SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
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SCHEDULE 13D
(Rule 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO
13d-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO 13d-2(a)
Phoenix International Ltd., Inc.
--------------------------------
(Name of Issuer)
Common Stock, Par Value $.01 Per Share
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(Title of Class of Securities)
719078-10-7
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(CUSIP Number)
Ms. Pat Todd
2550 Tyvola Road, Suite 460
Charlotte, North Carolina 28217
Telephone: (704) 357-3133
--------------------------
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
February 14, 2000
-----------------
(Date of Event Which Requires Filing of This Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box |_|.
Note. Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits. See Rule
13d-7(b) for other parties to whom copies are to be sent.
(Continued on following pages)*
- --------
* The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Page 1 of 7 Pages
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CUSIP NO. 719078-10-7 13D Page 2 of 5 Pages
- -------------------------------- -------------------------------
1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
London Bridge Software Holdings plc.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[_]
(b)[X]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEM 2(d) OR 2(e) [_]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
England and Wales
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NUMBER OF 7 SOLE VOTING POWER
SHARES 861,623. See Items 5 and 6.
BENEFICIALLY --------------------------------------------------------------
OWNED BY 8 SHARED VOTING POWER
EACH -0-
REPORTING -------------------------------------------------------------
PERSON WITH 9 SOLE DISPOSITIVE POWER
861,623. See Items 5 and 6.
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10 SHARED DISPOSITIVE POWER
-0-
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING
PERSON
861,623.
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [_]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.2%.
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14 TYPE OF REPORTING PERSON*
CO
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
Page 2 of 7 Pages
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Item 1. Security and Issuer.
--------------------
This Schedule is filed with respect to the common stock, par value $.01
per share (the "Common Stock"), of Phoenix International Ltd. Inc., a
Florida corporation (the "Company"). The entity reporting on this Schedule
is the owner of Common Stock only. Each share of the Common Stock entitles
the holder to one vote. The principal executive offices of the Company are
located at 500 International Parkway, Heathrow, Florida 32746.
Item 2. Identity and Background.
------------------------
This Schedule is filed on behalf of London Bridge Software Holdings plc.,
a corporation organized under the laws of England and Wales ("London
Bridge"). London Bridge's business address is 25 London Bridge Street,
16th Floor, New Long Bridge House, London, England SE1 95G. Its principal
business is the development of customer relationship management software
applications.
The name, citizenship, business address, present principal occupation and
name and address of the employer of each executive officer and director of
London Bridge are as follows:
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
- -----------------------------------------------------------------------------------------------------------------------------------
Name Citizenship Business Address Principal Employer Name
Occupation Employer Address
- -----------------------------------------------------------------------------------------------------------------------------------
Gordon Crawford British 16th Floor New Executive Director London Bridge Software
(Chairman, Executive London Bridge of London Bridge Holdings plc., 16th Floor New
Director and House, 25 London London Bridge House, 25
Chief Executive Bridge Street, London Bridge Street,
Officer of London Southwark, Southwark, London, England SE1-0LH
Bridge) London, England SE1-0LH
- -----------------------------------------------------------------------------------------------------------------------------------
James Reid British 16th Floor New Executive Director London Bridge Software
(Executive Director and London Bridge of London Bridge Holdings plc., 16th Floor New
Finance Director of House, 25 London London Bridge House, 25
London Bridge) Bridge Street, London Bridge Street,
Southwark, Southwark, London, England SE1-0LH
London, England SE1-0LH
- -----------------------------------------------------------------------------------------------------------------------------------
John C. Birkmire British 16th Floor New Non-Executive Director London Bridge Software
(Non-Executive London Bridge of London Bridge Holdings plc., 16th Floor New
Director of House, 25 London London Bridge House, 25
London Bridge) Bridge Street, London Bridge Street,
Southwark, Southwark, London, England SE1-0LH
London, England SE1-0LH
- -----------------------------------------------------------------------------------------------------------------------------------
Kenneth R. Hunt United States P. O. Box 14291, President and International Management
(Non-Executive Greensboro, NC Chief Executive Consultancy Ltd, Inc.
Director of London 27415 Officer of International P.O. Box 14291, Greensboro, NC
Bridge) Management Consultancy 27415
Ltd, Inc.
- -----------------------------------------------------------------------------------------------------------------------------------
Paul Boughton British Station Road, Business Development Faircy Group plc., Station
(Non-Executive Egham, Surrey, England Director of Faircy Road, Egham, Surrey, England TW20
Director of London TW20 9 NP Group plc. 9 NP
Bridge)
- -----------------------------------------------------------------------------------------------------------------------------------
Simon J. Parsliffe British 16th Floor New Secretary of London London Bridge Software
(Secretary of London Bridge Bridge Holdings plc., 16th Floor New
London Bridge) House, 25 London London Bridge House, 25
Bridge Street, London Bridge Street,
Southwark, Southwark, London, England SE1-0LH
London, England SE1-0LH
- -----------------------------------------------------------------------------------------------------------------------------------
</TABLE>
During the last five years, London Bridge has not been convicted in
a criminal proceeding (excluding traffic violations or similar
misdemeanors) or been party to a civil proceeding of a judicial or
administrative body of competent jurisdiction that resulted in a
judgment, decree or final order enjoining future violations of, or
prohibiting or mandating activities subject to, federal or state
securities laws or finding any violation with respect to such laws.
Page 3 of 7 Pages
<PAGE>
Item 3. Source and Amount of Funds or Other Consideration.
--------------------------------------------------
The 861,623 shares of Common Stock reported by this Schedule as
beneficially owned by London Bridge (the "Shares") were acquired by
London Bridge on February 14, 2000 for $5,000,000 pursuant to the
terms and conditions of a Stock Purchase Agreement dated as of
February 14, 2000 (the "Stock Purchase Agreement") among the Company
and London Bridge. See Exhibit 1. London Bridge funded this purchase
through working capital.
Item 4. Purpose of Transaction.
-----------------------
London Bridge acquired the Shares for investment purposes to
participate in the future financial growth of the Company. London
Bridge and the Company have agreed to engage in the joint marketing
of certain software products. London Bridge has no present plans or
proposals that relate to or would result in:
(a) the acquisition by any person of additional securities of the
Company, or the disposition of securities of the Company;
(b) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving the Company;
(c) a sale or transfer of a material amount of assets of the
Company;
(d) any change in the present Board of Directors or management of
the Company, including any plans or proposals to change the number
or term of directors or to fill any existing vacancies on the board;
(e) any material change in the present capitalization or dividend
policy of the Company;
(f) any other material change in the Company's business or corporate
structure;
(g) changes in the Company's charter, bylaws or instruments
corresponding thereto or other actions which may impede the
acquisition of control of the Company by any person;
(h) causing a class of securities of the Company to be delisted from
a national securities exchange or to cease to be authorized to be
quoted in an inter-dealer quotation system of a registered national
securities association;
(i) a class of equity securities of the Company becoming eligible
for termination of registration pursuant to Section 12(g)(4) of the
Securities Exchange Act of 1934, as amended; or
(j) any action similar to any of those enumerated above.
Page 4 of 7 Pages
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Item 5. Interest in Securities of the Issuer.
-------------------------------------
The 861,623 Shares beneficially owned by London Bridge constitute
approximately 9.2% of the issued and outstanding shares of Common
Stock and approximately 9.2% of the voting power of all of the
Company's voting stock outstanding at the date of filing of this
Schedule. Subject to the agreements described in Item 6 below,
London Bridge exercises sole voting and investment power with
respect to all of the shares.
London Bridge has no other holdings of the Common Stock and has
effected no other transactions in the Common Stock during the past
60 days.
Item 6. Contracts, Arrangements, Understandings or Relationships With
-------------------------------------------------------------
Respect to Securities of the Issuer.
------------------------------------
Pursuant to a Governance Agreement dated as of February 14, 2000
(the "Governance Agreement") by and between the Company and London
Bridge, London Bridge has agreed to certain standstill provisions
for a period of three (3) years beginning on February 14, 2000,
subject to certain exceptions such as the written approval of 66
2/3% of the Company's board of directors. See Exhibit 2. These
standstill provisions include an agreement not to (i) purchase or
otherwise acquire or offer to acquire any additional shares of
Common Stock, (ii) to enter into, solicit or support a tender offer,
merger or sale of all or substantially of the Company's assets or
other similar transaction involving the Company, (iii) form or
participate in a group formed to acquire, hold, vote or dispose of
Common Stock, (iv) solicit any proxies on behalf of anyone other
than the Company or participate in any election contest, (v) deposit
any Common Stock in a voting trust or similar arrangement that would
entitle any third party to control more than 10% of the voting power
of the Company, (vi) publicly propose to revise these standstill
provisions or publicly propose to do or permit any of the foregoing
transactions or (vii) assist or otherwise participate (including by
providing funds) or support any bona fide written offer by a third
party to enter into a tender offer, merger, sale of all or
substantially all of the Company's assets or other similar
transaction involving the Company. London Bridge has also agreed to
certain restrictions on its ability to sell, transfer or otherwise
dispose any Common Stock prior to February 14, 2003.
In addition, pursuant to the Governance Agreement, London Bridge has
agreed not to sell, transfer or otherwise reduce its risk of
ownership with respect to the Shares for a period of six (6) months
after February 14, 2000 or to sell, transfer or otherwise convey any
of the Shares to a known competitor of the Company, except in
accordance with the Governance Agreement. Finally, London Bridge has
granted the Company's Chief Executive Officer an irrevocable proxy
that is effective until February 14, 2001. See Exhibit 2.
The Governance Agreement terminates on the earlier of (i) February
14, 2003, (ii) the date the Company's board of directors' decides to
terminate the agreement or (iii) the date the Company accepts an
offer by a third party to merge with or buy all or substantially all
of the Company's assets or engage in a similar business transaction.
Page 5 of 7 Pages
<PAGE>
London Bridge and the Company have also entered into a Registration
Rights Agreement dated as of February 14, 2000 (the "Registration
Rights Agreement") pursuant to which London Bridge is entitled to
have the Shares registered by the Company, subject to certain
limitations. See Exhibit 3. Subject to these limitations, London
Bridge may request that the Company register at least 50% of the
shares of Common Stock issued pursuant to the Stock Purchase
Agreement by written notice delivered between August 14, 2000 and
February 14, 2002. London would be required to pay the cost of such
a registration. In addition, London Bridge may request that the
Company register the Shares in the event the Company proposes to
register any shares of Common Stock under the Securities Act of
1933, as amended, in connection with a public offering of such
securities for cash. In this case, London Bridge would only be
required to pay its pro rata portion of the cost of registering such
shares.
Item 7. Material to be Filed as Exhibits.
---------------------------------
Exhibit No. Description
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1 Stock Purchase Agreement dated as of February 14, 2000.
2 Governance Agreement dated as of February 14, 2000.
3 Registration Rights Agreement dated as of February 14, 2000.
Page 6 of 7 Pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of our knowledge and belief, we
certify that the information set forth in this statement is true, complete and
correct.
Date: February 24, 2000
LONDON BRIDGE SOFTWARE HOLDINGS plc.
/s/ Simon J. Parsliffe
-------------------------------------
By: Simon J. Parsliffe
Its: Secretary
Page 7 of 7 Pages
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made and entered
into as of the 14th day of February, 2000, among PHOENIX INTERNATIONAL LTD., a
Florida corporation (the "Company"), and LONDON BRIDGE SOFTWARE HOLDINGS PLC., a
corporation organized under the laws of England and Wales (the "Purchaser").
