Exhibit 10.5
AMENDMENT NO. 1 TO CO-SALE AGREEMENT
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This Amendment No. 1. to Co-Sale Agreement (the "Agreement") is made as of
this 31st day of December, 1997, by and among Command Systems, Inc., a Delaware
corporation (the "Company"), Phoenix Home Life Mutual Insurance Company (the
"Stockholder") and Xxxxxx X. Xxxxxx (the "Founder").
WHEREAS, the parties have previously entered into a Co-Sale Agreement dated as
of August 26, 1997 (the "Agreement"; capitalized terms used herein without
definition having the meanings ascribed to such terms in the Agreement);
WHEREAS, the parties desire to amend certain provisions of the Agreement.
NOW, THEREFORE, in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereby agree as follows:
Section 1. Amendment to Section 6(e). Section 6(e) of the Agreement is
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amended by deleting such Section in its entirety and substituting in lieu
thereof the following new Section 6(e):
"(e) Term. This Agreement shall terminate upon the earliest to occur of
(i) ten years after the date hereof, (ii) the date that the Founder
ceases to own shares of Co-Sale Stock constituting at least twenty-
five percent (25%) the Company's issued and outstanding Common Stock
(after giving effect to the exercise of any options or warrants then
outstanding, whether or not such options or warrants are then
exercisable, and the conversion to Common Stock of any convertible
securities then outstanding, whether or not such convertible
securities are then convertible) and (iii) the date that the
Stockholder, together with its affiliates (as defined in Rule 405
under the Securities Act), ceases to own shares of Common Stock
constituting at least five percent (5%) of the Company's issued and
outstanding Common Stock (after giving effect to the exercise of any
options or warrants then outstanding, whether or not such options or
warrants are then exercisable, and the conversion to Common Stock of
any convertible securities then outstanding, whether or not such
convertible securities are then convertible)."
Section 2. Further Assurances. Each party hereby agrees, at any time and
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from time to time after the date hereof, at the reasonable request of the other
party, to execute and deliver such other agreements, certificates or instruments
as may
be reasonably requested in order to more effectively amend the Agreement as set
forth above or to evidence or confirm this Amendment.
Section 3. Effect of Amendment. The parties hereby ratify and confirm all of
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the provisions of the Agreement, as amended hereby, and agree and acknowledge
that the Agreement as so amended remains in full force and effect.
Section 4. Governing Law. This Amendment shall be governed by and construed
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in accordance with the laws of the State of Connecticut, without giving effect
to its conflicts of law provisions.
Section 5. Counterparts. This Amendment may be executed in any number of
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counterparts and each of such counterparts shall for all purposes be deemed to
be an original, and all such counterparts shall together constitute but one and
the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers, thereunto duly authorized, as of the date
first above written.
COMMAND SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx,
President
THE FOUNDER:
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
THE STOCKHOLDER:
PHOENIX HOME LIFE MUTUAL
INSURANCE COMPANY
By: /s/ Xxxx X.X. Xxxxxxx
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Name: Xxxx X.X. Xxxxxxx
Title: Vice President
