amend_1registrarightagmt.htm


    EXHIBIT 10.47

     

     

    AMENDMENT NO. 1 TO THE REGISTRATION RIGHTS
AGREEMENT

     

    This AMENDMENT NO. 1 TO THE REGISTRATION RIGHTS AGREEMENT
(this “Amendment
Agreement”), entered into as of May 28, 2009, to the Registration Rights
Agreement dated as of June 5, 2008 (as amended, restated, supplemented or
otherwise modified from time to time, including all exhibits and schedules
thereto, the “Registration
Rights Agreement”), by and among Communication Intelligence Corporation,
a Delaware corporation (the “Company”), and the investors
signatory thereto (each an “Existing Investor” and
collectively, the “Existing
Investors”).

     

    R E C I T A L
S:

     

    WHEREAS, the Company and the
Existing Investors desire to amend the Registration Rights Agreement to, among
other things, allow for the addition as parties to the Registration Rights
Agreement of the additional investors listed on the signature pages hereto (such
additional investors, collectively, the “Additional Investors”, and
each such additional investor, individually, an “Additional Investor”; the
Additional Investors and the Existing Investors are herein collectively referred
to as the “Investors”);

     

    WHEREAS, Section 8(g) of the
Registration Rights Agreement provides that amendments to the Registration
Rights Agreement may only become effective with the written concurrence of the
Company and the Holders of no less than a majority in interest of the then
outstanding Registrable Securities;

     

    WHEREAS, Holders of a majority
in interest of the outstanding Registrable Securities under the Registration
Rights Agreement consent to the amendments contained herein and, upon execution
of this Amendment Agreement by the Company and such Holders, the requirements of
Section 8(g) of
the Registration Rights Agreement will be satisfied; and

     

    WHEREAS, the Additional
Investors desire to become parties to the Registration Rights Agreement, as
amended by this Amendment Agreement.

     

    NOW, THEREFORE, in
consideration of the premises and the agreements, provisions and covenants
herein contained, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties do hereby agree, as
follows:

     

    1. Definitions in this
Amendment Agreement.  Except as otherwise defined in this
Amendment Agreement (including the preamble and the recitals hereof),
capitalized terms are used herein with the meanings ascribed to such terms in
the Registration Rights Agreement and/or the Purchase Agreement.

     

    2. Consent of Required Holders
to Amendments to Registration Rights Agreement.  The Holders of
a majority in interest of the outstanding Registrable Securities hereby consent
to the amendments to the Registration Rights Agreement contained in this
Amendment Agreement and acknowledge that, upon execution of this Amendment
Agreement by such Holders, the requirements of Section 8(g) of the
Registration Rights Agreement will be satisfied.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
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10.47

        

      

    

     

    3. Amendment to the Preliminary
Statement of the Registration Rights Agreement.  The
Registration Rights Agreement is hereby amended by deleting the Preliminary
Statement in their entirety and inserting in lieu thereof the
following:

     

    “This
Agreement is made pursuant to the Securities Purchase Agreement, dated as June
5, 2008, among the Company and the investors identified on the signature pages
thereto (the “Purchase
Agreement”), the Credit Agreement, dated as of June 5, 2008, among the
Company and the lenders signatory thereto, as amended by Amendment No. 1, dated
as of May 28, 2009 (collectively, as the same may be further amended, modified,
supplemented or amended and restated from time to time, the “Credit Agreement”), and other
Transaction Documents pursuant to which the Company will effect a Debt
Refinancing.”

     

    4. Amendment to Definition of
“Effectiveness Date” in the Registration Rights Agreement.  The
definition of “Effectiveness
Date” in Section 1
of  the Registration Rights Agreement is hereby amended and restated
in its entirety to read as follows:

     

    ““Effectiveness Date” means (a)
with respect to the Registration Statement required to be filed under Section 2(a), the
earlier of (i) the 150th day
following the Closing, and (ii) the fifth Trading Day following the date on
which the Company is notified by the Commission that such Registration Statement
will not be reviewed or is no longer subject to further review and comments; (b)
with respect to a Registration Statement required to be filed under Section 2(b), the
earlier of: (i) the 90th day
following the applicable Filing Date, and (ii) the fifth Trading Day following
the date on which the Company is notified by the Commission that the
Registration Statement will not be reviewed or is no longer subject to further
review and comments; and (c) with respect to a Registration Statement required
to be filed under Section 2(c), the
earlier of: (i) the 120th day
following the applicable Filing Date, and (ii) the fifth Trading Day following
the date on which the Company is notified by the Commission that the
Registration Statement will not be reviewed or is no longer subject to further
review and comments.”

     

    5. Amendment to Definition of
“Filing Date” in the Registration Rights Agreement.  The
definition of “Filing
Date” in Section 1
of  the Registration Rights Agreement is hereby amended and restated
in its entirety to read as follows:

     

    ““Filing Date” means (a) with
respect to the Registration Statement required to be filed under Section 2(a), the
earlier of (i) two (2) Business Days following the filing of the Company’s
Quarterly Report on Form 10-Q for the three and six months ending June 30,
2008, and (ii) August 18, 2008; (b) with respect to a Registration Statement
required to be filed under Section 2(b), the
30th
day following the date on which Holders of a majority of the Registrable
Securities request that the Company register the resale of Common Stock on
Form S-3; and (c) with respect to a Registration Statement required to be
filed under Section
2(c), the 30th day
following the date on which Holders of a majority of the Registrable Securities
request that the Company register the resale of Common Stock on Form S-1;
provided, however, that with respect to a Registration Statement required to be
filed under Section
2(c), if the request that the Company register the resale of Common Stock
on Form S-1 is received at such time when the Company is precluded from filing a
Registration Statement with its current audited financial statements or such
financial statements would become non-conforming due to their age during the
review process of such Registration Statement, then the Company shall not


     

    
      
        
        

      

      
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10.47

        

      

       

      be
obligated to file any such Registration Statement until the 15th day
following the release of the Company’s audited financial statements for the most
recently completed fiscal year.  Notwithstanding anything to the
contrary herein, the Company shall not be required to prepare audited financial
statements to be filed in connection with such Registration Statement for any
period year except for a fiscal year ending December 31.”

    

     

    6. Amendment to Definition of
“Investors” in the Registration Rights Agreement.  The
definition of “Investors” in the Registration
Rights Agreement shall include the Additional Investors.

     

    7. Amendment to Definition of
“Registration Statement” in the Registration Rights
Agreement.  The definition of “Registration Statement” in
Section 1
of  the Registration Rights Agreement is hereby amended and restated
in its entirety to read as follows:

     

    ““Registration Statement” means
the registration statement required to be filed in accordance with Section 2(a), Section 2(b), Section 2(c) or Section 8(e),
including (in each case) the Prospectus, amendments and supplements to such
registration statements or Prospectus, including pre- and post-effective
amendments, all exhibits thereto, and all material incorporated by reference or
deemed to be incorporated by reference therein.”

     

    8. Amendment to Definition of
“Selling Holder Questionnaire” in the Registration Rights
Agreement.  The definition of “Selling Holder Questionnaire”
in Section 1
of  the Registration Rights Agreement is hereby amended and restated
in its entirety to read as follows:

     

    ““Selling Holder Questionnaire”
has the meaning set forth in Section
2(d).”

     

    9. Amendment to Definition of
“Warrant” in the Registration Rights Agreement.  The definition
of “Warrant” in Section 1
of  the Registration Rights Agreement is hereby amended and restated
in its entirety to read as follows:

     

    ““Warrants” means the warrants
(other than the Additional Warrants) to purchase from the Company shares of
Company Common Stock issued pursuant to the Credit Agreement, including, without
limitation, the warrants to purchase from the Company shares of Company Common
Stock issued pursuant to Amendment No. 1 to the Credit Agreement.”

     

    10. Addition of Certain
Definition to Registration Rights Agreement.  The following
definition is hereby added to Section 1 of the
Registration Rights Agreement:

     

    ““Amendment No. 1” means that
certain Amendment No. 1 to the Registration Rights Agreement, dated as of May
28, 2009, among the Company and the Holders of a majority of the Registrable
Securities, as acknowledged and agreed to by the additional investors listed on
the signatures pages thereto.”

     

    11. Amendment of Section 2(c)
and Addition of New Subsection Section 2(d) of the Registration Rights
Agreement.  Section 2(c) of
the

     

    
      
        
        

      

      
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                Registration
      Rights Agreement is hereby amended and restated in its entirety and Section 2(d) is
      inserted in the Registration Rights Agreement as
  follows:

              


      

    

     

    “(c)                      The
Company shall, promptly upon the request of the Holders of a majority of the
Registrable Securities, prepare and file with the Commission no later than the
Filing Date a Registration Statement covering the resale of all Registrable
Securities not already covered by an existing and effective Registration
Statement for an offering to be made on a continuous basis pursuant to Rule 415,
on Form S-1 (or on such other form appropriate for such
purpose).  Such Registration Statement shall contain (except if
otherwise required pursuant to written comments received from the Commission
upon a review of such Registration Statement) the “Plan of Distribution”
attached hereto as Exhibit
A.  The Company shall use its reasonable best efforts to cause
such Registration Statement to be declared effective under the Securities Act as
soon as possible but, in any event, no later than its Effectiveness Date, and
shall use its reasonable best efforts to keep the Registration Statement
continuously effective under the Securities Act during the entire Effectiveness
Period.  By 5:00 p.m. (New York City time) on the Business Day
immediately following the Effective Date of such Registration Statement, the
Company shall file with the Commission in accordance with Rule 424 under the
Securities Act the final Prospectus to be used in connection with sales pursuant
to such Registration Statement (whether or not such filing is technically
required under such Rule).

     

    (d)           Each
Holder agrees to furnish to the Company a completed Questionnaire in the form
attached to this Agreement as Exhibit B (a “Selling Holder
Questionnaire”).  The Company shall not be required to include
in a Registration Statement the Registrable Securities of a Holder who fails to
furnish to the Company a fully completed Selling Holder Questionnaire at least
two Trading Days prior to the Filing Date (subject to the requirements set forth
in Section
4(a)).”

     

    12. Amendment to Section 3(a) of
the Registration Rights Agreement.  Section 3(a) is hereby
amended by deleting the terms “Filing Deadline” and “Effectiveness Deadline” in
the first sentence of Section 3(a) and inserting the terms “Filing Date” and
“Effectiveness Date”, respectively, in lieu thereof.  Section 3(a) is
hereby further amended by inserting the following sentences at the end in
Section 3(a):

     

    “Notwithstanding
anything to the contrary stated herein, the Company shall not be required to pay
Registration Delay Payments or otherwise be liable for any amount to Holders if
the Commission limits the number of Registrable Securities that may be included
on any Registration Statement filed under the terms of this
Agreement.  If the Commission limits the Registrable Securities that
may be included on any Registration Statement, the Registrable Securities that
will be included on such Registration Statement shall be allocated pro rata
among all of the holders of Registrable Securities that requested Registrable
Securities held by them be included in such registration, based on the amount of
such Registrable Securities originally requested to be included by a Holder in
comparison to the aggregate amount of such Registrable Securities requested to
be included on such Registration Statement by all such Holders.”

     

    
      
        
        

      

      
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    13. Amendment to Section 4(j) of
the Registration Rights Agreement.  Section 4(j) is hereby
amended and restated in its entirety to read as follows:

     

    “In
conjunction with the filing of the Registration Statement or sales thereunder,
the Company will make any filings as may be required to be made with FINRA via
the COBRADesk system.”

     

    14. Amendment to Section 8(h) of
the Registration Rights Agreement.  Section 8(h) is hereby
amended by deleting the addresses for notice “If to a Investor” in its entirety
and inserting in lieu thereof the following:

     

    
      	
              “If
      to an Investor:

            	
              To
      the address set forth under such Investor's name on the

            	
              signature
      pages hereto and to Amendment No.
1.

            


    

     

    
      	
               
      

            	
              With
      a copy to:

            	
              Pillsbury
      Winthrop Shaw Pittman LLP

            


    

    
      	
               
      

            	
              1540
      Broadway

            


    

    
      	
               
      

            	
              New
      York, New York 10036

            


    

    
      	
               
      

            	
              Facsimile:  (212)
      858-1500

            


    

    
      	
               
      

            	
              Attn:  Jonathan
      J. Russo, Esq.”

            


    

     

    15. Effectiveness of
Amendments.  The amendments to the Registration Rights
Agreement contained in this Amendment Agreement shall become effective on and as
of the date hereof.  From and after such date, each reference in the
Registration Rights Agreement (including the schedules and exhibits thereto) to
the “Agreement”, or any like expression referring to the Registration Rights
Agreement, shall be deemed to refer to the Registration Rights Agreement as
amended by this Amendment Agreement.  The Registration Rights
Agreement, other than as amended hereby, shall remain unchanged and in full
force and effect.

     

    16. Applicable
Law.  THIS AMENDMENT AGREEMENT SHALL BE GOVERNED BY AND SHALL
BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF
NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THAT REQUIRE OR PERMIT
APPLICATION OF THE LAWS OF ANY OTHER STATE OR JURISDICTION (OTHER THAN SECTION
5-1401 AND SECTION 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW).

     

    17. Counterparts;
Effectiveness.  This Amendment Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all of which counterparts together shall constitute but one and the same
instrument.

     

    18. Accession of Additional
Investors to Registration Rights Agreement as Amended by this Amendment
Agreement.  By acknowledging and agreeing to this Amendment
Agreement, which acknowledgement and agreement shall be evidenced by the
signatures of the Additional Investors below, the Additional Investors agree to
accede to the Registration Rights Agreement, as amended by this Amendment
Agreement, and to be bound by all of the terms and provisions set forth in the
Registration Rights Agreement, as amended by this Amendment Agreement and shall
have the rights, and be subject to the obligations, of an Investor.

     

    
      
        
        

      

      
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    IN
WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to be
duly executed by their respective officers as of the day and year first above
written.

     

    
      	
              COMPANY:

            	
              COMMUNICATION INTELLIGENCE
      CORPORATION

               

              By:  /s/ Francis V.
      Dane                                 
                                                                    

                   Name: Francis
      V. Dane

                   Title:Chief
      Financial Officer

               

            
	
              EXISTING
      INVESTORS:

            	
              PHOENIX
      VENTURE FUND LLC

               

              By:
      SG Phoenix Ventures LLC,

                     its
      Managing Member

               

              By:  /s/ Andrea
      Goren                                                                                          

                         Name: Andrea
      Goren

                         Title: Member

               

               

            
	 
      	
               

               

               /s/ Michael
      Engmann                                  
      

              MICHAEL
      ENGMANN

               

               

            


    

    


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
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    ACKNOWLEDGED
AND AGREED TO:

    


    


    
      	
              ADDITIONAL
      INVESTOR:

               

               

               

            	
              KENDU
      PARTNERS COMPANY

               

              By:
      /s/ Michael W.
      Engmann                          
      

                  Name:
      Michael W. Engmann

                  Title:  
      General Partner

               

              ADDRESS
      FOR NOTICE

               

              c/o:    

              Street:                                                                

              City/State/Zip:                                                                

              Attention:                                                           

              Tel:                                                                

              Fax:                                                                

              Email:                                                                

               

            


    

     

     

    
 

    
      
        
        

      

      
        
        

        
          

        

      

      
        
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    ACKNOWLEDGED
AND AGREED TO:

    


    


    


    
      	 
      	
              MDNH
      PARTNERS L.P.

               

              By:
      /s/ Michael W.
      Engmann                        
      

                  Name:
      Michael W. Engmann

                  Title:
      General Partner

               

              ADDRESS
      FOR NOTICE

                                                                              

              Street: 
      

              City/State/Zip:                                                            

              Attention: 

              Tel:     

              Fax:     

              Email: