Exhibit 10.64
INFORMATION MANAGEMENT ASSOCIATES, INC.
0000 Xxxx Xxxxxx
Xxxxxxxx, XX 00000
June 1, 1994
Wand Partners Inc.
00 Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Wand/IMA Investments, L.P.
00 Xxxxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxx, XX 00000
Re: Second Amendment to Letter Agreement
Originally Executed December 21, 1990
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Gentlemen:
Reference is made to a certain Letter Agreement, dated December 21,
1990 (the "Letter Agreement"), among Wand/IMA Investments, L.P., a Delaware
limited partnership, (the "Wand/IMA Partnership"), Information Management
Associates, Inc., a Connecticut corporation, (the "Company") and certain
shareholders of the Company, Xx. Xxxx X. Xxxxxxx, Mr. Xxxxxx Podludnewycz, Xx.
Xxxx X. Xxxxxxx, Xx. Xxxxxx X. Xxxxxxxx, Xx., Xx. Xxxxxxx Xxxxxx, Xx. Xxxxxx
Xxxxxx, and Xx. Xxxxxx X. Xxxxx. (Messrs. Xxxxxxx, Podludnewycz, Xxxxxxx and
Subbloie are referred to herein individually as a "Principal Shareholder", and,
collectively, as the "Principal Shareholders"). The Letter Agreement was
subsequently amended on October 29, 1991 (the "First Amendment") to revise its
existing terms and to add certain new provisions. The original parties to the
Letter Agreement now wish to amend the Letter Agreement further to add Wand
Partners Inc., a Delaware corporation ("WPI") as a party, to release Messrs.
Xxxxxx, Xxxxxx and XxXxx as parties, and to correct certain other errors
contained in the First Amendment. Accordingly, the Letter Agreement is now
further amended (the "Second Amendment") as follows:
1. Principal Shareholders' Common Stock. Each Principal
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Shareholder severally represents that he owns
the number of shares of Common Stock set forth opposite his name on Exhibit A
hereto.
2. Section 3 of the Letter Agreement as amended by the First
Amendment, is hereby deleted in its entirety and the following section is
substituted therefor:
"3. Take-Along Rights. (a) Promptly after any
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one or more Principal Shareholder (the "Selling Shareholder")
determines to offer for sale or otherwise dispose of (a "sale"), all or
any portion of the Common Stock of the Company owned by such Selling
Shareholder to any Person other than an Affiliate (as defined in
section 3 of this Second Amendment) of such Selling Shareholder (a
"Third Party Purchaser"), and if as a consequence of such sale the
Principal Shareholders as a group would in the aggregate own fewer than
80% of the aggregate number of shares of Common Stock indicated on
Exhibit A, then the Selling Shareholder shall give written notice (a
"Take-Along Notice") to the Wand/IMA Partnership and WPI at the address
stated at the beginning of this letter, specifying the name of the
Third Party Purchaser, the number of shares of Common Stock intended to
be sold, the purchase price and all other relevant terms and conditions
of such sale. You shall have the option (the "Take-Along Option") to
sell up to such number of shares of Common Stock determined in
accordance with paragraph (b) of this section (the "Other Included
Shares"), at the same price and on the same terms received by the
Selling Shareholder. The Take-Along Option shall be exercised by you by
delivering a written notice to the Selling Shareholder (an "Exercise
Notice"), within five Business Days of the delivery of the Take-Along
Notice, indicating your election to exercise the Take-Along Notice or
Exercise Notice shall be deemed delivered for purposes of this
Agreement (i) if given by telex or telecopy, when such telex or
telecopy is transmitted to the recipient's telex or telecopy number and
the
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appropriate answer back or acknowledgment of receipt is received or
(ii) if given by mail, 72 hours after such notice is deposited in the
U.S. mail, return receipt requested. Failure by you to deliver an
Exercise Notice to the Selling Shareholder shall constitute a binding
agreement by your to sell up to the number of shares of Common Stock
specified in such Exercise Notice at the price and on the terms stated
in the Take-Along Notice, unless such Exercise Notice is revoked by a
written instrument delivered in the manner specified above to the
Selling Shareholder at least 24 hours prior to the time that the
Selling shareholder enters into a legally binding commitment to sell
such shares of Common Stock. the Selling Shareholder shall not sell
shares of Common Stock to a Third Party Purchaser unless all Other
Included Shares, if any have been elected pursuant to this Agreement,
are included in such sale in accordance with this section.
(b) You shall have the right to sell pursuant to each
Take-Along Option described in paragraph (a) of this section up to the
number of shares of Common Stock determined by the formula below:
X
A = ------- x Z
X+Y
where, on the date you exercise the Take-along Option, A equals the
number of shares of Common Stock you may include in such sale, X equals
the number of shares of Common Stock then owned beneficially by you
(inclusive of any shares issuable upon exercise of any warrants,
options or other rights held by you), Y equals the total number of
shares of Common Stock then owned by the Principal Shareholders on a
fully
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diluted basis and Z equals the number of shares of Common Stock
which the Selling Shareholder proposes to sell to a third Party
Purchaser; provided, however, that the formula shall only include
-------- -------
shares to be sold after the Principal Shareholders have sold 20% of the
aggregate number of shares of Common Stock indicated on Exhibit A.
(c) If and to the extent that at the end of 30 days following
the date on which a Take-Along Notice was given pursuant to paragraph
(a) of this section, the Selling Shareholder has not completed the sale
of the number of shares of Common Stock proposed to be sold as set
forth in such Take-Along Notice, the Take- Along Option with respect
thereto and the Selling Shareholder's right to sell such shares of
Common stock shall cease until such times as a subsequent Take-Along
Notice is delivered to you in accordance with paragraph (a) of this
section. Notwithstanding anything to the contrary contained herein, the
Selling Shareholder shall have no obligation to you to consummate any
sale as to which he gives a Take-Along Notice.
(d) The Selling Shareholder and you shall each pay a pro rata
--- ----
share, based on the number of shares of Common Stock sold, of fees,
expenses and commissions charged by any broker or agent executing the
sale of shares of Common Stock pursuant to a Take-Along Option
described in paragraph (a) of this section.
(e) If you (i) fail to deliver good and marketable title to
any or all of the Other Included Shares or (ii) fail to pay any fees,
costs or expenses required to be paid pursuant to this Agreement, you
shall hold harmless and indemnify the Selling Shareholder against all
losses, claims, damages, liabilities and expenses (including attorneys'
fees) arising out of or in connection with any such failure.
(f) The failure by you to exercise a Take-Along Option in
connection with any par-
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ticular sale shall not affect your right to exercise a Take-Along
Option with respect to any subsequent sale.
(g) Any sale of shares of Common Stock by any Principal
Shareholder to any Affiliate of such Principal Shareholder shall be
null and void unless and until such Affiliate agrees in writing to be
bound by the obligations of his transferor hereunder and the
restrictions on transfer set forth herein with respect to the shares of
Common Stock so to be acquired.
(h) The rights and obligations applying to the Wand/IMA
Partnership and WPI under this Section 3 shall also apply to Xxxxxx
X. Xxxx, Xxxxx X. Xxxxxxx, Xxxxx X. Xxxxxxxxx and Xxxxxxx X.
Xxxxxxxxx."
3. Section 8 of this Letter Agreement is hereby deleted in
its entirety and the following section is substituted therefor:
"8. Definitions. (a) An "Affiliate" shall mean
-----------
(i) in any case, any Person who, directly or indirectly, is in Control
of, is Controlled by, or is under common Control with, another Person,
and (ii) in the case of an individual, his spouse, his issue, his
estate, and any trust entirely for the benefit of his spouse and/or
issue.
(b) "Control" shall mean the possession, directly or
indirectly, of beneficial ownership of a Person sufficient to direct or
cause the direction of the management or policies of such Person;
"Controlling" and "Controlled" shall have meanings correlative to the
foregoing.
(c) "Person" shall mean an individual, a corporation, a trust,
an unincorporated organization, an association or any other entity or a
government or any department or agency thereof."
4. Xxxxxxx Xxxxxx, Xxxxxx Xxxxxx and Xxxxxx XxXxx are hereby
deleted as parties to the Letter Agree-
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ment, as amended, and are accordingly released from any and all obligations
thereunder.
5. Except as amended hereby, all provisions of the Letter
Agreement, as amended by the First Amendment, shall remain in full force and
effect.
6. Capitalized terms not defined herein shall, unless
otherwise indicated, have the meanings assigned them in the
Common Share Purchase Warrant originally issued by Information
Management Associate, Inc. to the Wand/IMA Partnership on October 29, 1991.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year first above written.
By: /s/ Xxxxxx X. Xxxxx
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Xxxxxx X. Xxxxx
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx
By: /s/ Andrei Poludnewycz
--------------------------------
Andrei Poludnewycz
By: /s/ Xxxx X. Xxxxxxx
--------------------------------
Xxxx X. Xxxxxxx
By: /s/ Xxxxxx X. Xxxxxxxx, Xx.
--------------------------------
Xxxxxx X. Xxxxxxxx, Xx.
By: /s/ Xxxxxxx Xxxxxx
--------------------------------
Xxxxxxx Xxxxxx
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By: /s/ Xxxxxx Xxxxxx
---------------------------------
Xxxxxx Xxxxxx
INFORMATION MANAGEMENT
ASSOCIATES, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: XXXX X. XXXXXXX
Title: CFO
The foregoing Agreement is
hereby accepted and agreed
to as of the date hereof.
WAND PARTNERS INC.
By: /s/ Xxxxx X. Xxxxxxx
_________________________
Name: XXXXX X. XXXXXXX
Title:
WAND/IMA INVESTMENTS, L.P.
By: WAND PARTNERS INC.
as general partner
By: /s/ Xxxxx X. Xxxxxxx
_________________________
Name:XXXXX X. XXXXXXX
Title:
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