First Amendment to Amended and Restated Stockholders Agreement among ClearStory Systems, Inc. and Investors

Summary

This agreement is the first amendment to the Amended and Restated Stockholders Agreement originally made between ClearStory Systems, Inc. and several investors, including SCP Private Equity Partners II, L.P., CSSMK, LLC, Selway Partners, LLC, and CIP Capital, L.P. The amendment updates the definition of "Series C Preferred Shares" to include all such shares owned by a stockholder, regardless of when acquired. All other terms of the original Stockholders Agreement remain unchanged and in effect.

EX-10.90 3 exh10-90.txt AMENDED AND RESTATED STOCKHOLDERS AGREEMENT FIRST AMENDMENT TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT THIS FIRST AMENDMENT TO AMENDED AND RESTATED STOCKHOLDERS AGREEMENT is made and entered into as of this 28th day of January, 2005, by and among ClearStory Systems, Inc. (f/k/a/Insci Corp.), a Delaware corporation (the "Company"), SCP Private Equity Partners II, L.P., a Delaware limited liability partnership ("SCP"), CSSMK, LLC, a Massachusetts limited liability company ("CSSMK"), Selway Partners, LLC ("Selway") and CIP Capital, L.P. ("CIP" and SCP, CSSMK, CIP and Selway collectively, the "Parties"). RECITALS WHEREAS, SCP, CSSMK, CIP and the Company entered into a Series C Convertible Preferred Stock Purchase Agreement of even date pursuant to which SCP, CSSMK and CIP agreed to purchase an aggregate of 386,678 shares (which may be increased by 51,557 shares pursuant to the terms of the Series C Convertible Stock Purchase Agreement) of Series C Convertible Preferred Stock, par value $.01 per share ("Series C Preferred Stock") for an aggregate purchase price of $750,000 (which may be increased by $100,000 pursuant to the terms of the Series C Convertible Stock Purchase Agreement); and WHEREAS, on March 31, 2004 the Parties and the Company entered into an Amended and Restated Stockholders Agreement (the "Stockholders Agreement") to set forth their respective rights with respect to the Series C Preferred Shares; and WHEREAS, the Company and the Parties wish to enter into this Amendment ("Agreement"); and NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows: 1. AMENDMENT OF SECTION 8.7. Section 8.7 of the Stockholders Agreement is amended to read in its entirety as follows: " "8.7 SERIES C PREFERRED SHARES" means all shares of the Company's Series C Preferred Stock owned by a Stockholder, regardless of when such shares may have been acquired." 2. NO OTHER CHANGES. Subject only to the foregoing amendment to Section 8.7., the Stockholders Agreement shall continue in full force and effect in accordance with its terms, IN WITNESS WHEREOF, the parties hereto have executed this FIRST AMENDMENT TO AMENDED AND RESTATED STOCKHOLDERS Agreement as of the date above written. COMPANY: SCP PRIVATE EQUITY PARTNERS II, L.P. CLEARSTORY SYSYEMS, INC. BY: SCP PRIVATE EQUITY II GENERAL PARTNER, L.P., ITS GENERAL PARTNER By: /s/ Henry F. Nelson BY: SCP PRIVATE EQUITY II, LLC ------------------- Name: Henry F. Nelson Title: Chief Executive Officer BY: /s/ Winston J. Churchill ------------------------ Name: Winston J. Churchill Title: a manager SELWAY PARTNERS, LLC By: /s/ Yaron Eitan --------------- Name: Yaron Eitan CIP CAPITAL, L.P. BY: CIP CAPITAL MANAGEMENT, INC., ITS GENERAL PARTNER By: /s/ Edward J. Carey ------------------- Name: Edward J. Carey CSSMK, LLC By: /s/ Henry F. Nelson ------------------- Name: Henry F. Nelson Title: Manager