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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): August 27, 1999
CONTINUUS SOFTWARE CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation)
000-26797 43-1070080
(Commission File No.) (IRS Employer Identification No.)
108 Pacifica
Irvine, California 92618
(Address of principal executive offices and zip code)
Registrant's telephone number, including area code: (949) 453-2200
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ITEM 5. OTHER EVENTS.
On August 27, 1999, the Registrant issued 5,000 shares of its Series A
Non-Voting Convertible Preferred Stock (the "Preferred Stock") to U.S. Bancorp
Piper Jaffray Inc. ("Piper Jaffray") in exchange for 500,000 shares of the
Registrant's common stock. Piper Jaffray had owned in excess of 5% of the
voting stock of Registrant. The exchange of Preferred Stock for common stock
reduced Piper Jaffray's common stock holdings to enable Piper Jaffray to satisfy
the Bank Holding Company Act requirements that a bank holding company and its
affiliates own less than 5% of the voting stock of a publicly trade corporation.
Each share of Preferred Stock is convertible into 100 shares of common stock.
The Preferred Stock does not have voting rights or a liquidation or redemption
preference. The Preferred Stock has the same right to dividends as the common
stock.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(C) EXHIBITS.
3.6 The Registrant's Certificate of Designation of the Series A
Non-Voting Convertible Preferred Stock.
99.1 Stock Exchange Agreement between the Registrant and U.S.
Bancorp Piper Jaffray Inc.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
CONTINUUS SOFTWARE CORPORATION
Dated: August 30, 1999 By: /s/ John R. Wark
John R. Wark
President and Chief Executive Officer
2.
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INDEX TO EXHIBITS
3.6 Registrant's Certificate of Designation of the Series A
Non-Voting Convertible Preferred Stock.
99.1 Stock Exchange Agreement between the Registrant and U.S.
Bancorp Piper Jaffray Inc.
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EXHIBIT 3.6
CERTIFICATE OF DESIGNATION
OF THE
SERIES A NON-VOTING CONVERTIBLE PREFERRED STOCK
(PAR VALUE $.001 PER SHARE)
OF
CONTINUUS SOFTWARE CORPORATION
PURSUANT TO SECTION 151 OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
CONTINUUS SOFTWARE CORPORATION (the "Company"), a company organized and
existing under the General Corporation Law of the State of Delaware (the
"DGCL"), in accordance with the provisions of Section 103 thereof, and pursuant
to Section 151 thereof, DOES HEREBY CERTIFY:
That the Restated Certificate of Incorporation of the Company (the
"Restated Certificate") authorizes the creation of up to 5,000,000 shares of the
Company's preferred stock, par value $.001 per share (such preferred stock,
together with all other preferred stock of the Company the creation of which is
in the future authorized by the Restated Certificate, referred to herein as the
"Preferred Stock"); and
That pursuant to the authority conferred upon the Board of Directors
(the "Board") by the Restated Certificate, the Board on August 24, 1999,
approved the creation and issuance of shares of Preferred Stock to be issued in
one series and adopted the following resolution creating a series of 5,000
shares of Preferred Stock designated as set forth below:
RESOLVED, that pursuant to the authority expressly granted to and vested
in the Board by provisions of the Restated Certificate and the DGCL, the
issuance of a series of Preferred Stock, which shall consist of 5,000 shares of
the 5,000,000 shares of Preferred Stock which the Company now has authority to
issue, be, and the same hereby is, authorized, and the Board hereby fixes the
powers, designations, preferences and relative participating, optional and other
special rights, and the qualifications, limitations and restrictions thereof, of
the shares of such series (in addition to the powers, designations, preferences
and relative participating, optional and other special rights, and the
qualifications, limitations and restrictions thereof, set forth in the Restated
Certificate which may be applicable to the Preferred Stock) authorized by this
resolution as follows:
SECTION 1. DESIGNATION OF SERIES A NON-VOTING CONVERTIBLE PREFERRED STOCK. The
designation of such series of Preferred Stock authorized by this resolution
shall be "Series A Non-Voting Convertible Preferred Stock." The Series A
Non-Voting Convertible Preferred Stock (the "Series A Preferred") is issuable
solely in whole shares that shall entitle the holder thereof to participate in
the distributions and to have the benefit of all other rights of holders of
Series A Preferred, as set forth herein and in the Restated Certificate.
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SECTION 2. DIVIDEND RIGHTS OF SERIES A PREFERRED. When and if the Board shall
declare a dividend or distribution payable with respect to the then-outstanding
shares of Common Stock of the Company, the holders of the Series A Preferred
shall be entitled to the amount of dividends per share that would be payable on
the largest number of whole shares of Common Stock into which a holder's
aggregate shares of Series A Preferred could then be converted pursuant to
Section 3(a) hereof (such number to be determined as of the record date for the
determination of holders of Common Stock entitled to receive such dividend).
SECTION 3. CONVERSION PRIVILEGES.
(a) RIGHTS OF CONVERSION. Subject to the other provisions of this
Certificate of Designation, each share of Series A Preferred shall be
convertible, without payment of any additional consideration by the holder
thereof and at the option of such holder, into 100 fully paid and nonassessable
shares of Common Stock, plus accrued but unpaid dividends under Section 2, at
the office of the Company or any transfer agent for such stock.
(b) AUTOMATIC CONVERSION.
(i) Subject to the other provisions of this Certificate of
Designation, in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company (a "Liquidation Event"), each share of
Series A Preferred shall automatically, and without the requirement of further
action by the Company or the holders, be converted into 100 fully paid and
nonassessable shares of Common Stock, plus accrued but unpaid dividends under
Section 2. For purposes of this Section 3, (A) a merger or consolidation of the
Company with or into any other company or companies, or the merger of any other
company or companies into the Company, in which consolidation or merger the
stockholders of the Company receive distributions in cash or in securities of
another company as a result of such consolidation or merger or (B) a sale of all
or substantially all of the assets of the Company, shall be treated as a
Liquidation Event.
(ii) Subject to the other provisions of this Certificate of
Designation, each share of Series A Preferred shall automatically be converted
into 100 fully paid and nonasessable shares of Common Stock, plus accrued but
unpaid dividends under Section 2, upon the written consent of the holders of
662/3% of the outstanding Series A Preferred.
(c) LIMITS ON CONVERSION. Notwithstanding any other provision of this
Section 3, if a converting holder of shares of Series A Preferred is a
registered bank holding company subject to the Bank Holding Company Act of 1956,
as amended, or an affiliate thereof, the total number of shares of Common Stock
held by such converting holder, aggregated with any shares of Common Stock held
by any affiliate of such holder, after giving effect to the proposed conversion
shall be less than 5% of the total shares of Common Stock outstanding
immediately after such conversion and in the event a change in federal law
permits a registered bank holding company to acquire in excess of 5% of the
voting shares of the Company, such a holder may convert its shares to Common
Stock to the maximum extent permitted by then current federal law. For purposes
of calculating the total number of shares of Common Stock held by the converting
holder
2.
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and its affiliates, shares of Common Stock previously held by such converting
holder or its affiliates shall be added to the sum of shares currently held by
the converting holder and its affiliates, unless those shares were sold through
a widely-dispersed public offering, sales in the public secondary market or
through private placements in which no purchasers acquired individually or in
concert with others, more than 2% of the shares of Common Stock then
outstanding.
(d) MECHANICS OF CONVERSION. Before any holder of Series A Preferred
shall be entitled to convert the same into shares of Common Stock, such holder
shall surrender the certificate or certificates thereof, duly endorsed, at the
office of the Company or of any transfer agent for such stock, and shall give
written notice to the Company at such office that such holder elects to convert
the same and shall state therein the name or names in which such holder wishes
the certificate or certificates for shares of Common Stock to be issued;
provided, however, that in the event of an automatic conversion pursuant to
Section 3(b), the outstanding shares of Series A Preferred shall be converted
automatically without any further action by the holders of such shares and
whether or not the certificates representing such shares are surrendered to the
Company or its transfer agent; and provided, further, that the Company shall not
be obligated to issue certificates evidencing the shares of Common Stock
issuable upon such automatic conversion unless the certificates evidencing such
shares of Series A Preferred are either delivered to the Company or its transfer
agent as provided above, or the holder notifies the Company or its transfer
agent that such certificates have been lost, stolen or destroyed and executes an
agreement satisfactory to the Company to indemnify the Company from any loss
incurred by it in connection with such certificate. The Company shall, as soon
as practicable after delivery of the Series A Preferred certificates, issue and
deliver at such office to such holder of Series A Preferred or its nominee or
nominees, a certificate or certificates for the number of shares of Common Stock
to which such holder shall be entitled as aforesaid. Such conversion shall be
deemed to have been made immediately prior to the close of business on the date
of surrender of the shares of Series A Preferred to be converted. The person or
persons entitled to receive the shares of Common Stock issuable upon such
conversion shall be treated for all purposes as the record holder or holders of
such shares of Common Stock on such date.
(e) ADJUSTMENT FOR STOCK SPLITS AND COMBINATIONS. If the Company shall
at any time or from time to time after the date that the first share of Series A
Preferred is issued (the "Original Issue Date") effect a subdivision of the
outstanding Common Stock, a corresponding subdivision of the Series A Preferred
shall automatically be effected. Conversely, if the Company shall at any time or
from time to time after the Original Issue Date combine the outstanding shares
of Common Stock into a smaller number of shares, a corresponding combination of
the Series A Preferred shall automatically be effected. Any adjustment under
this Section 3(e) shall become effective at the close of business on the date
the subdivision or combination becomes effective.
(f) ADJUSTMENT FOR RECLASSIFICATION, EXCHANGE AND SUBSTITUTION. If at
any time or from time to time after the Original Issue Date, the Common Stock
issuable upon the conversion of the Series A Preferred is changed into the same
or a different number of shares of any class or classes of stock, whether by
recapitalization, reclassification or otherwise (other than a subdivision or
combination of shares or stock dividend provided for elsewhere in this Section
3), in any such event each holder of Series A Preferred shall have the right
thereafter to convert such stock into the kind and amount of stock and other
securities and property receivable upon such recapitalization, reclassification
or other change by holders of the maximum number of shares of
3.
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Common Stock into which such shares of Series A Preferred could have been
converted immediately prior to such recapitalization, reclassification or
change, all subject to further adjustment as provided herein or with respect to
such other securities or property by the terms thereof.
(g) CERTIFICATES AS TO ADJUSTMENTS. Upon the occurrence of each
adjustment or readjustment of the number of shares of Common Stock issuable upon
conversion of a share of Series A Preferred pursuant to this Section 3, the
Company at its expense shall promptly compute such adjustment or readjustment in
accordance with the terms hereof and prepare and furnish to each holder of
Series A Preferred a certificate setting forth such adjustment or readjustment
and showing in detail the facts upon which such adjustment or readjustment is
based. The Company shall, upon the written request at any time of any holder of
Series A Preferred, furnish or cause to be furnished to such holder a like
certificate prepared by the Company setting forth (i) such adjustments and
readjustments and (ii) the number of shares of Common Stock and the amount, if
any, of other property which at the time would be received upon the conversion
of the Series A Preferred.
(h) NOTICES OF RECORD DATE. In the event of any taking by the Company of
a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend or
other distribution, any security or right convertible into or entitling the
holder thereof to receive additional shares of Common Stock, or any right to
subscribe for, purchase or otherwise acquire any shares of stock of any class or
any other securities or property, the Company shall mail to each holder of
Series A Preferred at least 10 days prior to the date specified therein, a
notice specifying the date on which any such record is to be taken for the
purpose of such dividend, distribution, security or right, and the amount and
character of such dividend, distribution, security or right.
(i) ISSUE TAXES. The holders of Series A Preferred shall pay any and all
issue, transfer and other taxes that may be payable in respect of any issue or
delivery of shares of Common Stock on conversion of shares of Series A Preferred
pursuant hereto.
(j) RESERVATION OF STOCK ISSUABLE UPON CONVERSION. The Company shall at
all times reserve and keep available out of its authorized but unissued shares
of Common Stock, solely for the purpose of effecting the conversion of the
shares of the Series A Preferred, such number of its shares of Common Stock as
shall from time to time be sufficient to effect the conversion of all
outstanding shares of the Series A Preferred; and if at any time the number of
authorized but unissued shares of Common Stock shall not be sufficient to effect
the conversion of all then outstanding shares of the Series A Preferred, the
Company will take such corporate action as may, in the opinion of its counsel,
be necessary to increase its authorized but unissued shares of Common Stock to
such number of shares as shall be sufficient for such purpose, including,
without limitation, engaging in best efforts to obtain the requisite stockholder
approval of any necessary amendment to the Restated Certificate. All shares of
Common Stock which are issuable upon such conversion shall, when issued, be duly
and legally issued, fully paid and nonassessable and free of all taxes, liens
and charges.
(k) FRACTIONAL SHARES. No fractional share shall be issued upon the
conversion of any share or shares of Series A Preferred. All shares of Common
Stock (including fractions
4.
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thereof) issuable upon conversion of more than one share of Series A Preferred
by a holder thereof shall be aggregated for purposes of determining whether the
conversion would result in the issuance of any fractional share. If, after the
aforementioned aggregation, the conversion would result in the issuance of a
fraction of a share of Common Stock, the Company shall, in lieu of issuing any
fractional share, pay the holder otherwise entitled to such fraction a sum in
cash equal to the corresponding fraction of the closing price of the Company's
Common Stock on the Nasdaq National Market (or any other national securities
exchange on which the Common Stock is then traded) on the day immediately
preceding the conversion. If the Company's Common Stock is not listed on a
national securities exchange, then the current fair market value of the Common
Stock shall be as determined in good faith by the Company's Board of Directors.
(l) NOTICES. Any notice required by the provisions of this Section 3
shall be in writing and shall be deemed effectively given: (i) upon personal
delivery to the party to be notified, (ii) when telephonically confirmed if sent
by telex or facsimile, (iii) five days after having been sent by registered or
certified mail, return receipt requested, postage prepaid, or (iv) one day after
deposit with a nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt. All notices shall be addressed
to each holder of record at the address of such holder appearing on the books of
the Company.
SECTION 4. LIMITATION ON ISSUANCE OF SHARES UPON CONVERSION.
(a) The following definitions shall apply to this Certificate of
Designation:
(i) "Maximum Share Amount" shall mean the number of shares of the
Company's Common Stock equal to 19.99% of the Company's Common Stock then
outstanding;
(ii) "Excess Shares" shall mean Common Stock of the Company
which, upon issuance, results in the beneficial ownership (as defined in Rule
13(d)-3 of the Securities Exchange Act of 1934) by a holder of shares of Common
Stock in excess of the Maximum Share Amount;
(iii) "Exchange Rules" shall mean the rules or regulations of
Nasdaq or any other principal securities market upon which the Common Stock of
the Company is or becomes traded.
(b) Except as provided in Section 4(c) hereof, the Company shall not be
obligated to issue upon conversion of the Series A Preferred, in the aggregate,
Excess Shares if such issuance in excess of the Maximum Shares Amount would
constitute a breach or violation of the Company's obligations under the Exchange
Rules.
(c) To the extent the Company will be required, or it appears likely to
the Board of Directors of the Company that the Company will be required, to
issue any Excess Shares, the Company shall promptly use its best efforts to
obtain stockholder approval in accordance with Delaware law, the applicable
rules of the Securities and Exchange Commission and the Exchange Rules.
5.
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SECTION 5. VOTING RIGHTS.
(a) Holders of Series A Preferred shall not be entitled to vote with
holders of Common Stock, including without limitation in the election of
directors of the Company, or as a separate class, except as otherwise provided
by the DGCL and in this Section 5. To the extent that, under the DGCL, the vote
of the holders of the Series A Preferred, voting separately as a class or series
as applicable, is required to authorize a given action of the Company, the
affirmative vote or consent of the holders of at least a majority of the shares
of the Series A Preferred represented at a duly held meeting at which a quorum
is present or by written consent of a majority of the shares of Series A
Preferred (except as otherwise may be required under the DGCL) shall constitute
the approval of such action by the class. Holders of the Series A Preferred
shall be entitled to notice of all shareholder meetings or written consents (and
copies of proxy materials and other information sent to shareholders) with
respect to which they would be entitled as of right under the DGCL which notice
would be provided pursuant to the Company's Bylaws and the DGCL.
(b) Notwithstanding the other provisions of this Section 5, at any time
that any shares of Series A Preferred are outstanding, the Restated Certificate
shall not be amended in any manner which would materially alter or change the
powers, preferences or rights of the Series A Preferred so as to affect them
adversely without the affirmative vote of the holders of a majority of the
outstanding Series A Preferred, voting separately as a class.
SECTION 6. STATUS OF CONVERTED STOCK. In the event any shares of Series A
Preferred shall be converted pursuant to Section 3 hereof, the shares so
converted, redeemed or exchanged shall be cancelled and shall not be reissuable
by the Company.
SECTION 7. RANK. The shares of Series A Preferred shall rank on a parity with
the Common Stock as to the payment of dividends.
6.
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IN WITNESS WHEREOF, Continuus Software Corporation has caused this
Certificate of Designation to be signed by its President and Chief Executive
Officer and attested by its Secretary this 27th day of August, 1999.
CONTINUUS SOFTWARE CORPORATION
By: /s/ John R. Wark
------------------------------------
John R. Wark
President and Chief Executive
Officer
Attest:
/s/ Steven L. Johnson
- ------------------------------
Steven L. Johnson
Secretary
7.
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EXHIBIT 99.1
STOCK EXCHANGE AGREEMENT
THIS STOCK EXCHANGE AGREEMENT (this "Agreement") dated August 27, 1999
is by and between CONTINUUS SOFTWARE CORPORATION (the "Company") and U.S.
BANCORP PIPER JAFFRAY INC. (the "Stockholder").
RECITALS
A. The Stockholder owns in excess of 5% of the voting capital stock of
the Company (the "Common Stock").
B. The Stockholder desires to exchange 500,000 shares of Common Stock
(the "Common Shares") for 5,000 shares of Series A Non-Voting Convertible
Preferred Stock, $.001 par value per share, of the Company (the "Preferred
Shares").
C. The Company desires to issue the Preferred Shares in exchange for the
Common Shares.
NOW THEREFORE, in consideration of the mutual promises contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
1. Effective upon execution of this Agreement, (a) the Company will
issue to the Stockholder the Preferred Shares in consideration of the transfer
by the Stockholder to the Company of the Common Shares, duly endorsed for
transfer or accompanied by a stock power duly executed in blank, and (b) the
Stockholder will acquire the Preferred Shares in exchange for the Common Shares.
2. The Stockholder represents and warrants to, and agrees with, the
Company that the following representations and warranties are, as of the date of
this Agreement, true, correct and complete:
(a) The execution, delivery and performance by the Stockholder of
this Agreement and the effectuation of the transactions contemplated hereby are
within its corporate power and have been duly authorized by all proceedings
required to be taken under its certificate of incorporation and the laws of the
State of Delaware.
(b) The Stockholder is the beneficial and record owner of the
Common Shares free and clear of all liens, pledges or other encumbrances.
(c) The Stockholder acknowledges that the Preferred Shares issued
to it and the shares of Common Stock into which the Preferred Shares are
convertible will not be registered under the Securities Act of 1933, as amended
(the "Securities Act"), and may not be sold, transferred or otherwise
distributed in the absence of such registration or an applicable exemption
therefrom. The Stockholder further acknowledges that the Company has not granted
it and does not hereby grant it any right to have the Preferred Shares or the
shares of Common
1.
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Stock into which the Preferred Shares are convertible registered for sale in
accordance with the Securities Act.
3. The Company represents and warrants to, and agrees with, the
Stockholder that the following representations and warranties are, as of the
date of this Agreement, true, correct and complete:
(a) The execution, delivery and performance by the Company of
this Agreement and the effectuation of the transactions contemplated hereby are
within its corporate power and have been duly authorized by all proceedings
required to be taken under its certificate of incorporation and the laws of the
State of Delaware.
(b) The designations, rights and preferences of the Preferred
Shares are as set forth in the Certificate of Designation attached hereto as
Exhibit A.
(c) Upon execution of this Agreement and completion of the
transactions contemplated herein in accordance with the terms of this Agreement,
the Preferred Shares will be duly issued, fully paid and non-assessable.
4. (a) The Stockholder agrees to indemnify the Company and its
affiliated companies and its and their officers, directors, employees, agents
and representatives for and against all claims, actions, costs, expenses,
damages, reasonable attorneys fees and other losses ("Claims") made, arising or
paid with respect to (i) the issuance of the Preferred Shares or (ii) the
exchange of the Preferred Shares for the Common Shares to the extent said Claims
are not actually paid by the Company's liability and officers and directors
insurance policies, and except to the extent that such Claims arise from the
negligent or willful misconduct of the Company. Said indemnification shall,
without limiting the generality of the foregoing, include any deductibles or
retentions under said insurance policies and any increase in premiums charged to
the Company as a result of said Claims. The Company makes no representation or
warranty as to coverage, or the scope thereof, of any insurance policies it now
has or may in the future have.
(b) The Company agrees to, and to the extent it is reasonably
able, to cause its affiliated companies and its and their officers, directors,
employees, agents and representatives to first pursue recovery of any Claims
under the applicable insurance policies.
5. (a) All claims for indemnification under this Agreement shall be
asserted and resolved as follows in this Section 5.
(b) A party claiming indemnification under this Agreement (an
"Indemnified Party") shall promptly (i) notify the Stockholder of any Claim that
could give rise to a right of indemnification under this Agreement and (ii)
transmit to the Stockholder a written notice ("Claim Notice") describing in
reasonable detail the nature of the Claim, a copy of all papers served with
respect to that Claim (if any), an estimate of the amount of damages
attributable to the Claim to the extent feasible (which estimate shall not be
conclusive of the final amount of such Claim) and the basis for the Indemnified
Party's request for indemnification under this Agreement. The failure to
promptly deliver a Claim Notice shall not relieve the Stockholder of its
obligations to the Indemnified Party with respect to the related Claim except to
the extent that the resulting delay is materially prejudicial to the defense of
that Claim.
2.
<PAGE> 3
(c) The Indemnified Party, and/or its insurance carrier(s)
pursuant to the terms of any relevant insurance policy, shall have full control
of such defense. Notwithstanding the foregoing, if the Stockholder has delivered
a written notice to the Indemnified Party to the effect that the Stockholder
disputes its potential liability to the Indemnified Party under Sections 4 and 5
and if such dispute is resolved in favor of the Stockholder, the Stockholder
shall not be required to bear the costs and expenses of the Indemnified Party's
defense pursuant to this Section 5 or of the Stockholder's participation therein
at the Indemnified Party's request. The Stockholder may participate in, but not
control, any defense or settlement controlled by the Indemnified Party pursuant
to this Section 5(c), and the Stockholder shall bear its own costs and expenses
with respect to such participation.
(d) Payments of all amounts owing by the Stockholder pursuant to
any Claim under Sections 4 and 5 shall be made (i) with respect to reasonable
attorneys fees and other expenses of defense, as incurred and (ii) with respect
to other Claims, within 30 days after the latest of (A) the settlement of that
Claim, (B) the expiration of the period for appeal of a final adjudication of
that Claim or (C) the expiration of the period for appeal of a final
adjudication of the Stockholder's liability to the Indemnified Party under this
Agreement.
6. Execution of this Agreement shall be deemed to be the Stockholder's
written consent, to the extent required by the Underwriting Agreement between
the Company and the Stockholder and CIBC World Markets Corp. as representatives
of the several underwriters named in Schedule I thereto, dated July 28, 1999,
for the Company to issue the Preferred Shares.
7. Each party represents and warrants to the other that such person has
not directly or indirectly employed or become obligated to pay any broker,
finder or similar agent in connection with the transactions contemplated hereby
and agrees to indemnify the other party against all claims arising for fees and
commissions of brokers or similar agents employed or promised payment by such
person.
8. This Agreement constitutes the entire agreement and understanding
between the parties on the subject matter hereof and supersedes all prior
agreements and understandings, both written and oral, relating to the subject
matter of this Agreement.
9. Each party will pay all fees, costs and expenses incurred by it
connection with the transactions contemplated herein, including, without
limitation, the fees and expenses of attorneys, accountants and other persons,
and no portion thereof shall be paid by the other party hereto, except if
otherwise specifically provided herein.
10. This Agreement, and the rights and obligations of the parties
hereto, shall be governed and construed and enforced accordance with the
substantive laws of the State of California without regard to the conflicts of
laws provisions thereof.
3.
<PAGE> 4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
U.S. BANCORP PIPER JAFFRAY INC.
By: /s/ Richard T. Chase
------------------------------------
Print Name: Richard T. Chase
Title: General Counsel and Managing
Director
CONTINUUS SOFTWARE CORPORATION
By: /s/ John R. Wark
------------------------------------
John R. Wark
President and Chief Executive Officer
With regard to Section 4(a)(x) of the
Underwriting Agreement dated July 28,
1999, as Representatives of the several
Underwriters listed on Schedule I of
such Underwriting Agreement (as each of
such terms are used therein)
U.S. BANCORP PIPER JAFFRAY INC.
CIBC WORLD MARKETS CORP.
BY: U.S. BANCORP PIPER JAFFRAY INC.
By: /s/ Richard T. Chase
------------------------------------
Print Name: Richard T. Chase
Title: General Counsel and Managing
Director
4.
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EXHIBIT A
CERTIFICATE OF DESIGNATION
