EX-10.5.1 TERMINATION & AMENDMENT AGREEMENT

EX-10.5.1 5 b49029a5exv10w5w1.txt EX-10.5.1 TERMINATION & AMENDMENT AGREEMENT EXHIBIT 10.5.1 PHASE FORWARD INCORPORATED TERMINATION AND AMENDMENT AGREEMENT This Termination and Amendment Agreement is made as of June 4, 2004 by and among Phase Forward Incorporated, a Delaware corporation (the "Company"), and each stockholder of the Company executing the Counterpart Signature Page attached hereto (each, a "Stockholder" and collectively, the "Stockholders"). 1. Termination of Stock Purchase Agreements. In connection with the Company's initial public offering of common stock (the "IPO"), the following agreements are hereby terminated, effective immediately prior to the closing of the IPO provided the price in the IPO equals or exceeds $7.50 (and, after June 1, 2005, $11.36) per share (subject to appropriate adjustments for stock splits, stock dividends, combinations and other similar recapitalizations affecting such shares): (i) the Series A Convertible Preferred Stock Purchase Agreement dated as of November 14, 1997, (ii) the Series B Convertible Preferred Stock Purchase Agreement dated as of November 12, 1998, (iii) the Series C Convertible Preferred Stock Purchase Agreement dated as of November 19, 1999, and (iv) the Series D Convertible Preferred Stock Purchase Agreement dated as of December 27, 2001. 2. Amendment of Rights Agreement. The Stockholders, on behalf of all parties (other than Company) to the Fifth Amended and Restated Investors' Rights Agreement, dated as of December 27, 2001, as amended to date (the "Rights Agreement"), hereby amend the Rights Agreement as follows: (a) the definition "Initial Public Offering" in Section 1, Article I of the Rights Agreement is hereby deleted in its entirety and replaced with the following definition: "Initial Public Offering means the initial public offering of shares of Common Stock pursuant to a Registration Statement at a price to the public that equals or exceeds $7.50 (and, after June 1, 2005, $11.36) per share (subject to appropriate adjustments for stock splits, stock dividends, combinations and other similar recapitalizations affecting such shares) resulting in gross proceeds to the Company (net of all underwriting discounts and commissions) of at least $20,000,000."; and (b) the phrase "In connection with the Company's Initial Public Offering" in Section 3, Article IV of the Rights Agreement is hereby deleted in its entirety and replaced with the following phrase: "In connection with any Initial Public Offering occurring after June 1, 2005". 3. Effectiveness. (a) The provisions of Section 1 hereof shall become effective upon the execution of this Termination and Amendment Agreement by: (1) the Company; (2) the holders of at least two-thirds of the outstanding shares of Series A Convertible Preferred Stock, voting as a separate class; (3) the holders of at least majority of the outstanding shares of Series B Convertible Preferred Stock, voting as a separate class; (4) the holders of at least two-thirds of the outstanding shares of Series C Convertible Preferred Stock, voting as a separate class; and (5) the holders of at least two-thirds of the outstanding shares of Series D Convertible Preferred Stock purchased under the Series D Convertible Preferred Stock Purchase Agreement, voting as a separate class. (b) The provisions of Section 2 hereof shall become effective upon the execution of this Termination and Amendment Agreement by: (1) the Company; (2) Paul Bleicher; (3) the Paul A. Bleicher 1999 Irrevocable Trust; and (4) the holders of at least two thirds of the outstanding shares of Series A Convertible Preferred Stock, Series B Convertible Preferred Stock, Series C Convertible Preferred Stock, and Series D Convertible Preferred Stock, voting together as a single class. 4. Counterparts. This Termination and Amendment Agreement may be executed by the parties hereto in separate counterparts, each of which once so executed and delivered (including by facsimile) shall be considered an original, but all such counterparts shall together constitute one and the same instrument. 5. Governing Law. This Termination and Amendment Agreement shall be governed by and construed and enforced in accordance with the laws of the State of Delaware except as to its conflicts of laws principles. IN WITNESS WHEREOF, the parties have executed this Termination and Amendment Agreement as of the day first above written. PHASE FORWARD INCORPORATED By: /s/ Robert K. Weiler ------------------------------- Robert K. Weiler President and Chief Executive Officer Signature Page To Termination and Amendment Agreement SCHRODER VENTURES INTERNATIONAL LIFE SCIENCES FUND II LP1 By: Schroder Venture Managers Inc., as General Partner By: /s/ Gary Carr /s/Douglas Mello ------------------------------------ Name: Gary Carr Title: Director & Vice President SCHRODER VENTURES INTERNATIONAL LIFE SCIENCES FUND II LP2 By: Schroder Venture Managers Inc., as General Partner By: /s/ Gary Carr /s/Douglas Mello ------------------------------------ Name: Gary Carr Title: Director & Vice President SCHRODER VENTURES INTERNATIONAL LIFE SCIENCES FUND II LP3 By: Schroder Venture Managers Inc., as General Partner By: /s/ Gary Carr /s/Douglas Mello ------------------------------------ Name: Gary Carr Title: Director & Vice President Signature Page To Termination and Amendment Agreement SCHRODER VENTURES INTERNATIONAL LIFE SCIENCES FUND II STRATEGIC PARTNERS L.P. By: Schroder Venture Managers Inc., as General Partner By: /s/ Gary Carr /s/Douglas Mello ------------------------------------ Name: Gary Carr Title: Director & Vice President SCHRODER VENTURES INTERNATIONAL LIFE SCIENCES FUND II GROUP CO-INVESTMENT SCHEME By: SITCO Nominees Ltd. - VC 01903, as nominee By: /s/ Gary Carr /s/Douglas Mello ------------------------------------ Name: Gary Carr Title: Director & Vice President SCHRODER VENTURES INVESTMENTS LIMITED By: SV (Nominees) Ltd., as nominee By: /s/ Alistair Boyle ------------------------------------- Name: Alistair Boyle Title: Alternate to Laurence S. McNairn, Director Signature Page To Termination and Amendment Agreement DLJ CAPITAL CORP. By: /s/ Ronald M. Hunt ------------------------------------- By: Ronald M. Hunt Its: Director DLJ ESC II, L.P. By: DLJ LBO Plans Management Corporation Its: General Partner By /s/ Ronald M. Hunt ------------------------------------- By: Ronald M. Hunt Its: Attorney in fact SPROUT CAPITAL VIII, L.P. By: DLJ Capital Corp. Its: Managing General Partner By: /s/ Ronald M. Hunt ------------------------------------- By: Ronald M. Hunt Its: Director SPROUT VENTURE CAPITAL, L.P. By: DLJ Capital Corp. Its: General Partner By: /s/ Ronald M. Hunt ------------------------------------- By: Ronald M. Hunt Its: Director THE SPROUT CEO FUND, L.P. By: DLJ Capital Corp. Its: General Partner By: /s/ Ronald M. Hunt ------------------------------------- By: Ronald M. Hunt Its: Director Signature Page To Termination and Amendment Agreement NORTH BRIDGE VENTURE PARTNERS V-A, L.P. By: North Bridge Venture Management V, L.P., as General Partner By: /s/ Illegible ------------------------------------- General Partner NORTH BRIDGE VENTURE PARTNERS V-B, L.P. By: North Bridge Venture Management V, L.P., as General Partner By: /s/ Illegible ------------------------------------- General Partner Signature Page To Termination and Amendment Agreement THOMAS WEISEL CAPITAL PARTNERS, L.P. By: Tailwind Capital Partners LLC, as General Partner By: /s/ Laurence B. Sorrell ------------------------------------- Name: Laurence B. Sorrell Title: Managing Partner THOMAS WEISEL CAPITAL PARTNERS EMPLOYEE FUND, L.P. By: Tailwind Capital Partners LLC, as General Partner By: /s/ Laurence B. Sorrell ------------------------------------- Name: Laurence B. Sorrell Title: Managing Partner TWP CEO FOUNDERS CIRCLE (QP), L.P. By: Tailwind Capital Partners LLC, as General Partner By: /s/ Douglas M. Karp ------------------------------------- Name: Douglas M. Karp Title: Managing Partner TWP CEO FOUNDERS CIRCLE (AI), L.P. By: Tailwind Capital Partners LLC, as General Partner By: /s/ Laurence B. Sorrell ------------------------------------- Name: Laurence B. Sorrell Title: Managing Partner Signature Page To Termination and Amendment Agreement TWP 2000 CO-INVESTMENT FUND, L.P. By: Thomas Weisel Capital Management LLC, as General Partner By: /s/ Jack Helfund ------------------------------------- Name: Jack Helfund Title: Associate General Counsel THOMAS WEISEL CAPITAL PARTNERS (DUTCH), L.P. By: Thomas Weisel Capital Partners LLC (Dutch), as General Partner By: Tailwind Capital Partners LLC, as General Partner By: /s/ Laurence B. Sorrell ------------------------------------- Name: Laurence B. Sorrell Title: Managing Partner THOMAS WEISEL CAPITAL PARTNERS (DUTCH II), L.P. By: Thomas Weisel Capital Partners LLC (Dutch), as General Partner By: Tailwind Capital Partners LLC, as General Partner By: /s/ Laurence B. Sorrell ------------------------------------- Name: Laurence B. Sorrell Title: Managing Partner Signature Page To Termination and Amendment Agreement ATLAS VENTURE FUND III, L.P. By: Atlas Venture Associates III, L.P., as General Partner By: Atlas Venture Associates III, Inc., as General Partner By: /s/ Illegible ------------------------------------- Name: Title: V.P. ATLAS VENTURE ENTREPRENEURS' FUND III, L.P. By: Atlas Venture Associates III, L.P., as General Partner By: Atlas Venture Associates III, Inc., as General Partner By: /s/ Illegible ------------------------------------- Name: Title: V.P. ATLAS VENTURE FUND V, L.P. By: Atlas Venture Associates V, L.P., as General Partner By: Atlas Venture Associates V, Inc., as General Partner By: /s/ Illegible ------------------------------------- Name: Title: V.P. Signature Page To Termination and Amendment Agreement ATLAS VENTURE PARALLEL FUND V-A, C.V. By: Atlas Venture Associates V, L.P., as General Partner By: Atlas Venture Associates V, Inc., as General Partner By: /s/ Illegible ------------------------------------- Name: Title: V.P. ATLAS VENTURE PARALLEL FUND V-B, C.V. By: Atlas Venture Associates V, L.P., as General Partner By: Atlas Venture Associates V, Inc., as General Partner By: /s/ Illegible ------------------------------------- Name: Title: V.P. ATLAS VENTURE ENTREPRENEURS' FUND V, L.P. By: Atlas Venture Associates V, L.P. as General Partner By: Atlas Venture Associates V, Inc. as General Partner By: /s/ Illegible ------------------------------------- Name: Title: V.P. Signature Page To Termination and Amendment Agreement ABS CAPITAL PARTNERS, L.P. By: ABS Partners, L.P., as General Partner By: /s/ Donald B. Hebb, Jr. ------------------------------------- Name: Donald B. Hebb, Jr. Title: Managing Partner ABS CAPITAL PARTNERS II, L.P. By: ABS Partners II, LLC, as General Partner By: /s/ Donald B. Hebb, Jr. ------------------------------------- Name: Donald B. Hebb, Jr. Title: Managing Partner Signature Page To Termination and Amendment Agreement HLM/UH FUND, L.P. By: HLM Management Co. Inc, its Manager By: /s/ Peter Grua ------------------------------------- Name: Peter Grua Title: President PACIFIC VENTURE GROUP II, L.P. By PVG Equity Partners II LLC its General Partner By: ------------------------------------- Name: Title: PVG ASSOCIATES II, L.P. By: PVG Equity Partners II LLC its General Partner By: ------------------------------------- Name: Title: BIOVENTURES INVESTORS LIMITED PARTNERSHIP By BioVentures Investors, LLC, its General Partner By: /s/ Marc Goldberg ------------------------------------- Name: Marc Goldberg Title: Managing Director Signature Page To Termination and Amendment Agreement ST. PAUL FIRE AND MARINE INSURANCE COMPANY By: ------------------------------------- Name: James R. Simons Title: Authorized Representative ST. PAUL VENTURE CAPITAL IV, LLC By: ------------------------------------- Name: James R. Simons Title: Managing Member ST. PAUL VENTURE CAPITAL V, LLC By: ------------------------------------- Name: James R. Simons Title: Managing Member ST. PAUL VENTURE CAPITAL VI, LLC By: SPVC Management VI, LLC Its: Managing Member By: ------------------------------------- Name: James R. Simons Title: Managing Director HOUSATONIC EQUITY INVESTORS SBIC, L.P. By: Housatonic Equity Partners SBIC, LLC, its general partner By: /s/ Barry D. Reynolds ------------------------------------- Name: Barry D. Reynolds Title: Managing Director Signature Page To Termination and Amendment Agreement ONSET ENTERPRISE ASSOCIATES, L.P. By: OEA Management, L.P. its general partner By: /s/ Terry Opdendyk ------------------------------------- Name: Terry Opdendyk Title: General Partner ONSET ENTERPRISE ASSOCIATES II, LP By: OEA II Management, L.P. its general partner By: /s/ Terry Opdendyk ------------------------------------- Name: Terry Opdendyk Title: General Partner ONSET VENTURES SERVICES CORPORATION By: /s/ Terry Opdendyk ------------------------------------- Name: Terry Opdendyk Title: General Partner SALIX VENTURES, L.P. By: Salix Partners LLC, its general partner By: /s/ Christopher Grant, Jr. ------------------------------------- Name: Christopher Grant, Jr. Title: Managing Member Signature Page To Termination and Amendment Agreement NEW ENTERPRISE ASSOCIATES VI, LP By: NEA Partners VI, Limited Partnership its general partner By: /s/ C. Richard Kramlich ------------------------------------- Name: C. Richard Kramlich Title: General Partner ELI LILLY AND COMPANY By: ------------------------------------- Name: Title: INTERNATIONAL BUSINESS MACHINES CORPORATION By: ------------------------------------- Name: Title: By: ------------------------------------- Paul Bleicher PAUL A. BLEICHER 1999 IRREVOCABLE TRUST By: ------------------------------------- Name: Title: