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EXHIBIT 10.43
SHAREHOLDER AGREEMENT
This Shareholder Agreement (the "Agreement") is entered into as of November
14, 1995 by and among (i) Unidata, Inc., a Colorado corporation (the "Company"),
(ii) System Builder Corporation, a company organized under the laws of Ireland
("SBC"), Integro Fiduciaire SARL, a company organized under the laws of Jersey
("Integro"), as trustee (and in no other capacity), Jurgen Joarder, Mike
Kontorvich and Carol McIntosh (collectively, the "Shareholders"), and (iii)
James T. Dresher ("Dresher").
WHEREAS, pursuant to that certain Asset Purchase Agreement (the "Purchase
Agreement"), dated as of November 1, 1995, by and among the Company, System
Builder Holdings Limited, a company organized under the laws of the Isle of Man
("SB Holdings"), SB Operations Limited, a company organized under the laws of
the Isle of Man ("SB Operations"), and the Shareholders, the Company is
acquiring substantially all the assets and assuming certain liabilities of SB
Holdings, SB Software and SB Operations.
WHEREAS, as partial consideration for the Company's acquisition of the
assets of SB Holdings, SB Software and SB Operations, the Company has agreed to
issue to SB Holdings, and then to permit SB Holdings to transfer to the
Shareholders, 1,277,730 shares (the "Shareholder Stock") of common stock
("Common Stock") no par value of the Company;
WHEREAS, Dresher and his Related Parties (as defined below) own 9,200,000
shares of Common Stock, which will constitute approximately 79% of the Common
Stock outstanding immediately after closing of the Purchase Agreement; and
WHEREAS, it is a condition precedent to the obligations of SB Holdings, SB
Software, SB Operations and the Shareholders under the Purchase Agreement that
the Shareholders, Dresher and the Company shall have entered into this
Agreement.
NOW THEREFORE, in condition of the mutual covenants herein contained and
for other good and valuable consideration, the parties agree as follows:
Section 1. ACQUISITION OF SHAREHOLDER STOCK.
(a) ACQUIRED FOR OWN ACCOUNT. Each of the Shareholders represents
and warrants that the Shareholder stock to be acquired by it pursuant to the
Purchase Agreement will be acquired for investment purposes only and not with a
view toward resale or distribution thereof in violation of the Securities Act of
1933, as amended (the "Act"), and will not be disposed of in contravention of
the Act.
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(b) SHAREHOLDER STOCK NOT REGISTERED. Each of the Shareholders
acknowledges that none of the Shareholder Stock has been registered pursuant to
the Act.
(c) KNOWLEDGE OF TRANSACTION. Each of the Shareholders represents
and warrants that it has had an opportunity to ask questions and receive answers
concerning the terms and conditions of the Purchase Agreement, has had legal
counsel review such terms and conditions and has had sufficient opportunity for
such Shareholder and its legal counsel to conduct diligence concerning the
Company.
(d) PRIORITY OF INDEMNIFICATION AND STOCK PLEDGE AGREEMENT. Nothing
contained in this Agreement shall in any way supersede, modify, amend or
diminish the rights of the "Buyers," as defined and specified in the
Indemnification and Stock Pledge Agreement entered into concurrently herewith
(the "Pledge Agreement"). In the event of any conflict between the provisions of
this Agreement and the Pledge Agreement, the provisions of the Pledge Agreement
shall control.
Section 2. RESTRICTIONS ON TRANSFER.
(a) TRANSFER OF SHAREHOLDER STOCK. None of the Shareholders will
sell, pledge or otherwise transfer any interest in any shares of Shareholder
Stock except pursuant to the provisions of subsections (b) or (c) of this
Section 2 or unless such sale occurs in connection with or after a Qualified
Public Offering consummated by the Company. Any attempted transfer of
Shareholder Stock in violation of this Agreement shall be void and of no effect.
As used herein, "Qualified Public Offering" shall mean a public offering of
Common Stock registered under the Act which results in net proceeds to the
Company and any of its shareholders participating in such public offering in an
aggregate amount of at least $15,000,000.
(b) FIRST REFUSAL RIGHTS. Any Shareholder desiring to transfer any
shares of Shareholder Stock (other than pursuant to Section 2(c) below), shall,
at least 120 days prior to making such transfer, deliver written notice (a "Sale
Notice") to the Company and Dresher disclosing in detail the identity of the
prospective transferee(s) and the terms and conditions of the proposed transfer.
Such Shareholder agrees not to consummate any such transfer until the earlier to
occur of (i) 120 days after the Sale Notice has been delivered to the Company
and Dresher, and (ii) the date on which the parties to the transfer have been
determined pursuant to this Section 2(b). The date of the first to occur of such
events is referred to as the "Authorization Date". Within ninety (90) days of
receiving such Sale Notice, the Company may elect to purchase all or any portion
of the Shareholder Stock proposed to be transferred upon the same terms and
conditions as set forth in the Sale Notice. If the Company does not elect to
purchase all of the shares of Shareholder Stock specified in the Sale Notice,
Dresher may elect to purchase any portion of such Shareholder that the Company
elects not to purchase upon the same terms and conditions as set forth in the
Sale Notice, provided that Dresher notifies such Shareholder of Dresher's
election to purchase within the same 90-day period following receipt of the Sale
Notice. If the Company and Dresher together do not elect to purchase all of the
shares of Shareholder Stock specified in the Sale Notice, such Shareholder may,
during the 90 day Period
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immediately following the Authorization Date, transfer such shares of
Shareholder Stock that the Company and Dresher have not elected to purchase at a
price and on terms no more favorable to the proposed transferee(s) than
specified in the Sale Notice; PROVIDED that prior to any such transfer, such
transferee has agreed in writing to be bound by the provisions of this
Agreement. Any shares of Stockholders Stock not transferred within such 90 day
period shall be subject to the provisions of this Section 2(b) upon a subsequent
attempt by such Shareholder to transfer such Shareholder Stock. The right of
first refusal provided in this Section 2(b) shall terminate upon the Company's
consummation of a Qualified Public Offering.
