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Exhibit 4.6 - Enact Investor Rights Agreement
ENACT INVESTOR RIGHTS AGREEMENT
THIS ENACT INVESTOR RIGHTS AGREEMENT (the "Agreement") is entered into
as of the 30th day of April, 1999, by and among SALESLOGIX CORPORATION, a
Delaware corporation (the "Parent"), and the persons whose names, signatures and
addresses appear on the signature page of this Agreement (collectively, the
"Enact Investors").
RECITALS
A. Parent, ENACT INCORPORATED, an Ohio corporation ("Enact"), and SLX
MERGER COMPANY, an Arizona corporation ("Newco") have simultaneously herewith
consummated the transactions contemplated by that certain Plan of Reorganization
and Agreement of Merger dated as of April 30, 1999 (the "Merger Agreement"),
pursuant to which Enact will merge with and into Newco in a tax-free
reorganization pursuant to Section 368(a)(2)(A) of the Internal Revenue Code of
1986, as amended. Capitalized terms used herein that are not otherwise defined
herein shall have the meanings ascribed to such terms in the Merger Agreement.
B. Immediately prior to the effective date of the Merger Agreement, the
Enact Investors own, in the aggregate, one hundred percent (100%) of the issued
and outstanding Class A Common Shares, Class B Convertible Common Shares, Class
C Convertible Common Shares and Warrants of Enact.
C. Pursuant to the Merger Agreement, the Enact Investors will receive
in the aggregate: (i) 407,531 shares of fully paid and nonassessable Class A
Common Stock issued by Parent (the "Parent Common Stock"); and (ii) additional
shares of Parent Common Stock, if any, to which Xxxxx Xxxxx shall be entitled,
under the terms and conditions set forth in the Xxxxx Xxxxx Employment Agreement
and the Restricted Stock Agreement. The Parent Common Stock referred to in (i)
and (ii) shall be referred to collectively as the "Shares."
D. Pursuant to the Merger Agreement, certain of the Shares shall be
deposited into escrow (the "Escrowed Shares") pursuant to a certain Escrow
Agreement ("Escrow Agreement") entered into as of the date hereof among the
parties hereto and an escrow agent. All Shares deposited into Escrow pursuant to
the Escrow Agreement shall be subject to the restrictions on transferability
described herein.
E. Parent has previously granted certain registration rights to the
holders of the Series A, C and E Preferred Stock of Parent as described in that
Amended and Restated Investors' Rights Agreement dated June 4, 1998 (the
"Restated Existing Investors' Rights Agreement").
F. Parent and the Enact Investors desire that Enact Investors receive
the registration rights set forth in this Agreement and that the Shares be
subject to certain restrictions as set forth in this Agreement.
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NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties agree as follows:
SECTION 1
Restrictions on Transferability
Registration Rights
1.1 Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Act" shall mean the Securities Act of 1933, as amended, or
any similar or successor federal statute and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Commission" shall mean the Securities and Exchange Commission
or any other federal agency at the time administering the Act.
"Holder" shall mean any person holding Registrable Securities,
including without limitation, the Enact Investors.
The terms "register," "registered" and "registration" refer to
a registration effected by preparing and filing a registration statement in
compliance with the Act, and the declaration or ordering of the effectiveness of
such registration statement.
"Registration Expenses" shall mean all expenses incurred by
Parent in complying with Section 1.5 hereof, including, without limitation, all
registration, qualification and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel for Parent, blue sky fees and expenses, and
the expense of any special audits incident to or required by any such
registration (but excluding the compensation of regular employees of Parent
which shall be paid in any event by Parent).
"Registrable Securities" means (a) the Shares; (b) any Parent
Common Stock issued or issuable in respect of other securities issued or
issuable with respect to the Shares upon any stock split, stock dividend,
recapitalization, or similar event, or any Parent Common Stock otherwise issued
or issuable with respect to the Shares; and (c) any Parent Common Stock with
respect to which Parent has granted registration rights to others; provided,
however, that shares of Parent Common Stock or other securities shall only be
treated as Registrable Securities if and so long as they have not been (x) sold
to or through a broker or dealer or underwriter in a public distribution or a
public securities transaction, or (y) sold in a transaction exempt from the
registration and prospectus delivery requirements of the Act under Section 4(l)
thereof so that all transfer restrictions and restrictive legends with respect
thereto are removed upon the consummation of such sale. "Registrable Securities"
may include the Escrowed Shares, provided that the proceeds from the sale of
such Escrowed Shares shall remain subject to the Escrow until qualified for
release thereunder.
"1934 Act" shall mean the Securities Exchange Act of 1934, as
amended.
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1.2 Restrictions. The Shares shall not be sold, assigned, pledged,
hypothecated or otherwise transferred except upon the conditions specified in
this Agreement, which conditions are intended to ensure compliance with the
provisions of the Act. Each Enact Investor will cause any proposed purchaser,
assignee, transferee or pledgee of the Shares to agree to take and hold such
securities subject to the provisions and upon the conditions specified in this
Agreement.
1.3 Restrictive Legend. Each certificate representing (a) the Shares
and (b) any other securities issued in respect of the Shares upon any stock
split, stock dividend, recapitalization, merger, consolidation or similar event,
shall (unless otherwise permitted by the provisions of Section 1.3 below) be
stamped or otherwise imprinted with a legend in substantially the following form
(in addition to any other legends required under applicable state securities
laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED. SUCH SHARES MAY NOT BE SOLD, TRANSFERRED OR PLEDGED
IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS THE COMPANY RECEIVES AN
OPINION OF COUNSEL REASONABLY ACCEPTABLE TO IT STATING THAT SUCH SALE
OR TRANSFER IS EXEMPT FROM THE REGISTRATION AND PROSPECTUS DELIVERY
REQUIREMENTS OF SAID ACT."
A FULL STATEMENT OF RIGHTS, PREFERENCES, PRIVILEGES AND RESTRICTIONS
GRANTED TO OR IMPOSED UPON THE RESPECTIVE CLASSES AND SERIES OF SHARES
OF THE COMPANY AND UPON THE HOLDERS THEREOF ARE SET FORTH IN THE
CERTIFICATE OF INCORPORATION OF THE COMPANY, AS AMENDED. THE
CERTIFICATE OF INCORPORATION MAY BE OBTAINED FROM THE SECRETARY OF THE
COMPANY UPON REQUEST AND WITHOUT CHARGE."
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED ONLY IN
ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY AND THE
ORIGINAL SHAREHOLDER, A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF
THE COMPANY."
Each Enact Investor and Holder consent to Parent making a notation on its
records and giving instructions to any transfer agent in order to implement the
restrictions on transfer established in this Section 1.
1.4 Notice of Proposed Transfers. The Holder of each certificate
representing Shares, by acceptance thereof, agrees to comply in all respects
with the provisions of this Section 1. Prior to any proposed sale, assignment,
transfer or pledge of any Shares, unless there is in effect a registration
statement under the Act covering the proposed transfer and in addition to
Holder's
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notice obligations under Section 1.2 above, the Holder thereof shall give
written notice to Parent of such Holder's intention to effect such transfer,
sale, assignment or pledge. Each such notice shall describe the manner and
circumstances of the proposed transfer, sale, assignment or pledge in sufficient
detail, and shall be accompanied at such Holder's expense by either (a) an
unqualified written opinion of legal counsel who shall, and whose legal opinion
shall be, reasonably satisfactory to Parent, addressed to Parent, to the effect
that the proposed transfer of the Shares may be effected without registration or
qualification under the Act and applicable state "blue sky" statutes, rules and
regulations ("Blue Sky Laws"), or (b) a "no action" letter from the Commission
and applicable state "blue sky" regulators (the "Regulators") to the effect that
the transfer of such securities without registration will not result in a
recommendation by the staff of the Commission or the Regulators that action be
taken with respect thereto, or (c) any other evidence reasonably satisfactory to
counsel to Parent, whereupon the Holder of such Shares shall be entitled to
transfer such Shares in accordance with the terms of the notice delivered by the
Holder to Parent. Each certificate evidencing the Shares transferred as above
provided shall bear, except if such transfer is made pursuant to Rule 144, the
appropriate restrictive legends set forth in this Section 1, except that such
certificate shall not bear such restrictive legend if, in the opinion of counsel
for such Holder and Parent, such legend is not required in order to establish
compliance with any provisions of the Act.
1.5 Company Registration. If (but without any obligation to do so)
Parent proposes to register any of its stock or other securities under the Act
in connection with the public offering of such securities solely for cash (other
than (i) the initial public offering of the Company's securities; (ii) a
registration relating solely to the sale of securities to participants in a
Parent stock plan; (iii) a registration on any form which does not include
substantially the same information as would be required to be included in a
registration statement covering the sale of the Registrable Securities; or (iv)
a registration in which the only Common Stock being registered is Common Stock
issuable upon conversion of debt securities which are also being registered);
including any registration made pursuant to Section 1.2(a) of the Restated
Existing Investors' Rights Agreement, Parent shall at such time, promptly give
each Holder written notice of such registration. Upon the written request of
each Holder given within twenty (20) days after mailing of such notice by Parent
in accordance with Section 2.5, Parent shall, subject to the provisions of
Sections 1.7 and 1.9, cause to be registered under the Act all of the
Registrable Securities that each such Holder has requested to be registered.
1.6 Obligations of Parent. Whenever required under Section 1.5 to
effect the registration of any Registrable Securities, Parent shall as
expeditiously as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause such
registration statement to become effective, and, upon the request of the Holders
of a majority of the Registrable Securities registered thereunder, keep such
registration statement effective for a period of up to one hundred twenty (120)
days or until the distribution contemplated in the Registration Statement has
been completed; provided, however, that such 120 day period shall be extended
for a period of time equal to the period the Holder refrains from selling any
securities included in such registration at the request of an underwriter of
Common Stock (or other securities) of Parent; and
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provided further that Parent reserves the right, in its discretion to terminate
or delay the registration efforts described in Section 1.5 at any time.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as may be necessary to comply with the provisions of the
Act with respect to the disposition of all securities covered by such
registration statement.
(c) Furnish to the Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Act, and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by them.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders;
provided that Parent shall not be required in connection therewith or as a
condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, unless Parent is already
subject to service in such jurisdiction and except as may be required by the
Act.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an 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 in the light of the circumstances then existing.
(g) Cause all such Registrable Securities registered pursuant
hereunder to be listed on each securities exchange on which similar securities
issued by Parent are then listed.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered pursuant hereunder and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
(i) Furnish, at the request of any Holder requesting registration
of Registrable Securities pursuant to Section 1.5, on the date that such
Registrable Securities are delivered to the underwriters for sale in connection
with a registration pursuant, 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 Parent
for the purposes of such registration, in form and substance as is customarily
given to underwriters in an underwritten public offering,
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addressed to the underwriters, if any, and to the Holders requesting
registration of Registrable Securities and (ii) a letter dated such date, from
the independent certified public accountants of Parent, 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 Holders requesting registration of Registrable Securities.
1.7 Furnish Information. It shall be a condition precedent to the
obligations of Parent to take any action pursuant to Section 1.5 with respect to
the Registrable Securities of any selling Holder that such Holder shall furnish
to Parent such information regarding itself, the Registrable Securities held by
it, and the intended method of disposition of such securities as shall be
required to effect the registration of such Holder's Registrable Securities.
1.8 Expenses of Company Registration. Parent shall bear and pay all
expenses incurred in connection with any registration, filing or qualification
of Registrable Securities with respect to the registrations pursuant to Section
1.5 for each Holder, including (without limitation) all registration, filing,
and qualification fees, printers and accounting fees relating or apportionable
thereto and the fees and disbursements of one counsel for the selling Holders
selected by them, but excluding underwriting discounts and commissions relating
to Registrable Securities.
1.9 Underwriting Requirements. In connection with any offering
involving an underwriting of Shares of Parent's capital stock, Parent shall not
be required under Section 1.5 to include any of the Holders' securities in such
underwriting unless they accept the terms of the underwriting as agreed upon
between Parent and the underwriters selected by it (or by other persons entitled
to select the underwriters), and then only in such quantity as the underwriters
determine in their sole discretion will not, jeopardize the success of the
offering by Parent. If the total amount of securities, including Registrable
Securities, requested by stockholders to be included in such offering exceeds
the amount of securities sold other than by Parent that the underwriters
determine in their sole discretion is compatible with the success of the
offering, then Parent shall be required to include in the offering only that
number of such securities, including Registrable Securities, which the
underwriters determine in their sole discretion will not jeopardize the success
of the offering (the securities so included to be apportioned pro rata among the
selling stockholders according to the total amount of securities requested to be
included therein owned by each selling stockholder or in such other proportions
as shall mutually be agreed to by such selling stockholders, but in no event
shall the amount of securities of the selling Holders included in the offering
be reduced below thirty percent (30%) of the total amount of securities included
in such offering, unless such offering is the initial public offering of
Parent's securities in which case the selling stockholders may be excluded if
the underwriters make the determination described above and no other
stockholder's securities are included (subject to the final sentence of Section
1.5). For purposes of the preceding parenthetical concerning apportionment, for
any selling stockholder which is a holder of Registrable Securities and which is
a partnership or corporation, the partners, retired partners and stockholders of
such holder, or the estates and family members of any such partners and retired
partners and any trusts for the benefit of any of the foregoing persons shall be
deemed to be a single "selling stockholder," and any pro-rata reduction with
respect to such "selling stockholder" shall be based
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upon the aggregate amount of Shares carrying registration rights owned by all
entities and individuals included in such "selling stockholder," as defined in
this sentence.
1.10 Delay of Registration. No Holder shall have any right to obtain or
seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 1.
1.11 Indemnification. In the event any Registrable Securities are
included in a registration statement under Section 1.5:
(a) To the extent permitted by law, Parent will indemnify and hold
harmless each Holder, any underwriter (as defined in the Act) for such Holder
and each person, if any, who controls such Holder or underwriter within the
meaning of the Act or the 1934 Act, against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the Act,
the 1934 Act or other federal or state law, insofar as such losses, claims,
damages, or liabilities (or actions in respect thereof) arise out of or are
based upon any of the following statements, omissions or violations
(collectively a "Violation"): (i) any untrue statement or alleged untrue
statement of a material fact contained in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by Parent of the Act, the 1934 Act, any state securities law or any
rule or regulation promulgated under the Act, the 1934 Act or any state
securities law; and Parent will pay to each such Holder, underwriter or
controlling person, as incurred, any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the indemnity agreement
contained in this subsection 1.11(a) 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 Parent (which consent shall not be
unreasonably withheld), nor shall Parent be liable in any such case for any such
loss, claim, damage, liability, or action to the extent that it arises out of or
is based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holder, underwriter or controlling person.
(b) To the extent permitted by law, each selling Holder will
indemnify and hold harmless Parent, each of its directors, each of its officers
who has signed the registration statement, each person, if any, who controls
Parent within the meaning of the Act, any underwriter, any other Holder selling
securities in such registration statement and any controlling person of any such
underwriter or other Holder, against any losses, claims, damages, or liabilities
(joint or several) to which any of the foregoing persons may become subject,
under the Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereto) arise
out of or are based upon any Violation, in each case to the extent (and only to
the extent) that such Violation occurs in reliance upon and in conformity with
written information furnished by such Holder expressly for use in connection
with such registration; and each such Holder will pay, as incurred, any legal or
other expenses reasonably incurred by any person intended to be indemnified
pursuant to this subsection 1.11(b), in
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connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 1.11(b) 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 the Holder, which consent shall not be unreasonably
withheld; provided, that, in no event shall any indemnity under this subsection
1.11(b) exceed the gross proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 1.11 of notice of the commencement of any action (including any
governmental action), such indemnified party will if a claim in respect thereof
is to be made against any indemnifying party under this Section 1.11, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel
with the fees and expenses to be paid by the indemnifying party, 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 such indemnified party and any other party represented by such
counsel in such proceeding. The failure to deliver written notice to the
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
1.11, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 1.11.
(d) If the indemnification provided for in this Section 1.11 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any loss, liability, claim, damage, or expense 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
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 statements or omissions that resulted in such loss,
liability, claim, damage, or expense as well as any other relevant equitable
considerations. 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 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.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
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(f) The obligations of Parent and Holders under this Section 1.11
shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
1.12 Reports Under Securities Exchange Act of 1934. With a view to
making available to the Holders the benefits of Rule 144 promulgated under the
Act and any other rule or regulation of the SEC that may at any time permit a
Holder to sell securities of Parent to the public without registration, Parent
agrees to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after ninety (90) days
after the effective date of the first registration statement filed by Parent for
the offering of its securities to the general public,
(b) file with the SEC in a timely manner all reports and other
documents required of Parent under the Act and the 1934 Act; and
(c) furnish to any Holder, so long as the Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by Parent
that it has complied with the reporting requirements of SEC Rule 144 (at any
time after ninety (90) days after the effective date of the first registration
statement filed by Parent), the Act and the 1934 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 Parent and such other reports and documents so
filed by Parent, and (iii) such other information as may be reasonably requested
in availing any Holder of any rule or regulation of the SEC which permits the
selling of any such securities without registration or pursuant to such form.
1.13 Assignment of Registration Rights. The rights to cause Parent to
register Registrable Securities pursuant to Section 1.5 may not be assigned by a
Holder, without the prior written consent of Parent, which may be granted or
withheld in its discretion; except that such rights may be assigned by Holder
without Parent's prior written consent (but only with all related obligations)
in connection with a transfer made pursuant to Section 1.4 provided that the
transferee or assignee of such securities will, after such assignment or
transfer, hold at least 100,000 shares of Registrable Securities (subject to
appropriate adjustment for stock splits, stock dividends, combinations and other
recapitalizations) (or, if the transferee holds less than 100,000 Registrable
Shares, such transferee is a general partner or limited partner or member (in
the case of a limited liability company) of an Investor hereunder); and further
provided that: (a) the Company is, within a reasonable time after such transfer
and assignment, furnished with written notice of the name and address of such
transferee and assignee and the securities with respect to which such
registration rights are being assigned; (b) such transferee and assignee agrees
in writing to be bound by and subject to the terms and conditions of this
Agreement, including without limitation the provisions of Section 1.14 below;
and (c) such assignment shall be effective only if immediately following such
transfer and assignment the further disposition of such securities by the
transferee or assignee is restricted under the Act. Any such transferee and
assignee shall be deemed an "Enact Investor" for the purposes of this Agreement.
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1.14 "Market Stand-Off" Agreement. Each Enact Investor hereby agrees
that, during the period of duration specified by Parent and an underwriter of
Common Stock or other securities of Parent, following the effective date of a
registration statement of Parent filed under the Act, it shall not, to the
extent requested by Parent and such underwriter, directly or indirectly sell,
offer to sell contract to sell (including, without limitation, any short sale),
grant any option to purchase or otherwise transfer or dispose of (other than to
donees who agree to be similarly bound) any securities of Parent held by it at
any time during such period except common stock included in such registration;
provided, however, that:
(a) such agreement shall be applicable only to the first such
registration statement of Parent which covers common stock (or other securities)
to be sold on its behalf to the public in an underwritten offering;
(b) all officers and directors of Parent and all other persons with
registration rights (whether or not pursuant to this Agreement) enter into
similar agreements; and
(c) such market stand-off time period shall not exceed 180 days.
In order to enforce the foregoing covenant, Parent may impose
stop-transfer instructions with respect to the Registrable Securities of each
Investor (and the Shares or securities of every other person subject to the
foregoing restriction) until the end of such period.
Notwithstanding the foregoing, the obligations described in this
Section 1.14 shall not apply to a registration relating solely to employee
benefit plans on Form S-l or Form S-8 or similar forms which may be promulgated
in the future, or a registration relating solely to a Commission Rule 145
transaction.
1.15 Termination of Registration Rights.
(a) No Holder shall be entitled to exercise any right provided for
in this Section 1 after six (6) years following the consummation of the sale of
securities pursuant to a registration statement filed by Parent under the Act in
connection with the initial firm commitment underwritten offering of its
securities to the general public.
(b) In addition, the right of any Holder to request inclusion in
any registration pursuant to Section 1.5 shall terminate on the second
anniversary of the closing of the first Parent-initiated registered public
offering of Common Stock of Parent if all Shares of Registrable Securities held
or entitled to be held upon conversion by such Holder may immediately be sold
under Rule 144 during any 90 day period, or on such date after the second
anniversary of the closing of the first Parent-initiated registered public
offering of Common Stock of Parent as all Shares of Registrable Securities held
or entitled to be held upon conversion by such Holder may immediately be sold
under Rule 144 during any 90 day period; provided, however, that the provisions
of this Section 1.15(b) shall not apply to any Holder who owns more than two
percent (2%) of Parent's outstanding stock until such time as such Holder owns
less than two percent (2%) of the outstanding stock of Parent.
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1.16 Acknowledgment of Previous Grants of Registration Rights. Enact
Investors acknowledge that Parent has previously granted registration rights
relating to Common Stock of Parent, pursuant to the Restated Existing Investors'
Rights Agreement, and pursuant to the OPIS Investor Rights Agreement dated
December 30, 1997, and that Enact Investors' rights are subject to the rights of
the rights holders under such agreements.
SECTION 2
Miscellaneous
2.1 Assignment. Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and permitted assigns of the parties hereto.
2.2 Third Parties. Nothing in this Agreement, express or implied, is
intended to confer upon any person or entity, other than the parties hereto, and
their respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
herein. "Holders" who are not parties to this Agreement, or successors or
assigns of such parties, are not third party beneficiaries of this Agreement and
may not enforce this Agreement without the prior written consent of Parent in
its discretion.
2.3 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of Arizona as applied to agreements entered into and
performed in the State of Arizona solely by residents thereof.
2.4 Counterparts. 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.
2.5 Notices. Any notice required or permitted by this Agreement shall
be in writing shall be sent by prepaid registered or certified mail, return
receipt requested, addressed to the other party at the address set forth below
such parties signature to this Agreement or at such other address for which such
party gives notice hereunder. Any party giving notice of a change in address
shall also concurrently deliver notice of such change to the Escrow Agent (as
that term is defined in the Merger Agreement). Such notice shall be effective
when received, but shall be deemed to have been received four (4) days after
deposit in the mail, postage prepaid.
2.6 Severability. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, portions of such provisions, or such
provisions in their entirety, to the extent necessary, shall be severed from
this Agreement, and the balance of this Agreement shall be enforceable in
accordance with its terms.
2.7 Amendment and Waiver. Any provision of this Agreement may be
amended and any right waived with the written consent of Parent and the Holders
of at least two-thirds (2/3rds) of the Shares. Any amendment or waiver effected
in accordance with this paragraph shall be binding upon each Holder of the
Shares and Parent. In addition, Parent may waive performance of any obligation
owing to it, as to some or all of the Holders of the Shares, or agree to accept
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alternatives to such performance, without obtaining the consent of any Holder of
Shares. In the event that an underwriting agreement is entered into between
Parent and any Holder, and such underwriting agreement contains terms differing
from this Agreement, as to any such Holder the terms of such underwriting
agreement shall govern.
2.9 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to any party to this Agreement, upon any breach or
default of the other party, shall impair any such right, power or remedy of such
non-breaching party nor shall it be construed to be a waiver of any such breach
or default, or an acquiescence therein, or of or in any similar breach or
default thereafter occurring; nor shall any waiver of any single breach or
default be deemed a waiver of any other breach or default theretofore or
thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this
Agreement, or any waiver on the part of any party of any provisions or
conditions of this Agreement, must be made in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies, either
under this Agreement, or by law or otherwise afforded to any holder, shall be
cumulative and not alternative.
2.10 Dispute Resolutions. The provisions of Section 13.5 of the Merger
Agreement are hereby incorporated into this Agreement.
[SIGNATURES APPEAR ON THE FOLLOWING SIGNATURE PAGES]
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IN WITNESS WHEREOF, the parties have this Agreement as of the date
first above written.
SALESLOGIX CORPORATION
By: /s/ Xxxx Xxxxx
Title: CFO
0000 Xxxxx Xxxxxx Xxxxxx Xx., Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
/s/ Xxxxx Xxxxx /s/ X. Xxxxx (as spouse)
XXXXX XXXXX [INCLUDE SPOUSE]
000 Xxxxxxxxx Xxxxx
Xxxxxxxxxxx, Xxxx 00000
/s/ S. Xxxxx Xxxxx
X. XXXXXXX BURGH
0000 Xxxxx Xxxx Xxxxx
Xxx Xxxxxx, Xxxx 00000
/s/ X.X. Xxxxxx
X.X. XXXXXX
000 Xxxx Xxxxxx Xxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, Xxxx 00000
WINGSET INVESTMENTS LTD.
By: /s/ Xxxxx X. Xxxxxxxxxx
Title: Managing Director
00 Xxxxx Xxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
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