EXHIBIT 1
---------
EGAIN COMMUNICATIONS CORPORATION
AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT
This AMENDMENT NO. 1 TO THE REGISTRATION RIGHTS AGREEMENT (this
"Amendment"), dated as of December 23, 2004, between eGAIN COMMUNICATIONS
CORPORATION, a Delaware corporation (the "Company"), and certain undersigned
holders of the 6.75% Series A Cumulative Convertible Preferred Stock of the
Company set forth on SCHEDULE I attached hereto (the "Holders").
W I T N E S S E T H:
WHEREAS, the Company and the holders of the 6.75% Series A
Cumulative Convertible Preferred Stock of the Company have previously entered
into that certain Registration Rights Agreement dated as of August 22, 2000 (the
"Rights Agreement") pursuant to which the Company, among other things, granted
certain registration rights to the Holders;
WHEREAS, the Company and certain Holders are parties to an
Agreement and Voting Agreement each dated as of September 29, 2004, pursuant to
which such Holders have agreed to modify certain rights held by such Holders in
return for the enhanced liquidity associated with an earlier conversion of the
Series A Preferred into Common Stock (the "Conversion"); and
WHEREAS, in connection with the Conversion, the Company and
the undersigned Holders of a majority of Registrable Securities (as defined in
the Rights Agreement) hereby desire to amend the Rights Agreement to provide for
an additional demand registration right and to lower the threshold for shares to
be included in an underwritten offering, as set forth in this Amendment:
NOW, THEREFORE, in consideration of the foregoing and the
respective promises, covenants and agreements set forth herein:
1) AMENDMENTS.
Section 3(a) of the Prior Agreement is hereby amended and
restated to read in its entirety:
"SHELF REGISTRATION. The Company shall prepare and file with
the Commission, as soon as practicable following the date hereof but in any
event no later than 60 days from the date hereof (the "Filing Date"), a
Registration Statement for an offering to be made on a continuous basis pursuant
to Rule 415 of the Securities Act (a "Shelf Registration") registering the
resale from time to time by holders of all of the Registrable Securities (the
"Initial Shelf Registration"). The Initial Shelf Registration shall be on Form
S-3 or another appropriate form permitting registration of such Registrable
Securities for resale by the holders in the manner or manners designated by
them, and shall cover all shares of Common Stock that could be issued within two
years of the effectiveness of the Initial Shelf Registration. If the holders of
a majority of the Registrable Securities so elect (the "Underwriting Initiating
Holders"), an offering of Registrable Securities pursuant to the Shelf
Registration Statement may be effected in the form of a firm commitment
underwritten offering; provided that the Company shall not be obligated to
cooperate with the Designated Holders hereunder in connection with more then
four (4) such underwritten offerings or in connection with any underwritten
offering where the aggregate offering price is less than $1 million (calculated
based upon the average of the Market Price of the Common Stock on three trading
days prior to the date on which request for the underwritten offering is
presented to the Company). The Company shall use its best efforts to cause such
underwritten offering to occur and the managing underwriter or underwriters
selected for such offering shall be the Approved Underwriter selected in
accordance with Section 3(g). In connection with any underwritten offering, the
Company shall not be required to include any Registrable Securities in such
underwritten offering unless the Designated Holders thereof accept the terms of
the underwritten offering as agreed upon by the Company, the Approved
Underwriter and the Underwriting Initiating Holders, and then only in such
quantity as such underwriter believes will not jeopardize the success of such
offering. If the Approved Underwriter believes that the registration of all or
part of the Registrable Securities which the Underwriting Initiating Holders and
the other Designated Holders have requested to be included would materially
adversely affect the success of such public offering, then the Company shall be
required to include in the underwritten offering, to the extent of the amount
that the Approved Underwriter believes may be sold without causing such adverse
effect, FIRST, all of the Registrable Securities to be offered for the account
of the Designated Holders who requested inclusion of their Registrable
Securities pursuant to this Section 5(a), pro rata based on the number of
Registrable Securities owned by such Designated Holders; and SECOND, any other
securities requested to be included in such offering. The Company shall use its
reasonable efforts to cause the Initial Shelf Registration to be declared
effective under the Securities Act as soon as practicable following the date of
the meeting of shareholders called to consider the Requisite Shareholder
Approvals but in any event no later than 180 days from the date hereof (the
"Effectiveness Deadline"), and to keep the Initial Shelf Registration
continuously effective under the Securities Act until the earlier of the
expiration of the Effectiveness Period or the date a Subsequent Shelf
Registration, as defined below, covering all of the Registrable Securities has
been declared effective under the Securities Act."
A new Section 9(m) is hereby added to the Rights Agreement
which shall read in its entirety:
"LOCKUP AGREEMENT. Reference is made to that certain
Restructuring Agreement by and among the Company and certain holders of
Registrable Securities dated as of September 29, 2004 (the "Restructuring
Agreement"). No Holder shall sell or otherwise transfer or dispose of any shares
of Common Stock (or other securities) of the Company held by such Holder issued
upon the conversion of the Series A Preferred Stock during the one hundred and
twenty (120) day period following the Closing (as defined in
the Restructuring Agreement) of the Conversion (as defined in the Restructuring
Agreement)."
2) MISCELLANEOUS.
(a) Capitalized terms used herein but not otherwise
defined herein shall have the meanings as set forth in the Agreement.
(b) Other than with respect to the amendment of Section
3(a) and the addition of Section 9(m) of the Rights Agreement set forth above,
this Amendment does not modify, change or delete any other addendum, term,
provision, representation, warranty or covenant (the "Provisions") relating to
or contained in the Rights Agreement, and all such Provisions shall remain in
full force and effect.
(c) This Amendment shall be construed in accordance with
and shall be governed by the laws of the State of California, without regard to
its laws as to conflict of laws.
(d) This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
(e) This Amendment and any of the provisions hereof may
not be amended, altered or added to in any manner except by a document in
writing and signed by the parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, this Amendment has been duly executed and
delivered by the duly authorized officer of each party hereto as of the date
first above written.
COMPANY
eGAIN COMMUNICATIONS CORPORATION
By /s/ Xxxxxxxx Xxx
----------------------------------
Its Chief Executive Officer
----------------------------------
Address: 000 X. Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
HOLDERS:
OAK HILL CAPITAL PARTNERS, L.P.
By: OHCP GenPar, L.P.
By: OHCP MGP, LLC
By: /s/ Xxxxx X.Xxxx
------------------------------------
Name: Xxxxx X.Xxxx
Title: Vice President
OAK HILL CAPITAL MANAGEMENT PARTNERS, L.P.
By: OHCP GenPar, L.P.
By: OHCP MGP, LLC
By: /s/ Xxxxx X.Xxxx
------------------------------------
Name: Xxxxx X.Xxxx
Title: Vice President
OAK HILL VENTURE FUND I, L.P.
By: OHCP Genpar I, L.P.
By: OHCP MGP I, LLC
By: /s/ Xxxxx X.Xxxx
------------------------------------
Name: Xxxxx X.Xxxx
Title: Vice President
FW INVESTORS V. L.P.
By: FW Management II, L.L.C.
By: /s/ Xxxxx X.Xxxx
------------------------------------
Name: Xxxxx X.Xxxx
Title: Vice President
/s/ Xxxxxx Xxxxx
------------------------------------------
Xxxxxx Xxxxx
/s/ Xxxxxxxx Xxx
------------------------------------------
Xxxxxxxx Xxx
/s/ Xxxx Xxxx
------------------------------------------
Xxxx Xxxx
/s/ Xxxxxx Xxxxxx
------------------------------------------
Xxxxxx Xxxxxx
GRANITE PRIVATE EQUITY III, LLC
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Its: Vice President
------------------------------------
DEUTSCHE BANK, A.G. LONDON BRANCH
BY: ITS AGENT, DEUTSCHE BANK SECURITIES
INC.
By:
------------------------------------
Its:
------------------------------------
and
By:
------------------------------------
Its:
------------------------------------
SOCIETE GENERALE PARIS
By:
------------------------------------
Its:
------------------------------------
XXXXXXX ASSOCIATES, L.P.
By:
------------------------------------
Its:
------------------------------------
WESTGATE INTERNATIONAL. L.P.
By: XXXXXXX INTERNATIONAL CAPITAL
ADVISORS, INC.,
Attorney-In-Fact
By:
------------------------------------
Its:
------------------------------------
THE XXXXX & XXXXX XXXXXX-XXXXXXX FAMILY
TRUST DATED
8 NOV 1999
By: /s/ Xxxxx Xxxxxx-Xxxxxxx
------------------------------------
Its: Trustee
------------------------------------
SCHEDULE I
LIST OF HOLDERS
--------------------------------------------------------------------------------
NAME SERIES SHARES
--------------------------------------------------------------------------------
Oak Hill Capital Partners, L.P. 316.87
--------------------------------------------------------------------------------
Oak Hill Venture Fund I, L.P. 60.00
--------------------------------------------------------------------------------
FW Investors V, L.P. 105.00
--------------------------------------------------------------------------------
Oak Hill Capital Management Partners, L.P. 8.12
--------------------------------------------------------------------------------
Granite Private Equity III, LLC 85.00
--------------------------------------------------------------------------------
Deutsche Bank A.G. London Branch 75.00
--------------------------------------------------------------------------------
Xxxxxxxx Xxx 30.00
--------------------------------------------------------------------------------
Xxxx Xxxx 10.00
--------------------------------------------------------------------------------
Xxxxxx Xxxxxx 10.00
--------------------------------------------------------------------------------
Societe Generale, Paris 10.00
--------------------------------------------------------------------------------
Elliot Associates, L.P. 50.00
--------------------------------------------------------------------------------
Westgate International, L.P. 50.00
--------------------------------------------------------------------------------
Xxxxx and Xxxxx Xxxxxx-Xxxxxxx Family Trust dated November 8, 1999 25.00
--------------------------------------------------------------------------------
Xxxxxx Xxxxx 50.00
--------------------------------------------------------------------------------
TOTAL: 884.99
--------------------------------------------------------------------------------
