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Exhibit 10.5
REGISTRATION RIGHTS AGREEMENT
This Agreement dated as of May 7, 1996 is entered into by and among
FlexiInternational Software, Inc., a Delaware corporation (the "Company"), and
the list of purchasers set forth on Exhibit A hereto (the "Purchasers").
WHEREAS, certain of the Purchasers are the holders of shares of the
Company's Common Stock, Series A Convertible Preferred Stock and/or Series B
Convertible Preferred Stock; and
WHEREAS, certain of the Purchasers are the holders of warrants to purchase
shares of the Company's Common Stock, Series A Convertible Preferred Stock
and/or Series B Convertible Preferred Stock, and/or promissory notes convertible
into Common Stock of the Company; and
WHEREAS, the Company and certain of the Purchasers have entered into a
Series C Preferred Stock Purchase Agreement of even date herewith (the "Purchase
Agreement"); and
WHEREAS, the Company and the Purchasers desire to provide for certain
arrangements with respect to the registration of shares of capital stock of the
Company under the Securities Act of 1933, as amended (the "Securities Act");
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Commission" means the Securities and Exchange Commission, or any
other Federal agency at the time administering the Securities Act.
"Common Stock" means the common stock, $.01 par value per share, of
the Company.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar Federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
"Registration Statement" means a registration statement filed by the
Company with the Commission for a public offering and sale of Common Stock
(other than a registration statement on Form S-8 or Form S-4, or their
successors, or
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any other form for a similar limited purpose, or any registration statement
covering only securities proposed to be issued in exchange for securities or
assets of another corporation).
"Registration Expenses" means the expenses described in Section 5.
"Registrable Shares" means (i) the shares of Common Stock issued or
issuable upon conversion of the Shares, (ii) any shares of Common Stock, and any
shares of Common Stock issued or issuable upon the conversion or exercise of any
other securities, acquired by the Purchasers pursuant to the Participation
Agreement of even date herewith among the Company, the Purchasers and Comdisco,
Inc., (iii) any shares of Common Stock issued or issuable upon (A) exercise of
the warrant issued by the Company to The Connecticut Development Authority
("CDA") as of August 1, 1995 or (B) conversion, in accordance with its terms, of
the loan made to the Company by CDA pursuant to the Loan Agreement between the
Company and CDA dated as of August 1, 1995, and (iv) any other shares of Common
Stock issued in respect of such shares (because of stock splits, stock
dividends, reclassifications, recapitalizations, or similar events); provided,
however, that shares of Common Stock which are Registrable Shares shall cease to
be Registrable Shares (x) upon any sale pursuant to a Registration Statement or
Rule 144 under the Securities Act or (y) upon any sale in any manner to a person
or entity which, by virtue of Section 12 of this Agreement, is not entitled to
the rights provided by this Agreement. Wherever reference is made in this
Agreement to a request or consent of holders of a certain percentage of
Registrable Shares, the determination of such percentage shall include shares of
Common Stock issuable upon conversion of the Shares even if such conversion has
not yet been effected.
"Securities Act" means the Securities Act of 1933, as amended, or
any similar Federal statute, and the rules and regulations of the Commission
issued under such Act, as they each may, from time to time, be in effect.
"Shares" shall mean shares of the Company's Series A Convertible
Preferred Stock, Series B Convertible Preferred Stock and Series C Convertible
Preferred Stock.
"Stockholders" means the Purchasers and any persons or entities to
whom the rights granted under this Agreement are transferred by any Purchasers,
their successors or assigns pursuant to Section 12 hereof.
