EXHIBIT 10.29
SEVENTH AMENDED AND RESTATED
STOCKHOLDER RIGHTS AGREEMENT
This Seventh Amended and Restated Stockholder Rights Agreement (the
"Agreement") is made as of this 28th day of June, 2000 by and among Evolve
Software, Inc., a Delaware corporation (the "Company"), each purchaser of the
Company's Series A Preferred Stock (collectively, the "Series A Purchasers"),
each purchaser of the Company's Series B Preferred Stock (the "Series B
Purchasers"); the purchaser of the Company's Series C Preferred Stock (the
"Series C Purchaser"), each purchaser of the Company's Series D Preferred Stock
(the "Series D Purchasers"), the purchasers of the Company's Series E Preferred
Stock (the "Series E Purchaser"), each purchaser of the Company's Series F
Preferred Stock (the "Series F Purchasers"), each purchaser of the Company's
Series G Preferred Stock (the "Series G Purchasers"), each Purchaser of Series H
Preferred Stock (the "Series H Purchasers") and each Purchaser of Series I
Preferred Stock (the "Series I Purchasers"). The Series A Purchasers, the
Series B Purchasers, the Series C Purchaser, the Series D Purchasers, the Series
E Purchasers, the Series F Purchasers, the Series G Purchasers, the Series H
Purchasers and the Series I Purchasers are hereinafter collectively referred to
as the "Purchasers". The Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series D Preferred Stock, Series E Preferred Stock,
Series F Preferred Stock, Series G Preferred Stock, the Series H Preferred Stock
and the Series I Preferred Stock are hereinafter collectively referred to as the
"Serial Preferred."
Recitals
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A. The Company and the Series I Purchasers have entered into that certain
Series I Preferred Stock Purchase Agreement dated June 28, 2000 (the "Purchase
Agreement") pursuant to which the Company shall sell to the Series I Purchasers
up to 32,000,000 shares of its Series I Preferred Stock ("Series I Preferred").
B. The obligation of the Series I Purchasers to purchase the Series I
Preferred under the Purchase Agreement is conditioned upon, among other things,
the execution and delivery by the Company and the Series I Purchasers of this
Agreement.
C. The Company and the Series A Purchasers, the Series B Purchasers, the
Series C Purchasers, the Series D Purchasers, the Series E Purchasers, the
Series F Purchasers, the Series G Purchasers and the Series H Purchasers on
December 3, 1999, entered into a Sixth Amended and Restated Stockholder Rights
Agreement (the "Prior Agreement").
D. Section 22 of the Prior Agreement provides that the Prior Agreement may
be amended to add additional purchasers of any Series of Preferred Stock.
E. The Company desires to amend and restate the Prior Agreement to include
the Series I Purchasers as parties to such agreement.
Agreement
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1. Certain Definitions. As used in this Agreement, the following terms shall
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have the following respective meanings:
"Commission" shall mean the Securities and Exchange Commission or any
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successor agency.
"Holder" shall mean each Purchaser and any transferee or subsequent
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grantee of Registrable Securities.
"IPO" shall mean the initial offering to the public of shares of the
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Company's Common Stock pursuant to a registration statement filed under the
Securities Act of 1933, as amended.
"Registrable Securities" shall mean (i) shares of the Company's Common
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Stock issued or issuable upon the conversion of the Serial Preferred, including
Serial Preferred issued upon exercise of warrants to purchase Serial Preferred;
(ii) any Common Stock of the Company or other securities issued or issuable in
respect of shares of the Series A Preferred, the Series B Preferred, the Series
C Preferred, the Series D Preferred, the Series E Preferred, the Series F
Preferred, the Series G Preferred, the Series H Preferred or the Series I
Preferred; and (iii) shares issued or issuable in respect of any shares
described in clauses (i)-(ii) above upon any stock split, stock dividend,
recapitalization, or similar event; provided, however, that any shares described
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in clauses (i)-(iii) above shall cease to be Registrable Securities if (x) such
securities are sold in the public market pursuant to the Company's IPO or
otherwise or (y) as to any such securities held by a Holder, at such time as
such Holder may sell all such Holder's Registrable Securities in a single three
month period pursuant to Rule 144 or Rule 144(k) of the Securities Act.