(c) SALE OF THE COMPANY. If the Board of Directors of the Company
and the holders of at least 66% of shares of Common Stock (or other voting
capital stock) (the "Required Percentage") then outstanding approve the sale of
all or substantially all of the Company's consolidated assets or a sale or
exchange of all of their shares of Shareholder Stock for the same price and
otherwise on the same terms and conditions as said holders of the Required
Percentage in such Approved Sale for the same price and otherwise on the same
terms and conditions as said holders and (ii) shall consent to and raise no
objections against the Approved Sale of the Company and, if requested to vote on
such Approved Sale, shall vote all shares of Common Stock that said holders
beneficially own in favor of such Approved Sale. It is intended that the
provision of this Section 2(c) consummate a "voting agreement" within the
meaning of Section 7-107-302 of the Colorado Business Corporation Act (the
"CBCA") and not a "voting trust" within the meaning of 7-107-301 of the CBCA. If
the Approved Sale of the Company is structured as a sale or exchange of stock,
the holders of Shareholder Stock shall agree to sell or exchange all of their
shares of Shareholder Stock and rights to acquire shares of Shareholder Stock on
the terms and conditions approved by the Board of Directors and the holders of
at least the Required Percentage. In any Approved Sale, all of the holders of
Common Stock shall be entitled to receive the same forms and amount of
consideration per share of Common Stock, or if any holders of Common Stock are
given an option as to the form and amount of considerations to be received, all
holders of Common Stock shall be given the same option. The holders of
Shareholder Stock shall take all necessary and desirable actions in connection
with the Consummation of the Approved Sale of the Company as requested by
counsel to the Company. The rights provided in this Section 2(c) shall terminate
upon the Company's consummation of a Qualified Public Offering.
(d) The certificates representing the Shareholder Stock to be
issued to the Shareholder shall bear the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 (THE "ACT"), AND MAY NOT
BE SOLD OR TRANSFERRED IN THE ABSENCE OF ANY EFFECTIVE REGISTRATION
STATEMENT UNDER THE ACT OR AN EXEMPTION FROM REGISTRATION
THEREUNDER. THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO
SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AND CERTAIN OTHER
AGREEMENTS SET FORTH IN A SHAREHOLDER AGREEMENT DATED AS OF NOVEMBER
1, 1995, A COPY OF
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WHICH MAY BE OBTAINED BY THE HOLDER HEREOF WITHOUT CHARGE AT THE
COMPANY'S PRINCIPAL PLACE OF BUSINESS.
(e) No holder of Shareholder Stock may sell, transfer or dispose of
any such securities (except pursuant to an effective registration statement
under the Act) without first delivering to the company a legal opinion
acceptable in form and substance to the Company by counsel acceptable to the
Company that registration under the Act is not required in connection with such
transfer.
(f) Each holder of Shareholder Stock agrees not to effect any
public sale or distribution of any equity securities of the Company, or any
securities convertible into or exchangeable or exercisable for such securities,
including a sale pursuant to Rule 144 (or any similar provision then in force)
under the Act during the seven days prior to, and during the 180 days beginning
on the effective date of the registration statement relating to any underwritten
public offering of the Company's Common Stock or preferred stock, except as part
of such underwritten public offering or if otherwise permitted.
Section 3. TAG-ALONG RIGHT. With respect to any proposed transfer,
sale or other disposition (collectively, a "proposed transfer") of shares of
Common Stock ("Shares") by Dresher or any of his Related Parties (such persons
being hereinafter referred to collectively referred to as the "proposed
purchaser"), other than pursuant to an Exempt Transfer (as defined below), each
of the Shareholders and their respective Related Parties (collectively, the
"Tag-Along Shareholders") shall have the right (the "Tag-Along Right") to
require the proposed purchaser to purchase from such Tag-Along Shareholder up to
the number of whole Shares owned by such Tag-Along Shareholder equal to the sum
of (A) the number derived by multiplying the total number of Shares the members
of the Dresher Group propose to transfer by a fraction, the numerator of which
is the total number of Shares owned by such Tag-Along Shareholder, and the
denominator of which is the total number of Shares then outstanding on a
fully-diluted basis and (B) any additional Shares of any other Tag-Along
Shareholder shall be entitled to have purchased pursuant to the next paragraph
if any other Tag-along Shareholder elects not to exercise its rights hereunder.
Any Shares purchased from Tag-Along Shareholder elects not to exercise its
rights hereunder. Any Shares purchased from Tag-Along Shareholders pursuant to
this Section 3 shall be for the same consideration and upon the same terms and
conditions as such proposed transfer by Dresher (or his Related Parties, as the
case may be). Dresher shall, not less than fifteen (15) not more than thirty
(30) calendar days prior to each proposed transfer, notify, or cause to be
notified, each Tag-Along Shareholder in writing of each proposed transfer,
setting forth in such notice: (i) the name of the transferor and the number of
Shares proposed to be transferred, (ii) the name and address of the proposed
purchaser, (iii) the proposed amount and form of consideration and terms and
conditions of payment offered by such proposed purchaser and (iv) that the
proposed purchaser has been informed of the Tag-Along Right provided for in this
Section 3 and has agreed to purchase Shares in accordance with the terms hereof.
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The Tag-Along Right may be exercised by any Tag-Along Shareholder by
delivery of a written notice to Dresher or his Related Party proposing to sell
Shares (the "Tag-Along Notice") within ten (10) calendar days following its
receipt of the notice specified in the last sentence of the preceding paragraph.
The Tag-Along Notice shall state the amount of Shares that such Tag-Along
Shareholder proposes to include in such transfer to the proposed purchaser
determined as aforesaid, plus the amount of additional Shares, if any, that such
Tag-Along Shareholder would be willing to sell to the proposed purchaser in the
event that any of the other Tag-Along Shareholders elect not to exercise their
Tag-Along Rights in whole or in part. The maximum amount of additional Shares
that each such Tag-Along Shareholder shall be entitled to sell, and the proposed
purchaser be required to purchase, shall be determined by multiplying the total
number of Shares that, under the formula described in the previous paragraph,
Tag-along Shareholders could have elected to sell to the proposed purchaser but
elected not to so sell, by a fraction, the numerator of which is the total
number of Shares owned by such Tag-Along Shareholder electing to sell additional
Shares and the denominator of which is the total number of Shares owned by all
Tag-Along Shareholders who delivered Tag-Along Notices, In the event that the
proposed purchaser does not purchase Shares from the Tag-Along Shareholders on
the same terms and conditions as specified in the notice referred to in the last
sentence of the preceding paragraph, then Dresher and his Related Parties shall
not be permitted to sell any Shares to the proposed purchaser in the proposed
transfer. If no Tag-Along Notice is received during the 10-day period referred
to above (or if such Notices do not cover all the Shares proposed to be
transferred), Dresher and his Related Parties shall have the right, for a period
of ninety (90) days after the expiration of the 10-day period referred to above,
to transfer the Shares specified in the notice referred to in the last sentence
of the preceding paragraph (or the remaining Shares) on terms and conditions no
more favorable than those stated in the Tag-Along Notice and in accordance with
the provisions of this Section 3.
As used herein, the term "Exempt Transfer" shall mean (1) transfers by
Dresher to his Related Parties, provided that any such transferee agrees in
writing to be bound by this Agreement as if such transferee were Dresher with
respect to such transferred Shares; (2) transfers by any of Dresher's Related
Parties to Dresher, and (3) transfers by Dresher or any of his Related Parties
which do not result in the Dresher Group owning of record less than 50% of the
Shares owned by the Dresher Group on the date of this Agreement.
As used herein, the term "Related Party" means, with respect to any
person, (A) a spouse or immediate family member or (B) a trust, corporation,
partnership or other entity of which such person is a beneficiary, stockholder,
partner, owner or person holding an 80% or more controlling interest.
The Company agrees not to effect any transfer of Shares by Dresher until
it has received evidence reasonably satisfactory to it that the Tag-Along Right,
if applicable to such transfer, has been complied with. The right provided in
this Section 3 shall terminate upon the Company's consummation of a Qualified
Public Offering.
Section 4. REGISTRATION RIGHTS.
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(a) PIGGYBACK REGISTRATION RIGHTS.
(1) RIGHT TO PIGGYBACK. Subject to the last sentence of this
subsection (1), whenever the Company proposes to register any Common Stock (or
securities convertible into or exchangeable for, or options to acquire, Common
Stock) with the Securities and Exchange Commission (the "Commission") under the
Act (other than a registration on Form S-4 or S-8, or a Form S-3 registration
statement which relates solely to a dividend reinvestment plan or employee
purchase plan) in a public sale for cash and the registration form to be used
may be used for the registration of the Registrable Securities (as defined in
subsection (h) below) (a "Piggyback Registration"), whether or not for sale for
its own account , the Company will give written notice to each of the holders of
Shares listed on EXHIBIT 1 hereto (the "Significant Holders") (including
Dresher, which, for purposes of this Section 4, shall include Dresher, his
Related Parties and any transferees of Dresher and his Related Parties), at
least fifteen (15) days prior to the anticipated filing date, of its intention
to effect such a registration, which notice will specify the kind and number of
securities proposed to be registered, the distribution arrangements and such
other information that at the time would be appropriate to include in such
notice, and will, subject to subsection (a)(2) below, include in such Piggyback
Registration all Registrable Securities with respect to which the Company has
received written requests for inclusion therein within ten (10) days after
delivery of the Company's notice. Except as may otherwise be provided in this
Agreement, Registrable Securities with respect to which such request for
registration has been received will be registered by the Company and offered to
the public in a Piggyback Registration pursuant to this Section 4 on the same
terms and conditions as those applicable to the registration of Common Stock (or
securities convertible into or exchangeable or exercisable for Common Stock) to
be sold by the Company and by any other person selling under such registration.
(2) PRIORITY ON PIGGYBACK REGISTRATION. If the managing underwriter
or underwriters, if any, advise the holders of Registrable Securities in writing
that in its or their reasonable opinion or, in the case of a Piggyback
Registration not being underwritten, the Company shall reasonably determine (and
notify the holders of Registrable Securities of such determination), after
consultation with an investment banker of nationally recognized standing, that
the number or kind of securities proposed to be sold in such registration
(including Registrable Securities to be included pursuant to subsection (a)(1)
above) will materially adversely affect the success of such offering, the
Company will include in such registration the number of securities, if any,
which, in the opinion of such underwriter or underwriters, or the Company, as
the case may be, can be sold as follows: (i) first, the shares the Company
proposes to sell, and (ii) second, the Registrable Securities requested to be
included in such registration by the Significant Holders. To the extent that the
privilege of including Registrable Securities in any Piggyback Registration must
be allocated among the Significant Holders, the allocation shall be made pro
rata based on the number of Registrable Securities that each such participant
shall have requested to include therein. Notwithstanding the foregoing, the
parties agree that the priority provisions provided for in Section 4(a)(2) of
the Institutional Registration Rights Agreement shall govern with respect to any
Demand Registration effected at the request of an Institutional Inventor. See
Section 5(r) below.
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(3) SELECTION OF UNDERWRITERS. If any Piggyback Registration is an
underwritten offering (other than an offering initiated as a Demand Registration
as provided in subsection (b) below), the Company will select a managing
underwriter or underwriters to administer the offering, which managing
underwriter or underwriters will be of nationally recognized standing and
reasonably acceptable to the holders of a majority of the Registrable Securities
included therein.
(b) DEMAND REGISTRATION RIGHTS.
(1) RIGHT TO DEMAND. At any time after (i) the Company is eligible
to register Shares of Common Stock under the Act on Form S-3 and (ii) none of
the Shares hold by Dresher are subject to an underwriter lock-up agreement
relating to such Shares, any of SBC, Integro and Dresher (each of SBC, Integro
and Dresher, a "Demanding Group") may, make a written request of the Company for
registration with the Commission , under and in accordance with the provisions
of the Act, of all or part of their Registrable Securities (a "Demand
Registration"); PROVIDED, that (x) the Company need not effect a Demand
Registration unless such Demand Registration shall include at least 50% of the
Registrable Securities held on the date of such written request by SBC and
Integro collectively or at least 15% (in the case of the first Demand
Registration) of the Registrable Securities held by Dresher immediately after
the consummation of the transactions contemplated by the Purchase Agreement
(subject to adjustment only for stock splits and recombinations and pro rata
stock dividends and the like), (y) the Company may defer the filing of any
registration statement relating to a Demand Registration for (i) a reasonable
period of time (not to exceed ninety (90) days following the end of the most
recently completed fiscal year or forty-five (45) days following the end of the
most recently completed fiscal quarter (whichever is later)) to the extent
necessary to prepare the financial statements of the Company for the fiscal
period most recently ended prior to the related request, (ii) up to ninety (90)
days if the Company would be required to disclose in such registration statement
the existence of any fact relating to a material business situation, transaction
or negotiation not otherwise required to be disclosed, or (iii) up to ninety
(90) days if the Company notifies the Significant Holders that a registration at
the time and on the terms requested would adversely affect any equity financing
by the Company that had been contemplated by the Company prior to receipt of
notice requesting registration pursuant to this Section 4(b), and (z) if the
Company elects to defer any Demand Registration pursuant to the terms of this
sentence, no Demand Registration shall be deemed to have occurred for purposes
of this Agreement. Within ten (10) days after receipt of the request for a
Demand Registration, the Company will send written notice (the "Notice") of such
registration request and its intention to comply therewith to each of the other
Significant Holders that shall have the option to exercise their piggyback
rights as provided in Section 4(a) above. Subject to subsection (3) below, the
Company will include in such registration all Registrable Securities of such
Significant Holders with respect to which the Company has received written
requests for inclusion therein within ten (10) days after delivery of the
Notice. All requests made pursuant to this subsection (b)(1) will specify the
aggregate number of Registrable Securities requested to be registered and will
also specify the intended methods of disposition thereof.