2. Required Registrations.
(a) At any time after November 7, 1996 but prior to the closing of
the Company's initial public offering of shares of Common Stock pursuant to an
effective registration statement under the Securities Act at a price of not less
than $3.30 per
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share (appropriately adjusted to reflect any stock dividend, stock split,
combination or other similar recapitalization affecting such shares) and
resulting in at least $10,000,000 of gross proceeds to the Company (the "Initial
Public Offering"), a Stockholder or Stockholders holding in the aggregate a
majority of the Registrable Shares may request, in writing, that the Company
effect the registration on Form S-1 or Form S-2 (or any successor form) of
Registrable Shares owned by such Stockholder or Stockholders. If the holders
initiating the registration intend to distribute the Registrable Shares by means
of an underwriting, they shall so advise the Company in their request. In the
event such registration is underwritten, the right of other Stockholders to
participate shall be conditioned on such Stockholders' participation in such
underwriting. Upon receipt of any such request, the Company shall promptly give
written notice of such proposed registration to all Stockholders. Such
Stockholders shall have the right, by giving written notice to the Company
within 30 days after the Company provides its notice, to elect to have included
in such registration such of their Registrable Shares as such Stockholders may
request in such notice of election; provided that if the underwriter (if any)
managing the offering determines that, because of marketing factors, all of the
Registrable Shares requested to be registered by all Stockholders may not be
included in the offering, then all Stockholders who have requested registration
shall participate in the registration pro rata based upon the number of
Registrable Shares which they have requested to be so registered. Thereupon, the
Company shall, as expeditiously as possible, use its best efforts to effect the
registration on Form S-1 or Form S-2 (or any successor form) of all Registrable
Shares which the Company has been requested to so register.
(b) At any time after the Initial Public Offering, a Stockholder or
Stockholders may request the Company, in writing, to effect the registration on
Form S-1, Form S-2 or Form S-3 (or such successor forms relating to secondary
offerings), of Registrable Shares having an aggregate offering price of at least
$10,000,000 (based on the then current public market price). Upon receipt of any
such request, the Company shall promptly give written notice of such proposed
registration to all Stockholders. Such Stockholders shall have the right, by
giving written notice to the Company within 30 days after the Company provides
its notice, to elect to have included in such registration such of their
Registrable Shares as such Stockholders may request in such notice of election;
provided that if the underwriter (if any) managing the offering determines that,
because of marketing factors, all of the Registrable Shares requested to be
registered by all Stockholders may not be included in the offering, then all
Stockholders who have requested registration shall participate in the
registration pro rata based upon the number of Registrable Shares which they
have requested to be so registered. Thereupon, the Company shall, as
expeditiously as possible, use its best efforts to effect the registration of
all Registrable Shares which the Company has been requested to so register.
(c) The Company shall not be required to effect more than one
registration pursuant to paragraph (a) above or more than two registrations
pursuant
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to paragraph (b) above. In addition, the Company shall not be required to effect
any registration (other than on Form S-3 or any successor form relating to
secondary offerings) within six months after the effective date of any other
Registration Statement of the Company.
(d) If at the time of any request to register Registrable Shares
pursuant to this Section 2, the Company is engaged or has fixed plans to engage
within 30 days of the time of the request in a registered public offering as to
which the Stockholders may include Registrable Shares pursuant to Section 3 or
is engaged in any other activity which, in the good faith determination of the
Company's Board of Directors, 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 period not in excess of six
months from the effective date of such offering or the date of commencement 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 two-year period.
3. Incidental Registration.
(a) Whenever the Company proposes to file a Registration Statement
(other than pursuant to Section 2) at any time and from time to time, it will,
prior to such filing, give written notice to all Stockholders of its intention
to do so and, upon the written request of a Stockholder or Stockholders given
within 20 days after the Company provides such notice (which request shall state
the intended method of disposition of such Registrable Shares), the Company
shall use its best efforts to cause all Registrable Shares which the Company has
been requested by such Stockholder or Stockholders to register to be registered
under the Securities Act to the extent necessary to permit their sale or other
disposition in accordance with the intended methods of distribution specified in
the request of such Stockholder or Stockholders; provided that the Company shall
have the right to postpone or withdraw any registration effected pursuant to
this Section 3 without obligation to any Stockholder.
(b) In connection with any registration under this Section 3
involving an underwriting, the Company shall not be required to include any
Registrable Shares in such registration unless the holders thereof accept the
terms of the underwriting as agreed upon between the Company and the
underwriters selected by it (provided that such terms must be consistent with
this Agreement). If in the opinion of the managing underwriter it is appropriate
because of marketing factors to limit the number of Registrable Shares to be
included in the offering, then the Company shall be required to include in the
registration only that number of Registrable Shares, if any, which the managing
underwriter believes should be included therein. If the number of Registrable
Shares to be included in the offering in accordance with the foregoing is less
than the total number of shares which the
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holders of Registrable Shares have requested to be included, then the holders of
Registrable Shares who have requested registration and other holders of
securities entitled to include them in such registration shall participate in
the registration pro rata based upon their total ownership of shares of Common
Stock (giving effect to the conversion into Common Stock of all securities
convertible thereinto). If any holder would thus be entitled to include more
securities than such holder requested to be registered, the excess shall be
allocated among other requesting holders pro rata in the manner described in the
preceding sentence.
4. Registration Procedures. If and whenever the Company is required by the
provisions of this Agreement to use its best efforts to effect the registration
of any of the Registrable Shares under the Securities Act, the Company shall:
(a) file with the Commission a Registration Statement with respect
to such Registrable Shares and use its best efforts to cause that Registration
Statement to become and remain effective;
(b) as expeditiously as possible prepare and file with the
Commission any amendments and supplements to the Registration Statement and the
prospectus included in the Registration Statement as may be necessary to keep
the Registration Statement effective, in the case of a firm commitment
underwritten public offering, until each underwriter has completed the
distribution of all securities purchased by it and, in the case of any other
offering, until the earlier of the sale of all Registrable Shares covered
thereby or 120 days after the effective date thereof;
(c) as expeditiously as possible furnish to each selling Stockholder
such reasonable numbers of copies of the prospectus, including a preliminary
prospectus, in conformity with the requirements of the Securities Act, and such
other documents as the selling Stockholder may reasonably request in order to
facilitate the public sale or other disposition of the Registrable Shares owned
by the selling Stockholder;
(d) as expeditiously as possible use its best efforts to register or
qualify the Registrable Shares covered by the Registration Statement under the
securities or Blue Sky laws of such states as the selling Stockholders shall
reasonably request, and do any and all other acts and things that may be
necessary or desirable to enable the selling Stockholders to consummate the
public sale or other disposition in such states of the Registrable Shares owned
by such selling Stockholders; provided, however, that the Company shall not be
required in connection with this paragraph (d) to qualify as a foreign
corporation or execute a general consent to service of process in any
jurisdiction;
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(e) provide a transfer agent and registrar for all Registrable
Shares registered pursuant hereto and a CUSIP number for all such Registrable
Shares, in each case not later than the effective date of such registration; and
(f) use its best efforts to furnish, at the request of any Purchaser
requesting registration of Registrable Shares, on the date that such Registrable
Shares are delivered to the underwriters for sale in connection with a
registration under this Agreement, if such securities are being sold through
underwriters, or, if such securities are not being sold through underwriters, on
the date that the Registration Statement with respect to such securities becomes
effective, (i) an opinion dated such date, of the counsel representing the
Company for the purposes of such registration, in form and substance as is
customarily given to underwriters in an underwritten public offering, addressed
to the underwriters, if any, and to the Purchasers requesting registration of
Registrable Shares and (ii) a letter dated such date, from the independent
certified public accountants of the Company, in form and substance as is
customarily given by independent certified public accountants to underwriters in
an underwritten public offering, addressed to the underwriters, if any, and to
the Purchasers requesting registration of Registrable Shares.
If the Company has delivered preliminary or final prospectuses to the
selling Stockholders and after having done so the prospectus is amended to
comply with the requirements of the Securities Act, the Company shall promptly
notify the selling Stockholders and, if requested, the selling Stockholders
shall immediately cease making offers of Registrable Shares and return all
prospectuses to the Company. The Company shall promptly provide the selling
Stockholders with revised prospectuses and, following receipt of the revised
prospectuses, the selling Stockholders shall be free to resume making offers of
the Registrable Shares.
5. Allocation of Expenses. The Company will pay all Registration Expenses
of all registrations under this Agreement; provided, however, that if a
registration under Section 2 is withdrawn at the request of the Stockholders
requesting such registration (other than as a result of information concerning
the business or financial condition of the Company which is made known to the
Stockholders after the date on which such registration was requested) and if the
requesting Stockholders elect not to have such registration counted as a
registration requested under Section 2, the requesting Stockholders shall pay
the Registration Expenses of such registration pro rata in accordance with the
number of their Registrable Shares included in such registration. For purposes
of this Section 5, the term "Registration Expenses" shall mean all expenses
incurred by the Company in complying with this Agreement, including, without
limitation, all registration and filing fees, exchange listing fees, printing
expenses, fees and expenses of counsel for the Company and the fees and expenses
of one counsel selected by the selling Stockholders to represent the selling
Stockholders, to the extent the selling Stockholders are required pursuant to
the terms of any underwriting agreement to
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deliver to the underwriters opinions of counsel, the fees and expenses of
counsel to each selling Stockholder rendering any such opinion (not to exceed
$4,000 in each case), state Blue Sky fees and expenses, and the expense of any
special audits incident to or required by any such registration, but excluding
underwriting discounts, selling commissions and the fees and expenses of selling
Stockholders' own counsel (other than as set forth above and other than the
counsel selected to represent all selling Stockholders).
6. Indemnification and Contribution.
(a) In the event of any registration of any of the Registrable
Shares under the Securities Act pursuant to this Agreement, the Company will
indemnify and hold harmless the seller of such Registrable Shares, each
underwriter of such Registrable Shares, and each other person, if any, who
controls such seller or underwriter within the meaning of the Securities Act or
the Exchange Act against any losses, claims, damages or liabilities, joint or
several, to which such seller, underwriter or controlling person may become
subject under the Securities Act, the Exchange Act, state securities or Blue Sky
laws or otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any Registration
Statement under which such Registrable Shares were registered under the
Securities Act, any preliminary prospectus or final prospectus contained in the
Registration Statement, or any amendment or supplement to such Registration
Statement, or arise out of or are based upon the omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and the Company will reimburse such seller,
underwriter and each such controlling person for any legal or any other expenses
reasonably incurred, as such expenses are incurred, by such seller, underwriter
or controlling person in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the Company
will not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon any untrue statement or
omission made in such Registration Statement, preliminary prospectus or final
prospectus, or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company, in writing, by or on
behalf of such seller, underwriter or controlling person specifically for use in
the preparation thereof.
(b) In the event of any registration of any of the Registrable
Shares under the Securities Act pursuant to this Agreement, each seller of
Registrable Shares, severally and not jointly, will indemnify and hold harmless
the Company, each of its directors and officers and each underwriter (if any)
and each person, if any, who controls the Company or any such underwriter within
the meaning of the Securities Act or the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which the Company, such
directors and officers, underwriter or
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controlling person may become subject under the Securities Act, Exchange Act,
state securities or Blue Sky laws or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement under which such Registrable Shares were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained in the Registration Statement, or any amendment or
supplement to the Registration Statement, or arise out of or are based upon any
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, if the
statement or omission was made in reliance upon and in conformity with
information relating to such seller furnished in writing to the Company by or on
behalf of such seller specifically for use in connection with the preparation of
such Registration Statement, prospectus, amendment or supplement; provided,
however, that the obligations of such Stockholders hereunder shall be limited to
an amount equal to the proceeds to each Stockholder of Registrable Shares sold
in connection with such registration.
(c) Each party entitled to indemnification under this Section 6 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom; provided, that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld); 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 Section 6; and, provided, further, that, to the extent
that any failure of any Indemnified Party to give notice as provided herein
causes any Indemnifying Party to incur costs, damages or expenses, such
Indemnifying Party shall have a claim against such Indemnified Party for such
costs, damages and expenses. The Indemnified Party may participate in such
defense at such party's expense; provided, however, that the Indemnifying Party
shall pay such expense if representation of such Indemnified Party by the
counsel retained by the Indemnifying Party would be inappropriate due to actual
or potential differing interests between the Indemnified Party and any other
party represented by such counsel in such proceeding. No Indemnifying Party, in
the defense of any such claim or litigation shall, except with the consent of
each Indemnified Party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such Indemnified Party of a release from all
liability in respect of such claim or litigation, and no Indemnified Party shall
consent to entry of any judgment or settle such claim or litigation without the
prior written consent of the Indemnifying Party.
