Exhibit 10.40
Amendment to
Convertible Preferred Stock Purchase Agreement
Among
MAPICS, Inc. (formerly Marcam Corporation)
General Atlantic Partners 21, L.P.
GAP Coinvestment Partners, L.P.
And
The Northwestern Mutual Life Insurance Company
Effective Date of Amendment: August 4, 1999
This is an Amendment to the Convertible Preferred Stock Agreement dated
September 20, 1995 (the "Agreement") among MAPICS, Inc. (formerly Marcam
Corporation), a Georgia corporation (the "Company"), General Atlantic Partners
21, L.P., a Delaware limited partnership ("GAP LP"), GAP Coinvestment Partners,
L.P., a New York limited partnership ("GAP Coinvestment") and The Northwestern
Mutual Life Insurance Company, a Wisconsin corporation ("Northwestern Mutual",
and together with GAP LP and GAP Coinvestment, the "Purchasers").
WHEREAS, the General Atlantic Designee to the Company's Board of Directors
as named by GAP LP and GAP Coinvestment has resigned as a director of the
Company; and
WHEREAS, GAP LP and GAP Coinvestment desire to forfeit their right under
Section 8.5 of the Agreement to designate a replacement director to serve the
remainder of the term of the General Atlantic Designee who resigned; and
WHEREAS, the Purchasers, as the holders of all of the Series D Convertible
Preferred Stock, desire to forfeit their rights under Section 2(b) of Annex A to
the Company's Articles of Incorporation (the "Articles") to elect as a separate
series one director to the Company; and
WHEREAS, the parties desire to amend the Agreement to reflect such
understanding.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Forfeiture of Rights to Designate a Director.
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The Purchasers, as the holders of all of the Company's Series D Convertible
Preferred Stock, hereby forfeit all rights to elect or designate as a separate
series one director of the Company pursuant to the Agreement, Annex A to the
Articles, or otherwise.
2. Amendment to Section 8.5.
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Section 8.5 of the Agreement is hereby deleted in its entirety and replaced as
follows:
"8.5 Purposely Omitted".
3. Amendment to Exhibit A - Series D Convertible Preferred Stock Certificate of
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Designation.
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Section 2(b) of Exhibit A to the Agreement is deleted in its entirety and
replaced as follows:
"(b) Purposely omitted."
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4. Modification to Articles of Incorporation.
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The Company shall submit a proposal to amend the Company's Articles to remove
Section 2(b) from Annex A of such Articles for vote by the shareholders at the
2000 Annual Meeting of Shareholders. The Purchasers hereby agree to vote their
shares in favor of such proposal.
5. Miscellaneous.
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All the provisions of this Amendment by or for the benefit of the parties hereto
shall bind and inure to the benefit of their respective successors and assigns
hereunder.
This Amendment may be executed in one or more counterparts, all of which taken
together shall constitute a single instrument.
Except as expressly provided herein, no other terms and provisions of the
Agreement shall be modified or changed by this Amendment and the terms and
conditions of the Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective authorized officers as of the day and year first
written above.
MAPICS, Inc.
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Chief Financial Officer
General Atlantic Partners 21, L.P.
By: General Atlantic Partners, LLC, its General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: A Managing Member
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GAP Coinvestment Partners, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: A General Partner
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The Northwestern Mutual Life Insurance Company
By: /s/ A. ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: A. ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: Its Authorized Representative
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