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EXHIBIT 10.40
REGISTRATION RIGHTS AGREEMENT
Registration Rights Agreement (this "Agreement") dated as of February 10,
1998 by and among VMARK Software, Inc., a Delaware corporation (the "Company"),
Unidata, Inc., and Xxxxx X. Xxxxxxx, for the benefit of the persons listed on
Exhibit A.
RECITALS
A. VMARK has entered into an Agreement and Plan of Merger and
Reorganization (the "Merger Agreement") with Unidata, Inc., a Colorado
corporation ("Unidata") dated as of October 7, 1997, as amended November 7,
1997. Capitalized terms not otherwise defined herein shall have the meanings
afforded such terms within the Merger Agreement.
B. Pursuant to the Merger Agreement, each share of Unidata's Class A common
stock, no par value, and Class B common stock, no par value, outstanding
immediately prior to the Effective Time (excluding Dissenting Shares and shares
to be canceled pursuant to Section 1.06(b) of the Merger Agreement), shall be
converted into the right to receive 0.44765 shares of the Company's common
stock, $.01 par value per share ("Common Stock").
C. The Merger Agreement provides that the Company shall enter into an
agreement granting the persons or entities receiving shares of Common Stock
pursuant to the Merger Agreement certain registration rights with respect to
such shares on the terms and conditions set forth herein.
In consideration of the foregoing, the covenants set forth herein and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. DEFINITIONS. For purposes of this Agreement, the following terms shall
have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"Common Shares" shall mean shares of Common Stock of the Company
issued to a Holder pursuant to the Merger Agreement in exchange for such
Holder's shares of Unidata's common stock.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder, and as
the same may be amended and in effect from time to time.
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"Holders" shall mean the persons or entities listed on Exhibit A and
their heirs, personal representatives, successors and assigns.
"Registration Expenses" shall mean the expenses so described in
Section 6.
The terms "register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registrable Shares" means the Common Shares and any other shares of
Common Stock of the Company issued in respect of the Common Shares (because
of stock splits, stock dividends, reclassifications, recapitalizations, or
similar events) except for any such shares held by a Holder who or which,
in the opinion of counsel for the Company, which counsel and opinion shall
be reasonably acceptable to such Holder, may then sell all such shares
within a ninety (90) day period pursuant to the volume limitations of Rule
144 or Rule 145(d) under the Securities Act (without regard to Rule
144(k)); provided, however, that shares of Common Stock which are
Registrable Shares shall cease to be Registrable Shares upon any sale of
such shares pursuant to (i) a registration statement, (ii) Rule 144 or Rule
145 under the Securities Act, or (iii) any combination thereof.
"Securities Act" shall mean the Securities Act of 1933, and the rules
and regulations of the Commission thereunder, all as the same shall be
amended and in effect from time to time.
"Selling Expenses" shall mean the expenses so described in Section 6.
2. INCIDENTAL REGISTRATION. If at any time or times after the date hereof,
the Company shall determine to register any of its Common Stock or securities
convertible into or exchangeable for Common Stock under the Securities Act,
whether in connection with a public offering of securities by the Company (a
"primary offering"), a public offering thereof by stockholders (a "secondary
offering"), or both (but not in connection with a registration effected solely
to implement an employee benefit plan or a transaction to which Rule 145 or any
other similar rule of the Commission under the Securities Act is applicable),
the Company will promptly give written notice thereof to the Holders of
Registrable Shares then outstanding, and will use its best efforts to effect the
registration under the Securities Act of all Registrable Shares which the
Holders may request in a writing delivered to the Company within fifteen (15)
days prior to the anticipated filing date of such registration statement.
Notwithstanding the foregoing, 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 of Registrable Shares to be included in such
an underwriting pursuant to this Section 2 may be reduced (PRO RATA among the
requesting Holders based upon the number of shares of Registrable Shares owned
by such Holders and its Affiliates) if and to the extent that the managing
underwriter shall be of the opinion, confirmed in writing, that such inclusion
would adversely affect the marketing of the
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securities to be sold by the Company therein, provided, however, that, prior to
any such reduction, the Company shall first exclude from such registration, to
the extent necessary, all shares of Common Stock sought to be included therein
by (i) any holder thereof not having any such contractual, incidental
registration rights, and (ii) any holder thereof having contractual, incidental
registration rights subordinate and junior to the rights of the Holders of
Registrable Shares. For purposes of this Section 2, the term "Affiliate" shall
mean, with respect to any person, (i) any other person who or which, directly or
indirectly, is in control of, is controlled by or is under common control with
such person, and (ii) any spouse, parent, child, or grandchild of such person.
In connection with any registration under this Section 2 involving an
underwriting, the Company shall not be required to include any Registrable
Shares in such registration unless the holder thereof agrees to the terms of the
underwriting as reasonably proposed by the underwriters selected by the Company.
3. REGISTRATION ON FORM S-3.
3.1 Commencing after the Company has publicly announced its financial
results for the second quarter of 1998, the Holders of Registrable Shares shall
have the right to request and have effected not more than two registrations of
Registrable Shares held by them on Form S-3 for a public offering thereof. The
Company shall not be required to effect such a registration unless (i) such
offering shall include not less than five hundred thousand Registrable Shares
(subject to adjustment for stock splits, stock dividends, reclassifications,
recapitalizations, or similar events), and (ii) the Company is at the time of
such request entitled to use Form S-3. Such requests shall be in writing and
shall state the number of Registrable Shares to be disposed of and the intended
method of disposition of such shares by such Holder or Holders. The Company
shall not be required to cause a registration statement requested pursuant to
this Section 3 to become effective prior to ninety (90) days following the
effective date of a registration statement initiated by the Company, if the
request for registration has been received by the Company subsequent to the
giving of written notice by the Company, made in good faith, to the holders of
Registrable Shares to the effect that the Company is commencing to prepare a
Company-initiated registration statement (other than a registration effected
solely to implement an employee benefit plan or a transaction to which Rule 145
or any other similar rule of the Commission under the Securities Act is
applicable); provided, however, that, if the request pursuant to this Section 3
is made prior to the expiration of such ninety (90) day period, the Company
shall file the requested registration statement promptly after the Company
receives such written request (but no less than thirty (30) days, and no more
than sixty (60) days, after the effectiveness of the Company-initiated
registration) and use its best efforts to achieve the effectiveness of such
requested registration statement as promptly as practicable following such
ninety (90) day period. In addition, if the Company shall furnish to the holders
of Registrable Shares a certificate signed by the President of the Company
stating that in the good faith judgment of the Board of Directors it would be
seriously detrimental to the Company or its stockholders for a registration
statement to be filed in the near future, then the Company's obligation to file
such registration statement shall be deferred for a period not to exceed 60 days
from the date such certificate is furnished to the Holders, unless the reason
for such deferral shall be an underwritten public offering initiated by the
Company, in which case the deferral shall last until the completion of such
offering but in no
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case to exceed 180 days from the date such certificate is furnished to the
Holders and provided the Company is diligently pursuing such offering. Subject
to the foregoing, the Company will use its best efforts to effect promptly the
registration of all shares of Common Stock on Form S-3 to the extent requested
by the Holder or Holders thereof for purposes of disposition. The Company shall
not be required to effect more than one registration on Form S-3 pursuant to
this Section 3 during any six-month period.
3.2 Any Holder of shares included in a registration statement on Form S-3
(the "S-3 Registration") pursuant to this Section 3 agrees that upon receipt of
any notice from the Company that: (i) the Company has received an opinion of
counsel that the making of offers and sales pursuant to the S-3 Registration
would require the Company to amend or supplement a prospectus included therein
to make additional disclosure (other than with respect to the Holders of such
shares, the plan of distribution thereof or the sale thereof) and (ii) the Board
of Directors of the Company has determined that making such disclosure would not
be in the best interest of the Company's stockholders, the Company shall have
the right to suspend sales under the S-3 Registration. Upon receipt of any such
notice and notwithstanding Section 3(a), each holder of such shares will
forthwith discontinue such holder's disposition of such shares pursuant to the
S-3 Registration until the Company shall have provided notice that such holder
may resume such disposition (each such period of discontinuation of disposition,
a "Black-Out Period"); provided that (i) there shall be no more than two such
Black-Out Periods in any year (years, for purposes of this provision being the
12-month periods commencing on the date the S-3 Registration becomes effective
and ending on the first anniversary of such date); (ii) such Black-Out Periods
shall not aggregate more than 90 days in any such year; (iii) no individual
Black-Out Period shall be longer than 60 days; and (iv) no Black-Out Period
shall be effective at any time when the Company is publicly selling shares of
the capital stock of the Company.
3.3 The managing underwriter or underwriters of any underwritten public
offering covered pursuant to this Section 3 shall be selected by the Holders of
a majority of the Common Shares that initiate such registration, subject to the
approval of the Company, which shall not be unreasonably withheld.
4. CONDITIONS OF OBLIGATIONS TO REGISTER SHARES. As conditions to the
Company's obligation hereunder to cause a registration statement to be filed or
Common Shares to be included in a registration statement, the Holder shall
provide such information and execute such documents as may reasonably be
required in connection with such registration.
5. REGISTRATION PROCEDURES. In connection with the registration of the
Common Shares pursuant to Sections 2 or 3 hereof, the Company shall, as
expeditiously as practicable:
5.1 Prepare (and afford counsel for the sellers of Registrable Shares the
opportunity to review and comment thereon) and file with the Commission a
registration statement with respect to such Common Shares as soon as
practicable, but in no event later than 45 days (60 days if the applicable
registration form is other than Form S-3) after the date notice is given, and
use its best
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efforts to cause such registration statement to become effective within 90 days
(or 120 days if the applicable registration form is other than Form S-3) after
the date notice is given.
5.2 Prepare (and afford counsel for the sellers of Registrable Shares the
opportunity to review and comment thereon) and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be reasonably requested by any Holder of
Registrable Shares being registered by such registration statement or any
underwriter of Registrable Shares or as may be required by the rules,
regulations or instructions applicable to the registration form used by the
Company or by the Securities Act or rules and regulations thereunder, and to
keep such registration statement effective until the second anniversary of the
date of its effectiveness, in the case of a shelf registration pursuant to
Section 3, or for 120 days from the date of its effectiveness, in the case of
any other registration.
5.3 Furnish to each Holder such number of copies of the prospectus
contained in such registration statement (including each preliminary
prospectus), in conformity with the requirements of the Securities Act, and such
other documents as such Holder may reasonably request in order to facilitate the
disposition of the Common Shares owned by such Holder.
5.4 Use its best efforts to register or qualify the Common Shares covered
by such registration statement under the securities or blue sky laws of such
jurisdictions as each selling Holder shall reasonably request, and do any and
all other acts and things which may be necessary or advisable to enable such
Holder to consummate the disposition of the Common Shares owned by such Holder
in such jurisdictions during the period specified in Section 5.2, 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.
5.5 Notify each Holder of any Common Shares covered by 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 as a result of
which the prospectus contained or incorporated by reference in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading in the light of the circumstances
then existing. Each Holder agrees, upon receipt of such notice, forthwith to
cease making offers and sales of the Common Shares pursuant to such registration
statement or deliveries of the prospectus contained therein for any purpose and
to return to the Company, for modification and exchange, the copies of such
prospectus not theretofore delivered by such Holder, provided that the Company
shall forthwith prepare and furnish, after securing such approvals as may be
necessary, to such Holder a reasonable number of copies of any supplement to or
amendment of such prospectus that may be necessary so that, as thereafter
delivered to the Holders of such Common Shares, such prospectus shall not
include an untrue statement of a material fact or omit 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.
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5.6 In connection with any registration that is underwritten, include such
information in the registration statement and prospectus related thereto (or in
any amendment or supplement thereof) as may be reasonably requested by the
underwriter or underwriters even if not required by Form S-3.
5.7 Enter into such agreements (including an underwriting agreement) and do
anything else necessary or advisable in order to expedite or facilitate the
disposition of such Registrable Shares, and in such connection, whether or not
the registration is an underwritten registration:
(a) make such representations and warranties to the Holders of such
Registrable Shares and the underwriters, if any, in form, substance and scope as
are customarily made by issuers to underwriters in primary underwritten
offerings;
(b) obtain opinions of counsel to the Company and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriter, if any, and the Holders of a majority
of the Registrable Shares being sold) addressed to each selling Holder and the
underwriter, if any, covering the matters customarily covered in opinions
delivered to underwriters in primary underwritten offerings and such other
matters as may be reasonably requested by such Holders or underwriters;
(c) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants addressed to the selling
Holders of Registrable Shares and the underwriters, if any, such letters to be
in customary form and covering matters of the type customarily covered in "cold
comfort" letters by underwriters in connection with primary underwritten
offerings;
(d) if an underwriting agreement is entered into, cause the same to
include the indemnification and contribution provisions and procedures of
Section 7 hereof with respect to all parties to be indemnified pursuant to such
Section (or, with respect to the indemnification of such underwriters, such
similar indemnification and contribution provisions as such underwriters shall
customarily require); and
(e) deliver such documents and certificates as may be requested by the
Holders of a majority of the Registrable Shares being sold and the managing
underwriter, if any, to evidence compliance with clause (a) above and with any
customary conditions contained in the underwriting agreement or other agreement
entered into by the Company.
The above shall be done at each closing under such underwriting or similar
agreement or as and to the extent otherwise reasonably requested by the Holders
of a majority of the Registrable Shares being sold.
5.8 Make available for inspection by representatives of the Holders of
a majority of the Registrable Shares being sold, any underwriter participating
in any disposition pursuant to such
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Registration Statement, and any attorney or accountant retained by the sellers
or any such underwriter, all financial and other records and 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 representative, underwriter, attorney or accountant in connection with the
Registration and to participate in any roadshow presentation reasonably
requested by the managing underwriter in any underwritten offering; provided
that any records, information or documents that are designated by the Company in
writing as confidential shall be kept confidential by such persons unless
disclosure of such records, information or documents is required by court or
administrative order.
5.9 Promptly notify all selling Holders of any stop order or similar
proceeding initiated by state or federal regulatory bodies and use its best
efforts to take all necessary steps expeditiously to remove such stop order or
similar proceeding.
6. ALLOCATION OF EXPENSES. All expenses incurred by the Company in
complying with any of the foregoing provisions hereof, including, without
limitation, all federal and state registration, qualification and filing fees
(including fees with respect to filings required to be made with the National
Association of Securities Dealers), printing, word processing, messenger,
telephone and delivery, expenses, any premium or other expenses involved in
securing a policy or policies of registration insurance (but only if the Company
in its sole discretion shall choose to secure such a policy or policies, such
policy or policies hereinafter referred to as "registration insurance"), fees
and disbursements of counsel for the Company, counsel for the underwriters and
of one counsel for the selling Holders, accountants' fees and expenses incident
to or required by any such registration, and fees and disbursements of
underwriters (excluding discounts, commissions or fees of underwriters, selling
brokers, dealer managers or similar securities industry professionals relating
the to the distribution of the Registrable Shares), are herein called
"Registration Expenses." All underwriting discounts and selling commissions
applicable to the sale of Shares hereunder are herein called "Selling Expenses."
If the Company is required by the provisions hereof to use its best efforts to
effect the registration of any of the Common Shares under the Securities Act,
the Registration Expenses and Selling Expenses in connection with such
registration shall be borne as follows:
(a) Except as specifically provided herein, all Registration Expenses
incurred in connection with any registration pursuant to Sections 2 or 3
shall be borne by the Company. The Company shall not, however, be required
to pay the Registration Expenses relating to any registration pursuant to
Section 3, the request for which has been subsequently withdrawn by the
Holders unless (i) the withdrawal is based upon material adverse
information concerning the Company of which the Holders were not aware at
the time of such request, or (ii) a majority in interest of the Holders
agree to forfeit their right to one requested registration pursuant to
Section 3, in which event such right shall be forfeited by all Holders (it
being understood that the Holders of Registrable Shares shall not be deemed
to have forfeited such right if the Holders agree to pay the Registration
Expenses of such withdrawn registration statement).
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(b) Selling Expenses shall be borne respectively by the Holders including
Common Shares in the registration in proportion to the number of shares
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.
7. INDEMNIFICATION AND CONTRIBUTION.
7.1 In the event of any registration of any of the Common Shares under the
Securities Act pursuant hereto, the Company will indemnify and hold harmless
each Holder, each underwriter of such Common Shares, and each other person, if
any, who controls such Holder 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 Holder, 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 Common 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 Holder, underwriter and each such controlling person
for any legal or any other expenses reasonably incurred by such Holder,
underwriter or controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action, provided 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 Holder, underwriter or controlling person specifically for use in
the preparation thereof.
7.2 In the event of any registration of any of the Common Shares under
the Securities Act pursuant hereto, each selling Holder thereof, 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
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 Common 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
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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 selling Holder furnished in writing to the Company by or on behalf of
such selling Holder specifically for use in connection with the preparation of
such registration statement, prospectus, amendment or supplement, provided that
the obligations of such selling Holders hereunder shall be limited to an amount
equal to the net proceeds to each selling Holder of Common Shares sold in
connection with such registration.
7.3 Each party entitled to indemnification under this Section 7 (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 7. The Indemnified Party may participate in such
defense at such party's expense, provided that the Indemnifying Party shall pay
such expense if representation of such Indemnified Party by the counsel retained
by the Indemnifying Party would, in the judgment of the Indemnified Party based
on the advice of counsel, 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.
7.4 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
exercising rights under this Section 7, or any controlling person of any such
Holder, makes a claim for indemnification pursuant to this Section 7 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 7 provides for indemnification in
such case, or (ii) contribution under the Securities Act may be required on the
part of any such selling Holder or any such controlling person in circumstances
for which indemnification is provided under this Section 7; then, in each such
case, the Company and such selling Holder will contribute to the aggregate
losses, claims, damages or liabilities to which they may be subject (after
contribution from others) in such proportions so that such selling Holder is
responsible for the portion represented by the percentage that the public
offering price of its Common 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
that, in any such
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case, (A) no such selling Holder will be required to contribute any amount in
excess of the net proceeds to it of all Common 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.
7.5 In the event that Common Shares are sold pursuant to a Registration
Statement in an underwritten offering pursuant to Sections 2 or 3, 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.
7.6 To the extent not prohibited by law and in addition to any other rights
granted by the Company's Certificate of Incorporation, By-laws or otherwise, in
the event that a Holder or any representative of a Holder who is a director of
the Company shall be made or threatened to be made a party to any action, suit
or proceeding with respect to which such Holder or director shall be entitled to
indemnification by the Company pursuant to this Agreement or its Certificate of
Incorporation, By-laws, or otherwise, the Holder or any director who is a
representative of the Holder shall be entitled to be represented in such action,
suit or proceeding by counsel of its choice and the reasonable expenses of such
representation shall be reimbursed by the Company as provided in or authorized
under this Agreement or said Certificate of Incorporation, By-laws or other
provisions, as presently in effect (whether or not said Certificate of
Incorporation or By-laws or other provisions are hereafter amended).
8. OTHER REGISTRATION RIGHTS. The Company covenants that it will not make a
future grant of any right of registration under the Securities Act relating to
any of its shares of capital stock or other securities to any person (including,
without limitation, voluntarily allowing such person to include such person's
securities in the registration contemplated by Sections 2 or 3 hereof) other
than pursuant to this Agreement, unless such rights are not granted priority
over the rights of Holders of Registrable Securities pursuant to this Agreement.
9. RULE 144 REPORTING; S-3 ELIGIBILITY. With a view to making available the
benefits of certain rules and regulations of the Commission which may at any
time permit the sale of the Registrable Shares to the public without
registration, at all times after 90 days after any registration statement
covering a public offering of securities of the Company under the Securities Act
shall have become effective, the Company agrees to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use its best efforts to 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 to maintain the Company's eligibility to
file registration statements on Form S- 3; and
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(c) furnish to each holder of Registrable Shares forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of such Rule 144 and of the Securities Act and the
Exchange Act, a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents so filed by the Company as such
holder may reasonably request in availing itself of any rule or regulation of
the Commission allowing such holder to sell any Registrable Shares without
registration.
11. MISCELLANEOUS.
11.1 All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto shall bind and inure to the benefit of the
respective heirs, personal representatives, successors and assigns of the
parties hereto (including without limitation transferees of any Common Shares),
whether so expressed or not. The Company agrees to extend the benefits of this
Agreement to any Holder of Registrable Shares and such Holder may specifically
enforce the provisions of this Agreement as if an original party hereto.
11.2 All notices, requests, demands and other communications hereunder must
be in writing and shall be delivered in person, mailed by prepaid certified or
registered mail, return receipt requested, or sent by facsimile transmission,
addressed as follows:
(a) If to any Holder, at the address shown on the stock or transfer books
of the Company unless such Holder has advised the Company in writing of a
different address as to which notices shall be sent under this Agreement.
(b) If to the Company, at 00 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxxxx
00000 to the attention of Xxxxx X. Xxxxx, Executive Vice President and
General Counsel, or to such other address as the Company shall have
furnished to each Holder, with copies to Xxxxxxx X. Xxxxx, Esq., Xxxxxx,
Xxxx & Xxxxxxx, 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000.
or, in any case, at such other address or addresses as shall have been furnished
in writing to the other parties in accordance with the provisions of this
Section 11.2. All such notices and communications shall be deemed to have been
duly given when received.
11.3 This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware.
11.4 This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and may not be amended or modified, and no
provision hereof may be waived, without the written consent of the Company and
of the holders of at least a majority of the Common Shares held by all Holders.
11.5 This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. In
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proving this Agreement it shall not be necessary to produce or account for more
than one such counterpart executed by the party against whom enforcement is
sought.
11.6 (a) If requested in writing by the underwriters for an underwritten
public offering of securities of the Company, each Holder shall agree not to
effect any public sale or distribution (including any sale pursuant to Rule 144
or Rule 701 under the Securities Act) of any Common Shares or any other equity
securities of the Company or any securities convertible into or exchangeable or
exercisable for any equity security of the Company (other than as part of such
underwritten public offering) during the seven days prior to, or 90 days after,
the effective date of such registration statement unless the underwriter of such
offering otherwise agrees; provided, however, that all persons entitled to
registration rights with respect to shares of the Company's Common Stock who are
not parties to this Agreement, all other persons selling shares of Common Stock
in such offering and all executive officers and directors of the Company shall
also have agreed not to sell securities of the Company under the same
circumstances and pursuant to the terms set forth in this Section 11.6.
11.7 The Company agrees, if so required by the managing underwriter in any
underwritten offering, not to sell, make any short sale of, loan, grant any
option for the purchase of (other than pursuant to employee benefit plans),
effect any public sale or distribution of or otherwise dispose of its equity
securities or securities convertible into or exchangeable or exercisable for any
such securities during the 30 days prior to and the 90 days after any
underwritten registration pursuant to Section 2 or 3 hereof has become
effective, except as part of such underwritten registration and except pursuant
to registrations on Form X-0, X-0 or any successor or similar forms thereto.
11.8 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 unless
the effect thereof would be to alter materially the effect of this Agreement,
and this Agreement (if not so altered) shall be carried out as if any such
illegal, invalid or unenforceable provision were not contained herein.
11.9 The Company acknowledges and agrees that irreparable damage would
occur in the event that any of the provisions of this Agreement was not
performed in accordance with its specific terms or was otherwise breached.
Therefore, each Holder shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of this Agreement and to enforce specifically
the terms and provisions hereof in any court having jurisdiction, such remedy
being in addition to any other remedy to which such party may be entitled at law
or in equity.
11.10 The parties hereby agree that any action, suit, or other legal
proceeding which is commenced to resolve any matter arising under or relating to
any provision of this Agreement shall be commenced only in a court of The
Commonwealth of Massachusetts (or, if appropriate, a federal court located
within Massachusetts), and each of the parties irrevocably consents to the
jurisdiction of such a court.
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[Remainder of Page Intentionally Blank]
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IN WITNESS WHEREOF, this Agreement has been executed as of the date first
above written.
VMARK SOFTWARE, INC.
By: /s/ Xxxxx Xxxxxx
Chief Executive Officer
/s/Xxxxx X. Xxxxxxx
15
EXHIBIT A
HOLDER
Xxxx Xxxxx Xxxxx Xxxxx
Xxxxx Xxxxxx Xxxxxxx Xxxxxxxx
Xxxxxx X. Xxxxxxx Xxxx Sing
Xxxxxxx X. Xxxxxxx Renmin Xiao
Xxxxx X. Xxxxxxx Xxx Xxxxxx
Xxxxx X. Xxxxxxx, Xx. Xxxx Xx
XX Xxxxxxx Xx. Irrevocable Trust Xxxxxx Xxxxx
Xxxxx X. Xxxxxxx, III Xxxxxxxx Xxxxxxxxxx
Xxxxxx Xxxxxxx Xxxx Xxxxxxxxx
Xxxxxx Xxxxxxx Xxxxx Xxxxx
Glenangus Holdings Corp. Societe Civile 02
Xxxxxx Xxxxxxx La Societe Financiere de Xxxxxxx
Xxxxxx Xxxx
Xxxxxxxx X. Xxxxx
Xxxxxx Xxxxxxxxxx
Xxxx Xxxxx
Xxxx Xxxxxxxx
System Builder Corp.
Integro Fiduciare SARL
Xxxx Xxxxxxxxxxx
Xxxxx XxXxxxxx
Xxxxxx Xxxxxxx
Massachusetts Mutual Life Insurance
Company
MassMutual Corporate Investors
MassMutual Participation Investors
MassMutual Corporate Value Partners
Limited
Xxxxx Xxxxxx
Xxxxx Xxxxx
Xxxxx Xxxxxxxxxx
Xxxx Xxxxxxx
Xxxxxxx Xxxxxxx
Xxxxxx Xxxxxxx
Xxxxx Xxxx
Xxx Xxx
Xxx Xxxxx
Xxxxxxx Xxxxxxx
