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EXHIBIT 10.18
AGREEMENT OF WAIVER AND CONSENT
This Agreement of Waiver and Consent (the "Agreement") is made as of
November 20, 1996, by and among Intelligroup, Inc., a New Jersey corporation
(the "Company" or "Intelligroup"), Xxxxx Xxxxxx, Xxxxxxxx Xxxxxx and Xxxxxxxx
Xxxxxxxxxxxx (collectively, the "Shareholders"), and Summit Ventures IV, L.P.
and Summit Investors III, L.P. (collectively, "Summit").
WHEREAS, Intelligroup, the Shareholders and Summit are parties to (i)
that certain Registration Rights Agreement, and (ii) that certain Shareholders'
Agreement, each dated as of April 10, 1996 (together, the "Agreements"); and
WHEREAS, the Board of Directors of Intelligroup has approved a
proposed secondary underwritten public offering of the Common Stock of
Intelligroup (the "Secondary Offering"), in which the Company proposes to issue
and sell shares of Common Stock and the Shareholders and Summit propose to sell
shares of Common Stock; and
WHEREAS, as a condition precedent to the consummation of the Secondary
Offering, certain waivers and amendments are necessary to the Agreements;
NOW, THEREFORE, in consideration of the mutual promises herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. WAIVER OF CERTAIN REGISTRATION RIGHTS.
Effective upon the date hereof, Summit hereby agrees to waive any and
all registration rights as to the Secondary Offering, except as to be provided
in the underwriting agreement between the Company, the Shareholders, Summit and
the representatives of the underwriters to be executed in conjunction with the
Secondary Offering. It is further understood that Summit shall be entitled to
sell an aggregate of 90,000 shares of Common Stock in the Secondary Offering
and an aggregate of 13,500 shares of Common Stock (representing Summit's
pro-rata allocation of the underwriters' over-allotment option), in the event
the underwriters' over-allotment option is exercised in full. Notwithstanding
anything to the contrary, the Company will pay the Registration Expenses (as
defined in the Registration Rights Agreement referenced above) related to the
Secondary Offering, including, without limitation, the reasonable fees and
expenses of Summit's special counsel Xxxxxxxx, Xxxxxxx & Xxxxxxx, A
Professional Corporation.
2. WAIVER OF CERTAIN CO-SALE RIGHTS.
Effective upon the date hereof, Summit hereby agrees to waive any and
all co-sale rights as to the Secondary Offering, which they may have pursuant
to Section 4 of the Shareholder's Agreement referenced above.
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3. TERMINATION UPON CANCELLATION OF SECONDARY OFFERING; REVERSION.
In the event (i) the Company does not consummate the Secondary
Offering by January 31, 1997, (ii) the Secondary Offering is not consummated
within ten days of its effectiveness or (iii) upon earlier notice to the Company
from the representatives of the underwriters of the Secondary Offering that the
Secondary Offering has been terminated, this Agreement shall be terminated and
deemed to be of no further force and effect.
4. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall constitute an original.
5. BINDING EFFECT; SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the parties hereto and their respective successors and
assigns, including any direct or indirect successor by purchase, merger,
consolidation or otherwise to all or substantially all of the business and/or
assets of any of the parties.
6. NOTICE.
All notices, requests, demands and other communications under this
Agreement shall be in writing and shall be deemed duly given (i) if delivered
by hand and receipt made therefor by the party addressee, on the date of such
receipt, or (ii) if mailed by domestic certified or registered mail with
postage prepaid to the addresses shown below, on the third business day after
the date postmarked.
If to the Company or to the Shareholders:
Intelligroup, Inc.
000 Xxxxx Xxx Xxxxx
Xxxxxx, Xxx Xxxxxx, 00000
Copy to:
Xxxxxxxx Ingersoll
000 Xxxxxxx Xxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
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If to Summit:
Summit Partners
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx, A Professional Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxx Xxxxxx, Esq.
7. SEVERABILITY.
The provisions of this Agreement shall be severable in the event that
any of the provisions hereof (including any provision within a single section,
paragraph or sentence) are held by a court of competent jurisdiction to be
invalid, void or otherwise unenforceable, and the remaining provisions shall
remain enforceable to the fullest extent permitted by law. Furthermore, to the
fullest extent possible, the provisions of this Agreement (including, without
limitation, each portion of this Agreement containing any provision held to be
invalid, void or otherwise unenforceable, that is not itself invalid, void or
unenforceable) shall be construed so as to give effect to the intent manifested
by the provision held invalid, illegal or unenforceable.
8. AMENDMENT.
No amendment, modification, termination or cancellation of this
Agreement shall be effective unless it is in writing signed by all of the
parties hereto. No waiver of any of the provisions of this Agreement shall be
deemed or shall constitute a waiver of any other provisions hereof (whether or
not similar) nor shall such waiver constitute a continuing waiver.
9. INTEGRATION AND ENTIRE AGREEMENT.
Except as provided in this Agreement of Waiver and Consent, the
Agreements and documents and agreements contemplated thereby and all of their
respective terms and provisions, as amended by (i) that certain Agreement of
Waiver and Consent dated June 4, 1996 and (ii) that certain Amendment No. 1 to
Agreement of Waiver and Consent dated July 12, 1996, remain in full force and
effect.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
INTELLIGROUP, INC.
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
President and Chief Executive Officer
SUMMIT VENTURES IV, L.P.
By: Summit Partners IV, L.P.
Its General Partner
By: Stamps, Xxxxxxx & Co. IV,
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxx
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Its General Partner
SUMMIT INVESTORS III, L.P.
By: /s/ Xxxxxx X. Xxxxxxx
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Authorized Signatory
INDIVIDUALS
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
/s/ Xxxxxxxx Xxxxxx
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Xxxxxxxx Xxxxxx
/s/ Xxxxxxxx Xxxxxxxxxxxx
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Xxxxxxxx Xxxxxxxxxxxx
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