaining of any such
equitable relief and that this provision is without prejudice to any other
rights that the parties hereto may have for any failure to perform this
Agreement.
IN WITNESS WHEREOF, the Stockholders and the Buyer have caused this
Registration Rights Agreement to be signed, all as of the date first written
above.
BUYER:
-----
STERLING SOFTWARE, INC.
By: /s/ Xxxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxxx X. Xxxxx
----------------------------------
Title: Executive Vice President
---------------------------------
Secretary and General Counsel
Address for Notice: STOCKHOLDERS:
------------
347962.07/D
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IN WITNESS WHEREOF, the Stockholders and the Buyer have caused this
Registration Rights Agreement to be signed, all as of the date first written
above.
BUYER:
STERLING SOFTWARE, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
Address for Notice: STOCKHOLDERS:
0000 Xxxxx Xxxxxxx Xxxxx /s/ Xxxx X. Xxxxxxx
--------------------------- --------------------------------------------
Xxxxxxx XX 00000
---------------------------
---------------------------
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IN WITNESS WHEREOF, the Stockholders and the Buyer have caused this
Registration Rights Agreement to be signed, all as of the date first written
above.
BUYER:
STERLING SOFTWARE, INC.
By: ___________________________
Name __________________________
Title _________________________
Address for Notice: STOCKHOLDERS:
Old Orchard Road INTERNATIONAL BUSINESS MACHINES CORPORATION
Xxxxxx, Xxx Xxxx 00000
By: /s/ Xxx X. Xxxxxx
-------------------------------
Name: Xxx X. Xxxxxx
-----------------------------
Title:General Manager, Real Estate
----------------------------
and Business Development
A-11
IN WITNESS WHEREOF, the Stockholders and the Buyer have caused this
Registration Rights Agreement to be signed, all as of the date first written
above.
BUYER:
STERLING SOFTWARE, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
Address for Notice: STOCKHOLDERS:
0000 Xxxx Xxx Xxxxxx /s/ Xxx X. Xxxxxx
--------------------------- --------------------------------------------
Suite 680
---------------------------
Xxxxxxxxx, XX 00000
---------------------------
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IN WITNESS WHEREOF, the Stockholders and the Buyer have caused this
Registration Rights Agreement to be signed, all as of the date first written
above.
BUYER:
STERLING SOFTWARE, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
Address for Notice: STOCKHOLDERS:
Tuppenney House /s/ Xxxxx Xxxxxx
--------------------------- --------------------------------------------
Xxxxxxxxxxx, XX00
---------------------------
Bermuda
---------------------------
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IN WITNESS WHEREOF, the Stockholders and the Buyer have caused this
Registration Rights Agreement to be signed, all as of the date first written
above.
BUYER:
STERLING SOFTWARE, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
Address for Notice: STOCKHOLDERS:
/s/ X. X. Xxxxxx
___________________________ --------------------------------------------
___________________________
___________________________
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IN WITNESS WHEREOF, the Stockholders and the Buyer have caused this
Registration Rights Agreement to be signed, all as of the date first written
above.
BUYER:
STERLING SOFTWARE, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
Address for Notice: STOCKHOLDERS:
/s/ J. Xxxxxxx Xxxxxxx
___________________________ --------------------------------------------
___________________________
___________________________
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IN WITNESS WHEREOF, the Stockholders and the Buyer have caused this
Registration Rights Agreement to be signed, all as of the date first written
above.
BUYER:
STERLING SOFTWARE, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
Address for Notice: STOCKHOLDERS:
0000 Xxxxxx Xxxxx Xx /s/ Xxxxxxx Xxxxxxxxx
--------------------------- --------------------------------------------
Xxxxxxx, XX 00000
---------------------------
___________________________
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IN WITNESS WHEREOF, the Stockholders and the Buyer have caused this
Registration Rights Agreement to be signed, all as of the date first written
above.
BUYER:
STERLING SOFTWARE, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
Address for Notice: STOCKHOLDERS: /s/ Xxxx X. Xxxxxxx
Xxxxxxxxx Group Inc. by Tarkenton Group, Inc.
--------------------------- --------------------------------------------
0000 Xxxxxxxxx Xxxx Xxxxxxxxx
---------------------------
Xxxxxxx XX 00000
---------------------------
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IN WITNESS WHEREOF, the Stockholders and the Buyer have caused this
Registration Rights Agreement to be signed, all as of the date first written
above.
BUYER:
STERLING SOFTWARE, INC.
By: ______________________________
Name: ____________________________
Title: ___________________________
Address for Notice: STOCKHOLDERS:
0000 Xxxxxxxxx Xx.X.X /s/ X. X. Xxxxxxxx
--------------------------- --------------------------------------------
#23H
---------------------------
Xxxxxxx XX 00000
---------------------------
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