The terms "register," "registered" and "registration" refer to a
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registration effected by preparing and filing a registration statement in
compliance with the Securities Act, and the declaration or ordering of the
effectiveness of such registration statement.
"Registration Expenses" shall mean all expenses incurred by the Company
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in complying with Sections 5, 6 and 9 hereof, including, without limitation, all
registration, qualification and filing fees, printing expenses, escrow fees,
fees and disbursements of counsel for the Company, blue sky fees and expenses,
and the expense of any special audits incident to or required by any such
registration.
"Restricted Securities" shall mean the securities of the Company
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required to bear the legend set forth in Section 3 hereof (or any similar
legend).
"Securities Act" shall mean the Securities Act of 1933, as amended.
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"Selling Expenses" shall mean all underwriting discounts, selling
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commissions and stock transfer taxes applicable to the securities registered by
the Holders.
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2. Restrictions on Transferability. The Restricted Securities shall not be
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transferable except upon the conditions specified in this Agreement, which
conditions are intended to ensure compliance with the provisions of the
Securities Act. Each Holder of Restricted Securities will cause any proposed
transferee of the Restricted Securities held by such Holder to agree to take and
hold such Restricted Securities subject to the provisions and upon the
conditions specified in this Agreement.
3. Restrictive Legend. Each certificate representing (i) the Serial Preferred
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(ii) shares of the Company's Common Stock issued upon conversion of the Serial
Preferred (iii) shares issued or issuable in respect of any shares described in
clauses (i)-(ii) above upon any stock split, stock dividend, recapitalization,
or similar event, shall (unless otherwise permitted by the provisions of Section
4 below) be stamped or otherwise imprinted with a legend in the following form
(in addition to any legend required under applicable state securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933. THESE SHARES MAY NOT BE SOLD OR TRANSFERRED IN THE ABSENCE OF
SUCH REGISTRATION OR AN EXEMPTION THEREFROM UNDER SAID ACT. COPIES OF
THE AGREEMENT COVERING THE PURCHASE OF THESE SHARES AND RESTRICTING
THEIR TRANSFER MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY
THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF THE
CORPORATION AT THE PRINCIPAL EXECUTIVE OFFICES OF THE CORPORATION.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS UPON TRANSFER, INCLUDING A RIGHT OF FIRST OFFER, AS SET
FORTH IN AN AGREEMENT BETWEEN THE CORPORATION AND THE REGISTERED
HOLDER, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL OFFICE OF THE
CORPORATION. SUCH TRANSFER RESTRICTIONS, INCLUDING THE RIGHT OF FIRST
OFFER ARE BINDING ON TRANSFEREES OF THESE SHARES.
4. Notice of Proposed Transfers. The Holder of each certificate representing
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Restricted Securities by acceptance thereof agrees to comply in all respects
with the provisions of this Section 4. Prior to any proposed transfer of any
Restricted Securities, unless there is in effect a registration statement under
the Securities Act covering the proposed transfer, the Holder thereof shall give
written notice to the Company of such Holder's intention to effect such
transfer. Each such notice shall describe the manner and circumstances of the
proposed transfer in sufficient detail, and shall, if the Company reasonably so
requests, be accompanied (except in transactions in compliance with Rule 144) by
either (i) a written opinion of legal counsel who shall be reasonably
satisfactory to the Company, addressed to the Company and reasonably
satisfactory in form and substance to the Company's counsel, to the effect that
the proposed transfer of the Restricted Securities may be effected without
registration under the Securities Act, or (ii) a "No Action" letter
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from the Commission to the effect that the transfer of such securities without
registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto, whereupon the Holder of such
Restricted Securities shall be entitled to transfer such Restricted Securities
in accordance with the terms of the notice delivered by the Holder to the
Company; provided, however, that no opinion or No Action letter need be obtained
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with respect to a transfer to (A) a partner, active or retired, of a Holder of
Restricted Securities, (B) the estate of any such partner, (C) an "affiliate" of
a Holder of Restricted Securities as that term is defined in Rule 405
promulgated by the Commission under the Securities Act, (D) the spouse,
children, grandchildren or spouse of such children or grandchildren of any
Holder or to trusts for the benefit of any Holder or such persons or (E) any
officer, director or principal shareholder thereof, where such Holder is a
corporation, if the transferee agrees to be subject to the terms hereof
(collectively, "Exempt Transactions"). Each certificate evidencing the
Restricted Securities transferred as above provided shall bear the appropriate
restrictive legend set forth in Section 3 above, except that such certificate
shall not bear such restrictive legend if in the opinion of counsel for the
Company such legend is not required in order to establish compliance with any
provisions of the Securities Act.
