WAIVER
Waiver (this "WAIVER"), dated March 26, 1997 and effective as of December
31, 1996, by and among Communication Intelligence Corporation ("CIC" or the
"COMPANY") and the signatories hereto (individually, an "INVESTOR" and
collectively, the "INVESTORS").
WHEREAS, CIC and the Investors are parties to a Registration Rights
Agreement as of December 31, 1996 (the "REGISTRATION RIGHTS AGREEMENT");
WHEREAS, CIC has requested the Investors to waive the Company's obligations
to comply with those terms and provisions of the Registration Rights Agreement
which obligate the Company to purchase, redeem or otherwise acquire the
Preferred Shares and/or Common Shares and, in exchange therefor, CIC has agreed
to (i) issue to the Investors executing and delivering this Waiver (on a pro
rata basis) warrants to purchase an aggregate of 300,000 shares of the Company's
common stock, par value $.01 per share (the "COMMON STOCK"), (ii) waive its
right to request that such Investors or subsequent Holders receive any default
payments required to be made by the Company with respect to the Registration
Rights Agreement in additional Preferred Shares in lieu of cash, and (iii)
provide such Investors or subsequent Holders with the right to convert the
Preferred Shares for Common Shares upon a Change in Control Transaction which
occurs prior to the Restrictive Covenant Termination Date at an Applicable
Percentage (as defined in the Designation) equal to 27.875%, all as provided
below;
WHEREAS, the Investors are willing to grant such waiver subject to the
terms and conditions set forth herein;
NOW, THEREFORE, it is agreed as follows:
1. Subject to the terms and conditions contained herein (including those
contained in paragraph 7), each Investor hereby irrevocably waives all of the
Company's obligations to comply with those provisions of Sections 2(b)(v),
2(b)(vi), 2(b)(vii), 2(b)(viii), 10 and 11 of the Registration Rights Agreement
that expressly obligate the Company to purchase, redeem or otherwise acquire any
or all of the Preferred Shares and/or Common Stock.
2. In consideration of the execution and delivery of this Waiver by the
Investors pursuant to the terms hereof, upon effectiveness of this Waiver as
provided in paragraph 7, the Company (a) shall issue to the Investors executing
and delivering this Waiver (on a pro rata basis) five-year warrants to purchase
an aggregate of 300,000 shares of Common Stock, at an exercise price of $2.00
per share (collectively, the "WARRANTS"), substantially in the form of the
warrant certificate (the "WARRANT CERTIFICATE") attached hereto as EXHIBIT A,
such Warrants to be delivered within five (5) business days after this Waiver
has been executed and delivered by the holders of Preferred Shares representing
in excess of 80% of the Preferred Shares issued and outstanding on the date
hereof; (b) irrevocably waives its rights to request that the Investors or
subsequent holders receive any default payments required to be made by the
Company on the Preferred Shares pursuant to Section 2(b)(viii) of the
Registration Rights Agreement in additional Preferred Shares in lieu of cash;
and (c) agrees that, notwithstanding anything to the contrary contained in the
Designation, such Investors or subsequent Holders shall have the right to
convert any or all of their Preferred Shares for Common Shares pursuant to
Section 4 of the Designation at an Applicable Percentage (as defined in the
Designation) equal to 27.875% at any time and from time to time after the
earlier of (i) CIC's delivery of a notice of, (ii) 30 days prior to, (iii) the
record date for, or (iv) execution of a definitive agreement concerning, a
Change in Control Transaction which Change in Control Transaction occurs at any
time prior to the Restrictive Covenant Termination Date.
3. Capitalized terms used in this Waiver that are not defined herein
shall have the meanings provided to such terms in the Registration Rights
Agreement.
4. This Waiver is limited as specified hereby and shall not otherwise
modify other terms and provisions of the Registration Rights Agreement. This
Waiver shall not modify the Registration Rights Agreement with respect to those
holders of Preferred Shares who do not execute and deliver this Waiver prior to
the date specified in paragraph 7 below.
5. This Waiver and the rights and obligations of the parties hereunder
shall be construed in accordance with and governed by the internal laws of the
State of New York, without giving effect to conflict of laws principles
thereunder.
6. This Waiver may be executed in any number of counterparts, and by
different parties hereto on separate counterparts, each of which counterparts
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
7. This Waiver shall not become effective unless (i) holders representing
in excess of 80% of the Preferred Shares issued and outstanding on the date
hereof have executed and delivered this Waiver to the Company and (ii) counsel
for the Company has executed and delivered to such holders an opinion of
counsel, substantially in the form attached hereto as EXHIBIT B. Thereafter,
this Waiver shall be effective as of December 31, 1996 (the "WAIVER EFFECTIVE
DATE") and only those holders who have executed and delivered this Waiver prior
to 11:00 a.m. Eastern Standard Time on March 28, 1997 shall be bound by this
Waiver and shall be eligible to receive the consideration provided in
paragraph 2 of this Waiver (including their pro rata portion of the Warrants).
