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EXHIBIT 10.7
NOVIENT, INC.
AMENDMENT TO INVESTOR RIGHTS AGREEMENT
This Amendment to Investor Rights Agreement (this "Amendment") is made
as of May 31, 2000 by and among Novient, Inc., a Georgia corporation (the
"Company"), the individuals and entities listed on the signature pages hereto
under the caption "Original Investors" (collectively, the "Original Investors"),
and Andersen Consulting LLP, an Illinois partnership ("AC"), to amend that
certain Investor Rights Agreement, dated as of February 24, 2000 (the
"Agreement"), among the Company and the Investors listed on the signature pages
thereto. All capitalized terms used but not otherwise defined herein shall have
the meanings given to them in the Agreement.
RECITALS
WHEREAS, as of the date hereof, the Company and AC have executed and
delivered that certain Master Alliance Agreement providing for a framework and
structure for a strategic alliance under which the parties will jointly pursue
certain market opportunities (the "Transaction");
WHEREAS, in connection with the Transaction, among other things, AC and
the Company will enter into a Warrant Issuance Agreement (the "Warrant Issuance
Agreement") providing for the grant to AC of a warrant (the "AC Warrant") to
purchase, upon the terms and conditions described in such warrant, 160,000
shares of Common Stock;
WHEREAS, in connection with the Transaction, the Company and the
Investors desire to grant AC the registration rights for the shares of Common
Stock issuable upon exercise of the AC Warrant as provided in the Agreement;
WHEREAS, Section 4.8 of the Agreement provides that any provision of
the Agreement may be amended by a written instrument signed by the Company and
by the Investors holding a majority of the Registrable Securities then
outstanding then held by the Investors;
NOW THEREFORE, in consideration of the premises set forth above and for
other good and valuable consideration, receipt of which is hereby acknowledged,
the parties agree as follows:
1. The definition of "Investors" in the Agreement is hereby
amended so that "Investors" is defined to mean the Series C Investors, the
Series B Investors, the Series A Investor and AC.
2. The phrase "(i) the shares of common stock of the Company (the
"Common Stock") issuable or issued upon conversion of the Series C Preferred
Stock, the Series B Preferred Stock and Series A Preferred Stock" in Section
1.1(d) of the Agreement is hereby
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deleted and replaced with the phrase "(i) the shares of common stock of the
Company (the "Common Stock") issuable or issued (x) upon conversion of the
Series C Preferred Stock, the Series B Preferred Stock and Series A Preferred
Stock or (y) upon exercise of the AC Warrant."
3. The phrase "(i) any "affiliate" of such Holder (as defined
under the Securities Act)" in Section 1.11 of the Agreement is hereby deleted
and replaced with the phrase "(i) any "affiliate" of such Holder (as defined (x)
under the Securities Act or (y) with respect to AC and in addition to the
foregoing, means any of the partnerships, firms, corporations, entities and
individuals, wherever located, which together are referred to as the "Andersen
Consulting Business Unit" of the Andersen Worldwide Organization whether by
virtue of their member firm interfirm agreements with Andersen Worldwide Societe
Cooperative (or any successor or assignee thereto acting to coordinate the
business of such entities) or by virtue of ownership, direct or indirect, by
such an entity or otherwise being under the control of or under common control,
directly or indirectly, with such an entity and which are thereby deemed part of
the Andersen Consulting Business Unit)."
4. The undersigned Original Investors hereby consent pursuant to
Section 1.12 of the Agreement to the Company granting AC and its permitted
assigns the registration and other rights contained in this Amendment, subject
to the obligations and other terms and conditions contained therein.
5. The phrase "Series C Investors and Series B Investors" in the
introductory sentence of Section 2.1 of the Agreement is hereby deleted and
replaced with the phrase "Series C Investors, Series B Investors and AC."
6. The phrase "Series C Investor or Series B Investor" in Section
2.1(f) of the Agreement is hereby deleted and replaced with the phrase "Series C
Investor, Series B Investor or AC."
7. The phrase "Series C Investor and Series B Investor" in
Section 2.2 of the Agreement is hereby deleted and replaced with the phrase
"Series C Investor, Series B Investor and AC."
8. The undersigned Original Investors hereby waive compliance by
the Company with Section 3 of the Agreement and hereby waive the right of first
offer in Section 3 of the Agreement, in each case as it relates to the issuance
and assignment to AC of the AC Warrant or the subsequent exercise of such
warrant.
