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EXHIBIT 10.12
AMENDMENT NO. 1 TO
EROOM TECHNOLOGY, INC.
FOURTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
This Amendment No. 1 to Fourth Amended and Restated Investor Rights
Agreement, dated as of July 14, 2000, is entered into by and among eRoom
Technology, Inc. (the "COMPANY") and the Founders, Preferred Holders and New
Preferred Holders set forth on the signature pages hereto.
RECITALS
WHEREAS, the Company, the Founders and the Preferred Holders are
parties to an existing Fourth Amended and Restated Investor Rights Agreement
dated as of April 20, 2000 (the "EXISTING AGREEMENT");
WHEREAS, the Company proposes to issue and sell an aggregate of
1,052,633 additional shares of its Series D Convertible Preferred Stock, $0.01
par value per share, of the Company (the "ADDITIONAL SHARES") to certain
Preferred Holders and the New Preferred Holders on the date hereof pursuant to
the terms of a certain Series D Convertible Preferred Stock Purchase Agreement
(the "PURCHASE AGREEMENT");
WHEREAS, it is a condition to their purchase of Additional Shares that
BVCF IV, L.P., Haebler Ventures Limited Partnership and DRW Venture Partners LP
(collectively, the "NEW PREFERRED HOLDERS") be admitted as parties to the
Existing Agreement; and
WHEREAS, the undersigned Company, Founders and existing Preferred
Holders, constituting the requisite percentage, desire to amend the Existing
Agreement in accordance with Article X, Section 8 thereof as set forth below.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Amendment, the parties mutually agree as follows:
ADDING ADDITIONAL SERIES D AND NEW PREFERRED HOLDERS
1. That upon the issuance and sale of the Additional Shares to the New
Preferred Holders and certain of the existing Preferred Holders on the
date hereof pursuant to the Purchase Agreement (i) the terms "Series D
Preferred" and "Preferred Stock" set forth in the Existing Agreement
shall include the Additional Shares issued to such investors; and (ii)
the terms "Series D Holders" and "Preferred Holders" set forth in the
Existing Agreement shall include such investors (including, without
limitation, the New Preferred Holders). In addition, each of the
parties hereto agrees that the definition of "Stock Purchase
Agreements" set forth in the Existing Agreement shall include the
Purchase Agreement.
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2. Each of the parties hereto agrees that the New Preferred Holders shall
be entitled to the same rights and be subject to the same obligations
as the "Preferred Holders," as such term is used in the Existing
Agreement, as if such New Preferred Holders were originally included in
the definition of "Preferred Holders" under the Existing Agreement. By
executing its counterpart signature page to this Amendment, each New
Preferred Holder hereby agrees to become a party to and be bound by the
Existing Agreement, as amended by this Amendment, and the other parties
hereto hereby accept such admission and accession, effective as of the
date first above written.
3. That to reflect the new investors in the Company's Series D Preferred,
SCHEDULE V to the Existing Agreement shall be amended by deleting it in
its entirety and replacing it with the SCHEDULE V set forth on EXHIBIT
A to this Amendment.
STANDSTILL PROVISION APPLICABLE TO FORD MOTOR COMPANY ONLY
4. Article IX (Standstill) shall be amended so that notwithstanding any
other provision in the Existing Agreement such Article shall from the
date hereof be applicable solely to Ford Motor Company and not to
Series D Holders. Accordingly, the parties hereto hereby amend Article
IX to replace the terms "Series D Holder", "Series D Holders", "such
Series D Holder", "a particular Series D Holder", "any of the Series D
Holders" (and all like phrases) with "Ford Motor Company." In addition,
subsection (iv) of Article X, Section 8 is hereby amended by deleting
the phrase "the holders of at least a majority of the Series D
Preferred" and replacing it with "Ford Motor Company." All tenses in
the foregoing amended sections shall be amended appropriately to
reflect the fact Ford Motor Company is a single entity.
NEW DIRECTORS
5. The reference to "Stewart Alsop" set forth in subsection (ii) of
Article II, Section 1(a) shall be replaced with "David A. Litwack."
In addition, the parenthetical "(initially, Thomas F. Bogan)" shall be
inserted immediately before the first proviso in subsection (iii) of
Article II. Section 1(a).
USE OF TERM "FOUNDERS"
6. The first use of the phrase "of the Founders" set forth in the
proviso to subsection (iv) of Article II, Section 1(a) shall
be replaced with the phrase "Jeffrey R. Beir nor R. Pito Salas."
7. That to reflect new persons and entities constituting "Founders" due to
gifts from other Founders, SCHEDULE VI to the Existing Agreement shall
be amended by deleting it in its entirety and replacing it with the
SCHEDULE VI set forth on EXHIBIT B to this Amendment.
AGGREGATION OF OWNERSHIP OF AFFILIATES
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8. The new Section 12 shall be inserted at the end of Article X as
follows:
12. AGGREGATION. Notwithstanding any other provision in this
Agreement, all Shares held or acquired by parties hereto that are
affiliated shall be aggregated together for the purpose of determining
the availability of any rights under this Agreement. For the purposes
of the preceding sentence, an "affiliate" of a person or entity is
another person or entity that directly, or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common
control with, such person or entity. The preceding sentence shall be
construed as the term "affiliate" is construed under Rule 144
promulgated under the Securities Act.
WAIVER OF RIGHT OF FIRST REFUSAL
9. By executing this Amendment, each party hereto is permanently and
irrevocably waiving any and all rights of first refusal, including
without limitation any notice requirements related thereto, pursuant to
Article IV of the Existing Agreement with respect to the issuance and
sale of the Additional Shares and the issuance of any shares into which
such Additional Shares may be converted.
MISCELLANEOUS
10. Except as set forth in this Amendment, all terms and provisions of the
Existing Agreement shall remain in full force and effect in accordance
with the terms thereof. Except where otherwise expressly set forth
herein, this Amendment and its terms and provisions shall be effective
as of the date first above written. All capitalized terms used but not
defined herein shall have the respective meanings ascribed thereto in
the Existing Agreement. Captions and headings in this Amendment are
provided for convenience purposes only, are not to be considered a part
of this Amendment and are not intended, and should not be used, to
construe the meaning of any of the terms or provisions of this
Amendment. This Amendment may be executed in any number of
counterparts, all of which taken together shall constitute one and the
same instrument. For the purposes of executing this Amendment, (a) a
document signed and transmitted by facsimile machine or telecopier
shall be treated as an original document; (b) the signature of any
party on such document shall be considered as an original signature;
(c) the document transmitted (or the document of which the page
containing the signature or signatures of one of more parties is
transmitted) shall have the same effect as a counterpart thereof
containing original signatures. This Amendment shall be governed by,
and construed and enforced in accordance with, the laws of the
Commonwealth of Massachusetts (without reference to the conflicts of
law provisions thereof).
[REMAINDER OF PAGE LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO.
1 TO THE FOURTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date
set forth in the first paragraph hereof.
COMPANY:
EROOM TECHNOLOGY, INC.
By: /s/ Jeffrey R. Beir
-----------------------------------
Jeffrey R. Beir
President
Address: 725 Concord Avenue
Cambridge, MA 02138
FOUNDERS:
/s/ Jeffrey R. Beir
--------------------------------------
Jeffrey R. Beir
Address: c/o eRoom Technology, Inc.
725 Concord Avenue
Cambridge, MA 02138
/s/ R. Pito Salas
--------------------------------------
R. Pito Salas
Address: c/o eRoom Technology, Inc.
725 Concord Avenue
Cambridge, MA 02138
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PREFERRED HOLDERS:
ATLAS VENTURE FUND III, L.P.
By: Atlas Venture Associates III, L.P.
Its General Partner
By: Atlas Venture Associates III, Inc.
Its General Partner
By: /s/ Ronald Nordin
-----------------------------------
Vice President
Address: 222 Berkeley Street
Suite 1950
Boston, MA 02116
ATLAS VENTURE ENTREPRENEURS' FUND
III, L.P.
By: Atlas Venture Associates III, L.P.
Its General Partner
By: Atlas Venture Associates III, Inc.
Its General Partner
By: /s/ Ronald Nordin
-----------------------------------
Vice President
Address: 222 Berkeley Street
Suite 1950
Boston, MA 02116
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ESSEX PRIVATE PLACEMENT II, LIMITED
PARTNERSHIP
By: Essex Investment Management
Company, LLC, its General Partner
By: /s/ Susan Stickells
-----------------------------------
Principal
Address: 125 High Street, 29th Floor
Boston, MA 02110
HARBOURVEST PARTNERS VI - DIRECT
FUND, L.P.
By: HarbourVest VI - Direct Associates
LLC, its General Partner
By: HarbourVest Partners, LLC, its
Managing Member
By: /s/ Robert M. Wadsworth
-----------------------------------
Name: Managing Director
Title
Address: One Financial Center
44th Floor
Boston, MA 02111
NEW ENTERPRISE ASSOCIATES VII, LIMITED
PARTNERSHIP
By: NEA Partners VII, Limited
Partnership
By: /s/ Nancy Docras
-----------------------------------
General Partner
Address: 1119 St. Paul Street
Baltimore, MD 21202
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NEA PRESIDENTS' FUND, L.P.
By: NEA General Partners, L.P.
By: /s/ Nancy Dorman
-----------------------------------
General Partner
Address: 1119 St. Paul Street
Baltimore, MD 21202
NEA VENTURES 1997, L.P.
By: /s/ Nancy Dorman
--------------------------------
Title:
--------------------------------
Address: 1119 St. Paul Street
Baltimore, MD 21202
NORTH BRIDGE VENTURE PARTNERS, L.P.
By: North Bridge Venture Management,
L.P., its General Partner
By: /s/ Richard D'Amore
----------------------------------
General Partner
Address: 950 Winter Street, Suite 4600
Waltham, MA 02451
MATRIX PARTNERS IV, L.P.
By: Matrix IV Management Co., L.P.,
its General Partner
By: /s/ Timothy Barrows
----------------------------------
Address: Bay Colony Corporate Center
1000 Winter Street,
Suite 4500
Waltham, MA 02451
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MATRIX IV ENTREPRENEURS FUND, L.P.
By: Matrix IV Management Co., L.P.,
its General Partner
By: /s/ Timothy Barrows
-----------------------------------
Address: Bay Colony Corporate Center
1000 Winter Street,
Suite 4500
Waltham, MA 02451
CREDIT SUISSE FIRST BOSTON VENTURE
FUND I, L.P.
By: QBB Management Fund I, LLC, its
General Partner
By: /s/ Waren Dewar
-----------------------------------
Address: 2400 Hanover Street
Palo Alto, CA 94304
DAIN RAUSCHER WESSELS INVESTORS L.L.C.
By: Dain Rauscher Incorporated
Its: Managing Member
By: /s/ Mary Zimmer
----------------------------------
Print Name: /s/ Mary Zimmer
---------------------------
Title: Director Finance and
Administration
Dain Rauscher Wessels
--------------------------------
Address: 60 South 6th Street
Minneapolis, MN 55402
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FORD MOTOR COMPANY
By: /s/ Kathryn S. Lamping
-----------------------------------
Title: Assistant Secretary
--------------------------------
Address: 1 American Road
Dearborn, MI 48121
NEW PREFERRED HOLDERS:
BVCF IV, L.P.
By: J.W. Puth Associates, LLC
its General Partner
By: Brinson Venture Management, LLC,
its Attorney-in-Fact
By: Brinson Partners, Inc.
its Managing Member
By: /s/ George H. Spencer
-----------------------------------
George H. Spencer III
Executive Director
Address: 209 South LaSalle Street
Chicago, IL 60604-1295
HAEBLER VENTURES LIMITED PARTNERSHIP
By: /s/ L. Scott Frantz
-----------------------------------
Its General Partner
Address: 8 Sound Shore Drive
Greenwich, CT 06830
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DRW VENTURE PARTNERS L.P.
By: Dain Rauscher Corporation
Its General Partner
By: /s/ Mary Zimmer
-----------------------------------
Address: 60 South 6th Street
Minneapolis, MN 55402
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EXHIBIT A
SCHEDULE V
LIST OF SERIES D PREFERRED STOCKHOLDERS
Ford Motor Company
HarbourVest Partners, VI - Direct Fund L.P.
Credit Suisse First Boston Venture Fund I, L.P.
North Bridge Venture Partners, L.P.
Matrix Partners IV, L.P.
Matrix IV Entrepreneurs Fund, L.P.
New Enterprise Associates VII, Limited Partnership
Atlas Venture Fund III, L.P.
Atlas Venture Entrepreneurs' Fund III, L.P.
DRW Venture Partners L.P.
BVCF IV, L.P.
Haebler Ventures Limited Partnership
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EXHIBIT B
Schedule VI
LIST OF CERTAIN FOUNDERS
Beir Irrevocable Trust
Steve Beir
Linda Goslin
John Beir
David Puffer
Audrey Ladd
John Puffer
Amy Puffer
The R. Pito Salas Grantor Retained Annuity Trust
Chester S. Kedzierski
Chester H. Kedzierski
Christine Salas, as custodian for the benefit of Daniel A. Salas
Lawrence D. Salas
Margarita Salas
Patricia L. Salas
