Amendment No. 1 to Fourth Amended and Restated Investor Rights Agreement by and among eRoom Technology, Inc., Founders, Preferred Holders, and New Preferred Holders

Summary

This amendment updates the existing Investor Rights Agreement between eRoom Technology, Inc., its founders, and both existing and new preferred shareholders. It adds new investors, updates certain definitions, and grants the new preferred holders the same rights and obligations as existing ones. The amendment also modifies provisions related to Ford Motor Company, updates director references, and clarifies aggregation of affiliate ownership. Additionally, it waives rights of first refusal for the new share issuance. All other terms of the original agreement remain unchanged.

EX-10.12 18 b36350etex10-12.txt AMENDMENT NO. 1 TO FOURTH AMENDED AND RESTATED 1 EXHIBIT 10.12 AMENDMENT NO. 1 TO EROOM TECHNOLOGY, INC. FOURTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT This Amendment No. 1 to Fourth Amended and Restated Investor Rights Agreement, dated as of July 14, 2000, is entered into by and among eRoom Technology, Inc. (the "COMPANY") and the Founders, Preferred Holders and New Preferred Holders set forth on the signature pages hereto. RECITALS WHEREAS, the Company, the Founders and the Preferred Holders are parties to an existing Fourth Amended and Restated Investor Rights Agreement dated as of April 20, 2000 (the "EXISTING AGREEMENT"); WHEREAS, the Company proposes to issue and sell an aggregate of 1,052,633 additional shares of its Series D Convertible Preferred Stock, $0.01 par value per share, of the Company (the "ADDITIONAL SHARES") to certain Preferred Holders and the New Preferred Holders on the date hereof pursuant to the terms of a certain Series D Convertible Preferred Stock Purchase Agreement (the "PURCHASE AGREEMENT"); WHEREAS, it is a condition to their purchase of Additional Shares that BVCF IV, L.P., Haebler Ventures Limited Partnership and DRW Venture Partners LP (collectively, the "NEW PREFERRED HOLDERS") be admitted as parties to the Existing Agreement; and WHEREAS, the undersigned Company, Founders and existing Preferred Holders, constituting the requisite percentage, desire to amend the Existing Agreement in accordance with Article X, Section 8 thereof as set forth below. NOW, THEREFORE, in consideration of the mutual promises, representations, warranties, covenants and conditions set forth in this Amendment, the parties mutually agree as follows: ADDING ADDITIONAL SERIES D AND NEW PREFERRED HOLDERS 1. That upon the issuance and sale of the Additional Shares to the New Preferred Holders and certain of the existing Preferred Holders on the date hereof pursuant to the Purchase Agreement (i) the terms "Series D Preferred" and "Preferred Stock" set forth in the Existing Agreement shall include the Additional Shares issued to such investors; and (ii) the terms "Series D Holders" and "Preferred Holders" set forth in the Existing Agreement shall include such investors (including, without limitation, the New Preferred Holders). In addition, each of the parties hereto agrees that the definition of "Stock Purchase Agreements" set forth in the Existing Agreement shall include the Purchase Agreement. 2 2. Each of the parties hereto agrees that the New Preferred Holders shall be entitled to the same rights and be subject to the same obligations as the "Preferred Holders," as such term is used in the Existing Agreement, as if such New Preferred Holders were originally included in the definition of "Preferred Holders" under the Existing Agreement. By executing its counterpart signature page to this Amendment, each New Preferred Holder hereby agrees to become a party to and be bound by the Existing Agreement, as amended by this Amendment, and the other parties hereto hereby accept such admission and accession, effective as of the date first above written. 3. That to reflect the new investors in the Company's Series D Preferred, SCHEDULE V to the Existing Agreement shall be amended by deleting it in its entirety and replacing it with the SCHEDULE V set forth on EXHIBIT A to this Amendment. STANDSTILL PROVISION APPLICABLE TO FORD MOTOR COMPANY ONLY 4. Article IX (Standstill) shall be amended so that notwithstanding any other provision in the Existing Agreement such Article shall from the date hereof be applicable solely to Ford Motor Company and not to Series D Holders. Accordingly, the parties hereto hereby amend Article IX to replace the terms "Series D Holder", "Series D Holders", "such Series D Holder", "a particular Series D Holder", "any of the Series D Holders" (and all like phrases) with "Ford Motor Company." In addition, subsection (iv) of Article X, Section 8 is hereby amended by deleting the phrase "the holders of at least a majority of the Series D Preferred" and replacing it with "Ford Motor Company." All tenses in the foregoing amended sections shall be amended appropriately to reflect the fact Ford Motor Company is a single entity. NEW DIRECTORS 5. The reference to "Stewart Alsop" set forth in subsection (ii) of Article II, Section 1(a) shall be replaced with "David A. Litwack." In addition, the parenthetical "(initially, Thomas F. Bogan)" shall be inserted immediately before the first proviso in subsection (iii) of Article II. Section 1(a). USE OF TERM "FOUNDERS" 6. The first use of the phrase "of the Founders" set forth in the proviso to subsection (iv) of Article II, Section 1(a) shall be replaced with the phrase "Jeffrey R. Beir nor R. Pito Salas." 7. That to reflect new persons and entities constituting "Founders" due to gifts from other Founders, SCHEDULE VI to the Existing Agreement shall be amended by deleting it in its entirety and replacing it with the SCHEDULE VI set forth on EXHIBIT B to this Amendment. AGGREGATION OF OWNERSHIP OF AFFILIATES 3 8. The new Section 12 shall be inserted at the end of Article X as follows: 12. AGGREGATION. Notwithstanding any other provision in this Agreement, all Shares held or acquired by parties hereto that are affiliated shall be aggregated together for the purpose of determining the availability of any rights under this Agreement. For the purposes of the preceding sentence, an "affiliate" of a person or entity is another person or entity that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such person or entity. The preceding sentence shall be construed as the term "affiliate" is construed under Rule 144 promulgated under the Securities Act. WAIVER OF RIGHT OF FIRST REFUSAL 9. By executing this Amendment, each party hereto is permanently and irrevocably waiving any and all rights of first refusal, including without limitation any notice requirements related thereto, pursuant to Article IV of the Existing Agreement with respect to the issuance and sale of the Additional Shares and the issuance of any shares into which such Additional Shares may be converted. MISCELLANEOUS 10. Except as set forth in this Amendment, all terms and provisions of the Existing Agreement shall remain in full force and effect in accordance with the terms thereof. Except where otherwise expressly set forth herein, this Amendment and its terms and provisions shall be effective as of the date first above written. All capitalized terms used but not defined herein shall have the respective meanings ascribed thereto in the Existing Agreement. Captions and headings in this Amendment are provided for convenience purposes only, are not to be considered a part of this Amendment and are not intended, and should not be used, to construe the meaning of any of the terms or provisions of this Amendment. This Amendment may be executed in any number of counterparts, all of which taken together shall constitute one and the same instrument. For the purposes of executing this Amendment, (a) a document signed and transmitted by facsimile machine or telecopier shall be treated as an original document; (b) the signature of any party on such document shall be considered as an original signature; (c) the document transmitted (or the document of which the page containing the signature or signatures of one of more parties is transmitted) shall have the same effect as a counterpart thereof containing original signatures. This Amendment shall be governed by, and construed and enforced in accordance with, the laws of the Commonwealth of Massachusetts (without reference to the conflicts of law provisions thereof). [REMAINDER OF PAGE LEFT INTENTIONALLY BLANK] 4 IN WITNESS WHEREOF, the parties hereto have executed this AMENDMENT NO. 1 TO THE FOURTH AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT as of the date set forth in the first paragraph hereof. COMPANY: EROOM TECHNOLOGY, INC. By: /s/ Jeffrey R. Beir ----------------------------------- Jeffrey R. Beir President Address: 725 Concord Avenue Cambridge, MA 02138 FOUNDERS: /s/ Jeffrey R. Beir -------------------------------------- Jeffrey R. Beir Address: c/o eRoom Technology, Inc. 725 Concord Avenue Cambridge, MA 02138 /s/ R. Pito Salas -------------------------------------- R. Pito Salas Address: c/o eRoom Technology, Inc. 725 Concord Avenue Cambridge, MA 02138 5 PREFERRED HOLDERS: ATLAS VENTURE FUND III, L.P. By: Atlas Venture Associates III, L.P. Its General Partner By: Atlas Venture Associates III, Inc. Its General Partner By: /s/ Ronald Nordin ----------------------------------- Vice President Address: 222 Berkeley Street Suite 1950 Boston, MA 02116 ATLAS VENTURE ENTREPRENEURS' FUND III, L.P. By: Atlas Venture Associates III, L.P. Its General Partner By: Atlas Venture Associates III, Inc. Its General Partner By: /s/ Ronald Nordin ----------------------------------- Vice President Address: 222 Berkeley Street Suite 1950 Boston, MA 02116 6 ESSEX PRIVATE PLACEMENT II, LIMITED PARTNERSHIP By: Essex Investment Management Company, LLC, its General Partner By: /s/ Susan Stickells ----------------------------------- Principal Address: 125 High Street, 29th Floor Boston, MA 02110 HARBOURVEST PARTNERS VI - DIRECT FUND, L.P. By: HarbourVest VI - Direct Associates LLC, its General Partner By: HarbourVest Partners, LLC, its Managing Member By: /s/ Robert M. Wadsworth ----------------------------------- Name: Managing Director Title Address: One Financial Center 44th Floor Boston, MA 02111 NEW ENTERPRISE ASSOCIATES VII, LIMITED PARTNERSHIP By: NEA Partners VII, Limited Partnership By: /s/ Nancy Docras ----------------------------------- General Partner Address: 1119 St. Paul Street Baltimore, MD 21202 7 NEA PRESIDENTS' FUND, L.P. By: NEA General Partners, L.P. By: /s/ Nancy Dorman ----------------------------------- General Partner Address: 1119 St. Paul Street Baltimore, MD 21202 NEA VENTURES 1997, L.P. By: /s/ Nancy Dorman -------------------------------- Title: -------------------------------- Address: 1119 St. Paul Street Baltimore, MD 21202 NORTH BRIDGE VENTURE PARTNERS, L.P. By: North Bridge Venture Management, L.P., its General Partner By: /s/ Richard D'Amore ---------------------------------- General Partner Address: 950 Winter Street, Suite 4600 Waltham, MA 02451 MATRIX PARTNERS IV, L.P. By: Matrix IV Management Co., L.P., its General Partner By: /s/ Timothy Barrows ---------------------------------- Address: Bay Colony Corporate Center 1000 Winter Street, Suite 4500 Waltham, MA 02451 8 MATRIX IV ENTREPRENEURS FUND, L.P. By: Matrix IV Management Co., L.P., its General Partner By: /s/ Timothy Barrows ----------------------------------- Address: Bay Colony Corporate Center 1000 Winter Street, Suite 4500 Waltham, MA 02451 CREDIT SUISSE FIRST BOSTON VENTURE FUND I, L.P. By: QBB Management Fund I, LLC, its General Partner By: /s/ Waren Dewar ----------------------------------- Address: 2400 Hanover Street Palo Alto, CA 94304 DAIN RAUSCHER WESSELS INVESTORS L.L.C. By: Dain Rauscher Incorporated Its: Managing Member By: /s/ Mary Zimmer ---------------------------------- Print Name: /s/ Mary Zimmer --------------------------- Title: Director Finance and Administration Dain Rauscher Wessels -------------------------------- Address: 60 South 6th Street Minneapolis, MN 55402 9 FORD MOTOR COMPANY By: /s/ Kathryn S. Lamping ----------------------------------- Title: Assistant Secretary -------------------------------- Address: 1 American Road Dearborn, MI 48121 NEW PREFERRED HOLDERS: BVCF IV, L.P. By: J.W. Puth Associates, LLC its General Partner By: Brinson Venture Management, LLC, its Attorney-in-Fact By: Brinson Partners, Inc. its Managing Member By: /s/ George H. Spencer ----------------------------------- George H. Spencer III Executive Director Address: 209 South LaSalle Street Chicago, IL 60604-1295 HAEBLER VENTURES LIMITED PARTNERSHIP By: /s/ L. Scott Frantz ----------------------------------- Its General Partner Address: 8 Sound Shore Drive Greenwich, CT 06830 10 DRW VENTURE PARTNERS L.P. By: Dain Rauscher Corporation Its General Partner By: /s/ Mary Zimmer ----------------------------------- Address: 60 South 6th Street Minneapolis, MN 55402 11 EXHIBIT A SCHEDULE V LIST OF SERIES D PREFERRED STOCKHOLDERS Ford Motor Company HarbourVest Partners, VI - Direct Fund L.P. Credit Suisse First Boston Venture Fund I, L.P. North Bridge Venture Partners, L.P. Matrix Partners IV, L.P. Matrix IV Entrepreneurs Fund, L.P. New Enterprise Associates VII, Limited Partnership Atlas Venture Fund III, L.P. Atlas Venture Entrepreneurs' Fund III, L.P. DRW Venture Partners L.P. BVCF IV, L.P. Haebler Ventures Limited Partnership 12 EXHIBIT B Schedule VI LIST OF CERTAIN FOUNDERS Beir Irrevocable Trust Steve Beir Linda Goslin John Beir David Puffer Audrey Ladd John Puffer Amy Puffer The R. Pito Salas Grantor Retained Annuity Trust Chester S. Kedzierski Chester H. Kedzierski Christine Salas, as custodian for the benefit of Daniel A. Salas Lawrence D. Salas Margarita Salas Patricia L. Salas