1
EXHIBIT 10.17
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT (the "Agreement") dated as of March 25,
1998 by and among Atlantic Data Services, Inc., a Massachusetts corporation (the
"COMPANY") and each of the shareholders of the Company listed on Schedule I
hereto (the "SHAREHOLDERS").
W I T N E S S E T H:
WHEREAS, the Shareholders currently own collectively 6,847,960 shares
of the Company's Common Stock, $.01 par value per share (the "COMMON STOCK") and
3,104,800 shares of the Company's Special Common Stock, $.01 par value per share
(the "SPECIAL COMMON");
WHEREAS, each of the Shareholders and the Company are parties to a
Shareholders' Agreement dated as of July 15, 1988, as amended (the
"SHAREHOLDERS' AGREEMENT");
WHEREAS, the Company is presently in the process of preparing an
underwritten initial public offering (the "OFFERING") of shares of its Common
Stock;
WHEREAS, the Company and the Shareholders desire to terminate the
Shareholders' Agreement and replace it in full with the terms and provisions of
this Agreement effective on the first date that the Company's shares of Common
Stock are registered under the Securities Exchange Act of 1934, as amended (the
"EFFECTIVE DATE").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
ARTICLE I
REGISTRATION RIGHTS
1.1 "PIGGY-BACK" REGISTRATIONS. If at any time the Company
shall determine to register, in a firm commitment underwritten offering, for its
own account or the account of others under the Securities Act of 1933, as
amended (the "SECURITIES ACT") any of its equity securities, it shall send to
each holder of Registrable Shares (as defined below), written notice of such
determination and, if within twenty (20) days after receipt of such notice, such
holder shall so request in writing, the Company shall include in such
registration statement all or any part of the Registrable Shares such holder
requests to be registered. "REGISTRABLE SHARES" shall consist of (i) any and all
shares of Common Stock held by the Shareholders as of the date of this Agreement
which shares are set forth on Schedule I attached hereto; (ii) any and all
shares of Common Stock issued or issuable upon conversion of the Special Common
held by the Shareholders as of the date of this Agreement which shares are set
forth on Schedule I attached hereto; and (iii) any and all of Common Stock and
all other securities of the Company which
2
-2-
may be issued in exchange for or in respect of shares of the Common Stock
(whether by way of conversion, stock split, stock dividend, reclassification,
reorganization, or any other means).
If, in connection with any offering involving Common Stock to
be issued by the Company, the managing underwriter shall impose a limitation on
the number of shares of such Common Stock which may be included in the
registration statement because, in its judgment, such limitation is necessary to
effect an orderly public distribution, then the Company shall be obligated to
include in such registration statement only such limited portion of the
Registrable Shares with respect to which such holder has requested inclusion
hereunder; provided, however, that the Company shall not so exclude any
Registrable Shares unless it has first excluded any securities to be offered and
sold by officers and employees of the Company or by holders who do not have
contractual rights to include such securities in any registration.
Any exclusion of Registrable Shares shall be made pro rata
among the Shareholders and its assigns seeking to include such shares in
proportion to the number of such shares held by the Shareholder or its assigns
bears to total number of shares held by all shareholders. No rights or
restrictions under this Section 1.1 shall be construed to limit, and shall not
apply to, any registration required under Section 1.2. The obligations of the
Company under this Section 1.1 may be waived at any time upon the written
consent of holders of a majority of the Registrable Shares.
This Section 1.1 shall not apply to (i) the Offering or (ii) a
registration of shares of Common Stock on Form S-8 or Form S-4 or their then
equivalents or otherwise relating to an offering of shares of Common Stock to be
issued in connection with any acquisition of any entity or business or otherwise
issuable in connection with any stock option, stock purchase or employee benefit
plan of the Company existing now or in the future.
1.2 DEMAND REGISTRATIONS. Commencing with the Offering (but
not within twelve (12) months of the effective date of the registration
statement filed in connection with the Offering), if on any occasion one or more
holders of at least twenty percent (20%) of the Registrable Shares shall notify
the Company in writing that it or they intend to offer or cause to be offered
for public sale, in a firm commitment underwritten offering (with a managing
underwriter, which shall be a nationally recognized investment bank reasonably
satisfactory to the Company), not less than fifty percent (50%) of the
Registrable Shares held by such holders, (or any lesser percentage if the
anticipated aggregate offering price would exceed $5,000,000), the Company will
so notify all holders of Registrable Shares. Upon written request of any holder
given within twenty (20) days after the receipt by such holder from the Company
of such notification, the Company will use its best efforts to cause such of the
Registrable Shares as may be requested by any holder thereof (including the
holder or holders giving the initial notice of intent to offer) to be registered
under the Securities Act as expeditiously as possible.
The Company shall not be required to effect more than three
(3) registration pursuant to this Section 1.2 and no Shareholder may request a
registration pursuant to this Section 1.2 earlier than twelve (12) months after
the effective date of the most recent registration requested under this Section
1.2. If the Company determines to include shares to be sold by it or
3
-3-
by other selling shareholders in any registration request pursuant to this
Section 1.2, such registration shall be deemed to have been a "piggy back"
registration under Section 1.1, and not a "demand" registration under this
Section 1.2 if the holders of Registrable Shares are unable to include in any
such registration statement at least two-thirds of the Registrable Shares
initially requested for inclusion in such registration statement.
1.3 EFFECTIVENESS. The Company will use its best efforts to
maintain the effectiveness for at least 90 days (or such shorter period of time
as the underwriters need to complete the distribution of the registered offering
of any registration statement pursuant to which any of the Registrable Shares
are being offered, and from time to time will amend or supplement such
registration statement and the prospectus contained therein to the extent
necessary to comply with the Securities Act and any applicable state securities
statute or regulation. The Company will also provide each holder of Registrable
Shares with as many copies of the prospectus contained in any such registration
statement as it may reasonably request.
1.4 INDEMNIFICATION OF HOLDER OF REGISTRABLE SHARES. In the
event that the Company registers any offering of the Registrable Shares under
the Securities Act, the Company will indemnify and hold harmless each holder and
each underwriter of the Registrable Shares (including their officers, directors,
affiliates and partners) so registered (including any broker or dealer through
whom such shares may be sold) and each person, if any, who controls such holder
or any such underwriter within the meaning of Section 15 of the Securities Act
from and against any and all losses, claims, damages, expenses or liabilities,
joint or several, to which they or any of them become subject under the
Securities Act, applicable state securities laws or under any other statute or
at common law or otherwise, as incurred, and, except as hereinafter provided,
will reimburse each such holder, each such underwriter and each such controlling
person, if any, for any legal or other expenses reasonably incurred by them or
any of them in connection with investigating or defending any actions whether or
not resulting in any liability, insofar as such losses, claims, damages,
expenses, liabilities or actions arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
registration statement under which such Registrable Shares were registered under
the Securities Act, in any preliminary or amended preliminary prospectus or in
the final prospectus (or the registration statement or prospectus as from time
to time amended or supplemented by the Company), 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 in order to make the statements therein, in
the light of the circumstances in which they were made, not misleading, or any
violation by the Company of any rule or regulation promulgated under the
Securities Act or any state securities laws applicable to the Company and
relating to action or inaction required of the Company in connection with such
registered offering.
Notwithstanding the foregoing, the Company shall have no
obligation to indemnify any such holder, underwriter or controlling person if:
(i) such untrue statement or omission was made in such registration statement,
preliminary or amended preliminary prospectus or final prospectus in reliance
upon and in conformity with information furnished in writing to the Company in
connection therewith by such holder of Registrable Shares (in the case of
indemnification of such holder), such underwriter (in the case of
indemnification of such underwriter) or such controlling person (in the case
4
-4-
of indemnification of such controlling person) expressly for use therein, or
(ii) in the case of a sale directly by such holder of Registrable Shares
(including a sale of such Registrable Shares through any underwriter retained by
such holder of Registrable Shares to engage in a distribution solely on behalf
of such holder of Registrable Shares), such untrue statement or alleged untrue
statement or omission or alleged omission was contained in a preliminary
prospectus and corrected in a final or amended prospectus copies of which were
delivered to such holder of Registrable Shares or such underwriter on a timely
basis, and such holder of Registrable Shares failed to deliver a copy of the
final or amended prospectus at or prior to the confirmation of the sale of the
Registrable Shares to the person asserting any such loss, claim, damage or
liability in any case where such delivery is required by the Securities Act.
The indemnity provided in this Section 1.4 shall survive the
transfer of any Registrable Shares by such holder or any termination of this
Agreement.
1.5 INDEMNIFICATION OF COMPANY. In the event that the Company
registers any offering of Registrable Shares under the Securities Act, each
holder of the Registrable Shares so registered will indemnify and hold harmless
the Company, each of its directors, each of its officers who have signed or
otherwise participated in the preparation of the registration statement, each
underwriter of the Registrable Shares so registered (including any broker or
dealer through whom such of the shares may be sold) and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities Act from
and against any and all losses, claims, damages, expenses or liabilities, joint
or several, to which they or any of them may become subject under the Securities
Act, applicable state securities laws or under any other statute or at common
law or otherwise, and, except as hereinafter provided, will reimburse the
Company and each such director, officer, underwriter or controlling person for
any legal or other expenses reasonably incurred by them or any of them in
connection with investigating or defending any actions whether or not resulting
in any liability, insofar as such losses, claims, damages, expenses, liabilities
or actions arise out of or are based upon any untrue statement of a material
fact contained in the registration statement under which such Registrable Shares
were registered under the Securities Act, in any preliminary or amended
preliminary prospectus or in the final prospectus (or in the registration
statement or prospectus as from time to time amended or supplemented), or arise
out of or are based upon the omission to state therein a material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances in which they were made, not misleading, but only to
the extent that any such statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Company in connection
therewith by such holder of Registrable Shares expressly for use therein;
provided, however, that such holders' obligations hereunder shall be limited to
an amount equal to the proceeds received by such holder of Registrable Shares
sold in any such registered offering.
5
-5-
1.6 INDEMNIFICATION PROCEDURES AND CONTRIBUTION.
(a) Conduct of Indemnification Proceedings. If any action or
proceeding (including any governmental investigation) shall be brought or
asserted against any person entitled to indemnification under Sections 1.4 or
1.5 above (an "INDEMNIFIED PARTY") in respect of which indemnity may be sought
from any party required by the terms hereof to provide such indemnification (an
"INDEMNIFYING PARTY"), the Indemnifying Party shall assume the defense thereof,
including the employment of counsel selected by the Indemnifying Party and
reasonably satisfactory to such Indemnified Party, and shall assume the payment
of all expenses. Such Indemnified Party shall have the right to employ separate
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be at the expense of such Indemnified
Party unless (i) the Indemnifying Party has agreed to pay such fees and expenses
or (ii) the named parties to any such action or proceeding (including any
impleaded parties) include both such Indemnified Party and the Indemnifying
Party, and such Indemnified Party shall have been advised by counsel that there
may be a conflict of interest on the part of counsel employed by the
Indemnifying Party to represent such Indemnified Party, or that there may be
defenses available to the Indemnified Party that are different from or in
addition to those available to the Indemnifying Party (in which case, if such
Indemnified Party notifies the Indemnifying Party in writing that it elects to
employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense of such action
or proceeding on behalf of such Indemnified Party; it being understood, however,
that the Indemnifying Party shall not, in connection with any one such action or
proceeding or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (together with appropriate local
counsel) at any time for all such Indemnified Parties, which firm shall be
designated in writing by such Indemnified Parties). The Indemnifying Party shall
not be liable for any settlement of any such action or proceeding effected
without its written consent, but if settled with its written consent, or if
there be a final judgment for the plaintiff in any such action or proceeding,
the Indemnifying Party shall indemnify and hold harmless such Indemnified
Parties from and against any loss or liability (to the extent stated above) by
reason of such settlement or judgment.
(b) Contribution. In order to provide for just and equitable
contribution to joint liability under the Securities Act in any case in which
the Company or any holder of Registrable Shares exercising its rights under this
Article 1, makes a claim for indemnification pursuant to Section 1.4 or 1.5, 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 that Section 1.4 or 1.5 provides for
indemnification, then, in such case, the Company and such holder of Registrable
Shares will contribute to the aggregate losses, claims, damages or liabilities
to which they may be subject (after contribution from others) in such proportion
as is appropriate to reflect the relative fault of the Company on the one hand
and of the holder of Registrable Shares on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations or, if the
allocation provided herein is not permitted by applicable law,
6
-6-
in such proportion as shall be appropriate to reflect the relative benefits
received by the Company and any holder of Registrable Shares from the offering
of the Securities covered by such registration statement. The relative fault of
the Company on the one hand and of the holder of Registrable Shares on the other
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the Company on the one
hand or by the holder of Registrable Shares on the other, and each party's
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission; provided, however, that, in any such case,
(A) no such holder of Registrable Shares will be required to contribute any
amount in excess of the lesser of (1) the amount for which such holder would
have been liable pursuant to Section 1.5 if the indemnification provided for
therein were enforceable in accordance with the terms thereof and (2) the
proceeds received by such holder of Registrable Shares 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.
1.7 EXCHANGE ACT REGISTRATION. The Company shall timely file
with the Commission such information as the Commission may require under Section
13 or 15(d) of the Securities and Exchange Act of 1934, as amended (the
"EXCHANGE ACT"); and in such event, the Company shall use its best efforts to
take all action pursuant to Rule 144(c) as may be required as a condition to the
availability of Rule 144 or Rule 144A under the Securities Act (or any successor
exemptive rule hereinafter in effect) with respect to the Common Stock. The
Company shall furnish to any holder of Registrable Shares forthwith upon request
(i) a written statement by the Company as to its compliance with the reporting
requirements of Rule 144(c), (ii) a copy of the most recent annual or quarterly
report of the Company as filed with the Commission, and (iii) such other
publicly filed reports and documents as a holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing a holder to
sell any such Registrable Shares without registration. The Company agrees to use
its best efforts to facilitate and expedite transfers of Registrable Shares
pursuant to Rule 144 under the Securities Act, which efforts shall include
timely notice to its transfer agent to expedite such transfers of Registrable
Shares and timely filing of all reports required to be filed with the Commission
within any applicable time period (such as Form 10-K, Form 10-Q and Form 8-K).
1.8 DAMAGES. The Company recognizes and agrees that the holder
of Registrable Shares will not have an adequate remedy if the Company fails to
comply with this Article I and that damages may not be readily ascertainable,
and the Company expressly agrees that, in the event of such failure, it shall
not oppose an application by the holder of Registrable Shares or any other
person entitled to the benefits of this Article I requiring specific performance
of any and all provisions hereof or enjoining the Company from continuing to
commit any such breach of this Article I.
1.9 FURTHER OBLIGATIONS OF THE COMPANY. Whenever under the
preceding Sections of this Article I, the Company is required hereunder to
register an offering of Registrable Shares, it agrees that it shall also do the
following:
7
-7-
(a) Furnish to each selling holder such copies of
each preliminary and final prospectus and such other documents as said
holder may reasonably request to facilitate the public offering of its
Registrable Shares;
(b) Use all reasonable efforts to register or qualify
the Registrable Shares covered by said registration statement under the
applicable securities or Blue Sky laws of such jurisdictions as any
selling holder may reasonably request; provided, however, that the
Company shall not be obligated to qualify to do business in any
jurisdictions where it is not then so qualified or to take any action
which would subject it to local taxation or the service of process in
suits other than those arising out of the offer or sale of the
securities covered by the registration statement in any jurisdiction
where it is not then so subject or to conform the composition of its
assets at the time to the securities or "Blue Sky" laws of any
jurisdiction;
(c) Furnish to each selling holder a signed
counterpart, addressed to the selling holders, of
(i) an opinion of counsel for the Company,
dated the effective date of the registration statement, and
(ii) "comfort" letters signed by the
Company's independent public accountants who have examined and
reported on the Company's financial statements included in the
registration statement, to the extent permitted by the
standards of the American Institute of Certified Public
Accountants,
covering substantially the same matters with respect to the
registration statement (and the prospectus included therein) and (in
the case of the accountants' "comfort" letters) with respect to events
subsequent to the date of the financial statements, as are customarily
covered in opinions of issuer's counsel and in accountants' "comfort"
letters delivered to the underwriters in underwritten public offerings
of securities, but the Company shall be obligated hereunder only to the
extent that the Company is required to deliver or cause the delivery of
such opinion or "comfort" letters to the underwriters in an
underwritten public offering of securities;
(d) Permit each selling holder of Registrable Shares
or his counsel or other representatives to inspect and copy such
corporate documents and records as may reasonably be requested by them
after reasonable advance notice and without undue interference with the
operation of the Company's business;
(e) Furnish to each selling holder of Registrable
Shares a copy of all documents filed with and all correspondence from
or to the Commission in connection with any such offering of
securities;
(f) Use its best efforts to ensure the obtaining of
all necessary approvals from the National Association of Securities
Dealers, Inc. (the "NASD"); and
8
-8-
(g) Otherwise use all reasonable efforts to comply
with all applicable rules and regulations of the Commission.
Whenever under the preceding Sections of this Article I the
holders of Registrable Shares are registering such shares pursuant to any
registration statement, each such holder agrees to timely provide to the
Company, at its request, such written information and materials as it may
reasonably request in order to effect the registration of such Registrable
Shares.
1.10 EXPENSES. In the case of each registration effected under
Section 1.1 or 1.2, the Company shall bear all reasonable costs and expenses of
each such registration on behalf of the selling holders of Registrable Shares
(except as otherwise prohibited by state securities law or regulation),
including, but not limited to, the Company's printing, legal and accounting fees
and expenses, Commission and NASD filing fees and "Blue Sky" fees and expenses
and the reasonable fees and disbursements of one counsel competent in securities
matters for the selling holders of Registrable Shares in connection with the
registration of their Registrable Shares; provided, however, that the Company
shall have no obligation to pay or otherwise bear any portion of the
underwriters' commissions or discounts attributable to the Registrable Shares
being offered and sold by the holders of Registrable Shares, or the fees and
expenses of more than one counsel for the selling holders of Registrable Shares
in connection with the registration of the Registrable Shares. The Company shall
pay all expenses (including reasonable attorneys' fees) of the holders of the
Registrable Shares in connection with any registration initiated pursuant to
this Article I which is withdrawn, delayed or abandoned, except if such
withdrawal, delay or abandoned is requested by the holders of the Registrable
Shares or is caused by the fraud, material misstatement or omission of a
material fact to be included in writing in such registration by a holder of
Registrable Shares, or other act of the holders of Registrable Shares in
violation of the provisions of this Agreement.
1.11 EXPIRATION OF REGISTRATION RIGHTS. With respect to any
Registrable Shares held by any Shareholder, the registration rights set forth in
Section 1.1 or 1.2 of this Agreement shall terminate and expire when any such
Shareholder holds less than one percent (1.0%) of the outstanding Common Stock,
or such Shareholder, is otherwise eligible to sell to the public such
Registrable Shares pursuant to any of the provisions of Rule 144(k) of the
Securities Act or any successor provision. Notwithstanding the foregoing, the
registration rights granted in Sections 1.1 and 1.2 hereof shall expire on the
date which is three (3) years from the date hereof.
1.12 "LOCK-UP" AND MARKET STANDSTILL. Each holder of
Registrable Shares agrees that in the event the Company proposes to offer for
sale to the public any of its equity securities pursuant to a registration
statement under the Securities Act (whether for its own account or the account
of others, including the holders of Registrable Shares), and (1) if requested in
writing by the Company and an underwriter of the proposed offering of Common
Stock or other securities of the Company; and (2) if all other non-institutional
"affiliates" and all directors and executive officers similarly situated are
requested by the Company and such underwriter to sign, and actually do sign, any
"Lock-Up Agreement" (as described herein), then such holder will agree to a
restriction whereby he not sell, grant any option or right to buy or sell, or
otherwise transfer or dispose of in any manner, to the public in open market
transactions, any
9
-9-
Common Stock or other equity securities of the Company held by it during
whatever time period requested by the Company and the underwriter for
restrictions on trading or transfer (the "LOCK-UP PERIOD") following the
effective date of the registration statement of the Company filed under the
Securities Act. Such agreements shall be in writing and in form and substance
pursuant to customary and prevailing terms and conditions for such Lock-Up
Agreements. The Company may impose stop-transfer instructions with respect to
the securities subject to the foregoing restrictions until the end of the
Lock-Up Period. Such Lock-Up Period shall not exceed 180 days in length.
1.13 DELAY OF REGISTRATION. For a period not to exceed 90 days
(subject to the last paragraph of this Section 1.13), the Company shall not be
obligated to prepare and file, or be prevented from delaying or abandoning, a
registration statement pursuant to this Agreement at any time when the Company,
in its good faith judgment by the Board of Directors with the advice of counsel,
reasonably believes:
(a) that the filing thereof at the time requested, or
the offering of Registrable Shares pursuant thereto, would materially
and adversely affect (i) a pending or scheduled public offering or
private placement of the Company's securities, (ii) an acquisition,
merger, consolidation or similar transaction by or of the Company,
(iii) pre-existing and continuing negotiations, discussions or pending
proposals with respect to any of the foregoing transactions, or (iv)
the financial condition of the Company in view of the disclosure of any
pending or threatened litigation, claim, assessment or governmental
investigation which may be required thereby; and
(b) that the failure to disclose any material
information with respect to the foregoing would cause a violation of
the Securities Act or the Exchange Act.
If the Company defers or delays the filing of a registration statement
or the offering of Registrable Shares or if the Company abandons a registration
statement pursuant to this Section 1.13, then such deferral, delay or
abandonment right shall exist only so long as the condition giving rise to such
right exists. If the Company chooses to abandon a registration statement
pursuant to, and in accordance with, this Section 1.13 then such registration
shall not be deemed to be a "demand" registration under Section 1.2.
ARTICLE II
TERMINATION OF SHAREHOLDERS' AGREEMENT
Each of the undersigned, being a party to the Shareholders' Agreement,
acknowledges and agrees that, as of the Effective Date, the Shareholders'
Agreement shall be terminated and of no further force and effect and all rights
and obligations of the parties thereto shall be null and void.
10
-10-
ARTICLE III
MISCELLANEOUS
3.1 SEVERABILITY. If any provisions of this Agreement shall be
determined to be illegal or unenforceable by any court of law, the remaining
provisions shall be severable and enforceable in accordance with their terms.
3.2 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Massachusetts,
without giving effect to the principles of conflicts of law thereof.
3.3 BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
legal representatives and heirs and shall be binding upon the Company and its
successors and assignees. Notwithstanding the foregoing, the rights hereunder
are not assignable without the prior written consent of the Company.
3.4 MODIFICATION OR AMENDMENT. Neither this Agreement nor any
provision hereof may be modified, amended, changed, waived, discharged or
terminated except by an instrument in writing, signed by holders of at least a
majority of the Registrable Shares.
3.5 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all of
which taken together shall constitute one and the same instrument.
3.6 NOTICES. All notices to be given or otherwise made to any
party to this Agreement shall be deemed to be sufficient if contained in a
written instrument, delivered in person, or by express overnight courier
service, or by electronic facsimile transmission (with a copy sent by first
class mail, postage prepaid), or by registered or certified mail, return receipt
requested, postage prepaid, addressed to such party at the address set forth
herein or at such other address as may hereafter be designated in writing by the
addressee to the address or listing all parties. All such notices shall, when
mailed or telegraphed, be effective when received or when attempted delivery is
refused.
3.7 MERGER PROVISION. This Agreement, including all exhibits
and schedules thereto, constitute the entire agreement among the parties hereto
pertaining to the subject matter hereof and thereof, and supersede all prior and
contemporaneous agreements and understandings, whether oral or written, of any
of the parties hereto concerning the subject matter hereof and thereof.
3.8 CONTRACT CONSTRUCTION. Whenever the content of this
Agreement permits, the masculine gender shall include the feminine and neuter
genders, and reference to singular or plural shall be interchangeable with the
other. When a reference is made in this Agreement to Articles or Sections, such
references shall be to an Article or Section of this
11
-11-
Agreement unless otherwise indicated. When used in this Agreement, the words
"hereof," "herein" and "hereunder" refer to this Agreement.
3.9 SECTION HEADINGS. Captions in this Agreement are for
convenience only and shall not be considered a part of or effect the
construction or interpretation of any provision of this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
12
-12-
IN WITNESS WHEREOF, the undersigned have hereunto executed this
Agreement of the date first above written.
THE COMPANY:
ATLANTIC DATA SERVICES, INC.
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------
Print Name: Xxxxxx X. Xxxx
Title: Chief Executive Officer
--------------------------------------
SHAREHOLDERS:
/s/ Xxxxxx X. Xxxx
---------------------------------------------
Xxxxxx X. Xxxx
/s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxxxxx
/s/ Xxx X. Xxxxxxx
---------------------------------------------
Xxx X. Xxxxxxx
/s/ Xxxxxx X. Xxxxxxx, Xx.
---------------------------------------------
Xxxxxx X. Xxxxxxx, Xx.
GENERAL ATLANTIC PARTNERS II, L.P.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------------
Print Name: Xxxxx X. Xxxxxxx
----------------------------------
Title: Managing Member of General Atlantic
Partners, LLC, its General Partner
--------------------------------------
13
-13-
XXX X. XXXXXXX 1997 IRREVOCABLE TRUST
f/b/o Xxxxxx Xxxxxxx dated November 6, 1997
By: /s/ Xxxx Xxxxxxxxx Xxxxxx
-----------------------------------------
Xxxx Xxxxxxxxx Xxxxxxx
Trustee
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxxxx X. Xxxxxx
Trustee
XXX X. XXXXXXX 1997 IRREVOCABLE TRUST
f/b/x Xxx Xxxxxxx Xxxxxxx dated November 6,
1997
By: /s/ Xxxx Xxxxxxxxx Xxxxxxx
-----------------------------------------
Xxxx Xxxxxxxxx Xxxxxxx
Trustee
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxxxx X. Xxxxxx
Trustee
XXX X. XXXXXXX 1997 IRREVOCABLE TRUST
f/b/o Xxxxxx Xxxxxxx dated November 6, 1997
By: /s/ Xxxx Xxxxxxxxx Xxxxxxx
-----------------------------------------
Xxxx Xxxxxxxxx Xxxxxxx
Trustee
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxxxx X. Xxxxxx
Trustee
14
-14-
XXXX FAMILY PARTNERSHIP
By: /s/ Xxxxxx X. Xxxx
-----------------------------------------
Xxxxxx X. Xxxx
General Partner
XXXXXX X. XXXX GRANTOR
RETAINED ANNUITY TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
Trustee
XXXXXXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxxx
General Partner
XXXXXXX X. XXXXXXXXX GRANTOR
RETAINED ANNUITY TRUST
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxx
Trustee
XXXXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ Xxxxxx X. Xxxxxxx, Xx.
-----------------------------------------
Xxxxxx X. Xxxxxxx, Xx.
By: /s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxx
15
SCHEDULE I
No. of Shares of No. of Shares of
Name of Shareholder Common Stock Special Common Stock
------------------- ------------ --------------------
Xxxxxx X. Xxxx 2,070,880 0
Xxxx Family Limited Partnership 258,860 0
Xxxxxx X. Xxxx Grantor Retained Annuity Trust 258,860 0
Xxxxxxx X. Xxxxxxxxx 2,070,880 0
Xxxxxxxxx Family Limited Partnership 258,860 0
Xxxxxxx X. Xxxxxxxxx Grantor Retained 258,860 0
Annuity Trust
Xxx X. Xxxxxxx 1,068,400 0
Xxx X. Xxxxxxx 1997 Irrevocable Trust f/b/o 20,000 0
Xxxxxx Xxxxxxx dated November 6, 1997
Xxx X. Xxxxxxx 1997 Irrevocable Trust f/b/o 20,000 0
Xxx Xxxxxxx Xxxxxxx dated November 6,
1997
Xxx X. Xxxxxxx 1997 Irrevocable Trust f/b/o 20,000 0
Xxxxxx Xxxxxxx dated November 6, 1997
Xxxxxx X. Xxxxxxx, Xx. 414,360
Xxxxxxx Family Limited Partnership 128,000
General Atlantic Partners II, L.P. 0 3,104,080
--------- ---------
TOTAL: 6,847,960 3,104,080
========= =========