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(d) In order to provide for just and equitable contribution to joint
liability under the Securities Act in any case in which either (i) any holder of
Registrable Shares exercising rights under this Agreement, or any controlling
person of any such holder, makes a claim for indemnification pursuant to this
Section 6 but it is judicially determined (by the entry of a final judgment or
decree by a court of competent jurisdiction and the expiration of time to appeal
or the denial of the last right of appeal) that such indemnification may not be
enforced in such case notwithstanding the fact that this Section 6 provides for
indemnification in such case, or (ii) contribution under the Securities Act may
be required on the part of any such selling Stockholder or any such controlling
person in circumstances for which indemnification is provided under this Section
6; then, in each such case, the Company and such Stockholder will contribute to
the aggregate losses, claims, damages or liabilities which they would otherwise
be obligated to indemnify under Section 6(a) or (b) (after contribution from
others) in such proportions so that such holder is responsible for the portion
represented by the percentage that the public offering price of its Registrable
Shares offered by the Registration Statement bears to the public offering price
of all securities offered by such Registration Statement, and the Company is
responsible for the remaining portion; provided, however, that, in any such
case, (A) no such holder will be required to contribute any amount in excess of
the proceeds to it of all Registrable Shares sold by it pursuant to such
Registration Statement, and (B) no person or entity guilty of fraudulent
misrepresentation, within the meaning of Section 11(f) of the Securities Act,
shall be entitled to contribution from any person or entity who is not guilty of
such fraudulent misrepresentation.
7. Indemnification with Respect to Underwritten Offering. In the event
that Registrable Shares are sold pursuant to a Registration Statement in an
underwritten offering pursuant to Section 2, the Company agrees to enter into an
underwriting agreement containing customary representations and warranties with
respect to the business and operations of an issuer of the securities being
registered and customary covenants and agreements to be performed by such
issuer, including without limitation customary provisions with respect to
indemnification by the Company of the underwriters of such offering. To the
extent that the indemnification provisions of this Agreement addressing the
relative rights and obligations of the Company and the underwriters or the
Stockholders and the underwriters conflict with, or are otherwise modified by,
the indemnification provisions of the underwriting agreement, the provisions of
such underwriting agreement shall control.
8. Information by Holder. Each Stockholder including Registrable Shares in
any registration shall furnish to the Company such information regarding such
Stockholder and the distribution proposed by such Stockholder as the Company may
reasonably request in writing and as shall be required in connection with any
registration, qualification or compliance referred to in this Agreement.
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9. "Stand-Off" Agreement. Each Stockholder, if requested by the Company
and the managing underwriter of an offering by the Company of Common Stock or
other securities of the Company pursuant to a Registration Statement, shall
agree not to sell publicly or otherwise transfer or dispose of any Registrable
Shares or other securities of the Company held by such Stockholder for a
specified period of time (not to exceed 90 days) following the effective date of
such Registration Statement; provided, that:
(a) such agreement shall only apply to the first Registration
Statement covering Common Stock to be sold on its behalf to the public in an
underwritten offering; and
(b) all Stockholders holding not less than the number of shares of
Common Stock held by such Stockholder (including shares of Common Stock issuable
upon the conversion of Shares, or other convertible securities, or upon the
exercise of options, warrants or rights) and all officers and directors of the
Company enter into similar agreements.
10. Rule 144 Requirements. After the earliest of (i) the closing of the
sale of securities of the Company pursuant to a Registration Statement, (ii) the
registration by the Company of a class of securities under Section 12 of the
Exchange Act, or (iii) the issuance by the Company of an offering circular
pursuant to Regulation A under the Securities Act, the Company agrees to:
(a) comply with the requirements of Rule 144(c) under the Securities
Act with respect to current public information about the Company;
(b) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements); and
(c) furnish to any holder of Registrable Shares upon request (i) a
written statement by the Company as to its compliance with the requirements of
said Rule 144(c), and the reporting requirements of the Securities Act and the
Exchange Act (at any time after it has become subject to such reporting
requirements), (ii) a copy of the most recent annual or quarterly report of the
Company, and (iii) such other reports and documents of the Company as such
holder may reasonably request to avail itself of any similar rule or regulation
of the Commission allowing it to sell any such securities without registration.
11. Mergers, Etc. The Company shall not, directly or indirectly, enter
into any merger, consolidation or reorganization in which the Company shall not
be the surviving corporation unless the proposed surviving corporation shall,
prior to such merger, consolidation or reorganization, agree in writing to
assume the obligations of
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the Company under this Agreement, and for that purpose references hereunder to
"Registrable Shares" shall be deemed to be references to the securities which
the Stockholders would be entitled to receive in exchange for Registrable Shares
under any such merger, consolidation or reorganization; provided, however, that
the provisions of this Section 11 shall not apply in the event of any merger,
consolidation or reorganization in which the Company is not the surviving
corporation if all Stockholders are entitled to receive in exchange for their
Registrable Shares consideration consisting solely of (i) cash, (ii) securities
of the acquiring corporation which may be immediately sold to the public without
registration under the Securities Act, or (iii) securities of the acquiring
corporation which the acquiring corporation has agreed to register within 90
days of completion of the transaction for resale to the public pursuant to the
Securities Act.