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(2) NUMBER OF DEMAND REGISTRATIONS. SBC and Integro collectively
shall be entitled to two (2) Demand Registrations and Dresher shall be entitled
to five (5) Demand Registrations. The expenses of each Significant Holder
requesting a Demand Registration shall be borne by the Company as provided in
subsection (d) below. A Demand Registration shall not be counted as a Demand
Registration hereunder until such Demand Registration has been declared
effective by the Commission. Notwithstanding anything in this Section 4(b) to
the contrary, in no event will the Company be required to effect, in the
aggregate, without regard to the holder of Registrable Securities making such
request, more than two (2) effective registrations pursuant to this Section 4(b)
within any 180-day period.
(3) PRIORITY ON DEMAND REGISTRATIONS. If in any Demand Registration
the managing underwriter or underwriters thereof (or in the case of a Demand
Registration not being underwritten, in the opinion of the holders of a majority
of the Registrable Securities included therein), advise the Company in writing
that in its or their reasonable opinion the number of securities proposed to be
sold in such Demand Registration exceeds the number that can be sold in such
offering without having a material effect on the success of the offering
(including, without limitation, an impact on the selling price or the number of
Shares that any participant may sell), the Company will include in such
registration only the number of securities that, in the reasonable opinion of
such underwriter or underwriters (or holders of Registrable Securities, as the
case may be) can be sold without having a material adverse effect on the success
of the offering as follows: (i) first, the Registrable Securities requested to
be included in such Demand Registration by the Significant Holders (including
the Demanding Group and all other Significant Holders requested to have Shares
included in such Demand Registration pursuant to subsection (1) above) pro rata
among those requesting registration on the basis of the number of Shares
requested to be included, and (ii) second, Shares to be issued and sold by the
Company.
(4) SELECTION OF UNDERWRITERS. If a Demand Registration is
underwritten offering, the holders of a majority of the Registrable Securities
to be included in such Demand Registration held by members of the Demanding
Group that initiated such Demand Registration shall have the right to select a
managing underwriter or underwriters of recognized national standing that is or
are reasonably satisfactory to the Company to administer the offering.
(c) REGISTRATION PROCEDURES. With respect to any Piggyback
Registration or Demand Registration (generally, a "Registration"), the Company
will, subject to Sections (4)(a)(2) and (4)(b)(3), as expeditiously as
practicable:
(1) prepare and file with the Commission, within ninety (90) days
after mailing the applicable Notice, a registration statement or registration
statements (the "Registration Statement") relating to the applicable
Registration; PROVIDED that the Company will include in any Registration
Statement all information that the holders of the Registrable Securities so to
be registered shall reasonably request and shall include all financial
statements required by the Commission to be filed therewith, cooperation and
assist in any filings required to be made with the National Association of
Security Dealers, Inc. ("NASD"), and use its best efforts to cause such
Registration Statement to become effective; PROVIDED FURTHER, that before filing
a
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Registration Statement or prospectus related thereto (a "Prospectus") or any
amendments or supplements thereto, the Company will furnish to the holders of
the Registrable Securities covered by such Registration Statement and the
underwriters, if any, copies of all such documents proposed to be filed, which
documents will be subject to the reasonable review of such holders and
underwriters and their respective counsel, and the Company will not file any
Registration Statement or amendment thereto or any Prospectus or any supplement
thereto to which the holders of a majority of the Registrable Securities covered
by such Registration Statement or the underwriters, if any, shall reasonably
object;
(2) use its best efforts to keep such Registration Statement
current for a period of ninety (90) days, or such shorter period which will
terminate when all Registrable Securities covered by such Registration Statement
have been sold, and prepare and file with the Commission such amendments and
post-effective amendments to the Registration Statement as may be necessary to
keep each Registration Statement effect for such period; cause each Prospectus
to be supplemented by any required Prospectus supplement, and as so supplemented
to be filed pursuant to Rule 424 under the Act; and comply with the provisions
of the Act with respect to the disposition of all securities covered by such
Registration Statement during the applicable period in accordance with the
intended method or methods of distribution by the sellers thereof set forth in
such Registration Statement or supplement to the Prospectus; the Company shall
not be deemed to have used its best efforts to keep a Registration Statement
effective during the application period if it voluntarily takes any action that
would result in selling holders of the Registrable Securities covered thereby
not being able to sell such Registrable Securities during that period unless
such action is required under applicable law, PROVIDED that the foregoing shall
not apply to actions taken by the Company in good faith and for valid business
reasons, including without limitation the acquisitions or divestiture of assets,
so long as the Company promptly thereafter complies with the requirements of
subsection (11) of this subsection (c), if applicable;
(3) notify the selling holders of Registrable Securities and the
managing underwriters, if any, promptly, and (if requested by any such person or
entity) confirm such advice in writing, (A) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to the Registration Statement or any post-effective amendment, when the
same has become effective, (B) of any request by the Commission for amendments
or supplements to the Registration Statement or the Prospectus or for additional
information, (C) of the issuance by the Commission of any stop order suspending
the effectiveness of the Registration Statement or the initiation of any
proceedings for that purpose, (D) if at any time the representations and
warranties of the Company contemplated by subsection (14) below cease to be true
and correct, (E) of the receipt by the Company of any notification with respect
to the suspension of the qualification of the Registrable Securities for sale in
any jurisdiction or the initiation or threatening of any proceeding for such
purpose and (F) of the happening of any event which makes any statement made in
the Registration Statement, the Prospectus or any document incorporated therein
by reference untrue or which requires the making of any changes in the
Registration Statement, the Prospectus or any document incorporated therein by
reference in order to make the statements therein not misleading;
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(4) make every reasonable effort to obtain the withdrawal of any
order suspending the effectiveness of the Registration Statement at the earliest
possible moment;
(5) if requested by the managing underwriter or underwriters or a
holder of Registrable Securities being sold in connection with an underwritten
offering, promptly incorporated in a Prospectus supplement or post-effective
amendment such information as the managing underwriters and the holders of a
majority of the Registrable Securities being sold agree should be included
therein related to the plan of distribution with respect to the number of
Registrable Securities being sold to such underwriters, the purchase price being
paid therefor by such underwriters and with respect to any other terms of the
underwritten (or best efforts underwritten) offering of the Registrable
Securities to be sold in such offering; and make all required filings of such
Prospectus supplement or post-effective amendment as soon as notified of the
matter to be incorporated in such Prospectus supplement or post-effective
amendment;
(6) furnish to each seller holder of Registrable Securities and
each managing underwriter, without charge, at least one conformed copy of the
Registration Statement and any amendment thereto, including financial statements
and schedules, all documents incorporated therein by reference and all exhibits
(including those incorporated by reference);
(7) deliver to each selling holder of Registrable Securities and
the underwriters, if any, without charge, as many copies of the Prospectus
(including each preliminary prospectus) and any amendment or supplement thereto
as such selling holder of Registrable Securities and underwriters may reasonably
request; the Company consents to the use of each Prospectus or any amendment or
supplement thereto by each of the selling holders of Registrable Securities and
the underwriters, if any, in connection with the offering and sale of the
Registrable Securities covered by such Prospectus or any amendment or supplement
thereto;
(8) prior to any public offering of Registrable Securities,
register or qualify or cooperate with the selling holders of Registrable
Securities, the underwriters, if any, and their respective counsel in connection
with the registration or qualification of such Registrable Securities for offer
and sale under the securities or "blue sky" laws of such jurisdictions as any
seller or underwriter reasonably requests in writing, considering the amount of
Registrable Securities proposed to be sold in each such jurisdiction, and do any
and all other acts or things necessary or advisable to enable the disposition in
such jurisdictions of the Registrable Securities covered by the Registration
Statement; PROVIDED that the Company will not be required to qualify generally
to do business in any jurisdiction where it is not then so qualified or to take
any action that would subject it to general service of process in any such
jurisdiction where it is not then subject;
(9) cooperated with the selling holders of Registrable Securities
and the managing underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends and to be in such denominations and registered
in such names as the managing underwriters may request at least two (2) business
days prior to any sale of Registrable Securities to the underwriters;
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(10) use its best efforts to cause the Registrable Securities
covered by the applicable Registration Statement to be registered with or
approved by such other governmental agencies or authorities as may be necessary
to enable the seller or sellers thereof or the underwriters, if any, to
consummate the disposition of such Registrable Securities;
(11) upon the occurrences of any event contemplated by subsection
(3)(F) above, prepare a supplemental or post-effective amendment to the
Registration Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of the Registrable Securities, the Prospectus will
not contain an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein not misleading;
(12) cause all Registrable Securities covered by any Registration
Statement to be listed on each securities exchange on which similar securities
issued by the Company are then listed, or cause such Registrable Securities to
be authorized for trading on the Nasdaq National Market if any similar
securities issued by the Company are then so authorized, if requested by the
holders of a majority of such Registrable Securities or the managing
underwriters, if any;
(13) provide a CUSIP number for all Registrable Securities, not
later than the effective date of the applicable Registration Statement;
(14) enter into such agreements (including an underwriting
agreement) and take all such other actions in connection therewith in order to
expedite or facilitate the disposition of such Registrable Securities and in
such connection, whether or not an underwriting agreement is entered into and
whether or not the Registration is an underwritten Registration (A) make such
representations and warranties to the holders of such Registrable Securities and
the underwriters, if any, in form, substance and scope as are customarily made
by issuers to underwritten in primary underwritten offerings; (B) obtain
opinions of counsel to the Company and updates thereof (which counsel and
opinions (in form, scope and substance) shall be reasonably satisfactory to the
managing underwriters, if any, and the holders of a majority of the Registrable
Securities being sold) addressed to each selling holder and the underwriters, if
any, covering the matters customarily covered in opinions requested in
underwritten offerings and such other matters as may be reasonably requested by
such holders and underwriters; (C) obtain "cold comfort") letters and updates
thereof from the Company's independent certified public accountants addressed to
the selling holders of Registrable Securities and the underwriters, if any, such
letters to be in customary form and covering matters of the type customarily
covered in "cold comfort" letters by underwriters in connection with primary
underwritten offerings; (D) if an underwriting agreement is entered into, the
same shall set forth in full the indemnification provisions and procedures set
forth in subsection (f) below with respect to all parties to be indemnified
pursuant to said subsection; and (E) the Company shall deliver such documents
and certificates as may be reasonably requested by the holders of a majority of
the Registrable Securities being sold and the managing underwriters, if any, to
evidence compliance with subsection 3(F) above and with any customary conditions
continued in the underwriting
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agreement or other agreement entered into by the Company. The above shall be
done at each closing under such underwriting or similar agreement or as and to
the extent required thereunder;
(15) make available for inspection by a representative of the
holders of a majority of the Registrable Securities, any underwriter
participating in any disposition pursuant to such Registration, and any attorney
or accountants retained by the sellers or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors and employees to supply all information
reasonably requested by any such representative, underwriter, attorney or
accountant in connection with such Registration Statement; PROVIDED, that any
records, information or documents that are designated by the Company in writing
as confidential shall be kept confidential by such Persons unless disclosure of
such records, information or documents is required by court or administrative
order or any regulatory body having jurisdiction;
(16) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make generally available to its
security holders, earnings statements satisfying the provisions of Section 11(a)
of the Act, no later than forty-five (45) days after the end of any 12-month
period (or ninety (90) days, if such period is a fiscal year) (A) commencing at
the end of any fiscal quarter in which Registrable Securities are sold to
underwriters in a firm or best efforts underwritten offering, or (B) if not sold
to underwriters in such an offering, beginning with the first month of the
Company's first fiscal quarter commencing after the effective date of the
Registration Statement, which statements shall cover said 12-month periods; and
(17) promptly prior to the filing of any document that is to be
incorporated by reference into any Registration Statement or Prospectus (after
initial filing of the Registration Statement), provide copies of such document
to counsel to the selling holders of Registrable Securities and to the managing
underwriters, if any, make the Company's representatives available for
discussion of such document and make such changes in such document prior to the
filing thereof as counsel for such selling holders or underwriters may
reasonably request.
The Company may require each seller of Registrable Securities as to
which any Registration is being effected to furnish to the Company such
information regarding such seller and the proposed distribution of such
securities as the Company may from time to time reasonably request in writing.
