EXHIBIT 10.5.1
PHASE FORWARD INCORPORATED
TERMINATION AND AMENDMENT AGREEMENT
This Termination and Amendment Agreement is made as of June 4, 2004 by
and among Phase Forward Incorporated, a Delaware corporation (the "Company"),
and each stockholder of the Company executing the Counterpart Signature Page
attached hereto (each, a "Stockholder" and collectively, the "Stockholders").
1. Termination of Stock Purchase Agreements. In connection with the
Company's initial public offering of common stock (the "IPO"), the following
agreements are hereby terminated, effective immediately prior to the closing of
the IPO provided the price in the IPO equals or exceeds $7.50 (and, after June
1, 2005, $11.36) per share (subject to appropriate adjustments for stock splits,
stock dividends, combinations and other similar recapitalizations affecting such
shares): (i) the Series A Convertible Preferred Stock Purchase Agreement dated
as of November 14, 1997, (ii) the Series B Convertible Preferred Stock Purchase
Agreement dated as of November 12, 1998, (iii) the Series C Convertible
Preferred Stock Purchase Agreement dated as of November 19, 1999, and (iv) the
Series D Convertible Preferred Stock Purchase Agreement dated as of December 27,
2001.
2. Amendment of Rights Agreement. The Stockholders, on behalf of all
parties (other than Company) to the Fifth Amended and Restated Investors' Rights
Agreement, dated as of December 27, 2001, as amended to date (the "Rights
Agreement"), hereby amend the Rights Agreement as follows:
(a) the definition "Initial Public Offering" in Section 1, Article
I of the Rights Agreement is hereby deleted in its entirety
and replaced with the following definition: "Initial Public
Offering means the initial public offering of shares of Common
Stock pursuant to a Registration Statement at a price to the
public that equals or exceeds $7.50 (and, after June 1, 2005,
$11.36) per share (subject to appropriate adjustments for
stock splits, stock dividends, combinations and other similar
recapitalizations affecting such shares) resulting in gross
proceeds to the Company (net of all underwriting discounts and
commissions) of at least $20,000,000."; and
(b) the phrase "In connection with the Company's Initial Public
Offering" in Section 3, Article IV of the Rights Agreement is
hereby deleted in its entirety and replaced with the following
phrase: "In connection with any Initial Public Offering
occurring after June 1, 2005".
3. Effectiveness.
(a) The provisions of Section 1 hereof shall become effective
upon the execution of this Termination and Amendment Agreement by: (1)
the Company; (2) the holders of at least two-thirds of the outstanding
shares of Series A Convertible Preferred Stock, voting as a separate
class; (3) the holders of at least majority of the outstanding shares
of Series B Convertible Preferred Stock, voting as a separate class;
(4) the holders
of at least two-thirds of the outstanding shares of Series C
Convertible Preferred Stock, voting as a separate class; and (5) the
holders of at least two-thirds of the outstanding shares of Series D
Convertible Preferred Stock purchased under the Series D Convertible
Preferred Stock Purchase Agreement, voting as a separate class.
(b) The provisions of Section 2 hereof shall become effective
upon the execution of this Termination and Amendment Agreement by: (1)
the Company; (2) Xxxx Xxxxxxxx; (3) the Xxxx X. Xxxxxxxx 1999
Irrevocable Trust; and (4) the holders of at least two thirds of the
outstanding shares of Series A Convertible Preferred Stock, Series B
Convertible Preferred Stock, Series C Convertible Preferred Stock, and
Series D Convertible Preferred Stock, voting together as a single
class.
4. Counterparts. This Termination and Amendment Agreement may be
executed by the parties hereto in separate counterparts, each of which once so
executed and delivered (including by facsimile) shall be considered an original,
but all such counterparts shall together constitute one and the same instrument.
5. Governing Law. This Termination and Amendment Agreement shall be
governed by and construed and enforced in accordance with the laws of the State
of Delaware except as to its conflicts of laws principles.
IN WITNESS WHEREOF, the parties have executed this Termination and
Amendment Agreement as of the day first above written.
PHASE FORWARD INCORPORATED
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Xxxxxx X. Xxxxxx
President and Chief Executive Officer
Signature Page To Termination and Amendment Agreement
XXXXXXXX VENTURES INTERNATIONAL
LIFE SCIENCES FUND II LP1
By: Xxxxxxxx Venture Managers Inc.,
as General Partner
By: /s/ Xxxx Xxxx /s/Xxxxxxx Xxxxx
------------------------------------
Name: Xxxx Xxxx
Title: Director & Vice President
XXXXXXXX VENTURES INTERNATIONAL
LIFE SCIENCES FUND II LP2
By: Xxxxxxxx Venture Managers Inc.,
as General Partner
By: /s/ Xxxx Xxxx /s/Xxxxxxx Xxxxx
------------------------------------
Name: Xxxx Xxxx
Title: Director & Vice President
XXXXXXXX VENTURES INTERNATIONAL
LIFE SCIENCES FUND II LP3
By: Xxxxxxxx Venture Managers Inc.,
as General Partner
By: /s/ Xxxx Xxxx /s/Xxxxxxx Xxxxx
------------------------------------
Name: Xxxx Xxxx
Title: Director & Vice President
Signature Page To Termination and Amendment Agreement
XXXXXXXX VENTURES INTERNATIONAL LIFE SCIENCES
FUND II STRATEGIC PARTNERS L.P.
By: Xxxxxxxx Venture Managers Inc.,
as General Partner
By: /s/ Xxxx Xxxx /s/Xxxxxxx Xxxxx
------------------------------------
Name: Xxxx Xxxx
Title: Director & Vice President
XXXXXXXX VENTURES INTERNATIONAL LIFE SCIENCES
FUND II GROUP CO-INVESTMENT SCHEME
By: SITCO Nominees Ltd. - VC 01903,
as nominee
By: /s/ Xxxx Xxxx /s/Xxxxxxx Xxxxx
------------------------------------
Name: Xxxx Xxxx
Title: Director & Vice President
XXXXXXXX VENTURES INVESTMENTS LIMITED
By: SV (Nominees) Ltd.,
as nominee
By: /s/ Xxxxxxxx Xxxxx
-------------------------------------
Name: Xxxxxxxx Xxxxx
Title: Alternate to Xxxxxxxx X. XxXxxxx,
Director
Signature Page To Termination and Amendment Agreement
DLJ CAPITAL CORP.
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
By: Xxxxxx X. Xxxx
Its: Director
DLJ ESC II, L.P.
By: DLJ LBO Plans Management Corporation
Its: General Partner
By /s/ Xxxxxx X. Xxxx
-------------------------------------
By: Xxxxxx X. Xxxx
Its: Attorney in fact
SPROUT CAPITAL VIII, L.P.
By: DLJ Capital Corp.
Its: Managing General Partner
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
By: Xxxxxx X. Xxxx
Its: Director
SPROUT VENTURE CAPITAL, L.P.
By: DLJ Capital Corp.
Its: General Partner
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
By: Xxxxxx X. Xxxx
Its: Director
THE SPROUT CEO FUND, L.P.
By: DLJ Capital Corp.
Its: General Partner
By: /s/ Xxxxxx X. Xxxx
-------------------------------------
By: Xxxxxx X. Xxxx
Its: Director
Signature Page To Termination and Amendment Agreement
NORTH BRIDGE VENTURE PARTNERS V-A, L.P.
By: North Bridge Venture Management V,
L.P., as General Partner
By: /s/ Illegible
-------------------------------------
General Partner
NORTH BRIDGE VENTURE PARTNERS V-B, L.P.
By: North Bridge Venture Management V,
L.P., as General Partner
By: /s/ Illegible
-------------------------------------
General Partner
Signature Page To Termination and Amendment Agreement
XXXXXX XXXXXX CAPITAL PARTNERS, L.P.
By: Tailwind Capital Partners LLC,
as General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Partner
XXXXXX XXXXXX CAPITAL PARTNERS
EMPLOYEE FUND, L.P.
By: Tailwind Capital Partners LLC,
as General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Partner
TWP CEO FOUNDERS CIRCLE (QP), L.P.
By: Tailwind Capital Partners LLC,
as General Partner
By: /s/ Xxxxxxx X. Xxxx
-------------------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Partner
TWP CEO FOUNDERS CIRCLE (AI), L.P.
By: Tailwind Capital Partners LLC,
as General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Partner
Signature Page To Termination and Amendment Agreement
TWP 2000 CO-INVESTMENT FUND, L.P.
By: Xxxxxx Xxxxxx Capital Management LLC,
as General Partner
By: /s/ Xxxx Helfund
-------------------------------------
Name: Xxxx Helfund
Title: Associate General Counsel
XXXXXX XXXXXX CAPITAL PARTNERS (DUTCH), L.P.
By: Xxxxxx Xxxxxx Capital Partners LLC
(Dutch), as General Partner
By: Tailwind Capital Partners LLC,
as General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Partner
XXXXXX XXXXXX CAPITAL PARTNERS (DUTCH II),
L.P.
By: Xxxxxx Xxxxxx Capital Partners LLC
(Dutch), as General Partner
By: Tailwind Capital Partners LLC,
as General Partner
By: /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Managing Partner
Signature Page To Termination and Amendment Agreement
ATLAS VENTURE FUND III, L.P.
By: Atlas Venture Associates III, L.P.,
as General Partner
By: Atlas Venture Associates III, Inc.,
as General Partner
By: /s/ Illegible
-------------------------------------
Name:
Title: V.P.
ATLAS VENTURE ENTREPRENEURS' FUND III, L.P.
By: Atlas Venture Associates III, L.P.,
as General Partner
By: Atlas Venture Associates III, Inc.,
as General Partner
By: /s/ Illegible
-------------------------------------
Name:
Title: V.P.
ATLAS VENTURE FUND V, L.P.
By: Atlas Venture Associates V, L.P.,
as General Partner
By: Atlas Venture Associates V, Inc.,
as General Partner
By: /s/ Illegible
-------------------------------------
Name:
Title: V.P.
Signature Page To Termination and Amendment Agreement
ATLAS VENTURE PARALLEL FUND V-A, C.V.
By: Atlas Venture Associates V, L.P.,
as General Partner
By: Atlas Venture Associates V, Inc.,
as General Partner
By: /s/ Illegible
-------------------------------------
Name:
Title: V.P.
ATLAS VENTURE PARALLEL FUND V-B, C.V.
By: Atlas Venture Associates V, L.P.,
as General Partner
By: Atlas Venture Associates V, Inc.,
as General Partner
By: /s/ Illegible
-------------------------------------
Name:
Title: V.P.
ATLAS VENTURE ENTREPRENEURS' FUND V, L.P.
By: Atlas Venture Associates V, L.P.
as General Partner
By: Atlas Venture Associates V, Inc.
as General Partner
By: /s/ Illegible
-------------------------------------
Name:
Title: V.P.
Signature Page To Termination and Amendment Agreement
ABS CAPITAL PARTNERS, L.P.
By: ABS Partners, L.P.,
as General Partner
By: /s/ Xxxxxx X. Xxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Managing Partner
ABS CAPITAL PARTNERS II, L.P.
By: ABS Partners II, LLC,
as General Partner
By: /s/ Xxxxxx X. Xxxx, Xx.
-------------------------------------
Name: Xxxxxx X. Xxxx, Xx.
Title: Managing Partner
Signature Page To Termination and Amendment Agreement
HLM/UH FUND, L.P.
By: HLM Management Co. Inc,
its Manager
By: /s/ Xxxxx Xxxx
-------------------------------------
Name: Xxxxx Xxxx
Title: President
PACIFIC VENTURE GROUP II, L.P.
By PVG Equity Partners II LLC
its General Partner
By:
-------------------------------------
Name:
Title:
PVG ASSOCIATES II, L.P.
By: PVG Equity Partners II LLC
its General Partner
By:
-------------------------------------
Name:
Title:
BIOVENTURES INVESTORS LIMITED PARTNERSHIP
By BioVentures Investors, LLC,
its General Partner
By: /s/ Xxxx Xxxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxxx
Title: Managing Director
Signature Page To Termination and Amendment Agreement
ST. XXXX FIRE AND MARINE
INSURANCE COMPANY
By:
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Representative
ST. XXXX VENTURE CAPITAL IV, LLC
By:
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Member
ST. XXXX VENTURE CAPITAL V, LLC
By:
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Member
ST. XXXX VENTURE CAPITAL VI, LLC
By: SPVC Management VI, LLC
Its: Managing Member
By:
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Managing Director
HOUSATONIC EQUITY INVESTORS SBIC, L.P.
By: Housatonic Equity Partners SBIC, LLC,
its general partner
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Managing Director
Signature Page To Termination and Amendment Agreement
ONSET ENTERPRISE ASSOCIATES, L.P.
By: OEA Management, L.P. its general
partner
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: General Partner
ONSET ENTERPRISE ASSOCIATES II, LP
By: OEA II Management, L.P. its general
partner
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: General Partner
ONSET VENTURES SERVICES CORPORATION
By: /s/ Xxxxx Xxxxxxxx
-------------------------------------
Name: Xxxxx Xxxxxxxx
Title: General Partner
SALIX VENTURES, L.P.
By: Salix Partners LLC, its general
partner
By: /s/ Xxxxxxxxxxx Xxxxx, Jr.
-------------------------------------
Name: Xxxxxxxxxxx Xxxxx, Jr.
Title: Managing Member
Signature Page To Termination and Amendment Agreement
NEW ENTERPRISE ASSOCIATES VI, LP
By: NEA Partners VI, Limited Partnership
its general partner
By: /s/ C. Xxxxxxx Xxxxxxxx
-------------------------------------
Name: C. Xxxxxxx Xxxxxxxx
Title: General Partner
XXX LILLY AND COMPANY
By:
-------------------------------------
Name:
Title:
INTERNATIONAL BUSINESS MACHINES CORPORATION
By:
-------------------------------------
Name:
Title:
By:
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Xxxx Xxxxxxxx
XXXX X. XXXXXXXX 1999 IRREVOCABLE
TRUST
By:
-------------------------------------
Name:
Title:
