EXHIBIT 10.22
FTP SOFTWARE, INC.
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement, dated as of July __, 1996, is among FTP
Software, Inc., a Massachusetts corporation (the "Company"), and John A.
Kimberley, Peter R. Simkin and Richard J. Whitehead (each, an "Investor" and
collectively, the "Investors").
WHEREAS, the Company, Firefox Acquisition Corp., a wholly owned subsidiary
of the Company and a Delaware corporation ("Sub"), and Firefox Communications
Inc., a Delaware corporation ("Firefox"), have entered into an Amended and
Restated Agreement and Plan of Merger dated as of May 21, 1996 (as amended and
restated and in effect from time to time, the "Merger Agreement") pursuant to
which Sub will merge with and into Firefox (the "Merger") and Firefox will
become a wholly owned subsidiary of the Company, and each outstanding share of
common stock of Firefox, $.001 par value per share ("Firefox Common Stock"),
will be converted into the right to receive (i) that number of shares of common
stock of the Company, $.01 par value per share ("FTP Common Stock"), that equals
the amount obtained by dividing (i) $50,000,000 divided by the number of shares
of Firefox Common Stock issued and outstanding immediately prior to the
effective time of the Merger (the "Outstanding Firefox Shares") by (ii) the
average closing price of the FTP Common Stock as quoted on the Nasdaq National
Market for the 10 trading days immediately preceding the date of the special
meeting of Firefox stockholders held for the purpose of voting on the Merger
Agreement and the Merger, subject to the provisions in the Merger Agreement
relating to fractional shares, and (b) cash in the amount of $10,000,000 divided
by the number of Outstanding Firefox Shares, subject to adjustment as described
in the Merger Agreement. subject to adjustment as described in the Merger
Agreement; and
WHEREAS, the Investors will receive shares of FTP Common Stock in exchange
for their shares of Firefox Common Stock pursuant to the Merger; and
WHEREAS, it is a condition to obligations of Firefox under the Merger
Agreement that the Company and the Investors enter into this Agreement;
NOW, THEREFORE, in consideration of the mutual covenants herein contained
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Definitions; Certain Rules of Construction. Capitalized terms used and not
elsewhere defined in this Agreement shall have the specific meanings defined
below in this Section 1. Except as otherwise explicitly specified to the
contrary or unless the context clearly requires otherwise, (a) the capitalized
term "Section" refers to sections of this Agreement, (b) the
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capitalized term "Exhibit" refers to exhibits to this Agreement, (c) references
to a particular Section include all subsections thereof, (d) the word
"including" shall be construed as "including without limitation," (e) references
to a particular statute or regulation include all rules and regulations
thereunder and any successor statute, regulation or rules, in each case as from
time to time in effect, (f) words in the singular or plural form include the
plural and singular form, respectively, and (g) references to a particular
Person include such Person's successors and assigns to the extent permitted by
this Agreement.
1.1. "1933 Act" means the Securities Act of 1933, as amended.
1.2. "1934 Act" means the Securities Exchange Act of 1934.
1.3. "Board of Directors" means the Board of Directors of the Company.
1.4. "Company" is defined in the preamble to this Agreement.
1.5. "Company Indemnitees" is defined in Section 2.6(b).
1.6. "Firefox" is defined in the recitals to this Agreement.
1.7. "Firefox Common Stock" is defined in the recitals to this Agreement.
1.8. "Form S-1", "Form S-3" and "Form S-4" mean such respective
registration forms in effect on the date hereof (or any successor registration
forms subsequently adopted by Securities and Exchange Commission) under the 1933
Act.
1.9. "FTP Common Stock" is defined in the recitals to this Agreement.
1.10. "Indemnitee" means each of the Company Indemnitees and the Holder
Indemnitees.
1.11. "Investors" is defined in the preamble to this Agreement.
1.12. "Holder" means (a) any Person that owns, or has the right to
acquire, Registrable Securities and (b) any permitted assignee thereof in
accordance with Section 6.
1.13. "Holder Indemnitees" is defined in Section 2.6(a).
1.14. "Merger" is defined in the recitals to this Agreement.
1.15. "Merger Agreement" is defined in the recitals to this Agreement.
1.16. "Outstanding Firefox Shares" is defined in the recitals to this
Agreement.
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1.17. "Person" means any current or future natural person or any
corporation, association, partnership, limited liability company, limited
liability partnership, joint venture, joint stock or other company, business
trust, trust, estate, organization, business or government or any governmental
agency or political subdivision thereof.
1.18. "register", "registered" and "registration" refer to a registration
effected by preparing and filing a registration statement or similar document in
compliance with the 1933 Act and the automatic effectiveness, or the declaration
or ordering of effectiveness, of such registration statement or document.
1.19. "Registrable Securities" means (a) any share of FTP Common Stock
issued to any Investors pursuant to the Merger Agreement and (b) any share of
FTP Common Stock issued as (or issuable upon the conversion or exercise of any
warrant, right, or other security which is issued as) a dividend or other
distribution with respect to, in exchange for, or in replacement of, any share
of FTP Common Stock described in the foregoing clause (a); provided, however,
that any share of FTP Common Stock previously sold to the public pursuant to a
registered public offering or pursuant to an exemption from the registration
requirements of the 1933 Act shall cease to be a Registrable Security. For
purposes of this Agreement, the number of Registrable Securities at any time
outstanding shall be the sum of (i) the number of shares of FTP Common Stock
then outstanding which are Registrable Securities plus (ii) the number of shares
of FTP Common Stock which are issuable pursuant to then exercisable or
convertible securities and which upon issuance would be Registrable Securities.
1.20. "Requesting Holders" is defined in Section 2.1.
1.21. "Rule 144" is defined in Section 2.7(a).
1.22. "Rule 144 Information" is defined in Section 2.7(b).
1.23. "Sub" is defined in the recitals to this Agreement.
1.24. "Violation" means, with respect to any registration statement which
includes any Registrable Securities:
(a) any untrue statement or alleged untrue statement of a material fact
contained or incorporated by reference in such registration statement, including
any preliminary prospectus or final prospectus contained therein or any
amendments or supplements thereto;
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(b) the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading; or
(c) any violation or alleged violation by the Company of the 1933 Act, the
1934 Act, any state securities law or any rule or regulation promulgated under
the 1933 Act, the 1934 Act or any state securities law in connection with any
matter relating to such registration statement.
2. Registration Rights.
2.1. Company Registration. If (but without any obligation to do so), at
any time prior to two years (or, if shorter, such period as is set forth in Rule
145(d)(2), as from time to time in effect, under the 1933 Act) following the
effective date of the Merger, the Company proposes to register any of its
capital stock or other securities under the 1933 Act in connection with the
public offering of such securities solely for cash (other than a registration
relating solely to the sale of securities to participants in a Company stock
plan or a registration on Form S-4 or any successor form), the Company shall, at
each such time, promptly give each Holder written notice of such proposed
registration. Upon the written request of any Holder given within 15 days after
mailing of such notice by the Company (which request shall specify the
Registrable Securities intended to be disposed of by such Holder), the Company
shall, subject to the provisions of Section 2.5, use its best efforts to cause
the Registrable Securities, the Holders of which shall have so requested the
registration thereof (the "Requesting Holders"), to be registered under the 1933
Act to the extent requisite to permit the disposition of such Registrable
Securities in the manner contemplated by the Company's proposed registration;
provided, however, that the Company shall be under no obligation to register
Registrable Securities representing any more than 160,000 shares of FTP Common
Stock on behalf of each Holder during the twelve-month period ending on the
first anniversary of the date of this Agreement. If, at any time after giving
written notice of its intention to register any securities and prior to the
effective date of the registration statement filed in connection with such
registration, the Company shall determine for any reason not to register or to
delay registration of such securities, the Company may, at its election, give
written notice of such determination to each holder of Registrable Securities
and, thereupon, (i) in the case of a determination not to register, shall be
relieved of its obligation to register any Registrable Securities in connection
with such registration and (ii) in the case of a determination to delay
registering, shall be permitted to delay registering any Registrable Securities,
for the same period as the delay in registering such other securities.
2.2. Obligations of the Company. Whenever required under this Section 2
to use its best efforts to effect the registration of any Registrable
Securities, the Company shall, as expeditiously as reasonably possible, prepare
and file with the SEC a registration statement with respect to such Registrable
Securities and, subject to the last sentence of Section 2.1, use its best
efforts to cause such registration statement to become effective, and, upon the
request
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of the Requesting Holders of a majority of the Registrable Securities registered
thereunder, keep such registration statement effective for up to 90 days or
until such Requesting Holders have informed the Company in writing that the
distribution of their securities has been completed. In addition, the Company
shall:
(a) prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection with such
registration statement, and use its best efforts to cause each such amendment
and supplement to become effective, as may be necessary to comply with the
provisions of the 1933 Act with respect to the disposition of all securities
covered by such registration statement;
(b) furnish to the Requesting Holders such reasonable number of copies of
a prospectus, including a preliminary prospectus, in conformity with the
requirements of the 1933 Act, and such other documents as they may reasonably
request in order to facilitate the disposition of Registrable Securities owned
by them;
(c) notify each Requesting Holder, at any time when a prospectus relating
to a registration statement under which such Requesting Holder's Registrable
Securities are being registered is required to be delivered under the 1933 Act,
upon discovery that, or upon the happening of any event as a result of which,
the prospectus included 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 under which they were made, and
at the request of any such Requesting Holder promptly prepare and furnish to
such Requesting Holder a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such securities, 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 under which they were made;
(d) use its best efforts to register or qualify the securities covered by
such registration statement under such securities or blue sky laws of such
states and jurisdictions as shall be reasonably requested by the Requesting
Holders, except that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business, subject itself to taxation
or file a general consent to service of process in any such state or
jurisdiction;
(e) in the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering; provided, however, that
each Holder participating in such underwriting shall also enter into and perform
its obligations
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under such an underwriting agreement, including furnishing any opinion of
counsel or entering into a lock-up agreement (on terms not inconsistent with
those set forth in Section 2.8) requested by the managing underwriter; and
(f) apply for listing and use its best efforts to list the Registrable
Securities being registered on any national securities exchange on which the FTP
Common Stock, or, if the FTP Common Stock is not then listed or, if the Company
does not have a class of equity securities listed on a national securities
exchange, apply for qualification and use its best efforts to qualify the
Registrable Securities being registered for inclusion on the automated quotation
system of the National Association of Securities Dealers, Inc.
2.3. Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 2 in
respect of the Registrable Securities of any Requesting Holder that such
Requesting Holder shall furnish to the Company such information regarding such
Requesting Holder, the Registrable Securities held by such Requesting Holder,
and the intended method of disposition of such Registrable Securities as shall
be required to effect the registration of such Registrable Securities.
Each Requesting Holder agrees that upon receipt of any notice from the
Company of the happening of any event of the kind described in the subparagraph
(c) of Section 2.2, such Requesting Holder will forthwith discontinue such
Requesting Holder's disposition of Registrable Securities pursuant to the
Registration Statement relating to such Registrable Securities until such
Holder's receipt of the copies of the supplemented or amended prospectus
contemplated by subparagraph (c) of this Section 2.2 and, if so directed by the
Company, will deliver to the Company all copies, other than permanent file
copies, then in such Holder's possession of the prospectus relating to such
Registrable Securities current at the time of receipt of such notice.
2.4. Expenses of Registration. The Company shall bear and pay all
expenses incurred in connection with any registration, filing or qualification
of Registrable Securities with respect to any registration pursuant to Section
2.1 for each Requesting Holder, including all registration, filing and
qualification fees, printing and accounting fees, fees and disbursements of
counsel for the Company and the reasonable fees and disbursements of one counsel
for the Requesting Holders. All underwriting discounts and commissions relating
to Registrable Securities included in any registration effected pursuant to
Section 2.1 will be borne and paid ratably by the Requesting Holders of such
Registrable Securities and the Company.
2.5. Underwriting Requirements. In connection with any offering involving
an underwriting of securities being issued by the Company, the Company shall not
be required under Section 2.1 to include any of the Requesting Holders'
securities in such underwriting unless such Requesting Holders accept the terms
of the underwriting as agreed upon between the Company and the underwriters
selected by it, and then only in such quantity, if any, as
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will not, in the opinion of the underwriters, jeopardize the success of the
offering by the Company. If the managing underwriter for the offering shall
advise the Company in writing that the total amount of securities, including
Registrable Securities, requested by shareholders to be included in such
offering exceeds the amount of securities to be sold other than by the Company
that can be successfully offered, then the Company shall be required to include
in the offering only that number of Registrable Securities which the managing
underwriter believes will not jeopardize the success of the offering. Any
reduction in the number of Registrable Securities shall be allocated among the
Requesting Holders pro rata in accordance with the number of shares of
Registrable Securities requested to be included in the offering by each such
Requesting Holder.
2.6. Indemnification. In the event any Registrable Securities are
included in a registration statement under this Section 2:
(a) The Company will indemnify and hold harmless each Requesting Holder
whose Registrable Securities are included in the registration statement, the
officers, directors, partners, agents and employees of each Holder, any
underwriter (as defined in the 1933 Act) for such Requesting Holder and each
person, if any, who controls such Holder or underwriter within the meaning of
the 1933 Act or the 1934 Act (collectively, the "Holder Indemnitees"), against
any losses, claims, damages or liabilities (joint or several) to which they may
become subject under the 1933 Act, the 1934 Act or any other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any Violation. The Company will
reimburse each Holder Indemnitee for any legal or other expenses reasonably
incurred by such Holder Indemnitee in connection with investigating or defending
any such loss, claim, damage, liability or action. The indemnity agreement
contained in this Section 2.6(a) shall not apply to amounts paid in settlement
of any loss, claim, damage, liability or action if such settlement is effected
without the written consent of the Company (which consent shall not be
unreasonably withheld), nor shall the Company be liable to any Holder Indemnitee
in any such case for any such loss, claim, damage, liability or action (i) to
the extent that it arises out of or is based upon a Violation which occurs in
reliance upon and in conformity with information furnished expressly for use in
connection with such registration by or on behalf of such Holder Indemnitee or
(ii) in the case of a sale directly by a Holder of Registrable Securities
(including a sale of such Registrable Securities through any underwriter
retained by such Holder engaging in a distribution solely on behalf of such
Holder), such violation was contained in a preliminary prospectus and corrected
in a final or amended prospectus, and such Holder failed to deliver a copy of
the final or amended prospectus at or prior to the confirmation of the sale of
the Registrable Securities to the Person asserting any such loss, claim, damage
or liability in any case in which such delivery is required by the 1933 Act.
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(b) Each Requesting Holder who includes any Registrable Securities in
the registration statement (i) will indemnify and hold harmless the Company,
each of its directors, each of its officers who have signed the registration
statement, each person, if any, who controls the Company within the meaning of
the 1933 Act, each agent and any underwriter for the Company, and any other
Requesting Holder or other stockholder selling securities in such registration
statement or any of its directors, officers, partners, agents or employees or
any Person who controls such Holder or such other stockholder or such
underwriter (collectively, the "Company Indemnitees"), against any losses,
claims, damages or liabilities (joint or several) to which any Company
Indemnitee may become subject under the 1933 Act, the 1934 Act or other federal
or state law, insofar as such losses, claims, damages or liabilities (or actions
in respect thereto) arise out of or are based upon any Violation, in each case
to the extent (and only to the extent) that such Violation occurs in reliance
upon and in conformity with written information furnished by or on behalf of
such Holder expressly for use in connection with such registration and (ii) will
reimburse any legal or other expenses reasonably incurred by any Company
Indemnitee in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that the liability of any Holder
hereunder shall be limited to the amount of net proceeds (after deduction of all
underwriters' discounts and commissions paid by such Holder in connection with
the registration in question) received by such Holder in the offering giving
rise to the Violation; and provided, further, that in the case of a sale
directly by the Company of its securities (including a sale of such securities
through any underwriter retained by the Company to engage in a distribution
solely on behalf of the Company), no such Holder shall be liable to the Company
in any case in which such violation was contained in a preliminary prospectus
and corrected in a final or amended prospectus, and the Company failed to
deliver a copy of the final or amended prospectus at or prior to the
confirmation of the sale of the securities to the Person asserting any such
loss, claim, damage or liability in any case in which such delivery is required
by the 1933 Act.
(c) Promptly after receipt by any Indemnitee of notice of the commencement
of any action (including any governmental action), such Indemnitee will, if a
claim in respect thereof is to be made against any indemnifying party under this
Section 2.6, deliver to the indemnifying party a written notice of the
commencement thereof and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume and control the
defense thereof with counsel mutually satisfactory to the indemnifying party and
the Indemnitee; provided, however, that such Indemnitee shall have the right to
retain its own counsel, with the fees and expenses to be paid by the
indemnifying party, if representation of such Indemnitee by the counsel retained
by the indemnifying party would be inappropriate due to actual or potential
differing interests, as reasonably determined by the indemnifying part and the
Indemnitee between such Indemnitee and any other party represented by such
counsel in such
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proceeding. The failure to deliver written notice to the indemnifying party
within a reasonable time of the commencement of any such action, if prejudicial
to its ability to defend such action, shall relieve such indemnifying party of
any liability to the Indemnitee under this Section 2.6 to the extent of such
prejudice, but the omission so to deliver written notice to the indemnifying
party will not relieve it of any liability that it may have to such Indemnitee
otherwise than under this Section 2.6.
(d) The obligations of the Company and the Holders under this Section 2.6
shall survive the completion of any offering of Registrable Securities in a
registration statement whether under this Section 2 or otherwise.
(e) If the indemnification provided for in this Section 2.6 is unavailable
to a party that would have been an Indemnitee under this Section 2.6 in respect
of any losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) referred to herein, then each party that would have been an
indemnifying party hereunder shall, in lieu of indemnifying such Indemnitee,
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) in such proportion as is appropriate to reflect the relative
fault of such indemnifying party, on the one hand, and such Indemnitee, on the
other hand, in connection with the violations that resulted in such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof).
The relative fault shall be determined by reference to, among other things,
whether the Violation relates to information supplied by such indemnifying party
or such Indemnitee and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such Violation. The parties
agree that it would not be just and equitable if contribution pursuant to this
Section 2.6(e) were determined by pro rata allocation or by any other method of
allocation which does not take account of the equitable considerations referred
to in the preceding sentence. The amount paid or payable by a contributing
party as a result of the losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to above in this Section 2.6(e) shall
include any legal or other expenses reasonably incurred by such Indemnitee in
connection with investigating or defending any such action or claim. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation. The liability of any Holder of
Registrable Securities in respect of any contribution obligation of such Holder
(after deduction of all underwriters' discounts and commissions paid by such
Holder in connection with the registration in question) arising under this
Section 2.6(e) shall not in any event exceed an amount equal to the net proceeds
to such Holder from the disposition of the Registrable Securities disposed of by
such Holder pursuant to such registration.
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(f) Provisions similar to the foregoing provisions of this Section
2.6 may be included in any underwriting or similar agreement entered into by the
Company and any Holders in connection with any registration of Registrable
Securities.
2.7. Reports Under 1934 Act.
(a) With a view to making available to the Holders the benefits of Rule
144 promulgated under the 1933 Act ("Rule 144") and any other rule or regulation
of the Securities and Exchange Commission that may at any time permit a Holder
to sell securities of the Company to the public without registration, the
Company agrees to:
(i) use its best efforts to file with the Securities and Exchange
Commission in a timely manner all reports and other documents required of the
Company under the 1934 Act; and
(ii) furnish to any Holder, so long as such Holder owns any Registrable
Securities, forthwith upon request (A) a written statement by the Company as to
its compliance with the reporting requirements of Rule 144, the 1934 Act, (B) a
copy of the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company and (C) such other information as
may be reasonably requested in availing any Holder of any rule or regulation of
the Securities and Exchange Commission which permits the selling of any such
securities without registration.
2.8. Lock-up Agreements. If requested by the Company and the managing
underwriter, the Holders agree to enter into lock-up agreements pursuant to
which they will not, for a period of 180 days following the effective date of a
registration statement for a public offering of the Company's securities, offer,
sell or otherwise dispose of any Registrable Securities (except Registrable
Securities sold pursuant to such registration statement) without the prior
written consent of the Company and the managing underwriter.
3. Legend. Each certificate representing any Registrable Security shall bear
on its face substantially the following legends:
(a) "THESE SECURITIES ARE SUBJECT TO THE PROVISIONS OF A REGISTRATION
RIGHTS AGREEMENT DATED AS OF JULY __, 1996, AS AMENDED AND IN EFFECT FROM TIME
TO TIME, AMONG THE CORPORATION AND THE STOCKHOLDERS NAMED THEREIN, A COPY OF
WHICH IS ON FILE AT THE OFFICES OF THE CORPORATION."
(b) Any legends required by (i) the Merger Agreement, (ii) the Amended and
Restated Stockholder Agreement dated as of May 21, 1996, as amended and in
effect
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from time to time, among the Company and the Investors or (iii) the laws of any
applicable jurisdiction.
4. Specific Performance. The parties recognizes that their respective rights
under this Agreement are unique, and, accordingly, each party shall, in addition
to such other remedies as may be available to it at law or in equity, have the
right to enforce its rights hereunder by actions for injunctive relief and
specific performance to the extent permitted by law. This Agreement is not
intended to limit or abridge any rights of any party which may exist apart from
this Agreement.
5. Notices. All notices, demands and other communications required to be given
pursuant to this Agreement shall be in writing and shall be deemed to have been
received if given in writing (including telex, telecopy or similar
teletransmission) addressed as provided below (or to the addressee at such other
address as the addressee shall have specified by notice actually received by the
addressor), and if either (a) actually delivered in fully legible form to such
address (evidenced in the case of a telex by receipt of the correct answerback)
or (b) in the case of a letter, three days shall have elapsed after the same
shall have been deposited in the mails (i) with first-class (air mail if to or
from outside the United States of America) postage prepaid and registered or
certified, with return receipt requested, or (ii) with express delivery postage
prepaid, with receipt required for delivery.
If to the Company, to it at 100 Brickstone Square, Fifth Floor, Andover,
Massachusetts 01810, Attention: General Counsel, with a copy thereof to Ropes &
Gray, One International Place, Boston, Massachusetts 02110, Attention: David B.
Walek, Esq.
If to any Investor, to it at its address set forth on the signature page
hereto with a copy to Gray Cary Ware & Freidenrich, A Professional Corporation,
400 Hamilton Avenue, Palo Alto, California 94301, Attention: Diane Holt
Frankle, Esq.
6. Binding Effect; Assignment. This Agreement shall be binding upon, and inure
to the benefit of, the parties and their respective personal representatives,
successors and permitted assigns; provided, however, that the Company shall not
have the right to assign its rights and obligations hereunder, or any interest
herein, without the prior written consent of the Holders of a majority of the
Registrable Securities then outstanding, and the Holders may not assign their
registration rights, which are deemed to be personal to such Holders, except to
their respective spouses and children (or trusts for their benefit).
7. Course of Dealing; Amendments, Waivers and Consents. No course of dealing
between the parties shall operate as a waiver of any party's rights under this
Agreement. No delay or omission on the part of any party in exercising any
right under this Agreement shall operate as a waiver of such right or any other
right hereunder or thereunder. A waiver on any one occasion shall not be
construed as a bar to or waiver of any right or remedy on any future occasion.
No amendment, waiver or consent with respect to this Agreement shall be binding
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unless it is in writing and signed by each of the Company and the Holders of a
majority of the Registrable Securities then outstanding.
8. General. If any provision of this Agreement shall be found by any court of
competent jurisdiction to be invalid or unenforceable, the parties hereby waive
such provision to the extent that it is found to be invalid or unenforceable.
Such provision shall, to the maximum extent allowable by law, be modified by
such court so that it becomes enforceable, and, as modified, shall be enforced
as any other provision hereof, all the other provisions hereof continuing in
full force and effect. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation hereof. This Agreement constitutes the entire understanding of
the parties with respect to the subject matter hereof and supersedes any and all
prior understandings and agreements, whether written or oral, with respect to
such subject matter. This Agreement may be executed in counterparts, which
together shall constitute one and the same instrument. This Agreement shall be
governed by and construed in accordance with the laws (other than the conflict
of laws rules) of The Commonwealth of Massachusetts.
IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be
duly executed as an agreement under seal as of the date first above written.
COMPANY
FTP SOFTWARE, INC.
By _________________________________
Title:
INVESTORS
_________________________________
John A. Kimberley
Notice Address:
_________________________________
Peter R. Simkin
Notice Address:
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_________________________________
Richard J. Whitehead
Notice Address:
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