EXHIBIT 10.6
MEMBERS' AGREEMENT
MEMBERS' AGREEMENT (this "AGREEMENT") dated as of February 7, 1997 by and
among CoreChange, LLC, a Delaware limited liability company (the "Company"), and
the persons listed as Members in the signature pages hereto (collectively, the
"MEMBERS" and individually, a "MEMBER").
In consideration of the agreements set forth below, the interests of the
Company and its present and future Members, the parties hereby agree with each
other as follows:
1. CERTAIN DEFINED TERMS. As used in this Agreement, the following terms
shall have the following respective meanings:
"UNITS" shall mean and include all Class A Units, and all other securities
of the Company which may be issued in exchange for or in respect of Class A
Units;
"CLASS A UNITS" include all such units now owned or hereafter acquired by
any Member;
"COMMISSION" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act;
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended,
or any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time; and
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time.
2. INCIDENTAL REGISTRATION. If the Company at any time (other than pursuant
to Section 3) proposes to register any of its securities under the Securities
Act for sale to the public, whether for its own account or for the account of
other securityholders or both (except with respect to registration statements on
Forms X-0, X-0 or another form not available for registering the securities held
by the Members for sale to the public), each such time it will give written
notice to all Members of its intention to do so. Upon the written request of any
such Member, received by the Company within 30 days after the giving of any such
notice by the Company, to register any of its securities, the Company will use
its best efforts to cause the securities as to which registration shall have
been so requested to be included in the securities to be covered by the
registration statement proposed to be filed by the Company, all to the extent
requisite to permit the sale or other disposition by the holder of such
securities so registered. In the event that any registration pursuant to this
Section 2 shall be, in whole or in part, an underwritten public offering of
common stock, the number of shares to be included in such an underwriting may be
reduced (pro rata among the requesting Members based upon the number of
securities owned by such Members) if and to the extent that the managing
underwriter shall be of the opinion that such inclusion would adversely affect
the marketing of the securities to be sold by the Company therein, provided
however, that such number of shares shall not be reduced if any
shares are to be included in such underwriting for the account of any person
other than the Company or requesting Members.
3. REGISTRATION ON FORM S-3. (a) If at any time (i) a Member or Members
request that the Company file a registration statement on Form S-3 or any
successor thereto for a public offering of all or any portion of the securities
held by such requesting Member or Members, the reasonably anticipated aggregate
price of securities to the public of which would exceed $ 1,000,000, and (ii)
the Company is a registrant entitled to use Form S-3 or any successor thereto to
register such securities, then the Company shall use its best efforts to
register under the Securities Act on Form S-3 or any successor thereto, for
public sale in accordance with the method of disposition specified in such
notice, the number of securities specified in such notice.
(b) Following receipt of any notice under this Section 3, the Company
shall immediately notify all Members from whom notice has not been received and
shall use its best efforts to register under the Securities Act, for public sale
in accordance with the method of disposition specified in such notice from
requesting holders, the number of securities specified in such notice (and in
all notices received by the Company from other Members within 30 days after the
giving of such notice by the Company). If such method of disposition shall be an
underwritten public offering, the holders of a majority of the shares of common
stock to be sold in such offering may designate the managing underwriter of such
offering, subject to the approval of the Company, which approval shall not be
unreasonably withheld or delayed.
(c) The Company shall be entitled to include in any registration
statement referred to in this Section 3, for sale in accordance with the method
of disposition specified by the requesting holders, securities to be sold by the
Company for its own account, except as and to the extent that, in the opinion of
the managing underwriter (if such method of disposition shall be an underwritten
public offering), such inclusion would adversely affect the marketing of the
securities to be sold. Except for registration statements on Form X-0, X-0 or
any successor thereto, the Company will not file with the Commission any other
registration statement with respect to its Common Stock, whether for its own
account or that of other stockholders, from the date of receipt of a notice from
requesting holders pursuant to this Section 3 until the completion of the period
of distribution of the registration contemplated thereby.
4. REGISTRATION PROCEDURES. If and whenever the Company is required by the
provisions of Section 3 to use its best efforts to effect a registration under
the Securities Act, the Company will, as expeditiously as possible:
(a) prepare and file with the Commission a registration statement with
respect to such securities and use its best efforts to cause such registration
statement to become and remain effective for the period of the distribution
contemplated thereby (determined as hereinafter provided);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the period specified in paragraph (a) above and comply with the provisions of
the Securities Act with respect to the disposition of all
2
securities covered by such registration statement in accordance with the
sellers' intended method of disposition set forth in such registration statement
for such period;
(c) furnish to each seller of securities and to each underwriter such
number of copies of the registration statement and the prospectus included
therein (including each preliminary prospectus) as such persons reasonably may
request in order to facilitate the public sale or other disposition of the
securities covered by such registration statement;
(d) use its best efforts to register or qualify the securities covered
by such registration statement under the securities or "blue sky" laws of such
jurisdictions as the sellers of securities or, in the case of an underwritten
public offering, the managing underwriter reasonably shall request, PROVIDED,
HOWEVER, that the Company shall not for any such purpose be required to qualify
generally to transact business as a foreign corporation in any jurisdiction
where it is not so qualified or to consent to general service of process in any
such jurisdiction;
(e) use its best efforts to list the securities covered by such
registration statement with any securities exchange on which the Common Stock of
the Company is then listed;
(f) immediately notify each seller of securities and each underwriter
under such registration statement, at any time when a prospectus relating
thereto is required to be delivered under the Securities Act, of the happening
of any event of which the Company has knowledge as a result of which the
prospectus contained 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 light of the circumstances then existing;
(g) if the offering is underwritten and at the request of any seller
of securities, use its best efforts to furnish on the date that securities are
delivered to the underwriters for sale pursuant to such registration: (i) an
opinion dated such date of counsel representing the Company for the purposes of
such registration, addressed to the underwriters and to such seller, stating
that such registration statement has become effective under the Securities Act
and that (A) to the best knowledge of such counsel, no stop order suspending the
effectiveness thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Securities Act, (B) the
registration statement, the related prospectus and each amendment or supplement
thereof comply as to form in all material respects with the requirements of the
Securities Act (except that such counsel need not express any opinion as to
financial statements contained therein) and (C) to such other effects as
reasonably may be requested by counsel for the underwriters or by such seller or
its counsel and (ii) a letter dated such date from the independent public
accountants retained by the Company, addressed to the underwriters and to such
seller, stating that they are independent public accountants within the meaning
of the Securities Act and that, in the opinion of such accountants, the
financial statements of the Company included in the registration statement or
the prospectus, or any amendment or supplement thereof, comply as to form in all
material respects with the applicable accounting requirements of the Securities
Act, and such letter shall additionally cover such other financial matters
(including information as to the period ending no more than five business days
3
prior to the date of such letter) with respect to such registration as such
underwriters reasonably may request; and
(h) make available for inspection by each seller of securities, any
underwriter participating in any distribution pursuant to such registration
statement, and any attorney, accountant or other agent retained by such seller
or underwriter, all financial and other records, pertinent corporate documents
and properties of the Company, and cause the Company's officers, directors and
employees to supply all information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection with such registration
statement.
For purposes of Section 4(a) and 4(b) and of Section 3(c), the period
of distribution of securities in a firm commitment underwritten public offering
shall be deemed to extend until each underwriter has completed the distribution
of all securities purchased by it, and the period of distribution of securities
in any other registration shall be deemed to extend until the earlier of the
sale of all securities covered thereby and 120 days after the effective date
thereof.
In connection with each registration hereunder, the sellers of
securities will furnish to the Company in writing such information with respect
to themselves and the proposed distribution by them as reasonably shall be
necessary in order to assure compliance with federal and applicable state
securities laws.
In connection with each registration pursuant to Sections 2 or 3
covering an underwritten public offering, the Company and each seller agree to
enter into a written agreement with the managing underwriter selected in the
manner herein provided in such form and containing such provisions as are
customary in the securities business for such an arrangement between such
underwriter and companies of the Company's size and investment stature.
5. EXPENSES. All expenses incurred by the Company in complying with
Sections 2 and 3, including, without limitation, all registration and filing
fees, printing expenses, fees and disbursements of counsel and independent
public accountants for the Company, fees and expenses (including counsel fees)
incurred in connection with complying with state securities or "blue sky" laws,
fees of the National Association of Securities Dealers, Inc., transfer taxes,
fees of transfer agents and registrars, costs of insurance and fees and
disbursements of one counsel for the Members, but excluding any Selling
Expenses, are called "REGISTRATION EXPENSES". All underwriting discounts and
selling commissions applicable to the sale of securities are called "SELLING
EXPENSES".
The Company will pay all Registration Expenses in connection with each
registration statement under Sections 2 or 3. All Selling Expenses in connection
with each registration statement under Sections 2 or 3 shall be borne by the
participating sellers in proportion to the number of securities sold by each, or
by such participating sellers other than the Company (except to the extent the
Company shall be a seller) as they may agree.
6. INDEMNIFICATION AND CONTRIBUTION. (a) In the event of a registration of
any of the securities under the Securities Act pursuant to Sections 2 or 3, the
Company will indemnify and
4
hold harmless each seller of such securities thereunder, each underwriter of
such securities thereunder and each other person, if any, who controls such
seller or underwriter within the meaning of the Securities 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 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 securities were registered under the Securities Act pursuant to
Sections 2 or 3, any preliminary prospectus or final prospectus contained
therein, or any amendment or supplement thereof, or arise out of or are based
upon 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,
and will reimburse each such seller, each such underwriter and each such
controlling person for 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 Company will not be liable in
any such case if and to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission so made in conformity with information
furnished by any such seller, any such underwriter or any such controlling
person in writing specifically for use in such registration statement or
prospectus.
(b) In the event of a registration of any securities under the
Securities Act pursuant to Sections 2 or 3, each seller of such securities
thereunder, severally and not jointly, will indemnify and hold harmless the
Company, each person, if any, who controls the Company within the meaning of the
Securities Act, each officer of the Company who signs the registration
statement, each director of the Company, each underwriter and each person who
controls any underwriter within the meaning of the Securities Act, against all
losses, claims, damages or liabilities, joint or several, to which the Company
or such officer, director, underwriter or controlling person may become subject
under the Securities Act 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 the registration statement under which such securities was registered under
the Securities Act pursuant to Sections 2 or 3, any preliminary prospectus or
final prospectus contained therein, or any amendment or supplement thereof, or
arise out of or are based upon 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, and will reimburse the Company and each such
officer, director, underwriter and controlling person for 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 such seller will be liable hereunder in any such case if and only to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement or omission or alleged
omission made in reliance upon and in conformity with information pertaining to
such seller, as such, furnished in writing to the Company by such seller
specifically for use in such registration statement or prospectus, and PROVIDED,
FURTHER, HOWEVER, that the liability of each seller hereunder shall be limited
to the proportion of any such loss, claim, damage, liability or expense which is
equal to the proportion that the public offering price of the shares sold by
such seller under such registration statement bears to the total public offering
price of all securities sold thereunder, but not in any event to exceed the
proceeds received by such seller from the sale of securities covered by such
registration statement.
5
(c) Promptly after receipt by an indemnified party hereunder of notice
of the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
such indemnified party other than under this Section 6 and shall only relieve it
from any liability which it may have to such indemnified party under this
Section 6 if and to the extent the indemnifying party is prejudiced by such
omission. In case any such action shall be brought against any indemnified party
and it shall notify the indemnifying party of the commencement thereof, the
indemnifying party shall be entitled to participate in and, to the extent it
shall wish, to assume and undertake the defense thereof with counsel
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume and undertake the
defense thereof, the indemnifying party shall not be liable to such indemnified
party under this Section 6 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected, PROVIDED,
HOWEVER, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be reasonable defenses available to it which are
different from or additional to those available to the indemnifying party or if
the interests of the indemnified party reasonably may be deemed to conflict with
the interests of the indemnifying party, the indemnified party shall have the
right to select a separate counsel and to assume such legal defenses and
otherwise to participate in the defense of such action, with the expenses and
fees of such separate counsel and other expenses related to such participation
to be reimbursed by the indemnifying party as incurred.
(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 Member
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 Member or any such controlling person in circumstances
for which indemnification is provided under this Section 6; then, and in each
such case, the Company and such holder will contribute to the aggregate losses,
claims, damages or liabilities to which they may be subject (after contribution
from others) in such proportion so that such holder is responsible for the
portion represented by the percentage that the public offering price of its
securities 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 public offering price of all such securities offered 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)
will be entitled to contribution from any person or entity who was not guilty of
such fraudulent misrepresentation.
7. RIGHT TO PARTICIPATE IN SALE OF ADDITIONAL SECURITIES. The Company
hereby covenants and agrees that it shall not issue or sell any (i) units of the
Company, (ii) bonds,
6
certificates of indebtedness, debentures or other securities convertible into or
carrying any rights to purchase units of the Company, or (iii) options, warrants
or other rights to subscribe for, purchase or otherwise acquire any units of the
Company unless the Company first submits a written offer to the Members to
permit them to purchase their proportionate share of such units or securities on
terms and conditions, including price, not less favorable to the Members than
those offered by such other prospective purchaser. Each member shall have the
right to elect to purchase up to its proportionate share of such units or
securities based on the ratio which the, units of the Company owned by the
Member or obtainable by said Member upon exercise of the Warrant bears to all
the issued and outstanding units of the Company. The Company's offer to the
Members shall remain open and irrevocable for a period of fifteen (15) days. Any
units or securities offered to the Members pursuant to this Section 7 which such
Members have not elected to purchase within the time fixed herein may, within
one hundred and twenty (120) days after the date for making such election, be
sold by the Company at not less than the same price and upon terms not
materially less favorable to the Company than were offered to the Members but
may not otherwise be sold without renewed compliance with this Section 7.
8. SPECIFIC ENFORCEMENT. Each Member expressly agrees that the other
Members and the Company will be irreparably damaged if this Agreement is not
specifically enforced. Upon a breach or threatened breach of the terms,
covenants and/or conditions of this Agreement by a Member, the other Members and
the Company shall, in addition to all other remedies, each be entitled to a
temporary or permanent injunction, without showing any actual damage, and/or a
decree for specific performance, in accordance with the provisions hereof.
9. NOTICES. Notices given hereunder shall be deemed to have been duly given
on the date of personal delivery, on the date of postmark if mailed by certified
or registered mail, return receipt requested, or on the date sent by telecopier
or telex to the party being notified at his or its address specified on the
applicable signature page hereto or such other address as the addressee may
subsequently notify the other parties of in writing.
10. ENTIRE AGREEMENT AND AMENDMENTS. This Agreement constitutes the entire
agreement of the parties with respect to the subject matter hereof and neither
this Agreement nor any provision hereof may be waived, modified, amended or
terminated except by a written agreement signed by the parties hereto. Members
owning at least a majority of the Units may effect any such waiver,
modification, amendment or termination of this Agreement on behalf of all
Members PROVIDED, HOWEVER, that no such waiver, modification, amendment or
termination may be made which in any way prejudices or alters the rights of Xxx
Xxxxxx without the prior written consent of Xxx Xxxxxx. Except for the Limited
Liability Company Agreement dated March 14, 1996 by and among the Company and
the persons named therein (the "LLC Agreement"), the terms of which shall have
precedence over any term or provision of this Agreement that conflicts or is
inconsistent with the terms or provisions of the LLC Agreement, to the extent
any term or other provision of any other indenture, agreement or instrument by
which any party hereto is bound conflicts with this Agreement, this Agreement
shall have precedence over such conflicting term or provision.
11. GOVERNING LAW; SUCCESSORS AND ASSIGNS. This Agreement shall be governed
by the internal laws of the Commonwealth of Massachusetts and shall be binding
upon the heirs, personal representatives, executors, administrators, successors
and assigns of the parties.
7
12. WAIVERS. No waiver of any breach or default hereunder shall be
considered valid unless in writing, and no such waiver shall be deemed a waiver
of any subsequent breach or default of the same or similar nature.
13. SEVERABILITY. If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
14. CAPTIONS. Captions are for convenience only and are not deemed to be
part of this Agreement.
15. 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.
IN WINTESS WHEREOF, this Agreement has been executed as of the date and
year first above written.
THE COMPANY:
CORECHANGE, LLC
By: /S/ XXX XXXXXX
-------------------------------------------
Xxx Xxxxxx, President
Address: 000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000
MEMBERS:
/S/ XXX XXXXXX
-----------------------------------------------
Xxx Xxxxxx
Address: 00 XXXXXXX XXXX
XXXXXXXXX, XX 00000
/S/ XXXX XXXXXX
-----------------------------------------------
Xxxx Xxxxxx
Address: 00 XXXXXXX XXXX
XXXXXXXXX, XX 00000
CAMBRIDGE TECHNOLOGY PARTNERS (MASSACHUSETTS), INC.
8
By: /S/ XXXXX X. X'XXXX
-------------------
Xxxxx X. X'Xxxx, Senior Vice President
Address: 000 Xxxxxx Xxxxxx
Xxxxxxxxx. XX 00000
