exv10w2



 





EXHIBIT 10.2




ONYX SOFTWARE CORPORATION




REGISTRATION RIGHTS AGREEMENT




     This Registration Rights Agreement (this “Agreement”) is made as of April
6, 2004, by and between Onyx Software Corporation, a Washington corporation
(“Onyx”), and Visuale, Inc., a Delaware corporation (the “Holder”), the holder
of an aggregate of 504,891 shares (the “Shares”) of common stock, $.01 par
value per share, of Onyx (the “Onyx Common Stock”).



RECITALS




A. Onyx and the Holder have entered into that certain Asset Purchase Agreement
dated as of April 6, 2004 (the “Purchase Agreement”), pursuant to which, among
other things, Onyx agreed to issue the Shares to the Holder. 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 Holder to
provide certain rights to register the resale of the Shares by the Holder.



C. Onyx and the Holder each desire to facilitate the transaction, contemplated
by the Purchase Agreement 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 that were issued to
the Holder pursuant to Section 3.1.1 of the Purchase Agreement (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, the Shares); provided,
however, that the foregoing definition shall exclude any 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
Holder and (b) after the date of this Agreement, any person to whom Registrable
Securities have been permissibly assigned or transferred in accordance with the
Purchase Agreement and Section 3 hereof.



     1.3 The term “Form S-3” means such form of registration statement under
the Securities Act of 1933, as amended (the “Securities Act”), or any successor
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”).



 









 





     1.4 The term “Disclosure Condition” means, that in the good-faith judgment
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
material detriment or injury to Onyx or its business or affairs.



     1.5 The term “Majority Holders” means, at the relevant time of reference
thereto, those Holders holding and/or having the right to acquire, as the case
may be, more than a majority of the Registrable Securities then held by all of
the Holders.




	2.	 	FORM S-3 REGISTRATION





     2.1 Shelf Registration.



          (a) No later than 90 days after the date hereof, Onyx shall prepare and
file with the Securities and Exchange Commission (the “SEC”) a registration
statement on Form S-3 or the shortest form of registration statement then
available for use by Onyx (the “Registration Statement”) registering for resale
the Registrable Securities, which sales may be effected from time to time on
the Nasdaq National Market or in privately negotiated transactions. Onyx shall
use its best 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) April 30, 2006 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 the Registrable Securities
registered thereon.



          (b) 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 chief executive officer or chief financial officer of Onyx stating that:
(A) in the good-faith judgment 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 until the filing
would no longer be detrimental or until disclosure is made, but in no event
later than 45 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 during
which Onyx is publicly selling shares of its capital stock or has another
registration statement effective or the executive officers and directors of
Onyx are permitted to engage in trades of Onyx Common Stock (other than
pursuant to a Rule 10b5-1 trading plan); and provided further, that the
applicable Selling Period shall be extended by the number of days by which the
initial filing of the Registration Statement was so delayed.



 









 





     2.2 Obligations of Onyx.



     In effecting the registration of the Registrable Securities under Section
2.1 hereof, Onyx shall use its best 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 and the
prospectus used in connection with such registration statement (the
“Prospectus”) as may be necessary to comply with 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;



          (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;



          (c) promptly notify the Holders when the SEC notifies Onyx that the
Registration Statement has been declared effective;



          (d) register and qualify the Registrable Securities covered by the
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 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;



          (e) cause all such Registrable Securities covered by the Registration
Statement to be listed on the Nasdaq National Market or such other securities
exchange, if any, 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 in the event there exists a Disclosure
Condition or of the happening of any event as a result of which the Prospectus,
as then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances then existing.



     2.3 Suspension of Registration Statement.



          (a) If at any time, and from time to time, during the Selling Period Onyx
shall furnish to the Holders a certificate signed by the 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 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 or the applicable Prospectus until such time as Onyx
notifies the Holders in writing



 









 





that such sales may be resumed; provided, however, that Onyx shall not
exercise this right for more than a total of 90 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, that Onyx may not so suspend the use of
the Registration Statement during any time in which Onyx is publicly selling
shares of its capital stock or has another registration statement effective and
not so suspended or the executive officers and directors of Onyx are permitted
to engage in trades of Onyx Common Stock (other than pursuant to a Rule 10b5-1
trading plan); and provided further, that the applicable Selling Period shall
be extended by the aggregate number of days for which the use of the
Registration Statement is suspended.



          (b) Notwithstanding any other provision of this Agreement, Onyx shall not
exercise its rights under Section 2.1(b), Section 2.3(a) and Section 2.3(c)
hereof to delay or suspend the Registration Statement for more than an
aggregate of 120 days nor more than twice during any twelve (12)-month period.



          (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 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 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 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
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, that Onyx may not so delay such amendment or supplement during any
time in which Onyx is publicly selling shares of its capital stock or the
executive officers and directors of Onyx are permitted to engage in trades of
Onyx Common Stock (other than pursuant to a Rule 10b5-1 trading plan); and
provided further, that the applicable Selling Period shall be extended by the
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 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 and Prospectus until such time
as such Holder receives notification from Onyx that such sales may be made.



     2.4 Information With Respect to Holders.



     It shall be a condition precedent to the obligations of Onyx to take any
action pursuant to this Agreement that each selling Holder shall complete the
Registration Statement Questionnaire attached hereto as Appendix I, and shall
furnish to Onyx such other information



 









 





regarding it and the securities held by it as Onyx shall reasonably
request and as shall be required in order to effect any registration by Onyx
pursuant to this Agreement.