9. The phrase "Series B Investor and Series C Investor" in the
first sentence of Section 3.1 of the Agreement is hereby deleted and replaced
with the phrase "Series B Investor, Series C Investor and AC." The phrase
"Series B Investor or Series C Investor" in the third sentence of Section 3.1 of
the Agreement is hereby deleted and replaced with the phrase "Series B Investor,
Series C Investor or AC." The phrase "each Series B Investor and Series C
Investor" in the preamble to Section 3.2 is hereby deleted and replaced with the
phrase "each Series B Investor, each Series C Investor and AC." The phrase "the
Series B Investor or Series C Investor" in Section 3.2(b) is hereby deleted and
replaced with the phrase "the Series B Investor, the Series C Investor or AC."
Section 8(c) is hereby deleted and replaced with the following:
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"Within five (5) days after the expiration of the foregoing 20 day
period, the Company shall give to each Series B Investor, each Series C
Investor and AC who has elected to purchase his or its pro rata share
(a "Fully Participating Holder") written notice indicating the number
of remaining New Securities not elected for purchase by the other
Series B Investors and Series C Investors or AC (the "Second Notice").
Each Fully Participating Holder shall have the option, exercisable by
so specifying in a subsequent written notice to the Company (the
"Second Election Notice"), given to the Company within five (5) days
after receiving the Second Notice, to purchase such Fully Participating
Holder's pro rata portion of any remaining New Securities not purchased
by other Series B Investors and Series C Investors or AC pursuant to
this Subsection 3.2(c)."
The following phrase is added to the end of Section 3.3 of the Agreement: "and
(vii) the issuance and assignment to AC of the AC Warrant and the issuance of
shares of Common Stock upon the exercise of the AC Warrant." The phrase "each
Series B Investor and Series C Investor" in the first sentence of Section 3.4 is
hereby deleted and replaced with the phrase "each Series B Investor, each Series
C Investor and AC."
10. The foregoing amendments, consents and waivers to the
Agreement shall become effective upon (and shall not be effective on any date
prior to) the issuance and assignment of the AC Warrant pursuant to the Warrant
Issuance Agreement.
11. Except as otherwise amended by this Amendment, the terms and
provisions of the Agreement shall remain in full force and effect.
12. This Amendment may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
[Signature pages follow]
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IN WITNESS WHEREOF, the parties have executed this Amendment on the
day, month and year first set forth above.
NOVIENT, INC.
By: /s/ R. Halsey Wise
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Name: R. Halsey Wise
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Title: President
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ANDERSEN CONSULTING LLP
By: /s/ W.H. McIntyre, Jr.
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Name: W.H. McIntyre, Jr.
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Title: Partner
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ORIGINAL INVESTORS:
MELLON VENTURES, L.P.
By: /s/ Burton B. Goldstein, Jr.
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Name: Burton B. Goldstein, Jr.
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Title: Venture Partner
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LOVETT MILLER VENTURE FUND II,
LIMITED PARTNERSHIP
By: Lovett Miller Venture Partners II, LLC
Its General Partner
By: /s/ W. Scott Miller
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W. Scott Miller
Managing Director
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FIRST UNION CAPITAL PARTNERS, INC.
By: /s/ Arthur C. Roselle
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Name: Arthur C. Roselle
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Title: Vice President
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R-H CAPITAL PARTNERS, L.P.
By: R-H/Travelers, L.P., its general partner
By: R-H Capital, Inc., its general partner
By: /s/ Kenneth T. Miller
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Kenneth T. Miller
Managing Director
NORO-MOSELEY PARTNERS IV, L.P.
By: MKFJ IV, LLC, its general partner
By: /s/ Alan J. Taetle
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Name: Alan J. Taetle
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Title: Member
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NORO-MOSELEY PARTNERS IV-B, L.P.
By: MKFJ IV, LLC, its general partner
By: /s/ Alan J. Taetle
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Name: Alan J. Taetle
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Title: Member
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HUMMER WINBLAD VENTURE PARTNERS
FUND IV, L.P.
By: /s/ Daniel L. Beldy IV
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Name: Daniel L. Beldy IV
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Title: Partner
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HUMMER WINBLAD TECHNOLOGY
FUND IV, L.P.
By: /s/ Daniel L. Beldy IV
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Name: Daniel L. Beldy IV
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Title: Partner
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INTELLIGENT SYSTEMS CORPORATION
By: /s/ Bonnie Herron
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Name: Bonnie Herron
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Title: Vice President
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