EXHIBIT 99.10
AMENDMENT TO INVESTOR RIGHTS AGREEMENT
THIS AMENDMENT TO INVESTOR RIGHTS AGREEMENT (this "Amendment") is made
and entered into as of the 13th day of June, 1998 by and between NEWPORT
ACQUISITION COMPANY NO. 2, LLC, a Delaware limited liability company
("Newport"), and CENTURA SOFTWARE CORPORATION, a California corporation
(the "Company").
RECITALS:
A. Reference is made to that certain Investor Rights Agreement dated as
of February 27, 1998, by and between Newport and the Company (the "Rights
Agreement").
B. Pursuant to that certain letter agreement entered into on June 11,
1998 between Newport and the Company (the "Letter Agreement"), the parties
agreed to amend certain provisions of the Rights Agreement relating to Newport's
registration rights and right of first refusal thereunder.
C. Pursuant to the Letter Agreement, the Company executed and delivered
to Newport (i) that certain Common Stock Purchase Warrant No. CS-98-23, dated
March 17, 1998, entitling Newport to purchase 893,320 shares of Common Stock of
the Company at a purchase price of $1.81 per share and (ii) that certain Common
Stock Purchase Warrant No. CS-98-24, dated June 11, 1998, entitling Newport to
purchase 300,000 shares of Common Stock of the Company at a purchase price of
$2.09 per share, in each case subject to the terms and conditions set forth in
the warrants (the shares subject to purchase under the warrants, as adjusted
from time to time pursuant to the provisions thereof, the "Warrant Shares").
D. Capitalized terms not otherwise defined herein shall have the meanings
set forth in the Rights Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and for other good and valuable consideration had and
received, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. REGISTRABLE SHARES. The first sentence of the definition of
"Registrable Shares" set forth in Section 1 of the Rights Agreement is hereby
amended and restated as follows:
"Registrable Shares" shall mean the Common Shares and the Warrant
Shares and any shares of capital stock issued or issuable with respect
to the Common Shares and the Warrant Shares as a result of any stock
split, stock dividends, recapitalization, exchange or similar event or
otherwise.
2. ACCELERATION OF MANDATORY REGISTRATION.
2.1 The first sentence of Section 4(a) of the Rights Agreement is hereby
amended and restated in its entirety as follows:
The Company shall prepare and, no later than July 2, 1998 (the "Filing
Deadline"), file with the SEC a registration statement on Form S-3
covering the resale of all of the Registrable Shares, or such lesser
amount of Registrable Shares as the Holders shall in their discretion
notify the Company to register, and shall thereafter use its best
efforts to have the registration statement declared effective as soon
as practicable following the Filing Deadline.
2.2 During the period commencing on the effective date of the Registration
Statement filed pursuant to Section 4(a) of the Rights Agreement and ending on
February 27, 1999, the Holders shall not sell within any consecutive thirty (30)
calendar day period a number of Registrable Shares which in the aggregate
exceeds ten percent (10%) of the total number of Registrable Shares held by the
Holders on the date of this Amendment (as subsequently adjusted pursuant to any
stock split, stock dividend, recapitalization, exchange or similar event or
otherwise).
3. PROHIBITION ON HEDGING. Newport hereby agrees that, from the date of
this Amendment and continuing through the date on which it holds five percent
(5%) or less of the Registrable Shares existing on the date hereof, Newport
shall not directly or indirectly engage in short sales, derivative transactions
or any similar hedging techniques or strategies involving any Registrable
Shares.
4. LIMITATION ON RIGHT OF FIRST REFUSAL. The definition of "New
Securities" under Section 11(a) of the Rights Agreement shall be modified as set
forth below.
4.1 Subsection (v) of Section 11(a) is hereby amended and restated in its
entirety as follows:
(v) securities issued to employees, consultants, officers or
directors of the Company pursuant to any stock option, stock purchase or
stock bonus plan, agreement or arrangement existing on the date hereof or
hereafter approved by the majority vote of the Board of Directors or
Compensation Committee;
4.2 A new subsection (ix) is hereby added to Section 11(a) as follows:
and (ix) securities issued in connection with any asset purchase,
intellectual property development or royalty agreements approved by a
majority vote of the Board of Directors, subject to an aggregate cap of two
million (2,000,000) shares per twelve (12) month period commencing the date
hereof if such
-8-
transaction(s) would otherwise have been subject to the right of first
refusal contained in this Section 11.
5. EFFECT OF AMENDMENT. Except as expressly set forth in this Amendment,
(a) each term and provision of the Rights Agreement shall remain in full force
and effect and (b) this Amendment shall be subject to each term and provision of
the Rights Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective authorized officers as of the date first written
above.
NEWPORT ACQUISITION COMPANY NO. 2 LLC
By: Crossroads Capital Partners LLC,
as managing Member
By /s/ Dennis Simon
---------------------------------
Name Dennis Simon
-------------------------------
Title Managing Member
------------------------------
CENTURA SOFTWARE CORPORATION
By /s/ Scott Broomfield
---------------------------------
Name Scott Broomfield
-------------------------------
Title President and CEO
------------------------------
-9-