     2.5 Expenses of Registration.



     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





     None of the rights of any Holder under this Agreement shall be transferred
or assigned to any person unless (a) such person is a Qualifying Holder (as
defined below), (b) the transfer of the Registrable Securities to such person
is permitted by the Purchase Agreement and (c) such person agrees to become a
party to, and to be bound by all of the terms and conditions of, this Agreement
by duly executing and delivering to Onyx an Instrument of Adherence in the form
attached as Exhibit A hereto. For purposes of this Section 3, the term
“Qualifying Holder” shall mean, with respect to any Holder, (i) any
shareholder, partner or member of such Holder or (ii) any corporation,
partnership or limited liability company controlling, controlled by, or under
common control with, such Holder or any shareholder, partner or member thereof.
None of the rights of any Holder under this Agreement shall be transferred or
assigned to any person (including, without limitation, a Qualifying Holder)
that acquires Registrable Shares in the event that, and to the extent that,
such person is eligible to resell such Registrable Securities pursuant to Rule
144(k) of the Securities Act.




	4.	 	INDEMNIFICATION





     4.1 By Onyx.



     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: (a) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement or any Prospectus, including any
preliminary Prospectus, final Prospectus or any amendment or supplement to the
Registration Statement or any Prospectus or any other document incident
thereto; (b) the omission or alleged omission to state in the Registration
Statement or any Prospectus a material fact required to be stated in the
Registration Statement or any Prospectus, or necessary to make the statements
in the 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 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 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.



     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, 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 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 as a result of the omission or alleged omission to state in
the Registration Statement or any Prospectus a material fact required to be
stated in the Registration Statement or any Prospectus, or necessary to make
the statements in the 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 or the applicable Prospectus. 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
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 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.



          (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 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 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 Holder under this Section 4.3(b),
when combined with any amounts paid by such Holder under Section 4.2, 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.	 	TRANSFER RESTRICTIONS AND PROCEDURES.





     Each Holder acknowledges and agrees that no sales of the Registrable
Securities may be made under the Registration Statement and that the
Registrable Securities are not transferable on the books of Onyx unless the
certificate submitted to the transfer agent evidencing the Registrable
Securities is accompanied by a separate Transfer Notice for Sales Pursuant to
Registration Statement: (a) in the form of Appendix II hereto; (b) executed by
an officer of, or other authorized person designated by, the Holder; and (c) to
the effect that (i) the Registrable Securities have been sold in accordance
with the Registration Statement, the Securities Act and any applicable state
securities or blue sky laws, (ii) the Registrable Securities have been sold in
compliance with any restrictions on transfer under this Agreement and the
Purchase Agreement and (ii) the requirement of delivering a current prospectus
has been satisfied.



 









 






	6.	 	MISCELLANEOUS





     6.1 Successors and Assigns.



     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.



     6.2 Amendments and Waivers.



     Any term of this Agreement may be amended or waived only with the written
consent of Onyx and the Majority Holders.



     6.3 Notices.



     Any notice required or permitted by this Agreement shall be in writing and
shall be given by personal delivery, confirmed facsimile transmission,
overnight courier service or certified or registered mail (airmail if sent
internationally) with postage prepaid, in each case addressed to the party to
be notified at such party’s address or facsimile number as set forth below (if
to Onyx) or as set forth on the signature page hereto (if to the Holder), or as
subsequently modified by written notice. The effective date of any notice
shall be the date of personal delivery, the date on which successful facsimile
transmission is confirmed, the date actually delivered by a reputable overnight
courier service or seventy-two hours after mail deposit, as the case may be, in
each case properly addressed as provided herein and with all charges prepaid.



If to the Company:



Onyx Software Corporation

1100 112th Avenue N.E., Suite 100

Bellevue, WA 98004-4504

Facsimile No.: (425) 732-2413

Attn: Chief Legal Officer




With a copy to:



Orrick, Herrington & Sutcliffe LLP

719 Second Avenue, Suite 900

Seattle, WA 98104

Facsimile No.: (206) 839-4301

Attn: Alan C. Smith



 









 








     6.4 Severability.



     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.



     6.5 Governing Law; Jurisdiction.



     This Agreement shall be governed by and construed in accordance with the
laws of the state of Washington. The parties irrevocably consent to the
jurisdiction and venue of the state and federal courts located in King County,
Washington in connection with any action relating to this Agreement.



     6.6 Waiver of Jury Trial.



     Each of Onyx and each 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.



     6.7 Counterparts.



     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.



     6.8 Headings.



     The titles and subtitles used in this Agreement are used for convenience
of reference only and shall not be considered in construing or interpreting
this Agreement.



     6.9 Entire Agreement.



     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.



     6.10 Rule 144 Reporting.



     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 or pursuant to a registration statement on
Form S-3, 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;



          (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]




 









 








     IN WITNESS WHEREOF, the parties have executed this Registration Rights
Agreement as of the date first above written.



	 	 	 
	ONYX SOFTWARE CORPORATION
	 
	 	 
	By:

	 	/s/ Brent Frei
	

	 	

	

	 	Name: Brent Frei
	

	 	Its: Chief Executive Officer
	 
	 	 
	VISUALE, INC.
	 
	 	 
	By:
	 	/s/ Scott Broomfield
	

	 	

	

	 	Name: Scott Broomfield
	

	 	Its: Chief Executive Officer







	 	 	 	 	 
	Address:

	 	c/o Scott Broomfield	 	 
	

	 	19580 Montevina Rd	 	 
	

	 	Los Gatos, CA 95033	 	 







	 	 	 
	Fax: