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EXHIBIT 4.5 - AMENDMENT TO INVESTORS' RIGHTS AGREEMENT
AMENDMENT TO
AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
THIS AMENDMENT TO AMENDED AND RESTATED INVESTORS' RIGHTS AGREEMENT
(this "Agreement") is made as of the __ day of ____, 1999, by and among
SALESLOGIX CORPORATION, a Delaware corporation formerly known as Quest Sales
Software, Inc. (the "Company"), and the "Investors", as defined in that certain
Amended and Restated Investors' Rights Agreement dated as of June 4, 1998 (the
"Restated Investors' Rights Agreement") pursuant to Section 3.7 thereof.
RECITALS
A. As of January 17, 1996, the Company entered into that certain
Investors' Rights Agreement (the "Investors' Rights Agreement") with Innocal,
L.P., Canaan Ventures II Limited Partnership, Canaan Ventures II Offshore
Limited Partnership C.V., and Newtek Ventures II, L.P. (the "Initial Series A
Investors") in connection with the transactions contemplated by that certain
QUEST SALES SOFTWARE, INC. SERIES A PREFERRED STOCK PURCHASE AGREEMENT dated as
of January 17, 1996.
B. As of October 14, 1996, the Company entered into that certain
Amendment to Investors' Rights Agreement with the Initial Series A Investors and
Xxxxxx Xxxxx, Xxxxxx Ventures and Xxxx Xxxxxxx (the "Subsequent Series A
Investors") in connection with the transactions contemplated by that certain
SALESLOGIX CORPORATION SECOND SERIES A PREFERRED STOCK PURCHASE AGREEMENT dated
as of October 14, 1996. The Initial Series A Investors and the Subsequent Series
A Investors are referred to herein as the "Series A Investors".
C. As of March 24, 1997, the Company entered into that certain Second
Amendment to Investors' Rights Agreement with the Initial Series A Investors,
the Subsequent Series A Investors, and Xxxxxxx Venture Capital Fund III, L.P.,
Xxxxxxx Trust Company as Trustee for the Xxxxxxx Map Venture Capital Fund III
Trust, Sigma Partners III, L.P., Sigma Associates III, L.P., Sigma Investors
III, L.P., Xxxx X. Xxxxxxx, InnoCal, L.P., Canaan Ventures II Limited
Partnership, Canaan Ventures II Offshore Limited Partnership C. V., Newtek
Ventures II, L.P., Comdisco, Inc., Xxxxxx Ventures and Xxxxxx Xxxxx (the "Series
C Investors") in connection with the transactions contemplated by that certain
SALESLOGIX CORPORATION SERIES C STOCK PURCHASE AGREEMENT dated as of March 24,
1997.
D. As June 4, 1998, the Company entered into the Restated Investors'
Rights Agreement with the Series A Investors, the Series C Investors, and the
investors (the "Series E Investors") set forth on Schedule A to that certain
SALESLOGIX CORPORATION SERIES E PREFERRED STOCK PURCHASE AGREEMENT dated as of
June 4, 1998 and on Schedule A to that certain FOLLOW-ON STOCK PURCHASE
AGREEMENT dated as of December 23, 1998.
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E. Concurrent with the execution of this Agreement and pursuant to that
certain STOCK PURCHASE AGREEMENT dated as of April 22, 1999 (the "Goldman Stock
Purchase Agreement"), between the Company and The Xxxxxxx Sachs Group, L.P., and
certain of its affiliates (collectively, the "Goldman Investors"), the Company,
the Goldman Investors, and a majority in interest of the Series A Investors, the
Series C Investors and the Series E Investors, each as a separate class, wish to
amend the Restated Investors' Rights Agreement, to grant each of the Goldman
Investors all of the rights (and make each of the Goldman Investors subject to
all of the obligations) of Investors under the Restated Investors' Rights
Agreement.
ACCORDINGLY, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement agree that the Restated
Investors' Rights Agreement shall be amended as follows:
1. Goldman Investors. Each Goldman Investor is hereby made a party to
the Restated Investors' Rights Agreement and shall be deemed to be an "Investor"
as defined in the Restated Investors' Rights Agreement for all purposes, and
each Goldman Investor agrees to be bound by all of the obligations of an
Investor thereunder.
2. Registrable Securities. Section 1.1(f) of the Restated Investors'
Rights Agreement is hereby amended and restated to read in its entirety as
follows:
"(f) The term "Registrable Securities" means (i) the Common
Stock issuable or issued upon conversion of the Company's Series A
Preferred Stock, Series C Preferred Stock, Series E Preferred Stock
and, if any Series F Preferred Stock is issued pursuant to the Goldman
Stock Purchase Agreement, Series F Preferred Stock, (ii) any Common
Stock issued by the Company pursuant to the Goldman Stock Purchase
Agreement, and (iii) any Common Stock of the Company issued as (or
issuable upon the conversion or exercise of any warrant, right or other
security which is issued as) a dividend or other distribution with
respect to, or in exchange for, or in replacement of the shares
referenced in (i) or (ii) above, excluding in all cases, however,
shares of Common Stock of the Company which have previously been
registered or which have been sold to the public, or any Registrable
Securities sold by a person in a transaction in which his rights under
this Section 1 are not assigned."
3. Series F Preferred Stock Related Amendments. If the Company issues
Series F Preferred Stock to the Goldman Investors pursuant to the Goldman Stock
Purchase Agreement, then the following provisions shall be amended and restated
to read in their entirety as follows:
"2.5(d) The right of first offer in this paragraph 2.5 shall
not be applicable (i) to the issuance or sale of shares of common stock
issuable or issued to employees or consultants and advisors of the
Company (including without limitation independent marketers and
resellers of the Company's products) directly or pursuant to a stock
option plan or agreement or restricted stock plan or agreement approved
by the Board of Directors of the Company at any time when the total
number of shares of common stock so issuable or issued (and not
repurchased at cost by the Company in connection with the
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termination of employment or service) does not exceed 4,500,000
(subject to appropriate adjustments for stock splits, stock dividends,
combinations or other recapitalizations after the effective date of the
Company's Fifth Restated Certificate of Incorporation), (ii)
consummation of a bona fide, firmly underwritten public offering of
shares of common stock, registered under the Act pursuant to a
registration statement on Form S-1, at an offering price of at least
$9.00 per share (after giving effect to a reverse stock split effected
on March 23, 1999, appropriately adjusted for any subsequent stock
split, dividend, combination or other recapitalization) and $20,000,000
in the aggregate, (iii) the issuance of securities pursuant to the
conversion or exercise of convertible or exercisable securities, (iv)
the issuance of securities to strategic partners of the Company
primarily for strategic purposes other than raising capital, as so
reasonably determined by the Board of Directors of the Company, or (v)
shares of common stock issued in connection with a bona fide lease
financing transaction approved by the Board of Directors of the
Company."
"2.7 IRC Section 305. So long as any shares of the Company's
Series A Preferred Stock, Series C Preferred Stock, Series E Preferred
Stock or Series F Preferred Stock remain outstanding, the Company will
not, without approval of holders of a majority of the Series A
Preferred Stock, Series C Preferred Stock, Series E Preferred Stock and
Series F Preferred Stock then outstanding, voting together on an as
converted basis, do any act or thing which would result in taxation of
the holders of shares of the Series A Preferred Stock, Series C
Preferred, Series E Preferred Stock or Series F Preferred Stock under
Section 305 of the Internal Revenue Code of 1986, as amended (the
"IRC") (or any comparable provision of the IRC as hereafter may from
time to time be amended)."
"2.9 Board Committees. So long as any shares of the Company's
Series A Preferred Stock, Series C Preferred Stock, Series E Preferred
Stock or Series F Preferred Stock remain outstanding, the Company will
use its best efforts to have the Board of Directors appoint and
maintain a Compensation Committee and an Audit Committee. Each such
Committee shall contain no more than three members and shall include no
more than one member of management of the Company. The holders of a
majority of the Series A Preferred Stock, Series C Preferred Stock,
Series E Preferred Stock and Series F Preferred Stock then outstanding,
voting together on an as converted basis, shall have the right, but not
the obligation, to designate two of the members of the Compensation
Committee."
"2.11 Termination of Certain Covenants. The covenants set
forth in Sections 2.5, 2.7, 2.8 and 2.9 shall terminate and be of no
further force or effect upon the consummation of the sale of securities
pursuant to a registration statement filed by the Company under the Act
in connection with the firm commitment underwritten offering of its
securities to the general public, provided that such initial public
offering shall be for not less than $9.00 per share and $20,000,000 in
the aggregate."