5. Requested Registration.
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(A) Request for Registration. If at any time after the later of (i) June 1,
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2002, and (ii) six months after the closing of the IPO, the Company shall
receive from any Holder or group of Holders holding at least 20% of the
Registrable Securities a written request that the Company effect any
registration, qualification or compliance with respect to an offering of
Registrable Securities with aggregate proceeds (after deduction for Selling
Expenses) of at least $5,000,000, the Company will:
(i) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; and
(ii) as soon as practicable, use its best efforts to effect such
registration, qualification or compliance (including, without limitation, the
execution of an undertaking to file post-effective amendments, appropriate
qualification under applicable blue sky or other state securities laws and
appropriate compliance with applicable regulations issued under the Securities
Act and any other governmental requirements or regulations) as may be so
requested and as would permit or facilitate the sale and distribution of all or
such portion of such Registrable Securities as are specified in such request;
provided, however, that the Company shall not be obligated to take any action to
effect any such registration, qualification or compliance pursuant to this
Section 5:
(1) In any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in effecting such
registration, qualification or compliance unless the Company is already subject
to service in such jurisdiction and except as may be required by the Securities
Act;
(2) After the Company has effected two such registrations
pursuant to this Section 5(a);
(3) Less than six months after the closing of the IPO;
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(4) Upon delivery, within 30 days of receipt of a request for
registration of securities pursuant to this Section 5, of notice to the Holders
requesting registration of the Company's intention to file a registration
statement with respect to shares of its Common Stock pursuant to the Securities
Act within 120 days of such notice.
Subject to the foregoing clauses (1), (2), (3) and (4) the Company shall
file a registration statement covering the Registrable Securities so requested
to be registered as soon as practicable after receipt of the request or requests
of any Holder or Holders; provided, however, that if the Company shall furnish
to the Holders requesting a registration pursuant to this Section 5 a
certificate signed by the Company's Chief Executive Officer or Chairman of the
Board stating that in the good faith judgment of the Board of Directors of the
Company, it would be seriously detrimental to the Company and its stockholders
for such registration statement to be filed and it is therefore necessary to
defer the filing of the registration statement, the Company shall have the right
to defer such filing for a period not in excess of 120 days in any twelve-month
period.
6. Company Registration.
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(A) Notice of Registration. If the Company shall determine to register any
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of its securities under the Securities Act, either for its own account or the
account of a Holder or Holders exercising their respective demand registration
rights, other than (i) a registration relating solely to employee benefit plans,
or (ii) a registration relating solely to a Commission Rule 145 transaction, the
Company will:
(i) promptly give to each Holder written notice thereof; and
(ii) include in such registration (and any related qualification under
blue sky laws or other compliance), and in any underwriting involved therein,
all the Registrable Securities specified in a written request or requests, made
within 20 days after delivery of such written notice by the Company, by any
Holder or Holders, provided that the Company may limit, to the extent so
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advised by the underwriters, the amount of Registrable Securities to be included
in the registration by the Holders, or may exclude, to the extent so advised by
the underwriters, such Registrable Securities entirely from such registration;
provided further that the amount of Registrable Securities to be included in the
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registration by the Holders shall not be reduced to less than 25% of the total
amount of shares included in any registration other than the registration
relating to the IPO; provided further that if such registration statement is
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filed pursuant to an exercise of the Holders' rights under Section 5 hereof, the
Registrable Securities to be included in the registration by the Holders shall
not be reduced until the securities to be included by the Company in the
registration have been limited to 25% of the total amount of shares included in
such registration.
(B) Allocation of Shares. In all registered public offerings, whether
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underwritten or not, the amount of Registrable Securities of Holders which are
included in such registration, in accordance with the limitations set forth in
Section 6(a)(ii) above, shall be allocated to the Holders in proportion, as
nearly as practicable, to the respective amounts of Registrable Securities which
would be held by each of such Holders assuming conversion of all outstanding
Preferred Stock as of the date of the notice given pursuant to this Section 6,
or such other proportions as shall have been mutually agreed upon by such
selling Holders.
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If the registration of which the Company gives notice is for a
registered public offering involving an underwriting, the Company shall so
advise the Holders as a part of the written notice given pursuant to Section
6(a)(i). In such event the right of any Holder to registration pursuant to
Section 6 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their securities through such underwriting shall (together with the Company)
enter into an underwriting agreement in customary form with the underwriter or
underwriters selected by the Company. If any Holder disapproves of the terms of
any such underwriting, such Holder may elect to withdraw therefrom by written
notice to the Company and the underwriter. Any Registrable Securities or other
securities excluded or withdrawn from such underwriting shall be withdrawn from
such registration.
7. Expenses of Registration. All Registration Expenses incurred in connection
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with any registration, qualification or compliance pursuant to Section 5(a),
Section 6 and Section 9 shall be borne by the Company. All Selling Expenses
relating to securities registered by the Holders shall be borne by the Holders
of such securities pro rata on the basis of the number of shares so registered.
8. Registration Procedures. In the case of each registration, qualification or
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compliance effected by the Company pursuant to this Agreement with respect to
Registrable Securities, the Company will keep each Holder advised in writing as
to the initiation of each registration, qualification and compliance and as to
the completion thereof. At its expense the Company will:
(A) Prepare and file with the Securities and Exchange Commission a
registration statement with respect to such Registrable Securities and use all
reasonable efforts to cause such registration statement to become effective,
and, upon the request of the Holders of a majority of the Registrable Securities
registered thereunder, keep such registration statement effective for a period
of up to one hundred twenty (120) days or, if earlier, until the distribution
contemplated in the registration statement has been completed;
(B) Prepare and file with the Securities and Exchange Commission such
amendments to such registration statement and the prospectus used in connection
with such registration statement as may be necessary to comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such registration statement;
(C) Furnish to the Holders such number of copies of a prospectus, including
if applicable a preliminary prospectus, in conformity with the requirements of
the Securities Act, and such other documents as they may reasonably request in
order to facilitate the disposition of the Registrable Securities held by them;
(D) Use all reasonable efforts to register and qualify the securities
covered by such registration statement under such other securities or Blue Sky
laws of such jurisdictions as shall be reasonably requested by the Holders,
provided that the Company shall not be required in connection therewith or as a
condition thereto to do business or file a general consent to service of process
in any such jurisdictions;
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(E) In the event of any underwritten public offering, enter into and
perform its obligations under an underwriting agreement, in usual and customary
form, with the managing underwriter of such offering;
(F) Notify each Holder of Registrable Securities covered by such
registration statement at any time when a prospectus relating thereto is
required to be delivered under the Act of the happening of any event as a result
of which the prospectus included in such registration statement, as then in
effect, includes an untrue statement of material fact or omits to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances then existing;
(G) Cause all such Registrable Securities registered pursuant hereto to be
listed on each securities exchange on which similar securities issued by the
Company are registered; and
(H) Provide a transfer agent and registrar for all such Registrable
Securities registered pursuant hereto and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration.
9. Registration on Form S-3. In addition to the rights set forth in Section 5,
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if a Holder or Holders request that the Company file a registration statement on
Form S-3 (or any successor thereto) for a public offering of shares of
Registrable Securities the reasonably anticipated aggregate price to the public
of which would exceed $1,000,000, and the Company is a registrant entitled to
use Form S-3 to register securities for such an offering, the Company shall use
its best efforts to cause such shares to be registered for the offering on such
form (or any successor thereto). The Company shall be required to file no more
than one (1) such registration statement during any 6-month period.
10. Termination of Registration Rights. The registration rights granted
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pursuant to this Agreement shall terminate as to all Holders on the fifth
anniversary of the closing of the IPO.
11. Lockup Agreement. In consideration for the Company agreeing to its
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obligations under this Agreement each Holder of Registrable Securities and each
transferee pursuant to Section 14 hereof agrees, in connection with the IPO,
upon request of the Company or the underwriters managing any underwritten
offering of the Company's securities, not to sell, make any short sale of, loan,
grant any option for the purchase of, or otherwise dispose of any Registrable
Securities (other than those included in the registration) without the prior
written consent of the Company or such underwriters, as the case may be, for
such period of time (not to exceed 180 days) from the effective date of such
registration as the Company or the underwriters may specify; provided that all
officers and directors of the Company not affiliated with such Holder are
subject to similar restrictions. Each Holder agrees that the Company may
instruct its transfer agent to place stop transfer notations in its records to
enforce the provisions of this Section 11. Notwithstanding anything herein to
the contrary, Xxxxxxx Xxxxx & Co., Deutsche Banc Alex. Xxxxx, Citibank and their
respective affiliates may engage in any brokerage, financing, asset management,
trading, market making, arbitrage and other similar activities conducted in the
ordinary course of their respective businesses, provided that no Confidential
Information (as defined below) or other material nonpublic information shall be
used in connection therewith.
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12. Indemnification.
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(A) The Company will indemnify each Holder, each of its officers,
directors and partners and such Holder's legal counsel and independent
accountants, and each person controlling such Holder within the meaning of
Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Agreement, and
each underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages and liabilities (or actions in respect thereof), including any
of the foregoing incurred in settlement of any litigation, arising out of or
based on any untrue statement (or alleged untrue statement) of a material fact
contained in any registration statement, prospectus, offering circular or other
document, or any amendment or supplement thereto, incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, or any violation by the Company of any rule or
regulation promulgated under the Securities Act, the Securities Exchange Act of
1934, as amended and any state securities laws applicable to the Company and
relating to action or inaction required of the Company in connection with any
such registration, qualification or compliance, and will reimburse each such
Holder, each of its officers, directors and partners and such Holder's legal
counsel and independent accountants, and each person controlling such Holder,
each such underwriter and each person who controls any such underwriter, for any
legal and any other expenses reasonably incurred in connection with
investigating, preparing or defending any such claim, loss, damage, liability or
action, provided that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is based on any untrue statement or omission or alleged untrue statement or
omission, made in reliance upon and in conformity with written information
furnished to the Company by an instrument duly executed by such Holder or
underwriter and stated to be specifically for use therein.
(B) Each Holder will, if Registrable Securities held by such Holder are
included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers and its legal counsel and independent accountants, each underwriter, if
any, of the Company's securities covered by such a registration statement, each
person who controls the Company or such underwriter within the meaning of
Section 15 of the Securities Act, and each other such Holder, each of its
officers and directors and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, and will
reimburse the Company, such Holders, such directors, officers, legal counsel,
independent accountants, underwriters or control persons for any legal or any
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability or action, in each case to the extent,
but only to the extent, that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in
conformity with written information furnished to the
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Company by an instrument duly executed by such Holder and stated to be
specifically for use therein; provided, however, that the obligations of such
Holders hereunder shall be limited to an amount equal to the gross proceeds
before expenses and commissions to each such Holder of Registrable Securities
sold as contemplated herein.
(C) Each party entitled to indemnification under this Section 12 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnifying
Party, who shall conduct the defense of such claim or litigation, shall be
approved by the Indemnified Party (whose approval shall not be unreasonably
withheld), and the Indemnified Party may participate in such defense at such
party's expense, and provided further that the failure of any Indemnified Party
to give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Agreement, except to the extent, but only to the
extent, that the Indemnifying Party's ability to defend against such claim or
litigation is impaired as a result of such failure to give notice. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to entry of any
judgment or enter into any settlement which does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation.
13. Information by Holder. The Holder or Holders of Registrable Securities
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included in any registration shall furnish to the Company such information
regarding such Holder or Holders and the distribution proposed by such Holder or
Holders as the Company may request in writing and as shall be required in
connection with any registration, qualification or compliance referred to in
this Agreement.
14. Transfer of Registration Rights. The right to cause the Company to
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register securities granted the Shareholders hereunder may be assigned to a
transferee or assignee who acquires at least 250,000 shares of Serial Preferred
(or Common Stock issued on conversion of shares of Serial Preferred) (adjusted
for stock splits, reverse stock splits or similar events after the date hereof)
provided that the Company is given written notice of such assignment prior to
such assignment. In addition, rights to cause the Company to register securities
may be assigned to investment partnerships controlled by the managing partners
of any Holder of Registrable Securities and their respective limited partners,
and shareholders, subsidiaries, immediate family members beneficial trusts and
estates of such limited partners, provided that no rights may be transferred
pursuant to this Section 14 unless the transferee agrees to be bound by all
terms of this Agreement.
15. Right of First Offer.
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(A) Prior to making any sale or transfer of shares of Serial Preferred or
other capital stock of the Company (the "Transfer Shares") other than in an
Exempt Transaction, each Purchaser shall give the Company the opportunity to
purchase such shares in the following manner:
(i) The Purchaser shall give notice (the "Transfer Notice") to the
Company in writing of such intention, specifying the amount of Transfer Shares
proposed to be sold
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or transferred, the proposed price per share therefor (the "Transfer Price") and
the other material terms upon which such disposition is proposed to be made.
(ii) The Company shall have the right, exercisable by written notice
given by the Company to the Purchaser within 30 days after receipt of such
Transfer Notice, to purchase all but not part of the Transfer Shares specified
in such Transfer Notice for a price per share equal to the Transfer Price, which
notice shall be accompanied by evidence satisfactory to the Purchaser (by
written commitment letter subject only to customary representations, diligence
and documentation, letter of credit or otherwise) of the Company's ability to
finance such repurchase.
(iii) If the Company exercises its right of first offer hereunder,
the closing of the purchase of the Transfer Shares with respect to which such
right has been exercised shall take place on the date specified in the Company's
acceptance (which date shall not be more than 45 nor less than 20 days after the
date of such acceptance) at the offices of the Purchaser located at the address
set forth in this Agreement, or at such other time and place as the Company and
the Purchaser may agree. The Company and the Purchaser will use their respective
best efforts to comply with all Federal and state laws, rules and regulations
applicable to any purchase of Transfer Shares under this Section 15.
(iv) If the Company does not exercise its right of first offer
hereunder within the time specified for such exercise, the Purchaser shall be
free, during the period of 120 calendar days following the expiration of such
time for exercise, to sell the Transfer Shares specified in such Transfer Notice
on terms no less favorable to the buyer of such Transfer Shares than the terms
specified in such Transfer Notice.
(B) Assignment of Rights. In the event that the Company elects to exercise
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a right of first offer under this Section 15, the Company may specify prior to
closing such purchase another person as its designee to purchase the Transfer
Shares to which such notice relates. If the Company shall designate another
person as the purchaser pursuant to this Section 15, the giving of notice of
acceptance of the right of first offer by the Company shall constitute a legally
binding obligation of the Company to complete such purchase if such person shall
fail to do so.
(C) Termination of Right of First Offer. In the event that (a) the Company
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shall agree to sell shares of Preferred Stock of the Company (other than shares
of Series A Preferred, Series B Preferred, Series C Preferred, Series D
Preferred, Series E Preferred, Series F Preferred, Series G Preferred, Series H
Preferred or Series I Preferred) with an aggregate value of at least $750,000
(the "Subsequent Series Shares"), and (b) such Subsequent Series Shares shall
not be subject to a right of first offer in favor of the Company or its
stockholders with terms similar to the terms set forth in this Section 15, then
the provisions of this Section 15 shall terminate as of the date of the closing
of the sale of such Subsequent Series Shares.
16. Rule 144 Reporting. With a view to making available the benefits of
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certain rules and regulations of the Commission which may at any time permit the
sale of the Restricted Securities to the public without registration, after such
time as a public market exists for the Common Stock of the Company, the Company
agrees to:
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(A) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the effective date of the first registration under the Securities Act filed by
the Company for an offering of its securities to the general public;
(B) Use reasonable efforts to then file with the Commission in a timely
manner all reports and other documents required of the Company under the
Securities Act and the Securities Exchange Act of 1934, as amended (at any time
after it has become subject to such reporting requirements);
(C) Furnish to Holders of Registrable Securities forthwith upon request, a
written statement by the Company as to its compliance with the reporting
requirements of Rule 144 (at any time after 90 days after the effective date of
the first registration statement filed by the Company for an offering of its
securities to the general public), and of the Securities Act and the Securities
Exchange Act of 1934 (at any time after it has become subject to such reporting
requirements), a copy of the most recent annual or quarterly report of the
Company, and such other reports and nonconfidential documents of the Company as
a Holder of Registrable Securities may reasonably request in availing itself of
any rule or regulation of the Commission allowing such Holder to sell any such
securities without registration.
17. Company Covenants. The Company hereby covenants and agrees as follows:
-----------------
(A) Annual Financial Information. The Company will furnish to each
----------------------------
Purchaser for so long as such Purchaser is a holder of at least 250,000 shares
of Series A Preferred, Series B Preferred, Series C Preferred, Series D
Preferred, Series E Preferred, Series F Preferred, Series G Preferred, Series H
Preferred or Series I Preferred (or any combination thereof) (adjusted for stock
splits, reverse stock splits or similar events after the date hereof), as soon
as practicable after the end of each fiscal year, and in any event within 120
days thereafter, consolidated balance sheets of the Company and its
subsidiaries, if any, as of the end of such fiscal year, and consolidated
statements of income and consolidated statements of cash flows of the Company
and its subsidiaries, if any, for such year, prepared in accordance with
generally accepted accounting principles consistently applied and setting forth
in each case in comparative form the figures for the previous fiscal year, all
in reasonable detail and audited by independent public accountants of national
standing selected by the Company.
(B) Quarterly Financial Information. The Company will furnish to each
-------------------------------
Purchaser for so long as such Purchaser is a holder of at least 250,000 shares
of Series A Preferred, Series B Preferred, Series C Preferred, Series D
Preferred, Series E Preferred, Series F Preferred, Series G Preferred, Series H
Preferred or Series I Preferred (or any combination thereof) (adjusted for stock
splits, reverse stock splits or similar events after the date hereof) as soon as
practicable after the end of each fiscal quarter, and in any event within 60
days thereafter, consolidated balance sheets of the Company and its
subsidiaries, if any, as of the end of such quarter, and cash flow statements
and consolidated statements of income for each quarter and for the current
fiscal year to date, prepared in accordance with generally accepted accounting
principles consistently applied, all in reasonable detail and signed, subject to
changes resulting form year-end audit adjustments, by the principal financial or
accounting officer of the Company.
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(C) Annual Plan. The Company will furnish to each Purchaser who is a
-----------
holder of at least 4,000,000 shares of Series A Preferred, Series B Preferred,
Series C Preferred, Series D Preferred, Series E Preferred, Series F Preferred,
Series G Preferred, Series H Preferred or Series I Preferred (or any
contribution thereof) (as adjusted for stock splits, reverse stock splits or
similar events after the date hereof), a copy of the Company's operating budget
for each fiscal year, as soon as practical after approval of such plan by the
Board of Directors.
(D) Confidentiality Agreement. Each Purchaser and any successor or assign
-------------------------
of such Purchaser, who receives from the Company or its agents, directly or
indirectly, any information which the Company has not made generally available
to the public, pursuant to the preparation and execution of this Agreement or
disclosure in connection therewith or pursuant to the provisions of this Section
17, acknowledges and agrees that such information is confidential and for its
use only in connection with evaluating its investment in the Company, and
further agrees that it will not disseminate such information to any person other
than its accountant, investment advisor or attorney and that such dissemination
shall be only for purposes of evaluating its investment. Confidential
information will not be deemed to include any information which the Purchaser
can establish (i) was publicly known and made generally available in the public
domain prior to the time of disclosure to the Purchaser by the Company; (ii)
becomes publicly known and made generally available after disclosure to the
Purchaser by the Company through no action or inaction of the Purchaser; or
(iii) is in the possession of the Purchaser, without confidentiality
restrictions, at the time of disclosure by the Company as shown by the
Purchaser's files and records. A Purchaser may disclose Confidential Information
in the event and to the extent that such disclosure is required by order of any
court or other government agency to disclose any Confidential Information
disclosed to it; provided that the Purchaser shall provide the Company with
prompt written notice of any such requirement so that the Company may seek an
appropriate protective order or waiver compliance with the provisions hereof.
Upon the request by the Company, the Purchaser will reasonably cooperate with
the Company in seeking to obtain an appropriate protective order or other
reliable assurance that confidential treatment will be accorded the Confidential
Information.
18. Governing Law. This Agreement and the legal relations between the parties
-------------
arising hereunder shall be governed by and interpreted in accordance with the
laws of the State of California, without giving effect to the conflicts of laws
provisions thereof.
19. Entire Agreement. This Agreement constitutes the full and entire
----------------
understanding and agreement between the parties regarding rights to
registration. This agreement supercedes all prior agreements and
understandings, written or oral, between the parties as to the subject matter
hereof, but does not supercede any contemporaneous written agreements or
acknowledgments delivered in connection herewith. Except as otherwise expressly
provided herein, the provisions hereof shall inure to the benefit of, and be
binding upon, the successors, assigns, heirs, executors and administrators of
the parties hereto.
20. Notices, etc. All notices and other communications required or permitted
------------
hereunder shall be in writing and shall be deemed effectively given upon
delivery to the party to be notified in person or by courier service or five
days after deposit with the United States mail, by registered or certified mail,
postage prepaid, addressed (a) if to a Purchaser, to such Purchaser's address
set forth in the Purchase Agreement pursuant to which such Purchaser acquired
its shares of Company stock,
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or at such other address as such Purchaser shall have furnished to the Company
in writing, (b) if to any other Holder to such address as such holder shall have
furnished the Company in writing, or, until any such holder so furnishes an
address to the Company, then to and at the address of the last holder of such
securities who has so furnished an address to the Company, or (c) if to the
Company, to its address set forth on the signature page of this Agreement the
attention of the Corporate Secretary, or at such other address as the Company
shall have furnished to the Holders, or, if by facsimile, upon receipt of
appropriate confirmation of receipt.
21. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original and shall be enforceable
against the parties actually executing such counterparts, but all of which
together shall constitute one instrument.
22. Amendment. Any provision of this Agreement may be amended, waived or
---------
modified only upon the written consent of the (i) Company and (ii) holders of a
majority of the outstanding shares of Serial Preferred, voting together on an
as-converted to Common Stock basis, provided that any such amendment, waiver or
--------
modification applies by its terms to each Holder. Any Purchaser may waive any
of his or her rights or the Company's obligations hereunder without obtaining
the consent of any other person. No consent will be necessary in order to amend
this Agreement to add additional purchasers of shares of any series of Preferred
Stock of the Company as Purchasers hereunder.
23. Delays or Omissions. No delay or omission to exercise any right, power or
-------------------
remedy accruing to any Holder, upon any breach or default of the Company under
this Agreement, shall impair any such right, power or remedy of such Holder nor
shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereafter
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring. Any
waiver, permit, consent or approval of any kind or character on the part of any
Holder of any breach or default under this Agreement, or any waiver on the part
of any holder of any provisions or conditions of this Agreement, must be in
writing and shall be effective only to the extent specifically set forth in such
writing. All remedies, either under this Agreement or by law or otherwise
afforded to any holder, shall be cumulative and not alternative.
24. Severability. In the event that any provision of this Agreement becomes or
------------
is declared by a court of competent jurisdiction to be illegal, unenforceable or
void, this Agreement shall continue in full force and effect without said
provision; provided that no such severability shall be effective if it
materially changes the economic benefit of this Agreement to any party.
25. Gender. The use of the neuter gender herein shall be deemed to include the
------
masculine and the feminine gender, if the context so requires.
SIGNATURE PAGE TO STOCKHOLDER RIGHTS AGREEMENT
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IN WITNESS WHEREOF, the undersigned have executed this Stockholder Rights
Agreement as of the date set forth above.
"COMPANY"
EVOLVE SOFTWARE, INC.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000
By: /s/ Xxxx X. Xxxxxxxxx
----------------------------
Xxxx X. Xxxxxxxxx, President
"PURCHASER"
Signature:
-------------------------
Name of Signer:
--------------------
Name of Purchaser:
-----------------
Address:
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SIGNATURE PAGE TO STOCKHOLDER RIGHTS AGREEMENT
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