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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 "Xxxxxxx Xxxxx" set forth in subsection (ii) of
Article II, Section 1(a) shall be replaced with "Xxxxx X. Xxxxxxx."
In addition, the parenthetical "(initially, Xxxxxx X. Xxxxx)" 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 "Xxxxxxx X. Xxxx nor R. Xxxx Xxxxx."
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/ Xxxxxxx X. Xxxx
-----------------------------------
Xxxxxxx X. Xxxx
President
Address: 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
FOUNDERS:
/s/ Xxxxxxx X. Xxxx
--------------------------------------
Xxxxxxx X. Xxxx
Address: c/o eRoom Technology, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
/s/ R. Xxxx Xxxxx
--------------------------------------
R. Xxxx Xxxxx
Address: c/o eRoom Technology, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
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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/ Xxxxxx Xxxxxx
-----------------------------------
Vice President
Address: 000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
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/ Xxxxxx Xxxxxx
-----------------------------------
Vice President
Address: 000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
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ESSEX PRIVATE PLACEMENT II, LIMITED
PARTNERSHIP
By: Essex Investment Management
Company, LLC, its General Partner
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Principal
Address: 000 Xxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
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/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Name: Managing Director
Title
Address: Xxx Xxxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, XX 00000
NEW ENTERPRISE ASSOCIATES VII, LIMITED
PARTNERSHIP
By: NEA Partners VII, Limited
Partnership
By: /s/ Xxxxx Docras
-----------------------------------
General Partner
Address: 0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
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NEA PRESIDENTS' FUND, L.P.
By: NEA General Partners, L.P.
By: /s/ Xxxxx Xxxxxx
-----------------------------------
General Partner
Address: 0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
NEA VENTURES 1997, L.P.
By: /s/ Xxxxx Xxxxxx
--------------------------------
Title:
--------------------------------
Address: 0000 Xx. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
NORTH BRIDGE VENTURE PARTNERS, L.P.
By: North Bridge Venture Management,
L.P., its General Partner
By: /s/ Xxxxxxx X'Xxxxx
----------------------------------
General Partner
Address: 000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
MATRIX PARTNERS IV, L.P.
By: Matrix IV Management Co., L.P.,
its General Partner
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Address: Bay Colony Corporate Center
0000 Xxxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxx, XX 00000
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MATRIX IV ENTREPRENEURS FUND, L.P.
By: Matrix IV Management Co., L.P.,
its General Partner
By: /s/ Xxxxxxx Xxxxxxx
-----------------------------------
Address: Bay Colony Corporate Center
0000 Xxxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxx, XX 00000
CREDIT SUISSE FIRST BOSTON VENTURE
FUND I, L.P.
By: QBB Management Fund I, LLC, its
General Partner
By: /s/ Xxxxx Xxxxx
-----------------------------------
Address: 0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
XXXX XXXXXXXX XXXXXXX INVESTORS L.L.C.
By: Xxxx Xxxxxxxx Incorporated
Its: Managing Member
By: /s/ Xxxx Xxxxxx
----------------------------------
Print Name: /s/ Xxxx Xxxxxx
---------------------------
Title: Director Finance and
Administration
Xxxx Xxxxxxxx Xxxxxxx
--------------------------------
Address: 00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000
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FORD MOTOR COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
Title: Assistant Secretary
--------------------------------
Address: 0 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
NEW PREFERRED HOLDERS:
BVCF IV, L.P.
By: X.X. Xxxx Associates, LLC
its General Partner
By: Xxxxxxx Venture Management, LLC,
its Attorney-in-Fact
By: Xxxxxxx Partners, Inc.
its Managing Member
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxx III
Executive Director
Address: 000 Xxxxx XxXxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
HAEBLER VENTURES LIMITED PARTNERSHIP
By: /s/ L. Xxxxx Xxxxxx
-----------------------------------
Its General Partner
Address: 0 Xxxxx Xxxxx Xxxxx
Xxxxxxxxx, XX 00000
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DRW VENTURE PARTNERS L.P.
By: Xxxx Xxxxxxxx Corporation
Its General Partner
By: /s/ Xxxx Xxxxxx
-----------------------------------
Address: 00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000
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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, X.X.
Xxxxxxx Ventures Limited Partnership
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EXHIBIT B
Schedule VI
LIST OF CERTAIN FOUNDERS
Beir Irrevocable Trust
Xxxxx Xxxx
Xxxxx Xxxxxx
Xxxx Xxxx
Xxxxx Xxxxxx
Xxxxxx Xxxx
Xxxx Xxxxxx
Xxx Xxxxxx
The R. Xxxx Xxxxx Grantor Retained Annuity Trust
Xxxxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxx
Xxxxxxxxx Xxxxx, as custodian for the benefit of Xxxxxx X. Xxxxx
Xxxxxxxx X. Xxxxx
Xxxxxxxxx Xxxxx
Xxxxxxxx X. Xxxxx