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"3.7 Amendments and Waivers. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively
or prospectively), only with the written consent of each of (a) the
Company, (b) the holders of a majority of the Series A Preferred Stock
of the Company, voting together as a class, (c) the holders of a
majority of the Series C Preferred Stock of the Company, voting
together as a class, (d) the holders of a majority of the Series E
Preferred Stock, voting together as a class, and (e) the holders of a
majority of the Series F Preferred Stock, voting together as a class.
Any amendment or waiver effected in accordance with this paragraph
shall be binding upon each holder of any Registrable Securities then
outstanding, each future holder of all such Registrable Securities, and
the Company."
4. Entire Agreement. The Restated Investors' Rights Agreement, as
amended by this Amendment, constitutes the full and entire understanding and
agreement between the parties with regard to the subjects hereof and thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
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THE COMPANY:
SALESLOGIX CORPORATION, a Delaware
corporation
By: /s/ Xxxx Xxxxx
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Xxxx Xxxxx, CFO and Secretary
Address: 0000 X. Xxxxxx Xxxxxx Xx., Xxxxx 000
Xxxxxxxxxx, XX 00000
INVESTORS:
INNOCAL, L.P., a Delaware Limited Partnership
By: InnoCal Associates, L.P., a Delaware
Limited Partnership
By:/s/ Xxxxx Xxxxxxx
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Xxxxx Xxxxxxx, General Partner
Address: 000 Xxxxx Xxxx., Xxxxx 0000
Xxxxx Xxxx, XX 00000
CANAAN VENTURES II LIMITED
PARTNERSHIP
By: Canaan Venture Partners II L.P.
By:/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, General Partner
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
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CANAAN VENTURES II OFFSHORE
LIMITED PARTNERSHIP C.V.
By: Canaan Venture Partners II L.P.
By:/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, General Partner
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
NEWTEK VENTURES II, L.P.
By: /s/ Xxxx Xxxx
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Xxxx Xxxx, General Partner
Address: 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
/s/ Xxxxxx Xxxxx
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XXXXXX XXXXX
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
XXXXXX VENTURES, a Partnership
By: /s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx, General Partner
Address: 000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
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XXXX XXXXXXX
Address: 0000 Xxxxxxxxxx
Xxxxxx, XX 00000
COMDISCO, INC., a Delaware corporation
By:
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Name:
Its:
Address: 0000 Xxxxx Xxxx
Xxxxxxxx, XX 00000
XXXXXXX VENTURE CAPITAL FUND III, L.P.
By: Xxxxxxx Partners, Inc., its General
Partner
By:/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Partner
Address: 000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
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XXXXXXX TRUST COMPANY AS TRUSTEE
FOR THE XXXXXXX MAP VENTURE
CAPITAL FUND III TRUST
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, Trust Officer
Address: 000 X. XxXxxxx Xxxxxx
Xxxxxxx, XX 00000
SIGMA PARTNERS III, L.P.,
By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx, General Partner
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
SIGMA ASSOCIATES III, L.P.
By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx, General Partner
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
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SIGMA INVESTORS III, L.P.
By: /s/ Xxxxx Xxxx
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Xxxxx Xxxx, General Partner
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
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XXXX X. XXXXXXX
Address: Oak Xxxxx
Xxxxxxxxxx, XX 00000
SIERRA VENTURES VI L.P.
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx, General Partner
THE XXXXXXX XXXXX GROUP, L.P.
By: The Xxxxxxx Sachs Corporation, its
General Partner
By:/s/ illegible
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Name:
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Its:
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[SIGNATURE PAGE TO AMENDMENT TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
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XXXXX XXXXXX XXXX 0000, L.P.
By: Stone Street Advantage Corp.
Its: General Partner
By:/s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx, Vice President
Address: 00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
XXXXXX XXXXXX XXXX 0000, X.X.
By: Bridge Street Advantage Corp.
Its: Managing General Partner
By:/s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx, Vice President
Address: 00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
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CANAAN EQUITY, L.P.
By: Canaan Equity Partners L.L.C.
By:/s/ Xxxxxx Xxxxx
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Xxxxxx Xxxxx, Member/Manager
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Xxxxxxx X. Xxxxxx
[SIGNATURE PAGE TO AMENDMENT TO AMENDED AND RESTATED
INVESTORS' RIGHTS AGREEMENT]
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