EXHIBIT 10.5
INVENTA CORPORATION
_____________________
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
_____________________
January 19, 2000
TABLE OF CONTENTS
Page
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ARTICLE I Right of First Refusal on Shareholder Transfer........................... 2
1.1 Company Right............................................................ 2
1.2 Preferred Holders' Right................................................. 2
1.3 Failure to Exercise Rights............................................... 2
1.4 Price.................................................................... 3
1.5 Transfer of Rights....................................................... 3
1.6 Prohibited Transfers..................................................... 3
1.7 Definition of "Shares"................................................... 3
1.8 Permitted Transfers...................................................... 3
ARTICLE II Right of Co-Sale on Shareholder Transfer................................ 4
2.1 Right of Co-Sale......................................................... 4
2.2 Agreement not to Transfer................................................ 4
2.3 Definition of Shares..................................................... 4
2.4 Permitted Transfers...................................................... 4
2.5 Prohibited Transfers..................................................... 5
ARTICLE III Right of First Refusal on Company Issuances........................... 6
3.1 Grant of Right........................................................... 6
3.2 New Securities........................................................... 6
3.3 Notice................................................................... 7
3.4 Sale after Company Notice................................................ 7
3.5 Assignment............................................................... 8
ARTICLE IV Termination of Rights................................................... 8
ARTICLE V Specific Performance..................................................... 8
ARTICLE VI Legends................................................................. 9
ARTICLE VII Board of Directors..................................................... 9
7.1 Board of Directors....................................................... 9
7.2 Compensation Committee................................................... 9
7.3 Audit Committee.......................................................... 10
ARTICLE VIII Reorganizations....................................................... 10
ARTICLE IX General Provisions...................................................... 10
9.1 Governing Law............................................................ 10
9.2 Entire Agreement......................................................... 10
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TABLE OF CONTENTS
(continued)
Page
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9.3 Amendment................................................................ 11
9.4 Successors............................................................... 11
9.5 Invalidity of Provisions................................................. 11
9.6 Notice................................................................... 11
9.7 No Waiver................................................................ 11
9.8 Cooperation.............................................................. 12
9.9 Addition of Parties...................................................... 12
9.10 Counterparts............................................................. 12
EXHIBIT A - Schedule of Purchasers
EXHIBIT B - Schedule of Holders of Series A Preferred Stock
EXHIBIT C - Schedule of Holders of Series B Preferred Stock
EXHIBIT D - Schedule of Holders of Series C Preferred Stock
EXHIBIT E - Schedule of Certain Common Stock Holders
EXHIBIT F - Form of Instrument of Accession
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INVENTA CORPORATION
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
THIS AMENDED AND RESTATED SHAREHOLDERS AGREEMENT is made this 19th day of
January, 2000, between Inventa Corporation, a California corporation (the
"Company"), the purchasers of the Company's Series D Preferred Stock (the
"Purchasers") as listed on Exhibit A attached hereto, Xxxxx X. Xxxxxxxxx
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("Founder"), the holders of the Company's Series A Preferred Stock (the "Series
A Holders") listed on Exhibit B attached hereto, the holders of the Company's
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Series B Preferred Stock (the "Series B Holders") listed on Exhibit C attached
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hereto, the holders of the Company's Series C Preferred Stock (the "Series C
Holders") listed on Exhibit D attached hereto, and certain holders of the
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Company's Common Stock (the "Common Holders") as listed on Exhibit E attached
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hereto. The Purchasers, Series A Holders, Series B Holders and Series C Holders
shall collectively be referred to as the "Preferred Holders". The Purchasers,
the Founder, the Preferred Holders and the Common Holders shall collectively be
referred to as the "Shareholders".
WHEREAS, Founder is the beneficial owner or may be deemed to be the
beneficial owner of 4,500,000 shares of the Common Stock of the Company.
WHEREAS, the Series A Holders and the Company are parties to the Series A
Preferred Stock Purchase Agreement dated July 8, 1994 (the "Series A
Agreement").
WHEREAS, the Series B Holders and the Company are parties to the Series B
Preferred Stock Purchase Agreement dated February 14, 1997 (the "Series B
Agreement").
WHEREAS, the Series C Holders and the Company are parties to the Series C
Preferred Stock Purchase Agreements dated May 11, 1998 and May 28, 1999 (the
"Series C Agreements").
WHEREAS, the Common Holders are the owners of 42,696 shares of the Common
Stock of the Company.
WHEREAS, the parties desire that this Agreement supersede the Restated
Shareholders Agreement dated May 11, 1998 in its entirety.
WHEREAS, the Purchasers have requested, as a condition to entering into the
Series D Convertible Preferred Stock Purchase Agreement of even date herewith
(the "Series D Agreement") that the Founder and the Shareholders enter into this
Agreement, and the Founder and the Shareholders, as an inducement to the
Purchasers to enter into the Series D Agreement of even date herewith, are
willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises, mutual covenants and
terms hereof, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
ARTICLE I
Right of First Refusal on Shareholder Transfer
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1.1 Company Right. If at any time a Shareholder desires (or is required)
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to sell or transfer in any manner any Shares (as hereinafter defined) pursuant
to the terms of a bona fide offer received from a third party (a "Buyer"), the
Shareholder shall submit a written offer to sell such Shares (the "Offered
Shares") to the Company on terms and conditions, including price, not less
favorable to the Company than those on which the Shareholder proposes to sell
such Offered Shares to Buyer (the "Offer"). The Offer shall disclose the
identity of the Buyer, the number of Offered Shares, the terms of the proposed
sale or transfer and any other material facts relating to the sale or transfer.
Within fifteen (15) days after receipt of the Offer, the Company shall give
notice to the Shareholder of its intent to purchase all or some of the Offered
Shares from the Shareholder on the terms and conditions set forth in the Offer.
1.2 Preferred Holders' Right. If, for any reason whatsoever, the Company
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shall not exercise its right to purchase all of the Offered Shares as provided
herein, the Company shall promptly provide to the Preferred Holders, written
notice (the "Notice") of same (which shall include a copy of the Offer provided
to the Company pursuant to Section 1.1 hereof), and then the Preferred Holders
shall have the right, for a period of fifteen (15) days from the date of the
Notice to purchase, on a pro rata basis, on the same terms and conditions as are
set forth in the Offer, that portion of the Offered Shares which the Company
shall not have agreed to purchase from the Shareholder (all such remaining
Shares being referred to as the "Remaining Offered Shares"). For purposes of
this Section 1.2, Preferred Holder's pro rata right shall be calculated by
dividing the number of shares of Common Stock issuable upon conversion of
Preferred Stock held by such Preferred Holder by the total number of shares of
Common Stock issuable upon conversion of Preferred Stock held by all Preferred
Holders.
1.3 Failure to Exercise Rights. In the event that the Company and the
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Preferred Holders, taken together, do not purchase all of the Offered Shares
pursuant to and within the time periods set forth above, any remaining Offered
Shares may be sold or transferred by the Shareholder at any time within 90 days
thereafter, subject to compliance with Article II. Any such sale or transfer
shall be at not less than the price nor upon other terms and conditions, if any,
not more favorable to the Buyer than those specified in the Offer. Any Offered
Shares not sold within such 90-day period shall thereafter again be subject to
the requirements of this Article I. In the event that Shares are sold or
transferred to the Preferred Holders pursuant to this subsection, said Offered
Shares shall no longer be subject to this Agreement.
1.4 Price. With respect to any Shares to be transferred pursuant to
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Section 1.1 hereof and as to which a price has not been set by the Shareholder
under Section 1.1 hereof, the price per Share shall be a price set by the Board
of Directors of the Company which will reflect the current value of the Shares
in terms of present earnings and future prospects of the Company. The Company
shall notify the Shareholder of the price so determined within fifteen (15) days
after receipt by it of the Offer. If the Shareholder disputes the price as set
by the Board of Directors by giving notice to the
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Company within ten (10) days after being informed of the price, the price of the
Shares shall be determined by an independent financial analyst selected by the
Board of Directors of the Company, with the cost of such determination to be
divided equally between the Company and the Shareholder. The Board of Directors
shall select such analyst within fifteen (15) days after receipt of notice that
the Shareholder is disputing the price set by the Board of Directors. If the
Board is not notified of any such dispute within such ten (10) day period, the
decision of the Board of Directors as to the purchase price shall be final. Any
time required to determine a purchase price or to resolve a dispute shall be
added to the fifteen (15) day period in which the Company may exercise its right
to purchase the Offered Shares.
1.5 Transfer of Rights. The right of the Preferred Holders to purchase
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Offered Shares hereunder may not be assigned except to a transferee or assignee
who qualifies as a partner, subsidiary or affiliate of one of the Preferred
Holders, or a parent of one of the Preferred Holders, or any entity which has
the same parent corporation as one of the Preferred Holders.
1.6 Prohibited Transfers. The Shareholder shall not sell, assign,
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transfer, pledge, hypothecate, mortgage or dispose of, by gift or otherwise, or
in any way encumber, all or any part of the Shares owned by him during the term
of this Agreement other than in compliance with the terms of this Article I.
1.7 Definition of "Shares". For purposes of this Article I, the term
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"Shares" shall mean and include all shares of capital stock of the Company owned
by the Shareholder, whether presently held or hereafter acquired.
1.8 Permitted Transfers. The right of first refusal contained in this
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Article I shall not apply to: (a) any transfer of Shares by the Shareholder by
gift or bequest or through inheritance to, or for the benefit of, any family
member; (b) any transfer of Shares by the Shareholder to a trust for the benefit
of any family member; (c) any sale or transfer of Shares to the Company (or any
assignee of the Company) pursuant to the terms of a stock restriction or stock
repurchase agreement (which provides for such sale upon the Shareholder's
termination of employment); (d) any sale of Common Stock in a public offering
pursuant to a registration statement filed by the Company with the Securities
and Exchange Commission; (e) any pledge made pursuant to a bona fide loan
transaction that creates a mere security interest; (f) any transfer of Shares by
a Shareholder that is a partnership to its partners; or (g) any transfer of
Shares by a Shareholder that is a trust to a successor trust or successor
trustee. In the event of any transfer pursuant to (a), (b), (f) or (g), the
transferee of the Shares shall hold the Shares so acquired with all the rights
conferred by, and subject to all the restrictions imposed by, this Agreement.
ARTICLE II
Right of Co-Sale on Shareholder Transfer
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2.1 Right of Co-Sale. In the event that the Shareholder desires (or is
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required) to sell or transfer in any manner any Shares (as hereinafter defined)
pursuant to the terms of a bona fide offer received from a Buyer, and the
Company and the Preferred Holders do not exercise their right of
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first refusal as to all of the Offered Shares as set forth in Article I hereof,
each Preferred Holder shall have the right (the "Right of Co-Sale") to require,
as a condition to such sale or transfer, that the Buyer purchase from each
Preferred Holder at the same price per share and on the same terms and
conditions as involved in such sale or disposition by the Shareholder that
percentage of the Offered Shares not purchased by the Company or the Preferred
Holders pursuant to Article I above, expressed by a fraction, the numerator of
which is the number of shares of Preferred Stock (on an as-converted into Common
Stock basis) and Common Stock held by such Preferred Holder and the denominator
of which is the aggregate number of shares of Preferred Stock (on an as-
converted into Common Stock basis) and Common Stock held by all Preferred
Holders and the number of Shares held by the Shareholder. The Preferred Holders
shall act upon the Buyer's offer to buy as soon as practicable after receipt
from the Company of the Notice and in all events within fifteen (15) days after
receipt of the Notice. In the event that the Preferred Holders shall elect to
exercise their Right of Co-Sale, the Preferred Holders shall communicate in
writing such election to the Shareholder.
2.2 Agreement not to Transfer. The Shareholder shall not sell, assign,
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transfer, pledge, hypothecate, mortgage or dispose of, by gift or otherwise, or
in any way encumber, all or any part of the Shares (as hereinafter defined)
owned by him during the term of this Agreement other than in compliance with the
terms of this Article II.
2.3 Definition of Shares. For purposes of this Article II, the term "
--------------------
Shares" shall mean and include all shares of capital stock of the Company owned
by the Shareholder, whether presently held or hereafter acquired.
2.4 Permitted Transfers. The Right of Co-Sale contained in this Article II
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shall not apply to: (a) any transfer of Shares by the Shareholder by gift or
bequest or through inheritance to, or for the benefit of, any family member; (b)
any transfer of Shares by the Shareholder to a trust for the benefit of any
family member; (c) any sale or transfer of Shares to the Company pursuant to the
terms of a stock restriction or stock repurchase agreement (which provides for
such sale upon the Shareholder's termination of employment with the Company, if
applicable); (d) any sale or transfer of Shares to the Company or the Preferred
Holders pursuant to the provisions of Article I hereof; (e) any sale of Common
Stock in a public offering pursuant to a registration statement filed by the
Company with the Securities and Exchange Commission; (f) any pledge made
pursuant to a bona fide loan transaction that creates a mere security interest;
(g) any transfer of Shares by a Shareholder that is a partnership to its
partners; or (h) any transfer of Shares by a Shareholder that is a trust to a
successor trust or successor trustee. In the event of any transfer pursuant to
(a), (b), (g) or (h), the transferee of the Shares shall hold the Shares so
acquired with all the rights conferred by, and subject to all the restrictions
imposed by, this Agreement.
2.5 Prohibited Transfers.
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(a) In the event that the Shareholder should sell any Shares in
contravention of the co-sale rights of each Preferred Holder under this
Agreement (a "Prohibited Transfer"), each Preferred Holder, in addition to such
other remedies as may be available at law, in equity or hereunder, shall have
the put option provided below, and such Shareholder shall be bound by the
applicable provisions of such option.
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(b) In the event of a Prohibited Transfer, each Preferred Holder
shall have the right to sell to such Shareholder the type and number of shares
of Common Stock equal to the number of shares each Preferred Holder would have
been entitled to transfer to the Buyer under Section 2.1 hereof had the
Prohibited Transfer been effected pursuant to and in compliance with the terms
hereof. Such sale shall be made on the following terms and conditions:
(i) The price per share at which the shares are to be sold to
the Shareholder shall be equal to the price per share paid by the Buyer to such
Shareholder in such Prohibited Transfer. The Shareholder shall also reimburse
each Preferred Holder for any and all fees and expenses, including legal fees
and expenses, incurred pursuant to the exercise or the attempted exercise of the
Preferred Holder's rights under this Article II.
(ii) Within ninety (90) days after the date on which a
Preferred Holder received notice of the Prohibited Transfer or otherwise became
aware of the Prohibited Transfer, such Preferred Holder shall, if exercising the
option created hereby, deliver to the Shareholder the certificate or
certificates representing the shares to be sold, each certificate to be properly
endorsed for transfer.
(iii) Such Shareholder shall, upon receipt of the certificate or
certificates for the shares to be sold by a Preferred Holder, pursuant to this
Section 2.5(b), pay the aggregate purchase price therefor and the amount of
reimbursable fees and expenses, as specified in Section 2.5(b)(i), in cash or by
other means acceptable to the Preferred Holder.
(iv) Notwithstanding the foregoing, any attempt by the
Shareholder to transfer Shares in violation of Article II hereof shall be
voidable at the option of a majority in interest of the Preferred Holders if the
Preferred Holders do not elect to exercise the put option set forth in this
Section 2.5, and the Company agrees it will not effect such a transfer nor will
it treat any alleged transferee as the holder of such shares without the written
consent of a majority in interest of the Preferred Holders.
ARTICLE III
Right of First Refusal on Company Issuances
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3.1 Grant of Right. Except as set forth in Article IV, the Company hereby
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grants to each Preferred Holder who continues to hold, respectively, shares of
Series A Preferred Stock purchased pursuant to the Series A Agreement, Series B
Preferred Stock purchased pursuant to the Series B Agreement, Series C Preferred
Stock purchased pursuant to the Series C Agreement and Series D Preferred Stock
purchased pursuant to the Series D Agreement (the "Preferred Shares"), the right
of first refusal to purchase all or any part of such Preferred Holder's Pro Rata
Share (as hereinafter defined) of the New Securities (as defined in Section 3.2)
which the Company may, from time to time, propose to sell and issue, with a
right of over-subscription (as provided in Section 3.3 below). The Preferred
Holders may purchase said New Securities on the same terms and at the same price
at which the Company proposes to sell the New Securities. The "Pro Rata Share"
of each Preferred
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Holder, for purposes of this right of first refusal, is the ratio of the total
number of shares of Common Stock held by such Preferred Holder, including (i)
any shares of Common Stock into which shares of Preferred Stock held by such
Preferred Holder are convertible, and (ii) any shares deliverable upon the
exercise of options of other rights to purchase Common Stock held by such
Preferred Holder, to the total number of shares of Common Stock outstanding
immediately prior to the issuance of the New Securities (including (i) any
shares of Common Stock into which outstanding shares of Preferred Stock are
convertible and (ii) any shares deliverable upon the exercise of options or
other rights to purchase Common Stock).
3.2 New Securities. "New Securities" shall mean any capital stock of the
--------------
Company, whether now authorized or not, and any rights, options or warrants to
purchase said capital stock, and securities of any type whatsoever that are, or
may become, convertible into said capital stock; provided, however, that "New
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Securities" does not include (i) the Preferred Shares or other securities issued
or issuable upon conversion of the Preferred Shares ("Conversion Shares"), (ii)
securities offered pursuant to a registration statement filed under the
Securities Act of 1933, as amended (the "Act"), (iii) securities issued pursuant
to the acquisition of another corporation by the Company by merger, purchase of
substantially all of the assets or other reorganization, (iv) shares offered
pursuant to lease financing transactions or bank or lending institution
financing transactions that are approved by the Board of Directors, (v)
securities issued in connection with any stock split, stock dividend or
recapitalization of the Company, (vi) all securities hereafter issued or
issuable to officers, directors, employees or consultants of the Company (for
the primary purpose of soliciting or retaining their employment or services)
pursuant to any employee or consultant stock offering, plan or arrangement
approved by the Board of Directors, (vii) securities issuable pursuant to
warrants outstanding as of January 7, 2000 (the "Warrant Shares") or securities
issued upon conversion of the Warrant Shares, and (viii) warrants for up to
675,000 shares to be issued to First Plaza Group Trust (or any designee thereof)
("First Plaza") upon the achievement of certain sales targets to General Motors
Corporation, or any affiliate thereof, as a result of the introduction by First
Plaza, and the shares issuable upon exercise thereof.
3.3 Notice. In the event the Company proposes to undertake an issuance of
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New Securities, it shall give to the Preferred Holders written notice (the
"Company Notice") of its intention, describing the type of New Securities,
number of shares, the price, the terms upon which the Company proposes to issue
the same, and notice to the effect that each Preferred Holder must respond to
such Company Notice within twenty (20) days after the date thereof. The
Preferred Holders shall have twenty (20) days from the date of such Company
Notice to purchase any or all of the New Securities for the price and upon the
terms specified in the Company Notice by giving written notice to the Company
and stating therein the quantity of New Securities to be purchased and
forwarding payment for such New Securities to the Company if immediate payment
is required by such terms, or in any event no later than forty-five (45) days
after the date of the Company Notice. The Company shall promptly, in writing,
inform each Preferred Holder which elects to purchase its Pro Rata Share of the
New Securities of any other Preferred Holder's failure to do so (the "Over-
subscription Notice"), in which case the Preferred Holders electing to purchase
their Pro Rata Share of the New Securities shall have the right to purchase
their Pro Rata Share of such shares (the "Over-subscription Right") and any
portion of the remainder of such shares which other Preferred Holders
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have elected not to purchase pursuant to the exercise of their Over-subscription
Right, for the price and upon the terms specified in the Company Notice for a
period of thirty (30) days after the date of the Over-subscription Notice. If a
Preferred Holder elects not to exercise such right, then that portion of the
shares which is not purchased may be offered to third parties on terms no less
favorable to the Company for a period of one hundred twenty (120) days.
3.4 Sale after Company Notice. In the event any Preferred Holder fails to
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exercise in full the right of first refusal within said twenty (20) day period,
the Company shall have ninety (90) days thereafter to sell or enter into an
agreement (pursuant to which the sale of New Securities covered thereby shall be
closed, if at all, within thirty (30) days from the date of said agreement) to
sell the New Securities respecting which such Preferred Holder's rights were not
exercised, at a price and upon general terms no more favorable to the Preferred
Holders thereof than specified in the Company Notice. In the event the Company
has not sold the New Securities within said ninety (90) day period (or sold and
issued New Securities in accordance with the foregoing within thirty (30) days
from the date of said agreement), the Company shall not thereafter issue or sell
any New Securities without first offering such securities to the Preferred
Holders in the manner provided above.
3.5 Assignment. The right of first refusal granted under this Article III
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is assignable by the Preferred Holders to any transferee of a minimum of fifty
thousand (50,000) shares of Series A Preferred Stock, fifty thousand (50,000)
shares of Series B Preferred Stock, fifty thousand (50,000) shares of Series C
Preferred Stock, or fifty thousand (50,000) shares of Series D Preferred Stock
(in each case as adjusted for any stock split, stock dividends, combinations,
recapitalizations and the like with respect to such shares), as applicable, or
the Common Stock into which each such series of Preferred Stock has been
converted. For the purposes of satisfying the 50,000 share threshold herein, the
number of shares of the Common Stock issuable upon conversion of applicable
series of Preferred Stock owned by the Preferred Holders shall include the
holdings of partners, subsidiaries, parents, shareholders or affiliates of the
Preferred Holders (or any entities which have the same parent corporation as the
Preferred Holders) and such holdings shall be aggregated together and with the
holdings of the Preferred Holders with respect to the applicable series of
Preferred Stock.
ARTICLE IV
Termination of Rights
---------------------
The Right of First Refusal on Shareholder Transfer, Co-Sale Right, Right of
First Refusal on Company Issuances, the right to designate members of the Board
of Directors, Compensation Committee and Audit Committee and the right to direct
the voting of the shares beneficially owned by the Founder created under
Articles I, II, III, VII and VIII of this Agreement, respectively, shall expire
upon (i) the closing of the first public offering of the Common Stock of the
Company to the general public which is effected pursuant to a registration
statement filed with, and declared effective by, the Securities and Exchange
Commission under the Securities Act of 1933, as amended; (ii) upon the closing
of a transaction or series of related transactions (including, without
limitation, any reorganization, merger or consolidation) which results in (a)
the holders of the
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outstanding voting equity securities of the Company immediately prior to such
transaction or series of related transactions holding securities representing
less than 50% of the voting power of the surviving entity immediately following
such transaction or series of related transactions or (b) the sale or
disposition by the Company of all or substantially all the Company's assets; or
(iii) with respect to the Right of First Refusal on Shareholder Transfer, the
date on which less than 50% of the Preferred Stock of the Company initially
issued remains outstanding (as adjusted for any stock split, stock dividends,
combinations, recapitalizations and the like with respect to the shares).
ARTICLE V
Specific Performance
--------------------
The rights of the parties under this Agreement are unique and, accordingly,
the parties shall, in addition to such other remedies as may be available to any
of them at law or in equity, have the right to enforce their rights hereunder by
actions for specific performance to the extent permitted by law.
ARTICLE VI
Legends
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The certificates representing the Shares shall bear a legend indicating the
existence of the restrictions imposed by Article I, II, III, VII and VIII of
this Agreement. Nothing in this Agreement should be construed as a modification
or amendment of any restrictions on transfer under applicable federal or state
securities laws.
ARTICLE VII
Board of Directors
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7.1 Board of Directors. As soon as practicable after the Closing, the
Board of Directors of the Company shall be comprised of seven members. The
Purchasers and the Shareholders agree to cause to be elected to the Company's
Board of Directors (i) one representative elected by the holders of Series A
Preferred Stock, (ii) one representative elected by the holders of Series B
Preferred Stock (who shall be a representative of Battery Ventures L.P.), (iii)
two representatives elected by the holders of the Series C Preferred Stock (one
of whom shall be a representative of the Technology Crossover Ventures entities,
and one of whom shall be a representative of Boston Millennia Partners Limited
Partnership), (iv) two representatives elected by the holders of Common Stock of
the Company (one of whom shall be Xxxxx Xxxxxxxxx and the other shall be
reasonably approved by the holders of the Series C Preferred Stock), and (v) the
Chief Executive Officer of the Company. In addition, the Board of Directors of
the Company shall elect Xxxxx Xxxxxxxxx as Chairman of the Board to serve in
that capacity as long as he is a director of the Company. If any Preferred
Holder named in clause (ii) or (iii) above elects not to designate a
representative to the Board, such Preferred Holder shall have the right to
appoint an observer who shall be entitled to
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attend all meetings of the Board and to consult with management. The Company
shall pay the reasonable out-of-pocket expenses of non-employee members of the
Company's Board of Directors in connection with attending Board of Directors
meetings and will pay the reasonable out-of-pocket expenses of Board observers
in connection with attending Board of Directors meetings, in accordance with the
Company's standard travel policy.
7.2 Compensation Committee. The Company shall use its best efforts and the
----------------------
Purchasers and Shareholders agree to cause the Board of Directors of the Company
to appoint and maintain a Compensation Committee, which shall contain no more
than three persons, one of whom shall be a representative of Boston Millennia
Partners Limited Partnership, one of whom shall be a representative of Battery
Ventures, and one of whom shall be Xxxxx Xxxxxxxxx. The Compensation Committee
shall administer the Company's stock option plans and make recommendations to
the Board of Directors with respect to management compensation and terms of
employment. The Board of Directors of the Company shall have the power to accept
or reject any recommendation of the Compensation Committee, but shall not
approve an employee's compensation in amounts which differ from the amounts
recommended by the Compensation Committee.
7.3 Audit Committee. The Company shall use its best efforts and the
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Purchasers and Shareholders agree to cause the Board of Directors to appoint and
maintain an Audit Committee, which shall include at least one representative of
the Purchasers.
ARTICLE VIII
Reorganizations
---------------
The Shareholders hereby agree that at any meeting of the shareholders
of the Company, however called, and in any written action by consent of
shareholders of the Company, the Shareholders shall vote all shares of stock of
the Company entitled to vote held by the Shareholder as directed by the holders
of a majority of the outstanding shares of Common Stock and Common Stock
issuable upon conversion of Preferred Stock then held by the Shareholders in
connection with any reorganization of the Company pursuant to Section 1200 et.
seq. of the California Corporations Code; provided, however, that this Article
VIII shall not affect any rights granted to the Preferred Holders or the
Purchasers pursuant to Sections 6(a) and 6(c) of the Company's Amended and
Restated Articles of Incorporation. The Shareholders shall not enter into any
agreement or understanding with any person or entity to vote or give
instructions in any manner inconsistent with the preceding sentence. In the
event any Shareholder fails to vote in accordance herewith, such Shareholders
shall be deemed to have irrevocably appointed such person or persons as may be
designated by the Board of Directors of the Company as proxy to vote such
Shareholder's stock in accordance herewith.
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ARTICLE IX
General Provisions
------------------
9.1 Governing Law. This Agreement shall be governed by the laws of the
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State of California without regard to choice of law provisions.
9.2 Entire Agreement. This Agreement constitutes the entire agreement
----------------
between the parties with respect to the subject matter hereof and supersedes all
prior oral or written agreements and understandings between them or any of them
as to such subject matter.
9.3 Amendment. Except as otherwise expressly provided herein, this
---------
Agreement, other than Article VII herein, may be amended only upon the written
consent of the majority of the shares beneficially owned or deemed to be
beneficially owned by the Founder, the majority-in-interest of the Preferred
Holders, the majority-in-interest of the Common Holders, and the Company;
provided, however, that Article VII herein may be amended only upon the written
consent of 2/3 of (i) the shares then beneficially owned or deemed to be
beneficially owned by the Founder and the shares then owned by the Common
Holders, (ii) the shares then owned by the Series A Holders (iii) the shares
then owned by the Series B Holders, (iv) the shares then owned by the Series C
Holders and (v) the shares then owned by the Purchasers, with each voting as a
separate class.
9.4 Successors. This Agreement shall be binding upon and shall inure to
----------
the benefit of the parties hereto and their respective heirs, executors, legal
representatives, successors, and permitted transferees, except as may be
expressly provided otherwise herein.
9.5 Invalidity of Provisions. In the case any one or more of the
------------------------
provisions contained in this Agreement shall for any reason be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provision of this Agreement and such
invalid, illegal and unenforceable provision shall be reformed and construed so
that it will be valid, legal, and enforceable to the maximum extent permitted by
law.
9.6 Notice. Any notice, demand or request required or permitted to be
------
given by either the Company or the Shareholders pursuant to the terms of this
Agreement shall be in writing and shall be deemed given when delivered
personally or deposited in the U.S. mail, First Class with postage prepaid, and
addressed to the parties at the addresses of the parties set forth on the
Exhibits to this Agreement or such other address as a party may request by
notifying the other in writing.
9.7 No Waiver. Any party's failure to enforce any provision or provisions
---------
of this Agreement shall not in any way be construed as a waiver of any such
provision or provisions, nor prevent that party thereafter from enforcing each
and every other provision of this Agreement. The rights granted to the parties
herein are cumulative and shall not constitute a waiver of any party's right to
assert all other legal remedies available to it under the circumstances.
9.8 Cooperation. The parties agree upon request to execute any further
-----------
documents or instruments necessary or desirable to carry out the purposes or
intent of this Agreement.
-10-
9.9 Addition of Parties. The Company agrees that until the termination of
-------------------
this Agreement, it will cause each of the key employees of the Company who holds
at least 100,000 shares of the capital stock of the Company (on an as-converted
basis and as adjusted for any stock split, stock dividends, combinations,
recapitalizations and the like with respect to such shares), to enter into this
Agreement and thereby to be bound by the terms hereof, all by execution of an
Instrument of Accession in the form attached as Exhibit E hereto. Any such
person so entering into this Agreement shall be deemed to be a Shareholder for
purposes of this Agreement.
9.10 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
-11-
The foregoing agreement is hereby executed as of the date first above
written.
"COMPANY" INVENTA CORPORATION
a California corporation
By: /s/ Xxxxx X. Xxxxxxx, President
------------------------------------
Xxxxx X. Xxxxxxx, President
"FOUNDER" Xxxxx X. Xxxxxxxxx and Xxxxxxx Xxxxxxxxx,
Trustees of the Santhanam Family Trust U/D/T
dated May 23, 1997
By:
____________________________________
Xxxxx X. Xxxxxxxxx, Trustee
_______________________________________
Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxx, Trustee of the Xxxxxxxx
Xxxxxxxxx 1997 Trust UTA dated May 23, 1997
By:
____________________________________
Xxxxxxx Xxxxxxxx, Trustee
Xxxxxxx Xxxxxxxx, Trustee of the Rishikesh
Santhanam 1997 Trust UTA dated May 23, 1997
By:
____________________________________
Xxxxxxx Xxxxxxxx, Trustee
-13-
"PURCHASERS"
BANCBOSTON VENTURES INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Director
PRIVATE EQUITY PORTFOLIO FUND II, LLC
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
BATTERY VENTURES III, L.P.
By: Battery Partners III, L.P.
By: /s/ Xxxx Xxxxxx
------------------------------------
Title: Xxxx Xxxxxx, General Partner
BOSTON MILLENNIA PARTNERS LIMITED
PARTNERSHIP
By: Xxxx Partners Limited Partnership
Its General Partner
By: /s/ Xxxxxx X.
------------------------------------
General Partner
/s/ Xxxxxx Xxxxxxxx
---------------------------------------
Xxxxxx Xxxxxxxx
-00-
XXXXXX X. AND XXXXXXX X. XXXXXXXX CHARITABLE
ANNUITY TRUST U/D/T
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Xxxxxx Xxxxxxxx, Trustee
ESSEX PRIVATE PLACEMENT FUND II, LIMITED
PARTNERSHIP
By: Essex Investment Mgt. Company LLC
Its General Partner
By: /s/ [ILLEGIBLE]^^
------------------------------------
Title: Principal
---------------------------------
THE CHASE MANHATTAN BANK, AS TRUSTEE FOR
FIRST PLAZA GROUP TRUST
By: /s/ Xxxx X. Xxxxx
------------------------------------
Title: Vice President
---------------------------------
TCV II (Q), L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II,
L.L.C.,
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
-15-
TCV II Strategic Partners, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II,
L.L.C.,
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
TCV II, V.O.F.
a Netherlands Antilles General Partnership
By: Technology Crossover Management II,
L.L.C.,
Its: Investment General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
Technology Crossover Ventures II, C.V.
a Netherlands Antilles Limited Partnership
By: Technology Crossover Management II,
L.L.C.,
Its: Investment General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
Technology Crossover Ventures II, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II,
L.L.C.,
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
-16-
"OTHER SHAREHOLDERS"
BATTERY VENTURES III, L.P.
By: Battery Partners III, L.P.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: General Partner
BATTERY VENTURES L.P.
By: /s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: General Partner
BOSTON MILLENNIA PARTNERS LIMITED
PARTNERSHIP
By: Xxxxxx X. Xxxxxx, General Partner
BOSTON MILLENNIA PARTNERS LIMITED
PARTNERSHIP
By: Xxxx Partners Limited Partnership,
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
General Partner
_______________________________________
Xxxxxxx X. Xxxxx
_______________________________________
A. Xxxx Xxxxxx, Xx.
_______________________________________
Xxxxx X. Xxxxxxx
_______________________________________
Electra X. XxXxxxxxx
-17-
_______________________________________
Xxxxxxxxx Xxxxxx
/s/ Xxxxxx Xxxxxxxx
---------------------------------------
Xxxxxx Xxxxxxxx
Xxxxxx G. and Xxxxxxx X. Xxxxxxxx
Charitable Annuity Trust, u/d/t
By: /s/ Xxxxxx Xxxxxxxx
------------------------------------
Xxxxxx Xxxxxxxx, Trustee
_______________________________________
Xxxx X. Xxxxxxxxxx
_______________________________________
Xxxxxx X. Xxxxxx
_______________________________________
Xxxxxxxx Xxxxx
_______________________________________
Xxxxxx X. Xxxxx
_______________________________________
Xxxxxx Xxxxx
_______________________________________
B. Xxxxxxxx Xxxx
_______________________________________
Xxxxxxxxxxxx Xxxxxxxx
_______________________________________
Xxxxxxxxx Xxxxxxx
-18-
_______________________________________
Xxxx Xxxxxxx
_______________________________________
Xxxxx X. Xxxxx
_______________________________________
Xxxxxx Xxxxxx
_______________________________________
Xxxxxx Xxxxxx
_______________________________________
Xxxxxx Xxxxxxxxxx
_______________________________________
Xxxxxxxxx X. Xxxxxx
_______________________________________
Xxxxxx Xxxxxxxxxxxxxx
TCV II (Q), L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II,
L.L.C.,
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
-19-
TCV II Strategic Partners, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II,
L.L.C.,
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
TCV II, V.O.F.
a Netherlands Antilles General Partnership
By: Technology Crossover Management II,
L.L.C.,
Its: Investment General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
Technology Crossover Ventures II, C.V.
a Netherlands Antilles Limited Partnership
By: Technology Crossover Management II,
L.L.C.,
Its: Investment General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
Technology Crossover Ventures II, L.P.
a Delaware Limited Partnership
By: Technology Crossover Management II,
L.L.C.,
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chief Financial Officer
-20-
