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Exhibit 10.2
ONYX SOFTWARE CORPORATION
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made as of the 5th
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day of January, 2001, by and between Onyx Software Corporation, a Washington
corporation ("Onyx"), and Odyssey Strategic Partners, LLC, a Delaware limited
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liability company (the "Holder"), the holder of Class A Units of RevenueLab,
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LLC, a Delaware limited liability company (the "Company").
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RECITALS
A. Onyx, the Company, and all of the members of the Company (including
the Holder) have entered into a Unit Purchase Agreement (the "Purchase
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Agreement"), dated January 5, 2001, pursuant to which Onyx will purchase all of
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the outstanding Class A and Class B Units of the Company (the "Company Units"),
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and the holders of Company Units will receive shares of common stock, par value
$0.01 per share, of Onyx (the "Onyx Common Stock") in exchange for their Company
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Units. Capitalized terms used but not defined herein shall have the meanings
assigned to them in the Purchase Agreement.
B. As a condition to the transactions contemplated by the Purchase
Agreement (the "Transaction"), Onyx must enter into this Agreement with the
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Holder to provide certain rights to register the shares of Onyx Common Stock to
be received by the Holder in the Transaction.
C. Onyx and the Holder each desire to facilitate the Transaction by
agreeing to the terms and conditions set forth in this Agreement.
AGREEMENT
The parties to this Agreement hereby covenant and agree as follows:
1. DEFINITIONS
For purposes of this Agreement:
1.1 The term "Registrable Securities" means the shares of Onyx Common
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Stock issued to the Holder in the Transaction, either at or after the Closing
thereof (and any other shares of Onyx Common Stock issued as a dividend or other
distribution with respect to, or in exchange for or in replacement of, such
shares); provided, however, that the foregoing definition shall exclude any
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Registrable Securities sold by a person or entity in a transaction in which his,
her or its rights under this Agreement are not permissibly assigned or
transferred in accordance with Section 3 hereof.
1.2 The term "Holder" means (a) as of the date of this Agreement, the
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Holder and (b) after the date of this Agreement, any person to whom Registrable
Securities have been permissibly assigned or transferred in accordance with
Section 3 hereof.
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1.3 The term "Form S-3" means such form of registration statement under
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the Securities Act of 1933, as amended (the "Securities Act"), or any successor
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form under the Securities Act that permits significant incorporation by
reference of Onyx's public filings under the Securities Exchange Act of 1934, as
amended (the "Exchange Act").
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1.4 The term "Disclosure Condition" means, that in the good-faith judgment
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of Onyx's Board of Directors, the sale of the Registrable Securities (or any
public disclosure that would be necessary or advisable in connection with such
sale) would materially interfere with any pending or proposed acquisition,
corporate reorganization or other material transaction involving Onyx or its
subsidiaries, would require Onyx to make either necessary or advisable public
disclosure of information, the disclosure of which would have a material adverse
effect on Onyx, or would otherwise create a substantial likelihood of detriment
or injury to Onyx or its business or affairs.
2. FORM S-3 REGISTRATION
2.1 Shelf Registration.
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(a) No later than 60 days after the Closing Date, Onyx shall prepare
and file with the Securities and Exchange Commission (the "SEC") a registration
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statement on Form S-3 or the shortest form of registration statement then
available for use by Onyx (the "Registration Statement") registering for resale
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the Registrable Securities issued to the Holder pursuant to Section 1.3(a)(i) of
the Purchase Agreement, which sales may be effected from time to time on the
Nasdaq National Market or in privately negotiated transactions. Onyx shall use
commercially reasonable efforts to cause the Registration Statement to (i) be
declared effective by the SEC as soon as practicable after filing and (ii)
remain effective until the earlier of (A) one year after the Closing Date and
(B) the date on which all of the Registrable Securities covered by the
Registration Statement have been sold. This period of effectiveness of the
Registration Statement shall be referred to herein as the "Selling Period" for
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the Registrable Securities registered thereon.
(b) No later than 30 days after the issuance of shares of Onyx Common
Stock, if any, to the Holder pursuant to Section 1.3(a)(ii) of the Purchase
Agreement, Onyx shall prepare and file with the SEC a registration statement on
Form S-3 or the shortest form of registration statement then available for use
by Onyx (the "Second Registration Statement") registering for resale such
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Registrable Securities, which sales may be effected from time to time on the
Nasdaq National Market or in privately negotiated transactions. Onyx shall use
commercially reasonable efforts to cause the Second Registration Statement to
(i) be declared effective by the SEC as soon as practicable after filing and
(ii) remain effective until the earlier of (A) the first anniversary of the
issuance of the Registrable Securities covered by the Second Registration
Statement and (B) the date on which all such Registrable Securities have been
sold. This period of effectiveness of the Second Registration Statement shall
be referred to herein as the "Selling Period" for the Registrable Securities
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registered thereon.
(c) Onyx shall not be obligated to effect any such registration
pursuant to this Section 2.1 if Onyx shall furnish to the Holder a certificate
signed by the president, chief executive officer or chief financial officer of
Onyx stating that: (A) in the good-faith judgment
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of Onyx's Board of Directors, effectuating a registration would be materially
detrimental to Onyx and its shareholders or (B) there exists a Disclosure
Condition, in which event Onyx shall have the right to defer the filing of
either the Registration Statement or the Second Registration Statement, as
applicable, until the filing would no longer be detrimental or until disclosure
is made, but in no event later than 60 days after the date of such certificate
(subject to the limitation on delays and suspensions set forth in Section 2.3(b)
hereof); provided, however, that Onyx may not so delay the filing at any time
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during which Onyx is publicly selling shares of its capital stock; and provided
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further, that the applicable Selling Period shall be extended by the number of
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days by which the initial filing of the Registration Statement or, as
applicable, the Second Registration Statement was so delayed.
(d) Notwithstanding any other provision of this Agreement, Onyx shall
have the right, in its sole discretion, to include shares of Onyx Common Stock
held by other selling shareholders on either the Registration Statement, the
Second Registration Statement, or both.
2.2 Obligations of Onyx.
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In effecting the registration of the Registrable Securities under Section
2.1 hereof, Onyx shall use commercially reasonable efforts to:
(a) during each Selling Period, prepare (and afford counsel for the
Holders a reasonable opportunity to review and comment on) and file with the SEC
such amendments and supplements to the Registration Statement or the Second
Registration Statement and the prospectus used in connection with each such
registration statement (each, a "Prospectus") as may be necessary to comply with
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the provisions of the Securities Act and applicable state securities laws with
respect to the disposition of all Registrable Securities covered by the
Registration Statement and the Second Registration Statement;
(b) during each Selling Period, furnish to each of the Holders such
numbers of copies of the applicable Prospectus, including the applicable
preliminary Prospectus, and such other documents as the Holders may reasonably
request to facilitate the disposition of the Registrable Securities covered by
the Registration Statement or the Second Registration Statement;
(c) promptly notify the Holders when the SEC notifies Onyx the
Registration Statement or the Second Registration Statement, as the case may be,
becomes effective;
(d) register and qualify the Registrable Securities covered by the
Registration Statement and the Second Registration Statement under the
securities or blue sky laws of such states or jurisdictions as shall be
reasonably requested by the Holders; provided, however, that Onyx shall not be
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required, in connection with or as a condition to such registration and
qualification, to qualify to do business or to file a general consent to service
of process in any such states or jurisdictions;
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(e) cause all such Registrable Securities covered by the Registration
Statement and the Second Registration Statement to be listed on the Nasdaq
National Market or such other securities exchange on which Onyx Common Stock is
then listed; and
(f) during the period in which a Prospectus is required to be
delivered under the Securities Act, promptly notify each Holder of Registrable
Securities covered by the Registration Statement or the Second Registration
Statement, as applicable, in the event there exists a Disclosure Condition.
2.3 Suspension of Registration Statement.
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(a) If at any time, and from time to time, during either Selling
Period Onyx shall furnish to the Holders a certificate signed by the president,
chief executive officer or chief financial officer of Onyx stating that (i) in
the good-faith judgment of Onyx's Board of Directors, permitting the sale of
Onyx Common Stock pursuant to the Registration Statement or the Second
Registration Statement at such time would be materially detrimental to Onyx and
its shareholders or (ii) there exists a Disclosure Condition, Onyx may require
that no sales be made by the Holders under the Registration Statement, the
Second Registration Statement or the applicable Prospectus until such time as
the board of directors notifies the Holders in writing that such sales may be
resumed; provided, however, that Onyx shall not exercise this right for more
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than a total of 60 days in the case of any one delay (subject to the limitation
on delays and suspensions set forth in Section 2.3(b) hereof); and provided
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further that Onyx may not so suspend the use of the Registration Statement or
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the Second Registration Statement during any time in which Onyx is publicly
selling shares of its capital stock; and provided further that the applicable
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Selling Period shall be extended by the aggregate number of days for which the
use of the Registration Statement or the Second Registration Statement is
suspended.
(b) Notwithstanding any other provision in this Agreement, Onyx shall
not exercise its rights under Section 2.1(c), Section 2.3(a) and Section 2.3(c)
hereof to delay or suspend the Registration Statement and the Second
Registration Statement, collectively, for more than an aggregate of 90 days.
(c) If such suspension shall relate to a Disclosure Condition, then
Onyx shall (i) make the required disclosure as soon as practicable after such
notice to the Holders and (ii) if necessary, prepare and file as soon as
reasonably practicable any amendment to the Registration Statement or the Second
Registration Statement or supplement to the applicable Prospectus or any
Exchange Act filing as shall be required to correct any untrue statement or
omission causing a Disclosure Condition, notify the Holders of any such filing
and furnish the Holders with a reasonable number of copies of any such amendment
or supplement. Onyx may delay filing, preparing or distributing any such
amendment or supplement, however, if Onyx shall deliver a certificate signed by
the president, chief executive officer or chief financial officer of Onyx
stating that, in the good-faith judgment of Onyx's Board of Directors, amending
the Registration Statement or the Second Registration Statement or supplementing
the Prospectus at such time would be materially detrimental to Onyx and its
shareholders; provided, however, that Onyx shall not exercise this right for
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more than 60 days in the case of any one delay (subject to the limitation on
delays and suspensions set forth in Section 2.3(b) hereof); and provided further
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that Onyx may not so delay such amendment or supplement
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during any time in which Onyx is publicly selling shares of its capital stock;
and provided further that the applicable Selling Period shall be extended by the
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aggregate number of days for which the amendment or supplement is delayed.
(d) If a Holder receives notification from Onyx pursuant to Section
2.3(a) that the use of the Registration Statement or the Second Registration
Statement or the applicable Prospectus shall be suspended, then such Holder
shall: (i) keep the fact of such notification and its contents confidential and
(ii) immediately suspend all sales of Onyx Common Stock and any use of the
Registration Statement, the Second Registration Statement or Prospectus to which
the notification applies, until such time as such Holder receives notification
from Onyx that such sales may be made.
2.4 Information With Respect to Holders.
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Onyx shall not be required to take any action pursuant to this Article 2
with respect to the Registrable Securities of any selling Holder unless such
Holder shall furnish to Onyx such information as shall be required to effect the
registration of such Holder's Registrable Securities, including information
regarding such Holder, the Registrable Securities held by such Holder and such
Holder's intended method of disposing of the Registrable Securities.
2.5 Expenses of Registration.
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Onyx shall pay all expenses of registration pursuant to this Agreement,
including all registration, filing, qualification, printers' and accounting
fees, and fees and disbursements of counsel for Onyx, but excluding any fees,
commissions or discounts incurred by any selling Holder in connection with the
sale of the Registrable Securities and the fees and disbursements of counsel for
any selling Holder.
3. ASSIGNMENT
The Registrable Securities, and the registration rights granted under
Article 2, may be assigned (but only with all related obligations) by a Holder:
(a) if such Holder is an entity, to such Holder's constituent partners or
members or to any parent, subsidiary or affiliate entity of such Holder; or
(b) if such Holder is an individual, to such Holder's spouse, lineal
descendants, parents or siblings (or trust for the benefit of one or more of
such persons or a custodian of the property of any of the foregoing) during such
Holder's lifetime by gift or upon such Holder's death by will or intestacy; or
(c) any transferee who acquires all of such Holder's Registrable
Securities.
Such transfer or assignment shall be effective only if (i) within a reasonable
time after such transfer, the transferring or assigning Holder (or, if
applicable, the representative of such Holder's estate) furnishes Onyx with
written notice of the name and address of such transferee or assignee and the
number of Registrable Securities with respect to which such registration
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rights are being assigned, and (ii) immediately following such transfer, the
transferee or assignee agrees in writing to take and hold the Registrable
Securities in accordance with the restrictions, obligations and conditions
specified in this Agreement.
4. INDEMNIFICATION
4.1 By Onyx.
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To the extent permitted by law, Onyx shall indemnify and hold harmless each
Holder, and any person who controls or is controlled by such Holder within the
meaning of the Securities Act, against any losses, claims, damages, or
liabilities, or actions with respect to such losses, claims, damages or
liabilities, to which such Holder or controlling or controlled person may become
subject under the Securities Act, the Exchange Act or other federal or state law
(any of these, a "Loss"), insofar as such Loss arises out of or is based on:
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(a) any untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement, the Second Registration Statement or
any Prospectus, including any preliminary Prospectus, final Prospectus or any
amendment or supplement to the Registration Statement, the Second Registration
Statement or any Prospectus; (b) the omission or alleged omission to state in
the Registration Statement, the Second Registration Statement or any Prospectus
a material fact required to be stated in the Registration Statement, the Second
Registration Statement or any Prospectus, or necessary to make the statements in
the Registration Statement, the Second Registration Statement or any Prospectus
not misleading; or (c) any violation or alleged violation by Onyx of the
Securities Act, the Exchange Act, any state securities law or any rule or
regulation promulgated under the Securities Act, the Exchange Act or any state
securities law (any of (a), (b) or (c), a "Violation"). Onyx will promptly pay
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to each such Holder or controlling or controlled person, as incurred, any legal
or other expenses reasonably incurred by them in connection with investigating
or defending any such Loss. Notwithstanding the foregoing, (i) the
indemnification obligations of Onyx contained in this Section 4.1 shall not
apply to amounts paid in settlement of any Loss if such settlement is effected
without the consent of Onyx (which consent shall not be unreasonably withheld),
(ii) Onyx shall not be liable to any Holder or controlling or controlled person
for any Loss to the extent that such Loss arises out of or is based on written
information furnished by any such Holder or controlling or controlled person
expressly for use in connection with the Registration Statement, the Second
Registration Statement or any Prospectus, and (iii) Onyx shall not be liable to
any Holder or controlling or controlled person for any Loss to the extent such
Loss arises out of the failure of such Holder or controlling or controlled
person to deliver a copy of any Prospectus or Prospectus supplement.
4.2 By the Holders.
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To the extent permitted by law, each selling Holder will indemnify and hold
harmless Onyx, each of its directors, each of its officers who has signed the
Registration Statement or the Second Registration Statement, each person or
entity, if any, who controls or is controlled by Onyx within the meaning of the
Securities Act, any other Holder selling securities in the Registration
Statement or the Second Registration Statement and any controlling person of any
such Holder, against any Loss to which any of the foregoing persons may become
subject, to the extent that such Loss arises out of or is based on any Violation
occurring (a) as a result of
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the omission or alleged omission to state in the Registration Statement, the
Second Registration Statement or any Prospectus a material fact required to be
stated in the Registration Statement, the Second Registration Statement or any
Prospectus, or necessary to make the statements in the Registration Statement,
the Second Registration Statement or any Prospectus not misleading, if such
omission or misstatement is made in reliance upon and in conformity with written
information furnished by such Holder expressly for use in connection with the
Registration Statement, the Second Registration Statement or the applicable
Prospectus or (b) as a result of the failure of such Holder or controlling or
controlled person to deliver a copy of any Prospectus or Prospectus supplement.
Each such indemnifying Holder will promptly pay, as incurred, any legal or other
expenses reasonably incurred by any person entitled to indemnification pursuant
to this Section 4.2, in connection with investigating or defending any such
Loss; provided, however, that the indemnification obligations of the Holders
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contained in this Section 4.2 shall not apply to amounts paid in settlement of
any Loss if such settlement is effected without the consent of the Holder (which
consent shall not be unreasonably withheld); and provided, further, that in no
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event shall any indemnification obligations of any Holder under this Section 4.2
exceed the aggregate proceeds received by such Holder in the offering, except in
the case of willful fraud by such Holder.
4.3 Procedure.
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(a) Promptly after receipt by an indemnified party under this
Article 4 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim for
indemnification with respect to such action is to be made against any
indemnifying party under this Article 4, deliver to the indemnifying party a
written notice of the commencement of such action. The indemnifying party shall
have the right to participate in and, to the extent the indemnifying party so
desires, to assume the defense of such action jointly with any other
indemnifying party similarly noticed, with counsel mutually satisfactory to the
indemnified and indemnifying parties; provided, however, that an indemnified
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party (together with all other indemnified parties that 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 representation of such indemnified party by the counsel retained by
the indemnifying party would be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure by an indemnified
party to deliver written notice to the indemnifying party within a reasonable
time of the commencement of any such action, however, will not relieve the
indemnifying party of any liability that it may have to the indemnified party
under this Article 4 unless, and to the extent, such failure is prejudicial to
the indemnifying party's ability to defend such action. No indemnifying party,
in defending any such claim or litigation, shall, except with the consent of
each indemnified party, consent to entry of any judgment or enter into any
settlement, unless the claimant or plaintiff agrees to release the indemnified
party from all liability with respect to such claim or litigation.
(b) If the indemnification provided for in this Article 4 is held by
a court of competent jurisdiction (and the time to appeal has expired or appeal
is denied) to be unavailable to an indemnified party with respect to any Loss,
then the indemnifying party, in lieu of indemnifying such indemnified party
pursuant to this Article 4, shall contribute to the
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amount paid or payable by such indemnified party as a result of such Loss in
such proportion as is appropriate to reflect the relative fault of each of the
indemnifying party and the indemnified party in connection with the Violation
that resulted in such Loss as well as any other relevant equitable
considerations; provided, however, that in no event shall any contribution by a
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Holder under this Section 4.3(b) exceed the aggregate proceeds from the offering
received by such Holder, except in the case of willful fraud by such Holder. The
relative fault of the indemnifying party and of the indemnified party shall be
determined by reference to, among other things, whether the Violation relates to
information supplied by the indemnifying party or by the indemnified party and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such Violation.
5. MISCELLANEOUS
5.1 Termination of Entire Agreement Upon Change of Control.
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This Agreement shall terminate, and have no further force and effect, in
the event that Onyx shall sell, convey or otherwise dispose of all or
substantially all of its assets or business or merge with or into or consolidate
with any other corporation (other than a wholly owned subsidiary) or effect any
other transaction or series of related transactions in which more than 50% of
the voting power of Onyx is disposed of and Onyx is not the survivor; provided,
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however, that this Agreement shall not be terminated following a merger effected
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solely for the purpose of changing the domicile of Onyx.
5.2 Successors and Assigns.
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Except as otherwise provided in this Agreement, the terms and conditions of
this Agreement shall inure to the benefit of and be binding upon the permitted
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties to this
Agreement or their respective successors and assigns any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
5.3 Amendments and Waivers.
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Any term of this Agreement may be amended or waived only with the written
consent of Onyx and the Holder.
5.4 Notices.
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Any notice, request or demand desired or required to be given under this
Agreement shall be in writing given by personal delivery, confirmed facsimile
transmission or overnight courier service, in each case addressed as set forth
on the signature page of this Agreement or to such other address as any party
shall have previously designated by such a notice. The effective date of any
notice, request or demand shall be the date of personal delivery, the date on
which successful facsimile transmission is confirmed or the date actually
delivered by a reputable overnight courier service, as the case may be, in each
case properly addressed as provided in this Section 5.4 and with all charges
prepaid.
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5.5 Severability.
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If any provision of this Agreement, or the application of such provision to
any person, place or circumstance, shall be held to be invalid, unenforceable or
void, all other provisions of this Agreement, and the invalidated provision as
applied to other persons, places and circumstances, shall remain in full force
and effect, and shall be liberally construed in order to carry out the intent of
the parties to this Agreement as nearly as possible. Any court or arbitrator
having jurisdiction shall have the power to reform such provision to the extent
necessary for the provision to be enforceable under applicable law.
5.6 Governing Law.
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This Agreement shall be governed by and construed in accordance with the
laws of the state of Washington.
5.7 Waiver of Jury Trial.
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Each of Onyx and the Holder hereby irrevocably waives all right to trial by
jury in any action, proceeding or counterclaim (whether based on contract, tort
or otherwise) arising out of or relating to this Agreement, the transactions
contemplated hereby or the actions of such parties in the negotiation,
administration, performance and enforcement hereof.
5.8 Counterparts.
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This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
5.9 Headings.
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The titles and subtitles used in this Agreement are used for convenience
only and shall not be considered in construing or interpreting this Agreement.
5.10 Entire Agreement.
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This Agreement, contains the entire agreement and understanding between the
parties with respect to the subject matter of this Agreement and supersedes any
prior or contemporaneous written or oral agreements with respect to such subject
matter between the parties.
5.11 Rule 144 Reporting.
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With a view to making available the benefits of certain rules and
regulations of the SEC that may permit the sale of the Registrable Securities to
the public without registration, Onyx agrees at all times to:
(a) make and keep adequate current public information available, as
those terms are understood and defined in Rule 144 under the Securities Act;
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(b) use its best efforts to file with the SEC in a timely manner all
reports and other documents required of Onyx under the Securities Act and the
Exchange Act; and
(c) furnish to each Holder upon request a written statement by Onyx
as to its compliance with the reporting requirements of such Rule 144 and of the
Securities Act and Exchange Act, a copy of the most recent annual or quarterly
report of Onyx, and such other reports and documents so filed by Onyx as such
Holder may reasonably request in availing itself of any rule or regulation of
the SEC allowing such Holder to sell any Registrable Securities without
registration.
[signature page follows]
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IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first above written.
ONYX SOFTWARE CORPORATION
/s/ Brent Frei
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By: Brent Frei
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Its: Chief Executive Officer
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Address: 3180 139th Ave. S.E., Suite 500
Bellevue, WA 98005
Fax: (425) 732-2413
HOLDER:
Odyssey Strategic Partners, LLC
By: /s/ Walter Schindler
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Its: Chairman and CEO
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Address: 610 Newport Center Drive
Suite 1350
Newport Beach, CA 92660
Fax: 949-509-7210
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