12. Transfers of Rights. This Agreement, and the rights and obligations of
each Purchaser hereunder, may be assigned by such Purchaser to any person or
entity to which Shares are transferred by such Purchaser, and such transferee
shall be deemed a "Purchaser" for purposes of this Agreement; provided that the
transferee provides written notice of such assignment to the Company.
13. Prior Agreement. The Registration Rights Agreement dated as of January
20, 1995, as amended to date, among the Company and certain of the Purchasers
and their affiliates is hereby terminated.
14. General.
(a) Notices. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be delivered
by hand or mailed by first class certified or registered mail, return receipt
requested, postage prepaid:
If to the Company, at Xxx Xxxxxxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxx, Chairman, or at such other address or addresses as
may have been furnished in writing by the Company to the Purchasers, with a copy
to Xxxx X.X. Xxxxx, III, Esq., Xxxx and Xxxx, 00 Xxxxx Xxxxxx, Xxxxxx,
Xxxxxxxxxxxxx 00000; or
If to a Purchaser, at his or its address set forth on Exhibit A or at such
other address or addresses as may have been furnished to the Company in writing
by such Purchaser.
Notices provided in accordance with this Section 14(a) shall be deemed
delivered upon personal delivery or two business days after deposit in the mail.
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(b) Entire Agreement. This Agreement embodies the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings relating to such
subject matter.
(c) Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived (either
generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company and the holders of at
least 80% of the Registrable Shares; provided, that this Agreement may be
amended with the consent of the holders of less than all Registrable Shares only
in a manner which affects all Registrable Shares in the same fashion. No waivers
of or exceptions to any term, condition or provision of this Agreement, in any
one or more instances, shall be deemed to be, or construed as, a further or
continuing waiver of any such term, condition or provision.
(d) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document.
(e) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(f) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware.
Executed as of the date first written above.
COMPANY:
FlexiInternational Software, Inc.
By: /s/ Xxxxxx Xxxxx
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Title:
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PURCHASERS:
Xxxxxxx Xxxxx Capital Partners V, L.P.
By: Xxxxxxx Xxxxx Capital Management
Company, L.L.C., its General Partner
By: /s/ Xxxxx Xxxxxxxx
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Managing Director
Xxxxxxx Xxxxx & Company
By: NOT APPLICABLE
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Title:
Menlo Ventures VI, L.P.
By: MV Management VI, L.P.,
its General Partner
By: /s/ Xxxxxx Xxxxx
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General Partner
Menlo Entrepreneurs Fund VI, L.P.
By: MV Management VI, L.P.,
its General Partner
By: /s/ Xxxxxx Xxxxx
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General Partner
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Primus Capital Fund III
Limited Partnership
By: Primus Venture Partners III
Limited Partnership,
its General Partner
By: Primus Venture Partners, Inc.
its General Partner
By: /s/ Xxxxxxxx X. Xxxx
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Title: Executive Vice President
Xxxxxx Xxxx SBIC, L.P.
By: Xxxxxx Xxxx SBIC Investments LLC,
its General Partner
By: /s/ Xxxxx Xxxxxxx
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Title: Vice President
/s/ Xxxxxxxx X. Xxxxx
------------------------------------------
Xxxxxxxx X. Xxxxx
Comdisco, Inc.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Title:
CDC Realty, Inc.
By: /s/ Xxxx X. Xxxxxx
------------------------------------
Title:
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The Connecticut Development Authority
By: /s/ DSR
------------------------------------
Title: Sr. Vice President
and Managing Director
/s/ Xxxxxxxxxxx XxXxxxx
------------------------------------------
Xxxxxxxxxxx XxXxxxx
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EXHIBIT A
Schedule of Purchasers
Name and Address
Xxxxxxx Xxxxx Capital Partners V, L.P.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Menlo Ventures VI, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Menlo Entrepreneurs Fund VI, L.P.