Each holder of Registrable Securities agrees by acquisition of such
Registrable Securities that, upon receipt of any notice from the Company of the
happening of any event of the kind described in subsection (3)(F) of this
subsection (c), such holder will forthwith discontinue disposition of
Registrable Securities pursuant to the Registration Statement until such
holder's receipt of copies of the supplemented or amended Prospectus as
contemplated by subsection (11) of this subsection (c), or until it is advised
in writing (the "Advice") by the Company that the use of the Prospectus may be
resumed, and has received copies of any additional or supplemental filings that
are incorporated by reference in the Prospectus, and, if so directed by the
Company,
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such holder will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies then in such holder's possession, of the
Prospectus covering such Registrable Securities current at the time of receipt
of such notice. In the event the Company shall give any such notice, the time
periods referred to in subsection (2) of this subsection (c) shall be extended
by the number of days during the period from and including the date of the
giving of such notice to and including the date when each seller of Registrable
Securities covered by such Registration Statement shall have received the copies
of the supplemental or amended prospectus contemplated by subsection (11) of
this subsection (c) or the Advice.
(d) REGISTRATION EXPENSES. All expenses incident to the Company's
performance of or compliance with this Section 4 will be borne by the Company,
including, without limitation, all registration and filing fees, the fees and
expenses of the counsel and accountants for the Company (including the expenses
of any "cold comfort" letters), all other costs and expenses of the Company
incident to the preparation, printing and filing under the Act of the
Registration Statement (and all amendments and supplements thereto) and
furnishing copies thereof and of the Prospectus included therein, the costs and
expenses incurred by the Company in connection with the qualification of the
Registrable Securities under the state securities or "blue sky" laws of various
jurisdictions, the costs and expenses associated with filings required to be
made with the NASD, the costs and expenses of listing the Registrable Securities
for trading on a national securities exchange or authorizing them for trading on
the Nasdaq National Market and all other costs and expenses incurred by the
Company in connection with any Registration hereunder, PROVIDED, that, except as
otherwise provided in Section 4(e)(2) below, the Company shall not bear the
costs and expenses of any selling holders of Registrable Securities for
underwriters' commissions, brokerage fees, transfer taxes or the fees and
expenses of any counsel, accountants or other representative retained by any
selling holder of Registrable Securities.
(e) INDEMNIFICATION.
(1) INDEMNIFICATION BY THE COMPANY. The Company agrees to
indemnify, to the full extent permitted by law, each Significant Holder, its
officers, directors and agents and each person who controls such Significant
Holder (within the meaning of the Act and the Exchange Act), against all losses,
claims, damages, liabilities and expenses caused by any untrue or alleged untrue
statement of a material fact contained in any Registration Statement, Prospectus
or preliminary Prospectus or any omission or alleged omission to state therein a
material fact necessary to make the statements therein (in the case of a
Prospectus or any preliminary Prospectus, in light of the circumstances under
which they were made) not misleading, except insofar as the same are caused by
or contained in any information with respect to such Significant Holder
furnished in writing to the Company by such Significant Holder or its
representative expressly for use therein. The Company will also indemnify
underwriters participating in the distribution, their officers and directors and
each person who controls such persons (within the meaning of the Act) to the
same extent as provided above with respect to the indemnification of the
Significant Holders; PROVIDED, HOWEVER, if pursuant to an underwritten public
offering of Registrable Securities, the Company and any underwriters enter into
an underwriting or purchase agreement relating to such offering that contains
provisions relating to
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indemnification and contribution between the Company and such underwriters, such
provisions shall be deemed to govern indemnification and contribution as between
the Company and such underwriters.
(2) INDEMNIFICATION BY HOLDERS OF REGISTRABLE SECURITIES. In
connection with any registration in which a Significant Holder is participating,
each such Significant Holder will furnish to the Company in writing such
information with respect to such Significant Holder as the Company reasonably
requests for use in connection with any Registration Statement or Prospectus and
agrees to indemnify, to the full extent permitted by law, the Company, the
directors and officers of the Company signing the Registration Statement, each
person who controls the Company (within the meaning of the Act and the Exchange
Act), and all underwriters participating in the distribution against any losses,
claims, damages, liabilities and expenses resulting from any untrue statement of
a material fact or any omission to state a material fact required to be stated
therein or necessary to make the statements in the Registration Statement or
Prospectus or preliminary Prospectus (in the case of the Prospectus or any
preliminary Prospectus, in light of the circumstances under which they were
made) not misleading, to the extent, but only to the extent, that such untrue
statement or omission is contained in any information with respect to such
Significant Holder so furnished in writing by such Significant Holder or its
representative specifically for inclusion therein. In no event shall the
liability of any Significant Holder hereunder be greater in amount than the
dollar amount of the proceeds received by such Significant Holder upon the sale
of the Registrable Securities giving rise to such indemnification obligation.
The Company shall be entitled to receive indemnities from underwriters, selling
brokers, dealer managers and similar securities industry professionals
participating in the distribution, to the same extent as provided above with
respect to information with respect to such persons or entities so furnished in
writing by such persons or entities or their representatives specifically for
inclusion in any Prospectus or Registration Statement.
(3) CONDUCT OF INDEMNIFICATION PROCEEDINGS. Any person or entity
entitled to indemnification hereunder will (i) give prompt written notice to the
indemnifying party after the receipt by the indemnified party of a written
notice of the commencement of any action, suit, proceeding or investigation or
threat thereof made in writing for which such indemnified party will claim
indemnification or contribution pursuant to this Agreement; PROVIDED, HOWEVER,
that the failure of any indemnified party to give notice as provided herein
shall not relieve the indemnifying party of its obligations under the preceding
clauses (1) and (2), except to the extent that the indemnifying party is
actually prejudiced by such failure to give notice and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest may exist between
such indemnified and indemnifying parties with respect to such claim, permit
such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. Whether or not such defense is
assumed by the indemnifying party, the indemnifying party will not be subject to
any liability for any settlement made without its consent (but such consent will
not be unreasonably withheld). No indemnifying party will be required to consent
to the entry of any judgment or to enter into any settlement that does not
include as a unconditional term thereof the giving by the claimant or plaintiff
to such indemnified party of a
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release from all liability in respect of such claim or litigation. An
indemnifying party who is not entitled to, or elects not to, assume the defense
of a claim will not be obligated to pay the fees and expenses of more than one
counsel in any one jurisdiction for all parties indemnified by such indemnifying
party with respect to such claim, unless in the reasonable judgment of any
indemnified party a conflict of interest may exist between such indemnified
party and any other of such indemnified parties with respect to such claim, in
which event the indemnified party shall be obligated to pay the fees and
expenses of such additional counsel or counsels.
(4) CONTRIBUTION. If for any reason the indemnification provided
for in the preceding clauses (1) and (2) is unavailable to an indemnified party
as contemplated by the preceding clauses (1) and (2), then the indemnified party
in lieu of indemnification shall contribute to the amount paid or payable by the
indemnified party as a result of such loss, claim, damage, liability or expense
in such proportion as is appropriate to reflect not only the relative benefits
received by the indemnified party and the indemnifying party, but also the
relative fault of the indemnified party and the indemnifying party, as well as
any other relevant equitable considerations, provided that no Significant Holder
shall be required to contribute in an amount greater than the difference between
the net proceeds received by such Significant Holder with respect to the sale of
any Shares and all amounts already contributed by such Significant Holder with
respect to such claims, including amounts paid for any legal or other fees or
expenses incurred by such Significant Holder.
(f) RULE 144. The Company agrees that all times after it has filed
a registration statement pursuant to the requirements of the Act relating to any
class of equity securities of the Company, it will file in a timely manner all
reports required to be filed by it pursuant to the Act and the Exchange Act.
Notwithstanding the foregoing, the Company may deregister any class of its
equity securities under Section 12 of the Exchange Act or suspend its duty to
file reports with respect to any class of its securities pursuant to Section
15(d) of the Exchange Act if it is then permitted to do so pursuant to the
Exchange Act and the rules and regulations thereunder.
(g) PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No Significant
Holder may participate in any underwritten registration hereunder unless such
Significant Holder (i) agrees to sell its Registrable Securities on the basis
provided in any underwriting in any underwriting arrangements approved by the
persons entitled hereunder to select the underwriter pursuant to subsections
(3)(a)(3) and (3)(b)(4) above, and (ii) accurately completes in a timely manner
and executes all questionnaires, powers of attorney, underwriting agreements,
custody agreements and other documents customarily required under the terms of
such underwriting arrangements.
(h) DEFINITION OF REGISTRABLE SECURITIES. "Registrable Securities"
means the Shares held by the Significant Holders as of the date this Agreement
or hereafter acquired, but with respect to any such Share, only until such time
as such Share (i) has been effectively registered under the Act and disposed of
in accordance with the Registration Statement covering it or (ii) is permitted
to be sold to the public pursuant to Rule 144(k) (or any similar provision then
in force which does not impose volume limitations on resale of the Registrable
Securities) under the Act.
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(i) AMENDMENTS AND WAIVERS. The provisions of this Section 4,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers of or consents to departures from the provisions
hereof may not be given unless approved by the Company in writing and the
Company has obtained the written consent of Significant Holders holding at least
a majority of the then outstanding Registrable Securities. Notwithstanding the
foregoing, any amendment, waiver or consent that materially and adversely
affects any of the Shareholders as a group or Dresher is a group differently
from the other groups shall require the prior written approval of the holders of
at least a majority of the Shares then held by all members of the group so
affected. This Agreement may be amended, modified, waived or supplemented only
by a written instrument executed by all the parties hereto that are required to
execute the same. No action taken pursuant to this Agreement, including, without
limitation, any investigation by or on behalf of any party, shall be deemed to
constitute a waiver by the party taking such action. The waiver by any party
hereto of a breach of any provision of this Agreement shall not operate or be
construed as waiver of any preceding or succeeding breach and no failure by any
party to exercise any right or privilege hereunder shall be deemed a waiver of
such party's rights or privileges hereunder or shall be deemed a waiver of such
party=s rights to exercise the same at any subsequent time or times hereunder.
Section 5. MISCELLANEOUS.
(a) SUCCESSORS, ASSIGNS AND TRANSFEREES. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
legal representatives, heirs, legatees, successors and assigns including any
party to which any Significant Holder has transferred or sold his or its Shares.
Each transferee of Shares from a Significant Holder shall take such Shares
subject to the same restrictions as existed in the hands of the transferor.
Shares sold to the public pursuant to an effective Registration Statement shall
no longer be subject to any of the provisions of this Agreement. Notwithstanding
the foregoing, the rights granted to the holders of the Registrable Securities
under Section 4 hereof shall not be transferable by the Significant Holders
(other than the Dresher Group).
(b) SPECIFIC PERFORMANCE, ETC. The Company and the Shareholders and
Dresher, in addition to being entitled to exercise all rights provided herein,
in the Company's Certificate of Incorporation or granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement. The parties hereto agree that monetary damages would not
be adequate compensation for any loss incurred by reason of a breach by it of
the provisions of this Agreement and hereby agree to waive the defense in any
action for specific performance that a remedy at law would be adequate.
(c) NOTICES. All notices and other communications provided for or
permitted hereunder shall be in writing and shall be deemed to have been duly
given if delivered personally, when transmitted by telecopy, electronic or
digital transmission method, or sent by registered or certified mail (return
receipt requested) postage prepaid to the parties at the following addresses (or
at such other address for any party as shall be specified by like notice,
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provided that notices of a change of address shall be effective only upon
receipt thereof). Notices sent by mail shall be effective five days after
mailing.
(i) If to the Company, at:
Unidata, Inc.
1099 18th Street, Suite 2500
Denver, CO 80202
Attention: Harold Nussenfeld, Esq.
Fax: (303) 293-8880
with copies to:
Latham & Watkins
633 West Fifth Street
Suite 4000
Los Angeles, CA 90071
Attention: Gary Olson, Esq.
Fax: (213) 891-8763
(ii) If to the Shareholders, at:
Neill Miller
Level 18 Plaza II
500 Oxford Street
Bondi Junction, NSW 2022
Sydney, Australia
Fax: 011 61-2-387-4784
with copies to:
Morris, Manning & Martin, L.L.P.
1600 Atlanta Financial Center
3343 Peachtree Road, N.E.
Atlanta, GA 30326
Attention: Charles R. Beandrot, Jr., Esq.
Fax: (404) 365-9532
(iii) If to Dresher, at:
James T. Dresher
1339 E. MacPahil Road
Bel Air, MD 21015
Fax: (410) 879-6997
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(e) RECAPITALIZATIONS, EXCHANGE, ETC. AFFECTING THE COMPANY'S
STOCK. The provisions of this Agreement shall apply, to the full extent set
forth herein with respect to the Common Stock, to any and all shares of capital
stock of the company or any successor or assign of the Company (whether by
merger, consolidation, sale of assets, or otherwise) that may be issued in
respect of, in exchange for, or in substitution of the Common Stock and shall be
appropriately adjusted for any stock dividends, splits, reverse splits,
combinations, recapitalizations and the like occurring after the date hereof.
(f) INSPECTION. Copies of this Agreement will be available for
inspection or copying by any Significant Holder at the offices of the Company.
(g) TERMINATION. This Agreement shall terminate and cease to be of
any further force or effect on the tenth anniversary of the date hereof.
(h) APPLICABLE LAW. This Agreement shall be construed, interpreted
and the rights of the parties determined in accordance with the laws of the
State of Colorado without reference to any choice of law rules that would
require the application of the laws of any other jurisdiction.
(i) ATTORNEY-IN-FACT. With respect to all matters pertaining to
this Agreement, Dresher and the Company shall rely upon the Attorney-in-Fact
designated pursuant to the Attorney-in-Fact Agreement executed pursuant to the
Purchase Agreement and the actions of the Attorney-in-Fact with respect to
provisions hereof shall be binding upon the Shareholders in all respects.
(j) SEVERABILITY. The provisions of this Agreement are severable,
and if any clause or provision shall be held invalid or unenforceable in whole
or in part in any jurisdiction, then such invalidity or unenforceability shall
affect only such clause or provision, or part thereof, in such jurisdiction and
shall not in any manner affect such clause or provision in any other
jurisdiction, or any other clause or provision of this Agreement in any
jurisdiction.
(k) INTERPRETATION. Time is of the essence of each provision of
this Agreement of which time is an element.
(l) HEADINGS DESCRIPTIVE. The headings in this Agreement are for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect.
(m) ENTIRE AGREEMENT. This Agreement is intended by the parties as
a final expression of their agreement with respect to the subject matter hereof
and is intended as a complete and exclusive statement of the terms and
conditions thereof.
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(n) SERVICE OF PROCESS; CONSENT TO JURISDICTION.
(1) SERVICE OF PROCESS. Each party hereto irrevocably consents
to the service of any process, pleading, notices or other papers by the mailing
of copies thereof by registered, certified or first class mail, postage prepaid,
to such party at such party's address set forth herein, or by any other method
provided or permitted under Colorado law.
(2) CONSENT AND JURISDICTION. Each party hereto irrevocably and
unconditionally (A) agrees that any suit, action or other legal proceeding
arising out of this Agreement may be brought in the United States District Court
for the District of Colorado or, if such court does not have jurisdiction or
will not accept jurisdiction, in any court of general jurisdiction in the County
of Denver, Colorado; (B) consents to the jurisdiction or any such court in any
such suit, action or proceeding; and (C) waives any objection which such party
may have to the laying of venue of any such suit, action or proceeding in any
such court.
(o) ARBITRATION. In the event that there shall be a dispute among
the parties arising out of or relating to this Agreement, or the breach thereof,
the parties agree that such dispute shall be resolved by final and binding
arbitration in Denver, Colorado, administered by the American Arbitration
Association in accordance with its International Arbitration Rules. Any award
issued as a result of such arbitration shall be final and binding between the
parties thereto and shall be enforceable by any court having jurisdiction over
the party against whom enforcement is sought. The fees and expenses of such
arbitration (including reasonable attorney's fees) or any action to enforce an
arbitration award shall be paid by the party that does not prevail in such
arbitration. Notwithstanding anything to the contrary herein, nothing shall
prevent any party from seeking equitable relief, in the event of a breach or a
threatened breach of any provisions of this Agreement, in a court of competent
jurisdiction without the need to first seek arbitration.
(p) ATTORNEY'S FEES. In any action or proceeding brought to enforce
any provision of this Agreement, or where any provision hereof is validly
asserted as a defense, the successful party shall be entitled to recover
reasonable attorneys' fees in addition to any other available remedy.
(q) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
together constitute one and the same agreement.
(r) REGISTRATION RIGHTS GRANTED TO INSTITUTIONAL INVESTORS. The
parties hereto acknowledge receipt of a draft Registration Rights Agreement
dated November 9, 1995 (the executed version of which is referred to herein as
the Institutional Registration Rights so long as it is substantially in the form
of such draft) pursuant to which the Company proposes to grant certain Piggyback
and Demand Registration Rights and Tag-Along Rights to Mass Mutual and certain
of its affiliates (the "Institutional Investors"). The parties hereby agree to
be bound by the terms thereof and further agree that with respect to Demand
Registrations effected pursuant
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to this Agreement, the Institutional Investors shall be deemed to be significant
Holders and shall be entitled to the piggyback registration rights granted to a
Significant Holder pursuant to Section 4(a)(1).
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[SIGNATURE PAGE TO SHAREHOLDER AGREEMENT]
IN WITNESS WHEREOF, the parties have executed this Shareholder
Agreement as of the date first above written.
Executed by UNIDATA, INC. :/s/ DAVID BRUNEL
-----------------------
Name: David Brunel
Its: President
in the presence of: :Harold Nassenfeld
(Witness) :/s/ HAROLD NUSSENFELD
-----------------------
Signatory
ACCEPTED AND AGREED TO:
Executed by SYSTEM BUILDER
CORPORATION LIMITED :/s/ NEILL B. MILLER
------------------------
Name: Neill B. Miller
Its: Director
in the presence of: :Colin Rogoff
(Witness) :/s/ COLIN ROGOFF
------------------------
Signatory
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Executed by INTEGRO FIDUCIAIRE SARL,
as trustee (and in no other capacity) :/s/ [ILLEGIBLE]
-----------------------
Director
in the presence of: :
-----------------------
(Witness) :/s/ M. HARRISON
-----------------------
Signatory
Executed by JURGEN JOARDER :/s/ JURGEN JOARDER
in the presence of: :Colin Rogoff
(Witness) :/s/ COLIN ROGOFF
-----------------------
Signatory
Executed by MIKE KONTOROVICH :/s/ MIKE KONTOROVICH
in the presence of: :Colin Rogoff
(Witness) :/s/ COLIN ROGOFF
-----------------------
Signatory
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Executed by CAROL MCINTOSH :/s/ CAROL MCINTOSH
-----------------------
in the presence of: :Colin Rogoff
(Witness) :/s/ COLIN ROGOFF
-----------------------
Signatory
Executed by JAMES T. DRESHER :/s/ JAMES T. DRESHER
in the presence of: :
-----------------------
(Witness) :/s/ ROBIN D. TOWNER
-----------------------
Signatory
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EXHIBIT 1
SIGNIFICANT HOLDERS
John G. Akers
David W. Brunel
Jeanne D. Butcher
James T. Dresher
James T. Dresher, Jr.
Jeffrey M. Dresher
Bruce D. Fraser
Honor Guiney
Arlene Lacharite
Virginia D. Meoli
Harold Nussenfeld
Allan Snell
John F. Schaefer
Martin T. Hart
Gary Olson
Glenangus Holdings Corp.
Integro Fiduciary SARL
System Builder Corporation
Massachusetts Mutual Life Insurance Company
Mass Mutual Corporate Investors
Mass Mutual Participation Investors
Mass Mutual Corporate Value Partners Limited
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