This Waiver is a valid, legal and binding obligation upon the parties hereto,
enforceable against such parties in accordance with its terms. This Waiver
shall not be effective against those holders of Preferred Shares who have not
timely executed and delivered this Waiver to the Company.
8. From and after the Waiver Effective Date, all references to the
Registration Rights Agreement in the Investment Agreement and the Designation
shall be deemed to be references to the Registration Rights Agreement as
modified hereby. The Company agrees that all Common Stock issuable upon
exercise of the Warrants shall be included within the definitions of Registrable
Securities under the Registration Rights Agreement.
9. REPRESENTATIONS AND WARRANTIES OF CIC. CIC hereby makes the following
representations and warranties to each of the Investors executing and delivering
this Waiver as of the date hereof:
(a) AUTHORIZATION; ENFORCEMENT. (i) CIC has the requisite corporate
power and authority to enter into and perform this Waiver and the Warrant
Certificate and to issue the Warrants and the Common Stock issuable upon
exercise of the Warrants (the "UNDERLYING SHARES") in accordance with the terms
thereof, (ii) the execution and delivery of this Waiver and the Warrant
Certificate by CIC and the consummation by it of the transactions contemplated
hereby and thereby, including the issuance of the Warrants and the Underlying
Shares, have been duly authorized by all necessary corporate action, and no
further consent or authorization of CIC or its Board of Directors or
stockholders is required, (iii)
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this Waiver and the Warrant Certificate have been duly executed and delivered by
CIC, and (iv) this Waiver and the Warrant Certificate constitute valid and
binding obligations of CIC enforceable against CIC in accordance with their
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, liquidation or similar laws, or by the
laws relating to the enforcement of creditors' rights and remedies generally or
by other equitable principles of general application.
(b) ISSUANCE OF COMMON STOCK. The Underlying Shares are duly
authorized and reserved for issuance and, upon such exercise in accordance with
the Warrant Certificate, such Underlying Shares will be validly issued, fully
paid and non-assessable, free and clear of any and all liens, claims and
encumbrances, and provided that the Common Stock is then traded on the NASDAQ
SmallCap Market, the Underlying Shares will be entitled to be traded on the
NASDAQ SmallCap Market, and the holders of such Underlying Shares shall be
entitled to all rights and preferences accorded to a holder of Common Stock.
The outstanding Common Stock are currently listed on the NASDAQ SmallCap Market.
(c) NO CONFLICTS. The execution, delivery and performance of this
Waiver and the Warrant Certificate by CIC and the consummation by CIC of the
transactions contemplated hereby and thereby do not and will not (i) result in a
violation of CIC's Certificate of Incorporation or By-Laws or (ii) conflict
with, or constitute a default (or an event which with notice or lapse of time or
both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture, patent,
patent license or instrument to which CIC or any of its subsidiaries is a party,
or result in a violation of any Federal, state, local or foreign law, rule,
regulation, order, judgment or decree (including Federal and state securities
laws and regulations) applicable to CIC or any of its subsidiaries or by which
any property or asset of CIC or any of its subsidiaries is bound or affected.
CIC is not required under Federal, state or local law, rule or regulation in the
United States to obtain any consent, authorization or order of, or make any
filing or registration with, any court or governmental agency in order for it to
execute, deliver or perform any of its obligations under this Waiver and the
Warrant Certificate or issue the Warrants in accordance with the terms thereof
or the Underlying Shares upon exercise thereof, except for the registration
provisions provided in the Registration Rights Agreement, provided that, for
purposes of the representation made in this sentence, CIC is assuming and
relying upon the accuracy of the relevant representations and agreements of the
Investors in the Investment Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be duly
executed and delivered, as of the date first above written.
COMMUNICATION INTELLIGENCE CORPORATION
By:
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Name:
Title:
INVESTORS
ANVIL INVESTMENT PARTNERS, L.P.
By: Anvil Investors, Inc., as general partner
By:
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Xxxx X. Xxxxxx
President
OTATO LIMITED PARTNERSHIP
By:
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Name:
Its:
PRAIRIE PATH CORPORATION
By:
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Name:
Its:
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GLOBAL BERMUDA LIMITED PARTNERSHIP
By: Global Capital Management
Its: General Partner
By:
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Name:
Title:
MERCED PARTNERS LIMITED PARTNERSHIP
By: Global Capital Management
Its: General Partner
By:
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Name:
Title:
LAKESHORE INTERNATIONAL LTD.
By: Global Capital Management
Its: General Partner
By:
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Name:
Title:
XXXXXXX ASSOCIATES, L.P.
By:
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Xxxx X. Xxxxxx
General Partner
WESTGATE INTERNATIONAL, L.P.
By: MARTLEY INTERNATIONAL, INC.,
as Attorney-In-Fact
By:
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Xxxx X. Xxxxxx
President
JMG CAPITAL PARTNERS, L.P.
By:
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Xxxxxxxx Xxxxxx
General Partner
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RAVICH REVOCABLE TRUST OF 1989
By:
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Name:
Its:
SALOMON BROTHERS INC
By:
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Name:
Its:
UBS SECURITIES, LLC
By:
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Name:
Title:
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