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Primus Capital Fund III
Limited Partnership
Suite 0000
Xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxx Xxxx SBIC, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxxx X. Xxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
with a copy in each case to:
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx Xxxxxxxx
& Hachigan, LLP
000 Xxxxxx Xxx, Xxxxxx Xxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000.
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Comdisco, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
CDC Realty, Inc.
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
The Connecticut Development Authority
000 Xxxxx Xxxxxx, XXX 0
Xxxxx Xxxx, XX 00000
Xxxxxxxxxxx XxXxxxx
Offshore Asset Management, Inc.
000 Xxxx Xxxx Xxxx
Xxxxxxxx, XX 00000
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AMENDMENT TO
REGISTRATION RIGHTS AGREEMENT
This Agreement (the "Agreement") is entered into as of the fourth day
of November, 1997 by and among FlexiInternational Software, Inc., a Delaware
corporation (the "Company"), and the persons whose names are set forth below.
WHEREAS, the Company has entered into a certain Registration Rights
Agreement, dated as of May 7, 1996, as amended (the "Registration Rights
Agreement"), with the Purchasers (as defined therein); and
WHEREAS, the parties to the Registration Rights Agreement wish to amend
the Registration Rights Agreement; and
WHEREAS, the persons whose signatures are set forth below represent the
Company and at least eighty percent (80%) of the outstanding Registrable Shares
(as defined in the Registration Rights Agreement) presently subject to the
Registration Rights Agreement;
NOW, THEREFORE, for good and valuable consideration, the receipt of
which is hereby acknowledged, the parties hereto do hereby agree with each other
as follows:
1. Amendment to Registration Rights Agreement.
The definition of "Registrable Shares" contained in Section 1
of the Registration Rights Agreement is hereby deleted in its entirety and the
following paragraph is inserted in lieu thereof:
"Registrable Shares" means (i) the shares of Common Stock
issued or issuable upon conversion of the Shares, (ii) any
shares of Common Stock, and any shares of Common Stock issued
or issuable upon the conversion or exercise of any other
securities, acquired by the Purchasers pursuant to the
Participation Agreement of even date herewith among the
Company, the Purchasers and Comdisco, Inc., (iii) any shares
of Common Stock issued or issuable upon (A) exercise of the
warrant issued by the Company to The Connecticut Development
Authority ("CDA") as of August 1, 1995, or (B) conversion, in
accordance with its terms, of the loan made to the Company by
CDA pursuant to the Loan Agreement between the Company and CDA
dated as of August 1, 1995, and (iv) any other shares of
Common Stock issued in respect of such shares (because of
stock splits, stock dividends, reclassifications,
recapitalizations, or similar events); provided, however, that
shares of Common Stock which are Registrable Shares shall
cease to be Registrable Shares (x) upon any sale pursuant to a
Registration
19
Statement or Rule 144 under the Securities Act, (y) upon
becoming eligible for sale under Rule 144(k) under the
Securities Act, and (z) upon any sale in any manner to a
person or entity which, by virtue of Section 12 of this
Agreement, is not entitled to the rights provided by this
Agreement. Wherever reference is made in this Agreement to a
request or consent of holders of a certain percentage of
Registrable Shares, the determination of such percentage shall
include shares of Common Stock issuable upon conversion of the
Shares even if such conversion has not yet been effected.
2. Miscellaneous.
(a) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(b) Except as expressly modified pursuant to this Agreement,
the terms of the Registration Rights Agreement shall remain unchanged and in
full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
THE COMPANY: THE PURCHASERS:
FlexiInternational Software, Inc. Xxxxxxx Xxxxx Capital Partners V, L.P.
Menlo Ventures VI, L.P.
Menlo Entrepreneurs Fund VI, X.X.
Xxxxxx Capital Fund III
By: /s/ Xxxxxx X. Xxxxx Limited Partnership
-----------------------------
Xxxxxx X. Xxxxx Xxxxxx Xxxx SBIC, L.P.
Chairman of the Board and Comdisco, Inc.
Chief Executive Officer Xxxxxxxxxxx XxXxxxx
The Connecticut Development Authority
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Xxxxxx X. Xxxxx
Attorney-in-Fact
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