WHEREAS, the Company and Purchaser desire to form mutually beneficial
strategic business alliances between their companies; and
WHEREAS, in furtherance of such goals, the company wishes to sell, and
Purchaser (including all affiliates and associates of Purchaser within the
meaning of Rule 12b-2 of the U.S. Securities Exchange Act of 1934) wishes to
purchase, up to a 9.95% ownership interest in the Company.
NOW, THEREFORE, the parties agree as follows:
1. AUTHORIZATION, SALE AND ISSUANCE OF SECURITIES.
1.1 Authorization. The Company has authorized the sale and issuance of
up to 861,623 shares of its common stock, $0.01 par value per share (the "Common
Stock"), to the Purchaser.
1.2 Sale of Shares. Subject to the terms and conditions hereof, the
Company shall issue and sell to the Purchaser, and the Purchaser shall purchase
from the Company, 861,623 shares (the "Purchased Shares") of Common Stock at a
cash purchase price of U.S. $5.803 per share, or U.S. $5,000,000 in the
aggregate.
2. CLOSING; DELIVERIES.
2.1 Closing. Closing of the purchase and sale of Purchased Shares
hereunder (the "Closing") shall be held at such time and on such date as the
Company and the Purchaser may agree, but in any event on or before February 15,
2000 (the "Closing Date"). The Closing shall take place at the offices of Nelson
Mullins Riley & Scarborough, L.L.P., Suite 1400, 999 Peachtree Street, N.E.,
Atlanta, Georgia 30309, or such other place as the Company and the Purchaser may
designate.
2.2 Deliveries at Closing. At the Closing, the Company shall deliver to
the Purchaser a stock certificate, issued in such Purchaser's name, representing
the number of Purchased Shares (the "Certificate"), and the Purchaser shall
deliver the purchase price to the Company by wire transfer in the amount of Five
Million U.S. Dollars (U.S. $5,000,000) (the "Purchase Price"). In addition, the
Company shall deliver to the Purchaser such other instruments and documents as
are described in Article 5, and the Purchaser shall deliver to the Company such
other instruments and documents as are described in Article 6.
Stock Purchase Agreement-Page 1 of 12
<PAGE>
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to the Purchaser, as
follows:
3.1 Organization and Standing; Charter and Bylaws. The Company is a
corporation duly organized and validly existing under the laws of the State of
Florida, United States and is in good standing under such laws. The Company has
previously delivered to Purchaser true and accurate copies of its Restated
Articles of Incorporation, as amended (the "Articles"), and its Amended and
Restated Bylaws, as presently in effect (the "Bylaws").
3.2 Corporate Power. The Company has all requisite legal and corporate
power and authority (a) to own, lease and operate its properties and assets and
conduct its business as presently conducted, and (b) to enter into this
Agreement, to sell the Purchased Shares and to carry out and perform its other
obligations under the terms of this Agreement.
3.3 Capitalization. The authorized capital stock of the Company
consists of 60,000,000 shares of capital stock, of which: (a) 50,000,000 shares
are designated as Common Stock, voting and with par value of $0.01 per share, of
which 8,548,549 shares are issued and outstanding as of February 11, 2000; and
(b) 10,000,000 shares of preferred stock, par value $0.01 per share, of which no
shares are issued and outstanding. All such issued and outstanding shares of
Common Stock have been duly authorized and validly issued, are fully paid and
nonassessable.
3.4 Authorization. All corporate action on the part of the Company and
its directors, officers and shareholders necessary for (a) the authorization,
execution, delivery and performance of all its obligations under this Agreement,
(b) the authorization, issuance and delivery by the Company to the Purchaser of
the Purchased Shares, and (c) the authorization, execution and delivery of all
agreements contemplated hereby to be executed and delivered at Closing (the
"Other Agreements"), has been (or will be) taken prior to the Closing. This
Agreement and the Other Agreements, when executed and delivered by the Company,
will constitute the valid and binding obligation of the Company and are
enforceable against it in accordance with their terms, except as enforceability
may be limited by bankruptcy, insolvency or other laws affecting the enforcement
of creditors' rights generally, and except that the availability of the remedy
of specific performance or other equitable relief is subject to the discretion
of the court before which any proceeding therefor may be brought.
3.5 Validity of Stock. When issued pursuant to this Agreement, the
Purchased Shares will be duly authorized, validly issued, fully paid and
nonassessable, will be free of any liens or encumbrances, and will not be
subject to any preemptive rights, rights of first refusal or redemption rights,
other than as expressly provided herein and in the Articles or as will have been
waived.
3.6 Financial Statements. The Company has furnished Purchaser with (a)
audited consolidated balance sheets of the Company and its subsidiaries as of
December 31, 1996, 1997 and 1998, together with audited consolidated statements
of income and cash flows for the three-year period ended December 31, 1998, (b)
an unaudited consolidated balance sheet of the Company as of September 30, 1999,
together with unaudited consolidated statements of income
Stock Purchase Agreement-Page 2 of 12
<PAGE>
and cash flows for the nine-month period then ended (collectively, the "Interim
Financial Statements," and (c) preliminary drafts, subject to final audit
adjustments, of the consolidated balance sheets and statements of income and
cash flows for the period ended December 31, 1999 as disclosed to the public in
the Company's press release dated February 8, 2000 (the "Unaudited 1999
Financial Statements"); all the foregoing financial statements being
collectively referred to herein as the "Financial Statements"). The Financial
Statements have been prepared in accordance with generally accepted accounting
principles ("GAAP") consistently applied and fairly present the financial
position of the Company and the results of its operations as of the dates and
for the periods indicated, subject, in the case of the Interim Financial
Statements and the Unaudited 1999 Financial Statements, to normal year-end
adjustments, adjustments that may be required as a result of final audit
procedures yet to be completed and the absence of footnotes. The remaining audit
adjustments to the Unaudited 1999 Financial Statements are not expected to
cause, in the aggregate, a material adverse change in the information presented
in the Unaudited 1999 Financial Statements.
3.7 Changes. Except as disclosed in the Financial Statements and in the
SEC Reports and Releases (defined in Section 3.14 below), since the date of the
Unaudited 1999 Financial Statements there has not been:
3.7.1 any material and adverse change in the assets, liabilities,
financial condition, or operations of the Company considered in the aggregate
from that reflected in the Unaudited 1999 Financial Statements, except changes
in the ordinary course of business and changes that may be required as a result
of the audit;
3.7.2 any materially adverse change (individually or in the
aggregate), except in the ordinary course of business, in the contingent
obligations of the Company by way of guaranty, endorsement, indemnity, warranty,
or otherwise;
3.7.3 any significant damage, destruction or loss with respect to
the material properties or business of the Company, whether or not covered by
insurance;
3.7.4 any declaration or payment of any dividend (in stock or other
property) or other distribution of the assets of the Company;
3.7.5 any other event or condition that has had a material adverse
effect on the business of the Company; or
3.7.6 any agreement or commitment by the Company to do any of the
things described in this Section 3.7.
3.8 Material Liabilities. Except (a) as reflected in the Unaudited 1999
Financial Statements or the SEC Reports and Releases, (b) for obligations and
liabilities incurred in the ordinary course of business since the date of the
Unaudited 1999 Financial Statements, and (c) for obligations under contracts
made in the ordinary course of business that would not be required by GAAP to be
reflected in the Unaudited 1999 Financial Statements, the Company does not have
any material liabilities or obligations.
Stock Purchase Agreement-Page 3 of 12
<PAGE>
3.9 Compliance with Other Instruments. The execution, delivery and
performance of and compliance with this Agreement and the issuance of the
Purchased Shares will not result in any violation or be in conflict with or
constitute a default under any of the terms or provisions of the Articles or
Bylaws of the Company, or any mortgage, indenture, contract, agreement or
instrument to which the Company is a party and which is material to its business
and operations, or result in the creation of any mortgage, pledge, lien,
encumbrance or charge upon any of the material properties or assets of the
Company pursuant to any such term or provision.
3.10 Litigation and Other Proceedings. The Company is a party to the
litigation and other legal proceedings described on Schedule 3.10 hereto, the
effect of which, if determined adversely to the Company, may reasonably be
considered to be material and adverse to the Company. Except as disclosed in the
Company's SEC Reports, Releases and Financial Statements, there are no other
actions, proceedings or investigations pending against the Company that, if
decided adversely to the Company could, either in any case or in the aggregate,
reasonably be expected to result in any material adverse change in the business
or financial condition of the Company or its material properties or assets or in
any material impairment of the right or ability of the Company to carry on its
business as now conducted, or in any material liability on the part of the
Company, and there is no proceeding to which the Company is a party that
challenges the validity of this Agreement or any action taken or to be taken by
the Company in connection herewith.
3.11 Governmental Consents. Except for the filing of a Form D by the
Company and Form 13D by the Purchaser with the Commission (as defined in Section
3.14 below) and other filings, if any, required by the laws of the country or
other jurisdictions where the Purchaser is located, no consent, approval or
authorization of, or registration, declaration, designation, qualification or
filing with, any governmental authority on the part of the Company is required
in connection with (a) the valid execution and delivery of this Agreement and
the Other Agreements, (b) the offer, sale or issuance of the Purchased Shares by
the Company, or (c) the consummation of any other transaction contemplated
hereby, other than as provided by applicable securities laws.
3.12 Other Consents. All consents of third parties and any shareholders
of the Company necessary for the execution, delivery and performance by the
Company of this Agreement and the Other Agreements or the consummation of the
transactions contemplated hereby shall have been received prior to the Closing.
3.13 Tax Matters. The Company has accurately prepared and timely filed
all income and other tax returns, if any, that are required to be filed prior to
the date hereof, and has paid, or made provision or reserves for the payment of,
all taxes that have or may have become due pursuant to said returns or pursuant
to any assessment that has been received from any taxing authority and there are
no outstanding agreements by the Company for the extension of time for the
assessment of any tax. The United States income tax returns of the Company have
not been audited by the Internal Revenue Service. No deficiency assessment or
proposed adjustment of the Company's United States income tax or state or
municipal taxes (if any) is pending, and the Company has no knowledge of any
proposed liability for any tax to be imposed upon
Stock Purchase Agreement-Page 4 of 12
<PAGE>
the Company's properties or assets for which there is not an adequate reserve
reflected in the Unaudited 1999 Financial Statements.
3.14 Current Public Information. The Company is a "reporting issuer"
and has a class of securities registered under Section 12(g) of the United
States Securities Exchange Act of 1934, as amended (the "Exchange Act"). The
Company has made available to the Purchaser copies of its (a) Annual Report on
Form 10-K for the period ended December 31, 1998 and the related proxy statement
as filed with the U.S. Securities and Exchange Commission (the "Commission"),
(b) its Quarterly Reports on Form 10-Q for the periods ended March 31, 1999,
June 30, 1999 and September 30, 1999 as filed with the Commission, (c) current
reports on Form 8-K filed with the Commission since December 31, 1998
(collectively, with the items referred to in clauses (a) and (b), the "SEC
Reports"), and (d) copies of its press releases and other written public
statements released to Nasdaq and/or major business new services during 1999 and
2000 (collectively, the "Releases"). The SEC Reports filed with the Commission,
at the time filed, complied as to form in all material respects with the
requirements of the Exchange Act and United States Securities Act of 1933, as
amended (the "Securities Act"). None of the SEC Reports filed with the
Commission contained, when filed, any untrue statement of material fact or
omitted to state a material fact necessary in order to make the statements made,
in light of the circumstances under which they were made, not misleading.
3.15 Use of Proceeds. The Company will use the proceeds from the sale
of Purchased Shares for its working capital needs.
4. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser represents and warrants to the Company with respect to its
purchase of the Purchased Shares as follows:
4.1 Access to Information.
4.1.1 Purchaser acknowledges that all documents, records and books
pertaining to the Company have been made available for inspection by such
Purchaser. Purchaser and its advisors or other persons acting on its behalf,
have had a reasonable opportunity to ask questions of and receive answers from
the officers of the Company, concerning the terms and conditions of the
prospects and the offering of the Purchased Shares, and to obtain additional
information, to the extent possessed or obtainable without unreasonable effort
or expense by the officers of the Company. All such questions have been answered
to the full satisfaction of such Purchaser.
4.1.2 Purchaser acknowledges that, from time to time, statements
about the Company may be made, in writing or otherwise, that may purport to
contain information about the Company, including in newspaper articles, internet
chat rooms and other publications and communications, and that such statements
(unless made by an authorized officer of the Company) have been and may be
incorrect or inaccurate in several material respects. Purchaser agrees that
neither the Company nor any of its affiliates or representatives has made any
representation or warranty as to the accuracy or completeness of any such
information or statements. Furthermore, the Purchaser has not relied, and will
not rely, upon any such statements in making any investment
Stock Purchase Agreement-Page 5 of 12
<PAGE>
decision in connection with the Purchased Shares; rather, the only
representations or statements that the Purchaser has relied upon or will rely
upon are those made by the Company in this Agreement.
4.2 Experience; Investment Intent; Accredited Investor. Purchaser has
such knowledge and experience in financial and business matters as to enable
Purchaser (a) to utilize the information made available to it in connection with
the purchase of the Purchased Shares, (b) to evaluate the merits and risks
associated with a purchase of the Purchased Shares and (c) to make an informed
decision with respect thereto. Purchaser's business and financial experience is
such that the Company could reasonably assume such Purchaser has the capacity to
protect its own interests in connection with the offer, sale and issuance of the
Purchased Shares. Purchaser is financially capable of bearing the risk of loss
of any and all consideration paid for the Purchased Shares, and acknowledges
that an investment in the Purchased Shares involves a high degree of risk,
including a possible total loss of investment, and the purchase price for the
Purchased Shares has been determined by negotiation between the Company and the
Purchaser and may not be indicative of the present or future value of the
securities. Neither Purchaser nor any affiliate thereof within the meaning of
Rule 12b-2 under the Exchange Act owns, beneficially or otherwise, any shares or
rights to acquire shares of Common Stock. Purchaser is acquiring the Purchased
Shares solely for its own account, not as a nominee or agent, and not with a
view to, or for sale in connection with, any distribution thereof. Purchaser
represents that it is an "accredited investor" within the meaning of Regulation
D promulgated by the Commission under the Securities Act and that it is a
corporate body that either (a) has more than 20 members and has called up share
capital or net assets of not less than (pound)500,000, or (b) has called up
share capital or net assets of not less than (pound)5,000,000. Purchaser
represents that it has no present intention of changing, influencing or
attempting to change or influence, control of the Company and that it is
purchasing the Purchased Shares for passive investment.
4.3 No Registration Under the Securities Act. Purchaser understands
that (a) neither the offering nor the sale of the Purchased Shares has been
registered under the Securities Act or applicable state or other securities
laws, in reliance upon exemptions from the registration provisions of the
Securities Act and applicable state or other securities laws, (b) the Purchased
Shares purchased by such Purchaser must be held by it indefinitely unless the
sale or transfer thereof is subsequently registered under the Securities Act and
other applicable securities laws or an exemption from such registration is
available, and the certificates or documents representing all Purchased Shares
will be legended to reflect such restrictions, (c) neither the Purchased Shares
nor any of the Common Stock have been registered under, nor do such securities
comply with the legal requirements applicable to public offerings under, The
Public Offers of Securities Regulations 1995, the Financial Services Act 1986 or
any other laws of England or Wales or any other country and (d) the officers of
the Company will rely upon the representations and warranties made by such
Purchaser in this Agreement in order to establish such exemption from the
registration provisions of the Securities Act and other applicable securities
laws.
4.4 Authorization. All action on the part of Purchaser and its
directors, officers and shareholders necessary for the authorization, execution,
delivery and performance of all obligations of such Purchaser under this
Agreement and the Other Agreements has been (or will
Stock Purchase Agreement-Page 6 of 12
<PAGE>
be) taken prior to the Closing. This Agreement and the Other Agreements, when
executed and delivered by Purchaser, will constitute the valid and binding
obligation of Purchaser and are enforceable against it in accordance with their
terms, except as enforceability may be limited by bankruptcy, insolvency or
other laws affecting the enforcement of creditors' rights generally, and except
that the availability of the remedy of specific performance or other equitable
relief is subject to the discretion of the court before which any proceeding
therefor may be brought.
4.5 Compliance with Other Instruments. The execution, delivery and
performance of and compliance with this Agreement and the issuance of the
Purchased Shares will not result in any violation or be in conflict with or
constitute a default under any of the terms or provisions of the Articles or
Bylaws of Purchaser, or any mortgage, indenture, contract, agreement or
instrument to which Purchaser is a party and which is material to its business
and operations, or result in the creation of any mortgage, pledge, lien,
encumbrance or charge upon any of the material properties or assets of Purchaser
pursuant to any such term or provision.
4.6 Governmental Consents. Except for the filing of a Form D by
Purchaser and Form 13D by the Purchaser with the Commission (as defined in
Section 3.14 below) and other filings, if any, required by the laws of the
country or other jurisdictions where the Purchaser is located, no consent,
approval or authorization of, or registration, declaration, designation,
qualification or filing with, any governmental authority on the part of
Purchaser is required in connection with (a) the valid execution and delivery of
this Agreement and the Other Agreements, (b) the offer, sale or issuance of the
Purchased Shares by Purchaser, or (c) the consummation of any other transaction
contemplated hereby, other than as provided by applicable securities laws.
4.7 Other Consents. All consents of third parties and any shareholders
of Purchaser necessary for the execution, delivery and performance by the
Company of this Agreement and the Other Agreements or the consummation of the
transactions contemplated hereby shall have been received prior to the Closing.
4.8 SEC Form 13D. The Purchaser acknowledges that it is subject to the
reporting requirements of Section 13 of the Exchange Act as a result of its
purchase of the Purchased Shares and agrees to file a Form 13D with the
Commission within the time period required. Such Form 13D (and all amendments or
supplements thereto) shall not conflict with or otherwise differ materially from
the terms of this Agreement and the Other Agreements and shall include copies of
this Agreement and the Governance Agreement (not including the schedules hereto
or thereto) as exhibits thereto (regardless of whether such agreements are
required to be filed as exhibits by such Form).
Stock Purchase Agreement-Page 7 of 12
<PAGE>
5. CONDITIONS TO CLOSING OF PURCHASERS.
The obligation of Purchaser to purchase and pay for the Purchased
Shares at the Closing is, at such Purchaser's option, subject to the fulfillment
on or prior to the applicable Closing Date of the following conditions:
5.1 Representations and Warranties Correct. The representations and
warranties made by the Company in Article 3 hereof shall be true and correct in
all material respects on and as of said date.
5.2 Performance. All covenants, agreements and conditions contained in
this Agreement to be performed or complied with by the Company on or prior to
the Closing Date, including delivery of the Certificate, shall have been
performed or complied with in all material respects.
5.3 Opinion of Company's Counsel. Purchaser shall have received from
Nelson Mullins Riley & Scarborough, L.L.P., counsel to the Company, in form and
substance reasonably satisfactory to such Purchaser and its counsel, a favorable
opinion addressed to Purchaser, dated as of the Closing Date, substantially in
the form set forth in Exhibit A attached hereto.
5.4 Registration Rights Agreement. Purchaser shall have received the
Registration Rights Agreement substantially in the form attached hereto as
Exhibit B, executed by the Company.
5.5 Marketing Agreement. Purchaser shall have received the Memorandum
of Agreement and Marketing Agreement substantially in the form attached hereto
as Exhibit C (the "Marketing Agreement"), executed by the Company.
6. CONDITIONS TO CLOSING OF THE COMPANY.
The obligation of the Company to sell the Purchased Shares at the
Closing is subject to the fulfillment on or prior to the Closing Date of the
following conditions:
6.1 Representations and Warranties Correct. The representations and
warranties made by Purchaser in Article 4 hereof shall be true and correct with
respect to such Purchaser on the Closing Date.
6.2 Performance. All covenants, agreements and conditions contained in
this Agreement to be performed by or complied with by Purchaser on or prior to
such Closing Date, including delivery of the Purchase Price, shall have been
performed or complied with in all material respects.
6.3 Governance Agreement. The Company shall have received the
Governance Agreement in the form attached hereto as Exhibit D (the "Governance
Agreement") executed by the Purchaser.
Stock Purchase Agreement-Page 8 of 12
<PAGE>
6.4 Marketing Agreement. Company shall have received the Marketing
Agreement substantially in the form attached hereto as Exhibit C, executed by
the Purchaser.
7. MISCELLANEOUS.
7.1 Governing Law. This Agreement shall be governed by and construed
under the laws of the United States and the State of Florida, without regard to
its principles of conflicts of laws.
7.2 Survival. The representations, warranties, covenants and agreements
made herein shall survive the Closing.
7.3 Assignment. This Agreement may not be assigned, in whole or in
part, by operation of law or otherwise, without the express written consent of
the Company and the Purchaser (which consent may be granted or withheld in the
sole discretion of the Company or Purchaser).
7.4 Confidentiality. The parties shall treat all information about the
Company and the Purchaser delivered in connection with this Agreement and the
Other Agreements as confidential information in accordance with the terms of the
Mutual Confidentiality Agreement dated 13 December 1999 between the parties (the
"Confidentiality Agreement"), the terms of which shall survive the execution and
delivery hereof and the Closing. The parties acknowledge that this Agreement and
the Other Agreements may be filed with the Commission as exhibits to reports and
forms which are required to be filed under the Securities Act and Exchange Act.
The parties agree to consult and cooperate with each other to request and obtain
confidential treatment from the Commission (and any other governmental authority
which may require or request the disclosure or filing of this Agreement and/or
any of the Other Agreements) with respect to the pricing, discount, payment,
customer, product and other sensitive business terms of this Agreement and the
Other Agreements, to the fullest extent such confidential treatment is
available.
7.5 Entire Agreement; Amendment. This Agreement, the Confidentiality
Agreement, the Other Agreements and the documents and agreements delivered
pursuant hereto or thereto constitute the full and entire understanding and
agreement among the parties with regard to the subjects hereof and thereof.
Neither this Agreement nor any term hereof may be amended, waived, discharged or
terminated except by a written instrument signed by the duly authorized officers
of the parties hereto.
7.6 Notices. All notices and other communications required or permitted
hereunder shall be given in writing and shall be deemed effectively given upon
(a) personal delivery, (b) five business days following deposit with the United
States Postal Service, by certified mail, return receipt requested, postage
prepaid, (c) otherwise delivered by hand or by messenger, (d) one business day
after deposit with a reputable overnight international delivery service, or (e)
delivery by facsimile, provided such transmission is confirmed within one of the
methods set forth in (a) - (d) hereof, addressed: (a) if to Purchaser, at the
address and facsimile set forth under its name on the signature page of this
Agreement; or (b) if to the Company, at Phoenix International, Inc., 500
International Parkway, Heathrow, Florida 32746, Facsimile 001-407-548-5342,
Attn: Chief
Stock Purchase Agreement-Page 9 of 12
<PAGE>
Executive Officer and Chief Financial Officer, or at such other address as the
Company shall have furnished to the Purchaser.
