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EXHIBIT 10.13
AMENDMENT AGREEMENT
This AMENDMENT AGREEMENT (the "AMENDMENT") is made as of July 30, 1998,
by and between Portable Software Corporation, a Washington corporation (the
"COMPANY"), and the persons and entities named on the Schedule of Investors
attached to the Series E Preferred Stock Purchase Agreement (the "PURCHASE
AGREEMENT") dated as of May 29, 1998 among the Company and the parties listed on
Schedule of Investors attached thereto (each hereinafter individually referred
to as an "INVESTOR" and collectively referred to as the "INVESTORS").
W I T N E S S E T H:
WHEREAS, the Company desires to sell shares of its Series E Preferred
Stock (the "Shares") to American Express Travel Related Services Company, Inc.
(the "NEW INVESTOR"), and the New Investor desires to purchase the Shares from
the Company on the same terms and conditions set forth in the Purchase
Agreement.
WHEREAS, the Company has requested that the Purchase Agreement be
amended to extend the latest closing date for an Additional Closing to August
11, 1998.
WHEREAS, the Company has requested that the Voting Agreement entered
into between the Company and the Investors dated May 29, 1998 be amended to
provide for the election to the Company's Board of Directors of Xx. Xx Xxxxxxxx
as the second director elected by the holders of Series E Preferred.
WHEREAS, Section 8.7 of the Purchase Agreement provides that the
Purchase Agreement may be modified by the Company and the holders of a
seventy-five percent (75%) majority of the outstanding shares of Series E
Preferred Stock issued under the Purchase Agreement.
WHEREAS, Section 6.6 of the Voting Agreement provides that the Voting
Agreement may be modified by the Company and the holders of seventy-five percent
(75%) of the outstanding shares of Series E Preferred Stock issued under the
Purchase Agreement.
WHEREAS, the Investors signatory hereto hold more than seventy-five
percent (75%) of the outstanding shares of Series E Preferred Stock issued under
the Purchase Agreement and are willing to so amend the Purchase Agreement and
the Voting Agreement in accordance with the terms of this Amendment.
NOW, THEREFORE, THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Definitions. Except as otherwise expressly provided herein,
capitalized terms used herein shall have the meanings given them in the Purchase
Agreement, as amended hereby.
2. Closing Date. Paragraph (a) of Section 1.3 of the Purchase Agreement
is amended by substituting "August 11, 1998" for "July 10, 1998."
3. Modification of Recitals. Recitals B and C of the Voting Agreement
are hereby deleted in their entirety and replaced with the following:
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3.1 "B. The Amended and Restated Articles of Incorporation of the
Company provide for the election of two (2) members of the Company's Board of
Directors by the holders of the Series E Preferred Stock."
3.2 "C. As an inducement to RRE Investors, L.P. and RRE Investors
Fund, L.P. (collectively, "RRE") and American Express Travel Related Services
Company, Inc. ("AmEx"), who are three of the Shareholders, to purchase the
Series E Preferred Stock pursuant to the Purchase Agreement, the Shareholders
and the Company desire to enter into this Agreement to set forth their
agreements and understandings with respect to how shares of the Company's Series
E Preferred Stock will be voted on certain matters."
4. Board Composition. Section 1.1 of the Voting Agreement is hereby
deleted in its entirety and replaced with the following:
"1.1 Voting; Board Composition. During the term of this
Agreement, each Shareholder agrees to vote all shares of Series E Preferred
Stock of the Company now or hereafter directly or indirectly owned (of record or
beneficially) by such Shareholder, in such manner as may be necessary to elect
(and maintain in office) as a member of the Company's Board of Directors, one
individual designated by RRE from time to time in a writing delivered to the
Company and signed by RRE (the "RRE DESIGNEE") and one individual designated by
AmEx from time to time in a writing delivered to the Company and signed by AmEx
(the "AMEX DESIGNEE");
5. AmEx Designee. A new Section 1.4, providing as follows, shall be
added to the Agreement:
"1.4 Initial AmEx Designee; Changes in AmEx Designee. The initial
AmEx Designee shall be Xx Xxxxxxxx. From time to time during the term of this
Agreement, AmEx may:
(a) elect to remove from the Company's Board of Directors any
incumbent AmEx Designee who occupies a Board seat for which AmEx is entitled to
designate the AmEx Designee under Section 1.1; and/or
(b) designate a new AmEx Designee (who shall be reasonably
acceptable to the Board of Directors of the Company) for election to a Board
seat for which AmEx is entitled to designate the AmEx Designee under Section 1.1
(whether to replace a prior AmEx Designee or to fill a vacancy in such Board
seat); provided such removal and/or designation of the AmEx Designee is approved
in a writing signed by AmEx, in which case such election to remove the AmEx
Designee and/or elect a new AmEx Designee will be binding on the Shareholders.
In the event of such a removal and/or designation of the AmEx Designee under
this Section 1.4, the Shareholders shall vote their shares of the Company's
Series E Preferred Stock as provided in Section 1.1, and the other directors of
the Board shall take any required action, to cause: (a) the removal from the
Company's Board of Directors of the AmEx Designee so designated for removal by
AmEx; and (b) the election to the Company's Board of Directors of any new
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AmEx Designee so designated for election to the Company's Board of Directors by
AmEx as provided in this Section 1.4.".
6. Section 1.4 shall be deleted in its entirely and replaced with
the following Section 1.5: "1.5 Notice; Cumulative Voting. The Company shall
promptly give each of the Shareholders written notice of any change in
composition of the Company's Board of Directors and of any proposal by RRE or
AmEx to remove or elect a new RRE Designee or a new AmEx Designee. In any
election of directors pursuant to this Section 1, the Shareholders shall vote
their shares in a manner sufficient to elect to the Company's Board of Directors
the individuals to be elected thereto as provided in this Section 1.
7. No Other Amendment. Except as expressly set forth herein, each of the
Purchase Agreement and the Voting Agreement is unmodified and continues in full
force and effect.
8. Governing Law. This Amendment shall be governed by and construed
under the internal laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California, without reference to principles of conflict of laws or choice of
laws.
9. Entire Agreement. This Amendment, constitutes the entire agreement
and understanding of the parties with respect to the subject matter hereof and
supersedes any and all prior negotiations, correspondence, agreements,
understandings, duties or obligations between the parties with respect to the
subject matter hereof.
10. Counterparts. This Amendment may be executed in two or more
counterparts, including by facsimile, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.
11. Further Assurances. From and after the date of this Amendment, upon
the request of any Investor or the Company, the Company and the Investors shall
execute and deliver such instruments, documents or other writings as may be
reasonably necessary or desirable to confirm and carry out and to effectuate
fully the intent and purposes of this Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
a Washington corporation
By: /s/ S. Xxxxxx Xxxxx
-------------------------------------
S. Xxxxxx Xxxxx, President
Address: 0000 000xx Xxxxxx
Xxxxxxx, XX 00000
INVESTORS: RRE INVESTORS, L.P.
By: RRE Investors II, LLC,
its General Partner
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name:
Title:
RRE INVESTORS FUND, L.P.
By: RRE Investors Fund GP, L.P.,
its General Partner
By: RRE Investors Fund LDC,
its General Partner
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By:
-------------------------------------
S. Xxxxxx Xxxxx, President
INVESTORS: INSTITUTIONAL VENTURE
PARTNERS VII, L.P.
by its General Partner
Institutional Venture Management VII, L.P.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxxx, A General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
IVP FOUNDERS FUND I, L.P.
by its General Partner
Institutional Venture Management VI, L.P.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxxx, A General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
INSTITUTIONAL VENTURE MANAGEMENT
VII, L.P.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------
Xxxxxx X. Xxxxxxxxx, A General Partner
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By:
-------------------------------------
S. Xxxxxx Xxxxx, President
Address: 0000 000xx Xxxxxx
Xxxxxxx, XX 00000
INVESTOR: BRENTWOOD AFFILIATES FUND II, L.P.
By: Brentwood VII Ventures, LLC
Its General Partner
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Managing Member
Address: 0000 Xxxx Xxxx Xxxx
Xxxxxxxx Xxx, Xxxxx 000
Xxxxx Xxxx, XX 00000-0000
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By:
------------------------------------
S. Xxxxxx Xxxxx, President
Address: 0000 000xx Xxxxxx
Xxxxxxx, XX 00000
INVESTORS: XXXXXXXX ASSOCIATES FUND III
A California Limited Partnership
XXXXXXXX VIII
A California Limited Partnership
By: XXXXXXXX VIII MANAGEMENT, L.L.C.
A Delaware Limited Liability Company
Their General Partner
By: /s/ Xxxxx X. Xxxxx
-----------------------------------------
Title: Managing Member
Address: 0000 Xxxx Xxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By:
----------------------------------------
S. Xxxxxx Xxxxx, President
Address: 0000 000xx Xxxxxx
Xxxxxxx, XX 00000
INVESTORS: /s/ S. Xxxxxx Xxxxx
---------------------------------------------
S. Xxxxxx Xxxxx
/s/ Xxxxxxx X. Xxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxxx Xxxxxx
---------------------------------------------
Xxxxxxxx Xxxxxx
/s/ Xxx Xxxxxx
---------------------------------------------
Xxx Xxxxxx
/s/ Xxxxxx Xxxxx
---------------------------------------------
Xxx Xxxxx
/s/ Xxxxxxxxx X. Xxxxxx
---------------------------------------------
Xxxx Xxxxxx
0000 000xx Xxxxxx XX
Xxxxxxx, XX 00000
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INVESTOR: CAMBRIDGE TECHNOLOGY CAPITAL
FUND I, L.P.
By: Cambridge Technology GPLP, L.P.
By: Cambridge Technology CGP, Inc.
By: _________________________________________
Xxxxx Xxxxxxxxx, Managing Director
Address: 00000 Xx Xxxxxx Xxxx, Xxxxx 000
Xxx Xxxxx, XX 00000-0000
XXXXXXXXX & XXXXX LLC
By: ______________________________________
Name: ______________________________________
Title: ______________________________________
Address: Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the
day and year first above written.
COMPANY: PORTABLE SOFTWARE CORPORATION
A Washington Corporation
By:
----------------------------------------
S. Xxxxxx Xxxxx, President
INVESTORS: /s/ Xxxxxxx Xxxxx
---------------------------------------------
Xxxxxxx X. Xxxxx
Address: c/o Brentwood Venture Capital
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
/s/ Xxxxxxx X. Xxxxxxx
---------------------------------------------
Xxxxxxx X. Xxxxxxx
Address: c/o Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT]