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EXHIBIT 10.12
AMENDMENT NUMBER NINE TO
INVESTORS' RIGHTS AGREEMENT
This Amendment Number Nine to Investors' Rights Agreement (this
"Amendment") is made as of October __, 1999 by and among Calico Commerce,
Inc., a California corporation formerly known as Calico Technology, Inc. (the
"Company"), Xxxxxxx X. Xxxxxxx (the "Founder"), and the persons identified on
Schedule A attached hereto ("Investors").
RECITALS
WHEREAS, the Founder and certain of the Investors (the "Prior
Investors") possess registration rights and other rights pursuant to that
certain Investors' Rights Agreement dated as of May 26, 1995, as amended by
Amendments Number One through Number Eight, among the Company, the Founder and
such Prior Investors (the "Investors' Rights Agreement").
WHEREAS, the Company and XX XX Technology (ACT II) B.V. ("Xxxxxxxx")
have entered into a Stock Purchase Agreement dated as of September 29, 1999 (the
"Xxxxxxxx Stock Purchase Agreement"), pursuant to which Xxxxxxxx is purchasing
shares of Common Stock of the Company.
WHEREAS, in order to induce Xxxxxxxx to invest funds in the Company
pursuant to the Xxxxxxxx Stock Purchase Agreement, the Prior Investors hereby
agree (i) to waive their rights under the Investors' Rights Agreement, and (ii)
agree that Xxxxxxxx shall be granted rights pursuant to Section 1.3 of the
Investors' Rights Agreement.
AGREEMENT
The parties hereto, intending to be legally bound, hereby agree as
follows:
1. Definitions. Unless otherwise defined or specified in this
Amendment, all capitalized terms used herein will have the meanings set forth in
the Investors' Rights Agreement.
2. Investor's Rights and Obligations.
(a) Effective upon: (i) the purchase by Xxxxxxxx of shares
of the Company's Common Stock at the closing of the sale and purchase of shares
under the Xxxxxxxx Stock Purchase Agreement; (ii) the execution and delivery by
Xxxxxxxx of a signature page to this Amendment; and (iii) the satisfaction of
the conditions set forth in Section 4 of this Amendment, Xxxxxxxx will be an
"Investor" and "Holder" entitled to all rights as an Investor and Holder under
Section 1 of the Investors' Rights Agreement, as amended hereby, provided that
Xxxxxxxx shall not be entitled to exercise rights under Sections 1.2 and 1.5 of
the Investors' Rights Agreement, and the following sections of the Investors'
Rights Agreement will be amended as follows:
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Section 1.1(j) will be amended by deleting such provision in its
entirety and replacing it with the following:
(j) "Registrable Securities" shall mean (i) shares of Common
Stock issued or issuable pursuant to the conversion of
the Shares, (ii) except for purposes of Sections 1.2,
1.4, 1.5 and 1.11, any shares of Common Stock of the
Company held by the Founder (the "Founder's Shares"),
(iii) all shares of Common Stock of the Company issued
or issuable upon conversion of the shares of Series A
Preferred Stock now or hereafter held by Lighthouse
(including the Series A Preferred Stock issuable upon
exercise of the warrants to purchase Series A Preferred
Stock held by Lighthouse), (iv) all shares of Common
Stock of the Company issued or issuable upon conversion
of the shares of Series B Preferred Stock now or
hereafter held by Venture Lending (including the Series
B Preferred Stock issuable upon exercise of the warrants
to purchase Series B Preferred Stock held by Venture
Lending), (v) all shares of Common Stock of the Company
issued or issuable upon conversion of the shares of
Series B Preferred Stock now or hereafter held by
Comerica (including the Series B Preferred Stock
issuable upon exercise of the warrants to purchase
Series B Preferred Stock held by Comerica), (vi) all
shares of Common Stock of the Company issued or issuable
upon conversion of the shares of Series D Preferred
Stock issued pursuant to options assumed pursuant to the
Merger Agreement (including the Series D Preferred Stock
issuable upon exercise of such options), (vii) all
shares of Common Stock issued pursuant to the
Flextronics Stock Purchase Agreement, (viii) all shares
of Common Stock issued pursuant to the Dell Stock
Purchase Agreement, (ix) all shares of Common Stock
issued pursuant to the Xxxxxxxx Stock Purchase
Agreement, and (x) any shares of Common Stock 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), (iii), (iv), (v), (vi), (vii) or (viii) above;
provided, however, that Registrable Securities shall not
include any shares of Common Stock that have previously
been registered or that have otherwise been sold to the
public and excluding in all cases any Registrable
Securities sold by a person in a transaction in which
his rights under this Section 1 are not assigned.
3. Waiver of Right of First Refusal. In executing this Amendment,
the undersigned Investors (as defined in the Investors' Rights Agreement) and
Founder waive compliance with the terms of the right of first refusal set forth
in Section 2.3 of the Investors' Rights Agreement with respect to the issuance
of the Common Stock pursuant to the Xxxxxxxx Stock Purchase Agreement.
4. Effectiveness of Amendment. This Amendment will not be effective
unless this Amendment (or a separate consent with the same purpose) has been
executed and delivered by the Founder, the Company and Investors (as defined in
the Investors' Rights Agreement) under
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the Investors' Rights Agreement holding of record at least 50% of the
Registrable Securities (as defined in the Investors' Rights Agreement).
5. Continued Effect. Except as otherwise expressly provided herein,
the Investors' Rights Agreement will continue in full force and effect, in
accordance with its terms.
6. Miscellaneous. This Amendment will be governed in all respects
by the laws of the State of California as such laws are applied to agreements
between California residents entered into and to be performed entirely within
California. This Amendment constitutes the full
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and entire understanding and agreement among the parties with regard to the
subjects hereof and supersedes all prior written and oral agreements,
representations and commitments, if any, among the parties with respect to such
subjects. This Amendment may be executed in any number of counterparts, each of
which will be an original, but all of which together will constitute one
instrument. Any provision of this Amendment may be waived or modified only in
accordance with the provisions set forth in Section 3.3 of the Investors' Rights
Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
COMPANY: CALICO COMMERCE, INC.
By: _______________________________
Title: ____________________________
FOUNDER:
____________________________________
Xxxxxxx X. Xxxxxxx
XXXXXXXX: XX XX TECHNOLOGY (ACT II) B.V.
By: ________________________________
Title: _____________________________
FIRSTFLOOR SHAREHOLDER ____________________________________
REPRESENTATIVE: Xxxxx X. Xxxxxxxx
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PRIOR INVESTORS:
Name: ______________________________
(Please print or type)
Signature: _________________________
Address: ___________________________
(Please print or type)
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