7.7 Delays or Omissions; Remedies Cumulative. No delay or omission to
exercise any right, power or remedy accruing to any party, upon any breach or
default under this Agreement, shall impair any such right, power or remedy of
such party or be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. All
of a party's remedies, either under this Agreement, or by law or otherwise
afforded to such party, shall be cumulative and not alternative.
7.8 Agent's Fees. Each party (a) represents and warrants that, except
as set forth on Schedule 7.8 hereto, it has retained no finder or broker in
connection with the transactions contemplated by this Agreement (except as
disclosed to the other parties hereto as of the date hereof) and (b) hereby
agrees to indemnify and to hold the other parties harmless of and from any
liability for commissions or compensation in the nature of an agent's, finder's
or broker's fee to any broker or other person or firm (and the cost and expenses
of defending against such liability or asserted liability) for which said party
is responsible.
7.9 Expenses. Each party shall bear its own expenses and legal fees
(and expenses and disbursements of its legal counsel) incurred on its behalf
with respect to this Agreement and the transactions contemplated hereby.
7.10 Construction of Certain Terms. The titles of the articles,
sections, and subsections of this Agreement are for convenience of reference
only and are not to be considered in construing this Agreement. For purposes of
this Agreement, the term "knowledge" as applied to the Company or Purchaser
means, as to a particular matter, the actual knowledge of the Company's or
Purchaser's executive officers. Wherever words "including," "include" or
"includes" are used in this Agreement, they shall be deemed followed by the
words "without limitation." References to any gender shall be deemed to mean any
gender.
7.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
7.12 Legends. In addition to any legends required by applicable state
or foreign securities laws, the Company shall place the following legend on the
front or back of each certificate evidencing ownership of Purchased Shares:
The shares represented by this certificate are subject to the
terms and conditions of a Stock Purchase Agreement, Governance
Agreement and Registration Rights Agreement, each dated as of
February 14, 2000, and copies of which may be obtained by written
request made to the issuer hereof (for permitted purposes as
determined by the issuer). The shares represented by this
certificate have not been registered under the U.S. Securities Act
of 1933 or any other securities laws of any U.S. or foreign
Stock Purchase Agreement-Page 10 of 12
<PAGE>
jurisdiction and may not be transferred except in accordance with
such laws.
7.13 Enforcement.
(a) Remedies at Law or in Equity. If any party shall default in any
of its obligations under this Agreement or if any representation or warranty
made by or on behalf of such party in this Agreement or in any certificate,
report or other instrument delivered under or pursuant to any term hereof shall
be untrue or misleading in any material respect as of the date of this Agreement
or as of the Closing Date or as of the date it was made, furnished or delivered,
the other party may proceed to protect and enforce their respective rights by
suit in equity or action at law, whether for the specific performance of any
term contained in this Agreement, injunction against the breach of any such term
or in furtherance of the exercise of any power granted in this Agreement, or to
enforce any other legal or equitable right of such party or to take any one of
more of such actions.
(b) Remedies Cumulative; Waiver. No remedy referred to herein or in
any exhibit hereto is intended to be exclusive, but each shall be cumulative and
in addition to any other remedy referred to above or otherwise available to a
party at law or in equity. No express or implied waiver by any party of any
default shall be a waiver of any future or subsequent default. The failure or
delay of any party in exercising any rights granted it hereunder shall not
constitute a waiver of any such right and any single or partial exercise of any
particular right by such party shall not exhaust the same or constitute a waiver
of any other right provided herein.
(c) Exclusive Jurisdiction. The Company and the Shareholders
irrevocably consent to the exclusive jurisdiction and venue of the courts of any
county in the State of Florida and the United States Federal District Court of
Florida, in any judicial proceeding brought to enforce this Agreement. The
parties agree that any forum other than the State of Florida is an inconvenient
forum and that a lawsuit (or non-compulsory counterclaim) brought by one party
against another party, in a court of any jurisdiction other than the State of
Florida should be forthwith dismissed or transferred to a court located in the
State of Florida.
7.14 No Joint Venture. Nothing in this Agreement shall be deemed to
constitute the Company and Purchaser as partners, agents or joint venturers.
[signatures begin on next page]
Stock Purchase Agreement-Page 11 of 12
<PAGE>
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement as of the day and year first above written.
THE COMPANY:
PHOENIX INTERNATIONAL LTD, INC.
By: /s/ Raju M. Shivdasini
--------------------------------
Name: Raju M. Shivdasini
--------------------------------
Title: President & CEO
--------------------------------
PURCHASER:
LONDON BRIDGE SOFTWARE HOLDINGS PLC.
By: /s/ Gordon Crawford
--------------------------------
Name: Gordon Crawford
--------------------------------
Title: Chairman
--------------------------------
Address: 16th Floor, New London Bridge House
--------------------------------
25 London Bridge St. London
--------------------------------
Facsimile: (027) 403-8981
--------------------------------
Stock Purchase Agreement-Page 12 of 12
GOVERNANCE AGREEMENT
THIS GOVERNANCE AGREEMENT (this "Agreement"), dated as of February 14,
2000, is entered into by and between Phoenix International Ltd., Inc., a Florida
corporation (the "Company"), and London Bridge Software Holdings plc., a
corporation organized under the laws of England and Wales ("London Bridge").
WHEREAS, the Company and London Bridge contemporaneously are entering
into a Stock Purchase Agreement of even date herewith (as amended, the "Purchase
Agreement"), pursuant to which London Bridge has agreed to purchase, and the
Company has agreed to sell, shares of the Company's common stock, $0.01 par
value per share (the "Common Stock") on the terms and conditions set forth
therein (the "Purchase"); and
WHEREAS, London Bridge will Beneficially Own (as defined herein)
approximately 9.16% of the outstanding Common Stock of the Company as a result
of the Purchase and otherwise; and
WHEREAS, as a condition to the willingness of the Company to enter into
the Purchase Agreement, and each party, in order to induce the other to enter
into such agreement, has agreed to execute and deliver, or cause to be executed
and delivered, this Agreement concurrently with the closing of the Purchase
under the Purchase Agreement; and
WHEREAS, the Company and London Bridge desire to establish in this
Agreement certain terms and conditions concerning the corporate governance of
the Company after the closing of the Purchase under the Purchase Agreement; and
WHEREAS, the Company and London Bridge also desire to establish in this
Agreement certain terms and conditions concerning the acquisition and
disposition of securities of the Company by London Bridge.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. As used in this Agreement, the following terms
shall have the following meanings:
<PAGE>
"Affiliate" means, with respect to any Person, any other Person that
directly or indirectly, through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such first Person.
"Associate" has the meaning set forth in Rule 12b-2 under the Exchange
Act as in effect on the date of this Agreement.
"Beneficial Ownership" and any derivative thereof has the meaning set
forth in Rule 13d-3 under the Exchange Act as in effect on the date of this
Agreement.
"Board" means the Board of Directors of the Company.
"Buyout Transaction" means a tender offer, merger, stock purchase or
exchange, sale of all or substantially all of the Company's assets, business
combination or any similar transaction involving the Company or any of its
Subsidiaries, on the one hand, and London Bridge or any Affiliate or Associate
of London Bridge, on the other, that offers each holder of Voting Securities
(other than, if applicable, London Bridge or any Affiliate or Associate of
London Bridge) the opportunity to dispose of all Voting Securities Beneficially
Owned by such holder.
"Closing" shall have the meaning set forth in the Purchase Agreement.
"Common Stock" has the meaning set forth in the recitals to this
Agreement.
"Company" has the meaning set forth in the recitals to this Agreement.
"Control" and any derivation thereof shall have the meaning specified
in Rule 12b-2 under the Exchange Act as in effect on the date of this Agreement.
"Exchange Act" means the United States Securities and Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"Governmental Entity" means any court, administrative agency,
regulatory body, commission or other governmental authority, board, bureau or
instrumentality, domestic or foreign and any subdivision thereof.
"Group" has the meaning set forth in Section 13(d) of the Exchange Act
as in effect on the date of this Agreement.
"Liens" shall mean all liens, encumbrances, mortgages, security
interests, charges, pledges, equities, hypothecations, rights in or to, and
other similar rights.
"London Bridge" has the meaning set forth in the recitals to this
Agreement.
2
<PAGE>
"Other Holders" means the holders of the Other Shares.
"Other Shares" means Voting Securities not Beneficially Owned by London
Bridge.
"Purchase" has the meaning set forth in the recitals to this Agreement.
"Purchase Agreement" has the meaning set forth in the recitals to this
Agreement.
"Person" means any individual, group, corporation, firm, partnership,
public limited company, private limited company, limited liability company,
joint venture, trust, business association, organization, Governmental Entity or
other entity.
"Purchased Common Stock" means the Common Stock purchased by London
Bridge pursuant to the Purchase Agreement and any stock or other securities of
the Company paid as a dividend with respect thereto.
"SEC" means the United States Securities and Exchange Commission or any
successor Governmental Entity.
"Securities Act" means the United States Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Stockholder Vote" means, as to any matter to be presented to the
holders of Voting Securities, a vote at a duly called and held annual or special
meeting of the holders of Voting Securities entitled to vote on such matter.
"Subsidiary" means, with respect to any Person, as of any date of
determination, any other Person as to which such Person owns, directly or
indirectly, or otherwise Controls, more than 50% of the voting shares or other
similar interests.
"Third Party Offer" means a bona written fide offer to enter into a
tender offer, merger, stock purchase or exchange, sale of all or substantially
all of the Company's assets, business combination or any similar transaction
involving the Company, made by a Person other than London Bridge, an Affiliate
of London Bridge or any Associate of or other Person acting on behalf of London
Bridge or any Affiliate of London Bridge.
"Total Voting Power of the Company" means the total number of votes
that may be cast in the election of directors of the Company if all Voting
Securities outstanding or treated as outstanding pursuant to the final sentence
of this definition were present and voted at a meeting held for such purpose.
The percentage of the Total Voting Power of the Company Beneficially Owned by
any Person is the percentage of the Total Voting Power of the Company that is
represented by the total number of votes that may be cast in the election of
directors of the Company by Voting Securities Beneficially Owned by such Person.
In determining the Voting Securities Beneficially Owned by any Person, Voting
Securities that
3
<PAGE>
are not outstanding but are then subject to immediate issuance upon exercise or
exchange of rights of conversion or any options, warrants or other rights (the
"Rights") Beneficially Owned by such Person shall be deemed to be outstanding
and shall be included in Voting Securities Beneficially Owned by such Person for
the purpose of computing the percentage of the Total Voting Power represented by
Voting Securities Beneficially Owned by such Person, but any Rights Beneficially
Owned by any other Person shall not be deemed to be outstanding for purpose of
computing the percentage of the Total Voting Power represented by Voting
Securities Beneficially Owned by the Person with respect to whom the calculation
is being performed.
"Voting Securities" means Common Stock, any other securities of the
Company or any Subsidiary of the Company entitled to vote generally in the
election of directors of the Company or such Subsidiary of the Company, and any
securities convertible into or exercisable or exchangeable for, any of the
foregoing.
ARTICLE II
STANDSTILL PROVISIONS
SECTION 2.1 Standstill.
(a) Except as otherwise expressly provided in this Agreement or as
specifically approved in writing by 66-2/3% of the members of the Board, for a
period of three (3) years from the date of this Agreement, neither London
Bridge, nor any of its Affiliates or Associates, nor any Group which London
Bridge Controls shall, directly or indirectly:
(i) by purchase or otherwise, acquire, agree to acquire or
offer to acquire Beneficial Ownership of, or any Liens with respect to,
any Voting Securities or direct or indirect rights or options to
Beneficially Own Voting Securities (including any voting trust
certificates representing such securities);
(ii) enter into, propose to enter into, solicit or support any
Buyout Transaction or Third Party Offer, or purchase, acquire or
propose to purchase, acquire, solicit or support the purchase or
acquisition of any portion of the business or assets of the Company or
any of its Subsidiaries by London Bridge or by any of its Affiliates or
Associates or by any other Person;
(iii) form, join or in any way participate in a Group (other
than a Group that may be formed in the future consisting solely of
London Bridge and its Affiliates) formed for the purpose of acquiring,
holding, voting or disposing of or taking any other action with respect
to Voting Securities other than the Purchased Common Stock;
(iv) solicit proxies by or on behalf of any Person other than
the Company with respect to any Voting Securities, become a
"participant" in an "election contest"
4
<PAGE>
(as such terms are used in Rule 14a-11 of Regulation 14A under the
Exchange Act) relating to the Board, or otherwise attempt to acquire or
alter Control of the business or affairs of the Company;
(v) deposit any Voting Securities in a voting trust or enter
into any voting agreement or arrangement with respect thereto (other
than this Agreement) which would entitle any Person to Control more
than 10% of the Total Voting Power of the Company;
(vi) publicly propose to do or permit any of the foregoing,
publicly propose to revise any of the standstill provisions of this
Agreement, or otherwise take any action challenging the validity or
enforceability of the foregoing or which would be inconsistent with the
foregoing; or
(vii) assist, advise, encourage, provide funds for, negotiate
or otherwise participate with or support any Person with respect to, or
otherwise seek to do, any of the foregoing or, except as set forth in
Section 2.3 below, participate, assist, advise, encourage, provide
funds for or otherwise support any Third Party Offer.
(b) Nothing in this Agreement shall (i) prohibit or restrict London
Bridge from responding to any inquiries from any Other Holders as to London
Bridge's intention with respect to the voting of any Voting Securities
Beneficially Owned by it so long as such response is consistent with the terms
of this Agreement; (ii) prohibit London Bridge from Beneficially Owning Voting
Securities issued as dividends or distributions in respect of, or issued upon
conversion, exchange or exercise of, securities which London Bridge is permitted
to Beneficially Own under this Agreement; (iii) prohibit any employee or agent
of London Bridge from purchasing or otherwise acquiring Voting Securities so
long as he or she is not a member of a Group that includes London Bridge or any
of its Affiliates or Associates or is not otherwise acting on behalf of London
Bridge or any of its Affiliates or Associates; or (iv) prohibit London Bridge
from disclosing in accordance with its obligations (if any) under the federal
securities laws or other applicable law (if any) that the Company has become the
subject of a Buyout Transaction or a Third Party Offer.
SECTION 2.2 Buyout Transaction. Nothing in this Agreement shall
prohibit or restrict London Bridge from proposing, participating in, supporting
or causing the consummation of a Buyout Transaction if (i) 66-2/3% of the
Company's Board approve in advance and in writing the Buyout Transaction and
(ii) the Buyout Transaction is consummated in accordance with the terms and
conditions approved by the Board.
SECTION 2.3 Third Party Offers. In the event that the Company becomes
the subject of a Third Party Offer not involving the participation of London
Bridge in any way, London Bridge may not support such Third Party Offer, vote in
favor of such Third Party Offer or tender or sell its Voting Securities to the
Person making such Third Party Offer unless the Third Party Offer is made
available to all of the Company's shareholders and each of the Other
5
<PAGE>
Holders are entitled to participate in the Third Party Offer on the same terms
and under the same conditions as London Bridge.
ARTICLE III
VOTING RESTRICTIONS
SECTION 3.1 Irrevocable Proxy. London Bridge shall execute and deliver
to the Company, as a condition to Closing, a proxy in the form attached hereto
as "Exhibit A," which shall be deemed to be coupled with an interest and
irrevocable for a period of one year from the date of this Agreement.
SECTION 3.2 Termination of Proxy. The Company agrees that the proxy
shall not be effective with respect to any Voting Securities transferred by
London Bridge in accordance with the transfer restrictions set forth in Article
IV below.
ARTICLE IV
TRANSFER RESTRICTIONS
SECTION 4.1 Restrictions.
(a) Except as provided in Section 2.3 or with the written consent of at
least 66-2/3% of the members of the Board, London Bridge shall not, directly or
indirectly, sell, transfer or otherwise dispose of any Voting Securities prior
to February 14, 2003 except as follows:
(i) in the public U.S. securities market, in accordance with
the volume and manner of sale limitations of Rule 144 under the
Securities Act (regardless of whether such limitations are applicable)
and otherwise subject to compliance with the Securities Act;
(ii) in the public U.S. securities market, in a registered
public offering pursuant to the terms and conditions of the
Registration Rights Agreement of even date herewith between the Company
and London Bridge; or
(iii) in a private sale, and subject to the provisions of
Section 4(b) below, if the purchaser agrees in writing, delivered by
the Company at least three business days in advance of such sale, (and
the terms of which are reasonably satisfactory to the Company), to be
bound by the terms and conditions of this Agreement.
(b) In addition to the restrictions set forth in Section 4.1(a), London
Bridge agrees as follows:
6
<PAGE>
(i) for a period of six months after Closing, it shall not,
without the prior written consent of the Company (which shall not be
unreasonably withheld), sell, transfer, assign, convey, dispose of or
otherwise reduce its risk of ownership with respect to, in whole or in
part, the Purchased Common Stock or any other securities of the
Company, or any rights with respect thereto; and
(ii) it shall not sell, transfer, assign or convey any Common
Stock or other securities of the Company, or any rights with respect
thereto, to a known competitor of the Company; provided, however, that
the foregoing transfer restriction of this Section 4.1(b) shall not
limit London Bridge's ability to sell Common Stock or other securities
of the Company pursuant to the Registration Rights Agreement or in
accordance with the terms and provisions of Rule 144 under the U.S.
Securities Act of 1933, as amended, unless such sales are conducted in
a manner whereby the purchaser(s) are identified to London Bridge or
its selling agents prior to such sale (in which case the prohibition on
sales to known competitors would still apply).
SECTION 4.2 Legends.
(a) Except as set forth in Section 4.2(b) below, during the term of
this Agreement, all certificates representing Voting Securities Beneficially
Owned by London Bridge shall bear an appropriate restrictive legend indicating
that such Voting Securities are subject to restrictions pursuant to this
Agreement.
(b) Upon any transfer or proposed transfer of Beneficial Ownership by
London Bridge of any Voting Securities to any Person that is permitted pursuant
to this Agreement, the Company shall, upon receipt of timely notice and such
certificates, opinions and other documentation as shall be reasonably requested
by the Company, cause certificates representing such transferred Voting
Securities to be issued (i) without any legend if upon consummation of such
transfer such Voting Securities are no longer "restricted securities" as defined
in Rule 144 under the Securities Act or (ii) without any reference to this
Agreement if upon consummation of such transfer such Voting Securities continue
to be "restricted securities."
SECTION 4.3 Effect. Any purported transfer of Voting Securities that is
inconsistent with the provisions of this Article IV shall be null and void and
of no force or effect.
ARTICLE V
TERMINATION
SECTION 5.1 Automatic Termination. This Agreement shall terminate
automatically on February 14, 2003.
7
<PAGE>
SECTION 5.2 Early Termination of Standstill and Voting Provisions. The
terms of Articles II and III above shall terminate and be of no further force or
effect prior to the termination of this Agreement pursuant to Section 5.1 above
if, but only if:
(i) the Board recommends to the Company's shareholders
approval of an agreement for a Third Party Offer in accordance with the
terms of the Company's Articles of Incorporation and Bylaws; or
(ii) the Company publicly announces that it is soliciting any
Third Party Offer.
8
<PAGE>
ARTICLE VI
MISCELLANEOUS
SECTION 6.1 Notices. All notices and other communications provided for
or permitted hereunder shall be made in writing in accordance with the
provisions for delivery of notices identified in the Purchase Agreement.
SECTION 6.2 Interpretation. The headings contained in this Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "included," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation." Nothing contained in this Agreement shall be
construed to prohibit or restrict the Company's ability to determine and
vigorously implement and defend the Company's strategic business objectives. In
addition, the parties acknowledge and agree that they have had the assistance of
counsel in the preparation of this Agreement and, therefore, this Agreement
shall be construed and interpreted without presumption against the party causing
this Agreement to be drafted.
SECTION 6.3 Severability. The provisions of this Agreement shall be
deemed severable and the invalidity or unenforceability of any provision shall
not affect the validity or enforceability of the other provisions hereof. If any
provision of this Agreement, or the application thereof to any person or entity
or any circumstance, is found to be invalid or unenforceable in any jurisdiction
(a) a suitable and equitable provision shall be substituted therefor, upon the
agreement of all of the parties hereto, in order to carry out, so far as may be
valid and enforceable, the intent and purpose of such invalid or unenforceable
provision and (b) the remainder of this Agreement and the application of such
provision to other Persons or circumstances shall not be affected by such
invalidity or unenforceability, nor shall such invalidity or unenforceability
affect the validity or enforceability of such provision, or the application
thereof, in any other jurisdiction.
SECTION 6.4 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, and all of which shall
constitute a single agreement.
SECTION 6.5 Entire Agreement; No Third Party Beneficiaries. This
Agreement, together with the Purchase Agreement, the Confidentiality Agreement,
the Registration Rights Agreement and the other agreements contemplated hereby
and thereby, (a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof; and (b) is not intended to confer upon any
Person other than the parties hereto any rights or remedies hereunder.
SECTION 6.6 Further Assurances. Each party shall execute, deliver,
acknowledge and file such other documents and take such further actions as may
be reasonably requested
9
<PAGE>
from time to time by the other party hereto to give effect to and carry out the
transactions contemplated herein.
SECTION 6.7 Governing Law; Jurisdiction; Equitable Remedies. This
Agreement shall be governed by and construed in accordance with the laws of the
United States of America and the State of Florida, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law. The
Company and the Shareholders irrevocably consent to the exclusive jurisdiction
and venue of the courts of any county in the State of Florida and the United
States Federal District Court of Florida, in any judicial proceeding brought to
enforce this Agreement. The parties agree that any forum other than the State of
Florida is an inconvenient forum and that a lawsuit (or non-compulsory
counterclaim) brought by one party against another party, in a court of any
jurisdiction other than the State of Florida should be forthwith dismissed or
transferred to a court located in the State of Florida. The parties hereto agree
that irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties hereto shall
be entitled to equitable relief, including in the form of injunctions, in order
to enforce specifically the provisions of this Agreement, in addition to any
other remedy to which they are entitled at law or in equity.
SECTION 6.8 Amendments; Waivers.
(a) No provision of this Agreement may be amended or waived unless such
amendment or waiver is in writing and signed, in the case of an amendment, by
the parties hereto, or in the case of a waiver, by the party against whom the
waiver is to be effective. Notwithstanding any provision herein to the contrary,
if a majority of the members of the Board determine in good faith to do so, such
directors may seek to enforce, in the name and on behalf of the Company, the
terms of this Agreement against London Bridge.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 6.9 Assignment. Neither this Agreement nor any of the rights or
obligations hereunder shall be assigned by either of the parties hereto without
the prior written consent of the other party. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of and be enforceable
by the parties and their respective successors and assigns.
10
<PAGE>
IN WITNESS WHEREOF, the parties have caused this Governance Agreement
to be duly executed and delivered, all as of the date first set forth above.
Phoenix International Ltd., Inc.
By: /s/ Raju M. Shivdasini
--------------------------
Name: Raju M. Shivdasini
--------------------
Title: President & CEO
-------------------
London Bridge Software Holdings plc.
By: /s/ Gordon Crawford
--------------------------
Name: Gordon Crawford
--------------------
Title: Chairman
-------------------
11
<PAGE>
EXHIBIT A
FORM OF IRREVOCABLE PROXY
-------------------------
February __, 2000
Mr. Bahram Yusefzadeh
Chairman and CEO
Phoenix International Ltd., Inc.
500 International Parkway
Heathrow, FL 32746
Mr. Yusefzadeh:
Reference is made to that certain Stock Purchase Agreement (the
"Agreement"), the Governance Agreement and Registration Rights Agreement, each
dated February 14, 2000, between the undersigned and Phoenix International Ltd.,
Inc. (the "Company"), pursuant to which the undersigned has purchased 861,623
shares (the "Shares") of common stock of the Company. Defined terms used herein
which are not otherwise defined shall have the meaning set forth in the
Agreement.
The undersigned hereby irrevocably appoints you, Bahram Yusefzadeh, as
attorney and proxy, with full power of substitution, to vote or express written
consent or dissent in such manner as such attorney and proxy, or its substitute,
shall, in its sole discretion, deem proper and otherwise act (including pursuant
to any corporate action in writing without a meeting) with respect to all of the
Shares and any other securities of the Company issued as a dividend or other
distribution with respect thereto which the undersigned is entitled to vote at
any meeting of shareholders (whether annual or special and whether or not an
adjourned meeting) of the Company, or pursuant to written action taken in lieu
of any such meeting or otherwise.
This Proxy is irrevocable, is coupled with an interest sufficient in
law to support an irrevocable proxy, and is granted in consideration of and as
an inducement to cause you to enter into the transactions contemplated by the
Agreement and related documents and agreements executed in connection therewith.
This proxy shall revoke any other proxy granted by the undersigned at any time
with respect to the Shares and any other securities of the Company issued as a
dividend or other distribution with respect thereto and no subsequent proxies
will be given with respect thereto by the undersigned. In addition, if
subsequent to the date hereof, the undersigned is entitled to vote the Shares
and any other securities of the Company issued as a dividend or other
distribution with respect thereto for any purpose, then the undersigned shall
take all actions necessary to vote the Shares and any other securities of the
Company issued as a dividend or other distribution with respect thereto pursuant
to instructions received from you.
This irrevocable proxy shall continue in full force and effect until
February 14, 2001.
LONDON BRIDGE SOFTWARE HOLDINGS
PLC.
By:
----------------------
Its:
----------------------
Date:
---------------------
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement"), is dated and
effective as of February 14, 2000, by Phoenix International Ltd., Inc., a
Florida corporation (the "Company"), and London Bridge Software Holdings plc., a
corporation organized under the laws of the England and Wales (the
"Shareholder"). The Company and the Shareholder are hereinafter collectively
called the "Parties."
WHEREAS, the Company and the Shareholder have entered into a Stock
Purchase Agreement (the "Purchase Agreement") and Governance Agreement (the
"Governance Agreement"), each dated as of February 14, 2000 and pursuant to
which, among other things, the Company has agreed to sell and issue, and the
Shareholder has agreed to purchase, shares of the Company's common stock, 0.01
par value per share (the "Common Stock"); and
WHEREAS, the Shareholder will acquire a total of 861,623 shares of
Common Stock pursuant to the Purchase Agreement; and
WHEREAS, the Company and the Shareholder desire to provide for the
rights of the Shareholder with respect to the registration of the shares of
Common Stock to be received by the Shareholder pursuant to the Purchase
Agreement.
NOW, THEREFORE, in consideration of the covenants and
agreements set forth herein and in the Purchase Agreement, the Parties agree as
follows:
1. Definitions. For purposes of this Agreement:
(a) "1933 Act" means the United States Securities Act of 1933, as
amended, or any replacement U.S. federal statute enacted hereafter, and the
rules and regulations of the Commission thereunder, all as the same shall be in
effect from time to time;
(b) "Commission" means the United States Securities and Exchange
Commission or any other U.S. federal agency at the time administering the 1933
Act and 1934 Act;
(c) "Register," "registered" and "registration" refer to a
registration effected by preparing and filing a registration statement in
compliance with the 1933 Act and the declaration or ordering of effectiveness of
such registration statement by the Commission, with no stop order having been
issued with respect thereto;
(d) "Registrable Securities" means shares of Common Stock (1) issued
or issuable to the Shareholder pursuant to the Purchase Agreement and (2) issued
as a dividend or other distribution with respect to, or in exchange or
replacement of, the foregoing, as a result of or in connection with any stock
split, recapitalization or other similar corporate activity, but Registrable
Securities shall not include any other shares of Common Stock or other
securities acquired by the Shareholder other than the foregoing;
Registration Rights Agreement-Page 1 of 14
<PAGE>
(e) "1934 Act" means the United States Securities Exchange Act of
1934, as amended, or any replacement U.S. federal statute enacted hereafter, and
the rules and regulations of the Commission thereunder, all as the same shall be
in effect from time to time; and
(f) All other capitalized terms used herein but not otherwise
defined shall have the meanings ascribed to them in the Purchase Agreement.
2. Registration Under 1933 Act.
(a) Demand Registration. By written notice (the "Demand Notice")
delivered to the Company after August 14, 2000 and before February 14, 2002,
Shareholder can request that the Company register at least 50% of the shares of
Common Stock issued to the Shareholder pursuant to the Purchase Agreement and
having an aggregate offering price at the time such Demand Notice is made of at
least U.S. $2,000,000 (such offering price to be determined by multiplying the
number of shares of Common Stock by the closing price per share of Common Stock
as reported on NASDAQ or other national securities exchange on which the largest
volume of shares of Common Stock is traded at such time) (collectively, the
"Demand Shares"). As soon as reasonably practicable after receipt of such
notice, the Company shall use all commercially reasonable efforts to (1) file a
registration statement with respect to the Demand Shares and (2) effect the
registration of the Demand Shares.
(b) Limitations on Company's Obligation.
(i) The Company is obligated to effect only one registration
pursuant to Section 2(a). Subject to Section 2(f) below, a registration shall be
deemed not to have been made for the purposes of Section 2(a) in the event that
(1) a registration requested pursuant to Section 2(a) fails to become effective,
(2) a stop order shall have been issued by the Commission with respect to such
registration during the ninety (90) day period following the declaration of
effectiveness thereof, or (3) the registration shall have been terminated prior
to the Commission's declaration of effectiveness with respect thereto.
(ii) A registration under Section 2(a) pursuant to a Demand
Notice delivered to the Company on or before February 14, 2001 shall be
conditioned upon the Shareholder's participation in an underwritten or other
offering in which a professional placement agent is engaged to use its best
efforts to sell the Demand Shares, and the inclusion of such Demand Shares in
such offering. The Company shall have the right to select one or more
underwriters or placement agents for such offering. If the Company does not or
is unable to engage an underwriter or placement agent for such offering, the
Shareholder shall have the right to select one or more underwriters or placement
agents for such offering, subject to the prior written consent of the Company
(which shall not be unreasonably withheld). If a Demand Notice is delivered to
the Company after February 14, 2001 and before February 14, 2002, the
Shareholder shall be entitled to select one or more underwriters or placement
agents, subject to the prior written consent of the Company (which consent shall
not be unreasonably withheld), and may request that such registration, with or
without an underwriter or placement agent, be conducted as a "shelf
registration" in accordance with Rule 415 promulgated under
Registration Rights Agreement-Page 2 of 14
<PAGE>
the 1933 Act (in which case, the Company shall be required to maintain the
effectiveness of such registration for a maximum of ninety (90) days regardless
of any other provision of this Agreement). In the event the Shareholder proposes
to distribute Registrable Securities through any underwriting under this
Agreement, the Shareholder (together with the Company and the other persons
distributing securities through such underwriting) shall participate in the
underwriting by entering into or completing, at the request of the underwriter
or underwriters selected for such underwriting, an underwriting agreement,
questionnaires, powers of attorney and indemnities in their customary form with
such terms as are reasonably acceptable to the Company and the Shareholder. Any
underwriter or placement agent selected hereunder shall be a national or large
regional investment bank with at least five years experience as managing
underwriters of public securities offerings in the U.S. and shall have at least
U.S. $300 million in assets under management.
(c) The Company shall be entitled to include in any registration
statement filed pursuant to Section 2(a) shares of Common Stock to be sold by
the Company for its own account or for the account of other shareholders
(collectively, the "Other Shares"); provided that if the managing underwriters
advise the Company in writing that, in their opinion, the number of securities
requested to be included in any such registration exceeds the number which can
be sold at the desired price in such offering, the Company will include in such
registration (1) first, the Demand Shares (or such portion of the Demand Shares
as the underwriters indicate may be sold at the offering price) and (2) second,
the number of Other Shares requested to be included, which in the opinion of
such underwriters can be sold, in accordance with the priority provisions of
Section 9(a) hereof.
(d) The Company shall be entitled to postpone for a reasonable
period of time (but, except as otherwise provided in this Agreement, not
exceeding one hundred twenty (120) days and without other prejudice to the
rights of the Shareholder under this Agreement) the filing of any registration
statement otherwise required to be prepared and filed by it pursuant to this
Section 2, if the Company has determined, in good faith and in the exercise of
reasonable judgment, that such action would materially delay or interfere with
any material financing, acquisition, corporate reorganization or other
transaction involving the Company then pending or contemplated, and if the
Company so notifies the Shareholder in writing of such determination and agrees
to resume such registration as soon as possible after any such material
financing, acquisition, corporate reorganization or other transaction is
complete or terminated.
(e) If a postponement under Section 2(d) occurs, the Shareholder
shall continue to have the piggyback registration rights set forth in Section 3
during such postponement.
(f) If a registration statement pursuant to this Section 2 does not
become effective within twelve (12) months after the initial filing thereof as a
result of any reason other than a material adverse development in the business
or condition (financial or other) of the Company or other acts or matters
substantially within the control of the Company, or if such registration
statement is abandoned or withdrawn at the request of the Shareholder, then,
unless the Shareholder, promptly upon receipt of a request therefor, supported
by an invoice setting forth the expenses in reasonable detail, reimburses the
Company for the registration
Registration Rights Agreement-Page 3 of 14
<PAGE>
expenses in respect of such registration statement, the Company shall be deemed
to have satisfied its obligation pursuant to this Section 2.
(g) Notwithstanding anything in this Agreement to the contrary, the
Company shall not be obligated to register shares in any foreign jurisdiction or
to take any action to effect any registration, qualification or compliance
pursuant to Section 2 in any particular jurisdiction in which the Company would
be required to execute a general consent to service of process or to register as
a dealer or to cause any officer or employee of the Company to register as a
salesman in effecting such registration, qualification, or compliance.
3. Piggyback Registration. Subject to the other provisions of this
Agreement, if the Company proposes to register any shares of Common Stock under
the 1933 Act on or before February __, 2003, either for its own account or for
the account of other holders of Common Stock (other than on a Form S-8, Form S-4
or successor registration statement or registration for foreign issuance or
distribution), in connection with the public offering of such securities for
cash, on a registration form that would also permit the registration of
Registrable Securities, the Company shall, with respect to any such
registration, promptly give the Shareholder written notice of such proposal.
Upon the written request of the Shareholder given within fifteen (15) days after
the date of any such notice by the Company, the Company shall use all
commercially reasonable efforts to cause to be included in such registration
under the 1933 Act all the Registrable Securities that the Shareholder has
requested be registered (subject to reduction pursuant to Section 9(a) below).
Subject to the limitations referred to in Section 9(b) hereof, the decision not
to include any Registrable Securities in a registration under this Section 3
shall not constitute a waiver of the Shareholder's right to include its
Registrable Securities in a subsequent registration pursuant to this Section 3.
4. Obligations of the Company. Whenever required under this Agreement
to use all commercially reasonable efforts to effect the registration of any
Registrable Securities, the Company shall, as expeditiously as reasonably
possible:
(a) Prepare and file with the Commission a registration statement
covering such Registrable Securities and use all commercially reasonable efforts
to cause such registration statement to be declared effective by the Commission
as expeditiously as possible and to keep such registration effective until the
earlier of (1) the date when all Registrable Securities covered by the
registration statement have been sold or (2) 90 days from the effective date of
the registration statement; provided, however, that the foregoing periods may be
superseded in an underwriting agreement executed by the Company and the
Shareholder with respect to the registration of Demand Shares pursuant to
Section 2(a) hereof; and provided, further, that before filing a registration
statement or prospectus or any amendments or supplements thereto, the Company
will furnish the Shareholder and the underwriters, if any, copies of all such
documents proposed to be filed (excluding exhibits, unless any such person shall
specifically request exhibits), which documents will be subject to the review of
the Shareholder and the underwriters. The Company agrees that it will not file
such registration statement or any amendment thereto or any prospectus or any
supplement thereto (including any documents incorporated by reference therein)
with the Commission if the information in such registration statement or
prospectus concerning the Shareholder has changed and the Shareholder or the
Registration Rights Agreement-Page 4 of 14
<PAGE>
underwriters, if any, shall reasonably object; provided, however, that the
Company may file and amend the registration statement under this clause if it
either removes information about the Shareholder or corrects or updates any
incorrect or outdated information about the Shareholder from the registration
statement before such filing or amendment.
(b) Prepare and file with the Commission such amendments and
post-effective amendments to such registration statement as may be necessary to
keep such registration statement effective during the period referred to in
Section 4(a) (or Section 2(b)(ii), if applicable) and to comply with the
provisions of the 1933 Act with respect to the disposition of all securities
covered by such registration statement, and cause the prospectus to be
supplemented by any required prospectus supplement, and as so supplemented to be
filed with the Commission pursuant to Rule 424 under the 1933 Act or other
applicable governing provision of such 1933 Act.
(c) Furnish to the Shareholder such numbers of copies of such
registration statement, each amendment thereto, the prospectus included in such
registration statement (including each preliminary prospectus), each supplement
thereto and such other documents as they may reasonably request in order to
facilitate the disposition of Registrable Securities owned by it and included in
such registration.
(d) Use all commercially reasonable efforts to register and qualify
the Registrable Securities under such other securities laws of such counties,
states and other U.S. jurisdictions as shall be reasonably requested by the
Shareholder and do any and all other acts and things which may be reasonably
necessary or advisable to enable the Shareholder to consummate the disposition
of the Registrable Securities owned by it in such jurisdictions (including
filing a Form U-2 if required by such jurisdictions); provided, however, that
the Company shall not be required in connection therewith or as a condition
thereto to qualify to transact business or to file a general consent to service
of process in any such counties, states or other U.S. jurisdictions; and
provided further, that (anything in this Agreement to the contrary
notwithstanding with respect to the bearing of expenses) if any jurisdiction in
which the Registrable Securities shall be qualified shall require that expenses
incurred in connection with the qualification of the Registrable Securities in
that jurisdiction be borne by selling shareholders, then such expenses shall be
payable by the Shareholder, to the extent required by such jurisdiction,
including but not limited to filing fees and expenses of counsel and other
advisors and any commissions or discounts related to the registration of
Registrable Securities in such other jurisdictions.
(e) Promptly notify the Shareholder at any time when a prospectus
relating thereto is required to be delivered under the 1933 Act of the happening
of any event as a result of which the prospectus included in such registration
statement contains an untrue statement of a material fact or omits any fact
necessary to make the statements therein not misleading and, at the request of
the Shareholder, the Company will prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an untrue statement of
a material fact or omit to state any fact necessary to make the statements
therein not misleading.
Registration Rights Agreement-Page 5 of 14
<PAGE>
(f) Provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement.
(g) Enter into such customary agreements (including underwriting
agreements and selling shareholder agreements in customary form and substance
for a follow-on or secondary offering) and take all such other actions as the
Shareholder or the underwriters, if any, reasonably request in order to expedite
or facilitate the disposition of such Registrable Securities included in such
registration.
(h) Make available for inspection by the Shareholder, any
underwriter participating in any disposition pursuant to such registration
statement and any attorney, accountant or other agent retained by the
Shareholder or underwriter, all financial and other records, pertinent corporate
documents and properties of the Company, and cause the officers, directors,
employees and independent accountants of the Company to supply all information
reasonably requested by the Shareholder, underwriter, attorney, accountant or
agent in connection with such registration statement.
(i) Promptly notify the Shareholder and the underwriters, if any, of
the following events and (if requested by any such person) confirm such
notification in writing: (1) the filing of the prospectus or any prospectus
supplement and the registration statement and any amendment or post-effective
amendment thereto and, with respect to the registration statement or any
post-effective amendment thereto, the declaration of the effectiveness of such
documents, (2) any requests by the Commission for amendments or supplements to
the registration statement or the prospectus or for additional information, (3)
the issuance or threat of issuance by the Commission of any stop order
suspending the effectiveness of the registration statement or the initiation of
any proceedings for that purpose and (4) 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 threat
of initiation of any proceeding for such purpose.
(j) Cooperate with the Shareholder and the 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
enable such Registrable Securities to be in such lots and registered in such
names as the underwriters may request at least two business days prior to any
delivery of Registrable Securities to the underwriters.
(k) Provide a CUSIP number for all Registrable Securities not later
than the effective date of the registration statement.
(l) Prior to the effectiveness of the registration statement and any
post-effective amendment thereto and at each closing of an underwritten
offering, (1) obtain "cold comfort" letters and updates thereof from the
Company's independent certified public accountants, such letters to be in
customary form and covering matters of the type customarily covered in "cold
comfort" letters to underwriters in connection with underwritten offerings; (2)
obtain an opinion of counsel to the Company, including such matters as are
customarily covered by such opinions in underwritten public offerings; and (3)
deliver such documents and certificates as
Registration Rights Agreement-Page 6 of 14
<PAGE>
may be reasonably requested by the Shareholder and by the underwriters, if any,
to evidence compliance with any customary conditions contained in the
underwriting agreement or other agreement entered into by the Company and the
Shareholder.
(m) Cause all such Registrable Securities registered pursuant to the
terms hereof to be listed on each securities exchange (including NASDAQ) on
which similar securities issued by the Company are then listed.
5. Termination of Registration. At any time before or after the filing
of a registration statement (other than pursuant to Section 2(a)), the Company
may, in its sole discretion, abandon or terminate such registration without the
consent of the Shareholder with no liability to the Shareholder or any third
party arising therefrom, except to the extent otherwise provided herein.
6. Furnish Information. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Agreement that
the Shareholder shall furnish to the Company such information regarding
Shareholder, the Registrable Securities held by the Shareholder, and the
intended method of disposition of such Registrable Securities as the Company
shall reasonably request and as shall be required or, in the opinion of the
Company, reasonably necessary to effect the registration of the Shareholder's
Registrable Securities.
7. Suspension of Disposition of Registrable Securities. The Shareholder
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
Section 4(e) hereof or upon receipt of a request from the managing underwriters
to refrain from selling Registrable Securities in such registration, the
Shareholder will forthwith discontinue disposition of Registrable Securities
until it receives copies of a supplemented or amended prospectus contemplated by
Section 4(e) hereof, 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 which are incorporated by reference in
the prospectus, and, if so directed by the Company, the Shareholder will deliver
to the Company (at the expense of the Company) all copies, other than permanent
file copies then in the Shareholder'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 or in the event the Holders
refrain from selling any Registrable Securities in such registration at the
request of the managing underwriters of the Common Stock (or other securities)
of the Company, then, in each such case, the time periods mentioned in Section
4(a) hereof shall be extended by the number of days during the period from and
including the date of the giving of such notice pursuant to Section 4(e) hereof
(or the date of any such underwriter's request) to and including the date when
the Shareholder shall have received the copies of the supplemented or amended
prospectus contemplated by Section 4(e) hereof or the Advice (or shall be
notified by the underwriter that the Shareholder is permitted to resume the sale
of the Registrable Securities covered by such registration statement).
8. Expenses of Registration. All expenses incurred by the Company and
consented to by the Shareholder in writing in advance (such consent not to be
unreasonably withheld) in
Registration Rights Agreement-Page 7 of 14
<PAGE>
connection with a registration effected pursuant to Section 2(a) of this
Agreement, including all registration and qualification fees, printing and
accounting fees, fees and disbursements of counsel for the Company, travel
expenses and other costs shall be borne by the Shareholder, unless the Company
or any other person not a Party to this Agreement sells shares of Common Stock
on its or their own behalf, in such registration, in which event, the Company,
such other persons and the Shareholder shall each pay their pro rata portion of
such expenses based upon the number of shares registered. In addition, for any
registration conducted pursuant to this Agreement, all other expenses (including
the Shareholder's pro rata portion of underwriting discounts and commissions,
taxes and all costs and expenses described in Section 4(d)), and expenses of
counsel and other advisors to the Shareholder) shall be borne by the
Shareholder. Notwithstanding the foregoing provisions of this Section 8, the
Company shall pay all expenses incurred by it in connection with any
registration which is terminated by the Company under Section 5 above.
9. Underwriting Requirements; Priorities.
(a) Except as provided in Section 2(b)(ii), the Company shall select
the investment banker(s) and manager(s) to administer any offering required
hereunder, if any. Subject to the terms of Section 2(c) hereof, if the managing
underwriters advise the Company in writing that, in their opinion, the number of
securities requested to be included in any such registration exceeds the number
which can be sold at the desired price in such offering, the Company will
include in such registration (1) first, the securities the Company proposes to
sell, (2) second, the number of securities requested to be included, which in
the opinion of such underwriters can be sold, pro rata among the respective
selling shareholders of Common Stock holding registration rights senior in
priority to those granted under this Agreement (other than executive officers
and directors of the Company, if any, holding such senior rights, who shall be
subject to reallocation in accordance with clause (3) of this Section 9(a)), if
any, and (3) third, the number of securities requested to be included, which in
the opinion of such underwriters can be sold, pro rata among the respective
selling shareholders of Common Stock (including executive officers and directors
of the Company), whether or not such selling shareholders have been given
registration rights by the Company, on the basis of the number of shares of
Common Stock owned by each selling shareholder. The priorities described in this
paragraph are subject to the rights of the Shareholder described in Section 2(c)
with respect to a registration effected pursuant to Section 2(a).
(b) The Shareholder may not participate in any underwritten
registration hereunder unless it (1) agrees to sell its securities on the basis
provided in any underwriting arrangements approved by the Company and (2)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements.
10. Termination of the Company's Obligations; Rule 144 Resales.
(a) The Company shall not be obligated to register the Registrable
Securities of the Shareholder in connection with the proposed registration if,
within the six months prior to the time of such proposed registration, the
Company has offered the Shareholder the
Registration Rights Agreement-Page 8 of 14
<PAGE>
opportunity to register Registrable Securities under the terms hereof and either
(1) the Shareholder declined such offer or (2) Registrable Securities of the
Shareholder were registered by the Company.
(b) The Company's obligations to register any Registrable Securities
hereunder shall terminate and be of no further force or effect if all of such
Registrable Securities may be sold in any 90-day period pursuant to Rule 144
(defined below) and under the Governance Agreement.
(c) With a view to making available to the Shareholder the benefits
of Rule 144 promulgated under the 1933 Act ("Rule 144") and any other rule or
regulation of the Commission that may at any time permit the Shareholder
(subject to the Governance Agreement) to sell securities of the Company to the
public without registration, the Company agrees to:
(i) file with the Commission in a timely manner all reports and
other documents required of the Company under the 1933 Act and the 1934 Act
while it is subject to such reporting requirements; and
(ii) furnish to the Shareholder so long as it owns any of the
Registrable Securities as soon as reasonably practicable after written request
is made by the Shareholder (1) a written statement by the Company that it has
complied with the reporting requirements of Rule 144 and the 1934 Act (at any
time for which it remains subject to such reporting requirements), (2) 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 (3) such other information as
may be reasonably requested by the Shareholder in availing it of any rule or
regulation of the Commission permitting the selling of any such securities
without registration.
11. Market Standoff; Lock-up Agreement. As a condition to the exercise
of any registration rights hereunder, the Shareholder hereby agrees in
connection with any registration of its Registrable Securities not to sell, make
any short sale of, pledge, grant any option for the purchase of or otherwise
dispose of or reduce its, his or her risk of ownership with respect to any
Registrable Securities or any other securities of the Company owned,
beneficially or otherwise, by the Shareholder (other than those included in the
registration) without the prior written consent of the Company or the
underwriters, as the case may be, for 120 days following the offering. The
Shareholder agrees to execute and deliver a lock-up agreement (setting forth the
above restrictions in greater detail) if requested by the underwriters or the
Company in connection with any offering of Registrable Securities.
12. Indemnification. In the event any Registrable Securities are
included in a registration statement under this Agreement:
(a) To the full extent permitted by law, the Company will indemnify
and hold harmless the Shareholder (if it joins in a registration) and each
person, if any, who controls the Shareholder (within the meaning of the 1933
Act), and any legal counsel, independent accountant or underwriter participating
in the preparation of the registration statement or the distribution of
securities pursuant thereto, against any losses, claims, damages or liabilities,
Registration Rights Agreement-Page 9 of 14
<PAGE>
joint or several, to which they may become subject under the 1933 Act, the 1934
Act and/or applicable state securities laws insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
on any untrue or alleged untrue statement of any material fact contained in such
registration statement, including any preliminary prospectus or final prospectus
contained therein or any amendments or supplements thereto, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances under which they were made or arise out
of any violation by the Company of any rule or regulation promulgated under the
1933 Act applicable to the Company and relating to action or inaction required
of the Company in connection with any such registration; and the Company will
reimburse each such person for any legal or other expenses reasonably incurred
by them in connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however, that the indemnity agreement
contained in this Section 12(a) shall not apply to amounts paid in settlement of
any such loss, claim, damage, liability, or action if such settlement is
effected without the consent of the Company (which consent shall not be
unreasonably withheld, conditioned or delayed) nor shall the Company be liable
in any such case for any such loss, claim, damage, liability or action to the
extent that it arises out of or is based upon an untrue statement or alleged
untrue statement or omission or alleged omission made in connection with such
registration statement, preliminary prospectus, final prospectus, or amendments
or supplements thereto, in reliance upon and in conformity with written
information furnished expressly for use in connection with such registration by
or on behalf of the Shareholder or controlling person.
(b) To the full extent permitted by law, the Shareholder (if it
joins in a registration under this Agreement) 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), and any legal counsel, independent accountant and
underwriter participating in the preparation of the registration statement or
the distribution of securities pursuant thereto, against any losses, claims,
damages or liabilities, joint or several, to which the Company or any of the
foregoing persons or entities may become subject, under the 1933 Act, the 1934
Act and/or applicable state securities laws, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in such registration statement, including any preliminary prospectus
or final prospectus contained therein or any amendments or supplements thereto,
or arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances in which they
were made, in each case to the extent that such untrue statement or alleged
untrue statement or omission or alleged omission was made in such registration
statement, preliminary or final prospectus, or amendments or supplements
thereto, in reliance upon and in conformity with written information furnished
by the Shareholder expressly for use in connection with such registration; and
the Shareholder will reimburse any legal or other expenses reasonably incurred
by the Company or any such director, officer, underwriter, or controlling person
of any of the foregoing in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that the indemnity
agreement contained in this Section 12(b) shall not apply to amounts paid in
settlement of any such loss,
Registration Rights Agreement-Page 10 of 14
<PAGE>
claim, damage, liability or action if such settlement is effected without the
consent of the Shareholder (which consent shall not be unreasonably withheld,
conditioned or delayed).
(c) Notwithstanding anything in this Section 12 to the contrary, in
no event shall the liability of the Shareholder or the Company, respectively,
hereunder be greater than the dollar amount of the net proceeds received by the
Shareholder or, in the case of the Company, the proceeds received by the
Shareholder and the Company, upon the sale of the Registrable Securities and
other securities giving rise to such indemnification obligation.
(d) Promptly after receipt by an indemnified party under this
Section 12 of notice of the commencement of any action or knowledge of a claim
that would, if asserted, give rise to a claim for indemnity hereunder, such
indemnified party will, if a claim in respect thereof is to be made against any
indemnifying party under this Section 12, notify the indemnifying party in
writing of the commencement thereof or knowledge 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 the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party
(together with all other indemnified parties which may be represented without
conflict by one counsel) shall have the right to retain one separate counsel,
with the reasonable fees and expenses to be paid by the indemnifying party, if
it would be inappropriate for the counsel representing the indemnifying party to
represent such indemnified parties due to actual or potential differing
interests between such indemnified party and any other party represented by such
counsel in such proceeding (such as the availability of defenses to one or more
but not all such parties). The failure to notify an indemnifying party promptly
of the commencement of any such action or of the knowledge of any such claim, if
prejudicial to his or its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
12, but the omission so to notify the indemnifying party will not relieve him of
any liability that he may have to any indemnified party otherwise than under
this Section 12.
13. Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given except with the prior written consent of the Company and the Shareholder.
14. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by personal delivery, by
internationally recognized overnight courier (with charges prepaid) or by
telecopy (with telephone confirmation) as follows:
(a) if to the Shareholder, at the most current address given by it
to the Company in accordance with the provisions of this Section 14, which
address initially is the address set forth in the Purchase Agreement, with a
copy (which shall not constitute notice) to the Shareholder's respective counsel
as identified therein; and
(b) if to the Company, initially at its address set forth in the
Purchase Agreement and thereafter at such other address, notice of which is
given in accordance with
Registration Rights Agreement-Page 11 of 14
<PAGE>
the provisions of this Section 14, with a copy (which shall not constitute
notice) to the Company's counsel as identified in the Purchase Agreement.
(c) All such notices and communications shall be deemed to have been
duly given or made when personally delivered, the day of guaranteed delivery by
such overnight courier service or when transmitted to the specified telecopy
number and confirmed by telephone, in each case addressed to the respective
parties as set forth above.
15. Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
16. Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
17. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE UNITED STATES OF AMERICA AND THE STATE OF
FLORIDA, EXCLUDING CHOICE OF LAW PRINCIPLES.
18. Arbitration. In the event of a dispute in which the parties
involved cannot reach agreement, the dispute shall be submitted to and settled
by arbitration in accordance with the then prevailing commercial arbitration
rules of the American Arbitration Association. Such arbitration shall be held in
Atlanta, Georgia before a panel of three (3) arbitrators, one selected by each
of the parties and the third selected by mutual agreement of the first two, and
all of whom shall be independent and impartial under the rules of the American
Arbitration Association. The decision of the arbitrators shall be final and
binding as to any matter submitted under this Agreement. The Company and the
Shareholders irrevocably consent to the exclusive jurisdiction and venue of the
courts of any county in the State of Florida and the United States Federal
District Court of Florida, in any judicial proceeding brought to enforce this
Agreement. The parties agree that any forum other than the State of Florida is
an inconvenient forum and that a lawsuit (or non-compulsory counterclaim)
brought by one party against another party, in a court of any jurisdiction other
than the State of Florida should be forthwith dismissed or transferred to a
court located in the State of Florida.
19. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
20. Entire Agreement. This Agreement (together with the Purchase
Agreement, the Confidentiality Agreement, the Governance Agreement and such
other agreements as specifically referred to in the Purchase Agreement) is
intended by the parties as a final expression of their agreement and intended to
be a complete and exclusive statement of the agreement and understanding of the
parties hereto in respect of the subject matter contained herein. This Agreement
(together with the Purchase Agreement, the Confidentiality Agreement, the
Governance Agreement and such other agreements as specifically referred to
Registration Rights Agreement-Page 12 of 14
<PAGE>
in the Purchase Agreement) supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
21. No Assignment; Parties Benefited. None of the Parties may assign
its rights, duties or obligations under this Agreement without the express
written consent of the other Parties; provided, however, that the Company may
assign this Agreement to an affiliated company or the purchaser (by merger,
stock purchase or otherwise) of all or substantially all of the Company's
business and assets provided such purchaser or affiliated company (1) has a
class of securities traded on a national securities exchange or the Nasdaq
National Market, (2) is a reporting Company which is current in filing all
required reports under the 1934 Act and (3) agrees in writing, a copy of which
is delivered to the Shareholder, to assume the Company's obligations hereunder;
and provided, further, that the rights and obligations of the Shareholder under
Section 3 may be transferred from the Shareholder to the purchaser of at least
20% of all Registrable Securities outstanding on the date of this Agreement,
provided (1) such transfer complies in all respects with the terms of the
Governance Agreement, (2) such purchaser agrees in writing to be bound by the
terms and conditions hereof, and (3) the Shareholder provides at least five (5)
business days' advance written notice to the Company of such assignment,
including the identity of the purchaser. Any attempted assignment outside the
foregoing provisos without the written consent of the non-assigning party shall
be null and void. Nothing in this Agreement, express or implied, is intended to
confer upon any third party any rights, remedies, obligations or liabilities.
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Registration Rights Agreement-Page 13 of 14
<PAGE>
The Parties have executed this Registration Rights Agreement as of the
date first above written.
"Company"
Phoenix International Ltd., Inc.
By: /s/ Raju M. Shivdasini
------------------------------
Name: Raju M. Shivdasini
-----------------------
Title: President & CEO
-----------------------
"Shareholder"
London Bridge Software Holdings plc.
By: /s/ Gordon Crawford
------------------------------
Name: Gordon Crawford
-----------------------
Title: Chairman
-----------------------
Registration Rights Agreement-Page 14 of 14
