Amendment No. 1 to Registration Rights Agreement, dated November 2, 2022
Exhibit 10.1
ENGAGESMART, INC.
AMENDMENT NO. 1 TO REGISTRATION RIGHTS AGREEMENT
November 2, 2022
This Amendment No. 1 to Registration Rights Agreement (this “Amendment”) is made, entered into and effective as of November 2, 2022, and amends that certain Registration Rights Agreement, dated as of September 22, 2021 (the “Registration Rights Agreement”), by and among EngageSmart, Inc., a Delaware corporation (the “Company”), and the Investors and Other Holders named therein (such Investors and Other Holders, each, a “Holder” and collectively, the “Holders”). All capitalized terms used herein and not otherwise defined shall have the respective meanings assigned to such terms in the Registration Rights Agreement.
Whereas, the Company, the Investors and the Other Holders previously entered into that certain Registration Rights Agreement;
Whereas, Section 10(a) of the Registration Rights Agreement provides that the Registration Rights Agreement generally may be amended, modified or waived only with the written consent of the Company and each of the Majority Investors; provided that no such amendment, modification or waiver that would (i) treat a specific Holder or group of Holders of Registrable Securities (i.e., Other Holders) in a manner materially and adversely different than any other Holder or group of Holders or (ii) materially and adversely change a specific right granted to such Holder or group by name, will be effective against such Holder or group of Holders without the consent of the holders of a majority of the Registrable Securities that are held by the group of Holders that is materially and adversely affected thereby (the “Holder Majority” and collectively with the Company and the Majority Investors, the “Required Parties”);
Whereas, the undersigned parties constitute at least the Required Parties under the Registration Rights Agreement necessary to amend the Registration Rights Agreement; and
Whereas, the Company and the undersigned Holders desire to amend the Registration Rights Agreement as set forth below.
Now, Therefore, in consideration of the foregoing, the Company and the undersigned Holders hereby agree and acknowledge as follows:
The Registration Rights Agreement is hereby amended such that each of the Holders listed below shall be (i) deemed a party to the Registration Rights Agreement as an “Other Holder” thereunder (in lieu of an “Investor”) for all purposes thereof and entitled to all of the rights incidental to Other Holders thereunder and (ii) fully bound by, and subject to, all of the covenants, terms and conditions of the Registration Rights Agreement applicable to the Other Holders thereunder. For the avoidance of doubt, from and after the date hereof, no such Holder shall have any rights or obligations as an “Investor” under the Registration Rights Agreement, and as of the date hereof, (a) General Atlantic and Summit shall be the only Investors under the Registration Rights Agreement and (b) Stanley Evrard, Mathew Braley, Jason Baker, Kevin Moon and Renee Chenue shall each remain as an Other Holder under the Registration Rights Agreement, together with the below-listed Holders.
Except as specifically amended herein, the Registration Rights Agreement is hereby ratified and confirmed and shall remain in full force and effect in accordance with its terms. Each reference in the Registration Rights Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words of like import shall mean and be a reference to the Registration Rights Agreement, as amended by this Amendment.
The corporate law of the State of Delaware will govern all issues and questions concerning the relative rights of the Company and its equityholders. All issues and questions concerning the construction, validity, interpretation and enforcement of this Amendment will be governed by, and construed in accordance with, the laws of the State of Delaware, without giving effect to any choice of law or conflict of law rules or provisions (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
This Amendment may be executed in multiple counterparts, any one of which need not contain the signature of more than one party, but all such counterparts taken together will constitute one and the same agreement. This Amendment, to the extent executed and delivered by means of a photographic, photostatic, facsimile or similar reproduction of such signed writing using a facsimile machine or electronic mail will be treated in all manner and respects as an original agreement and will be considered to have the same binding legal effect as if it were the original signed version thereof delivered in person. At the request of any party hereto, each other party hereto will re‑execute original forms thereof and deliver them to all other parties. No party hereto will raise the use of a facsimile machine or electronic mail to deliver a signature or the fact that any signature or agreement was transmitted or communicated through the use of a facsimile machine or electronic mail as a defense to the formation or enforceability of a contract and each such party forever waives any such defense.
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In Witness Whereof, each undersigned has executed this Amendment as of the date first written above.
INVESTORS:
GENERAL ATLANTIC (IC), L.P.
By: General Atlantic (SPV) GP, LLC, its general partner
By: General Atlantic, L.P., its sole member
By: /s/ Kelly Pettit
Name: Kelly Pettit
Title: Managing Director
SUMMIT PARTNERS GROWTH EQUITY
FUND VIII-A, L.P.
By: Summit Partners GE VIII, L.P.
Its: General Partner
By: Summit Partners GE VIII, LLC
Its: General Partner
By: /s/ Matthew Guy Hamilton
Name: Matthew Guy-Hamilton
Title: Managing Director
SUMMIT PARTNERS GROWTH EQUITY
FUND VIII-B, L.P.
By: Summit Partners GE VIII, L.P.
Its: General Partner
By: Summit Partners GE VIII, LLC
Its: General Partner
By: /s/ Matthew Guy-Hamilton
Name: Matthew Guy-Hamilton
Title: Managing Director
SUMMIT PARTNERS ENTREPRENEUR
ADVISORS FUND L.P.
By: Summit Partners Entrepreneur Advisors GP, LLC
Its: General Partner
By: Summit Master Company, LLC
Its: Sole Member
By: /s/ Matthew Guy-Hamilton
Name: Matthew Guy-Hamilton
Title: Managing Director
SUMMIT INVESTORS I, LLC
By: Summit Investors Management, LLC
Its: Manager
By: Summit Master Company, LLC
Its: Manager
By: /s/ Matthew Guy-Hamilton
Name: Matthew Guy-Hamilton
Title: Managing Director
SUMMIT INVESTORS I (UK), L.P.
By: Summit Investors Management, LLC
Its: General Partner
By: Summit Master Company, LLC
Its: Manager
By: /s/ Matthew Guy-Hamilton
Name: Matthew Guy-Hamilton
Title: Managing Director
OTHER HOLDERS:
Robert P. Bennett
By: /s/ Robert P. Bennett
Robert P. Bennett 2019
Descendants’ Trust
By: /s/ John Burgess
Name: John Burgess
Title: Trustee
The Bennett Family 2020 Trust
By: /s/ John Burgess
Name: John Burgess
Title: Trustee
The Robert P. Bennett 2020 Grantor retained annuity trust
By: /s/ Robert P. Bennett
Name: Robert P. Bennett
Title: Trustee
John Burgess
By: /s/ John Burgess
John Morabito
By: /s/ John Morabito
John Morabito 2019
Descendants’ trust
By: /s/ John Termini
Name: John Termini
Title: Trustee
Maria Morabito
By: /s/ Maria Morabito
Kelton Averyt 2019
Descendants’ trust
By: /s/ Aaron Hall
Name: Aaron Hall
Title: Trustee
quito bella family trust
By: /s/ Kelton Averyt
Name: Kelton Averyt
Title: Trustee
Robert Lapides
By: /s/ Robert Lapides
Robert Lapides 2019
Descendants’ trust
By: /s/ John Callahan
Name: John Callahan
Title: Trustee
Robert Lapides 2019 Trust
By: /s/ Robert Lapides
Name: Robert Lapides
Title: Trustee
Howard Spector
By: /s/ Howard Spector
Howard Spector 2021
Irrevocable trust
By: /s/ Janet White
Name: Janet White
Title: Trustee
Janet White 2021
Irrevocable trust
By: /s/ Howard Spector
Name: Howard Spector
Title: Trustee
C. THOMAS ALLGOOD
By: /s/ C. Thomas Allgood
nelson Blitz
By: /s/ Nelson Blitz
STANLEY EVRARD
By: /s/ Stanley Evrard
JASON BAKER
By: /s/ Jason Baker
RENEE CHENUE
By: /s/ Renee Chenue
Acknowledged and Agreed:
ENGAGESMART, INC.
By:/s/ Robert P. Bennett
Name: Robert P. Bennett
Title: Chief Executive Officer
