EXHIBIT 10.11
MATRIXONE, INC.
AMENDMENT NO. 4
TO
AMENDED AND RESTATED REGISTRATION RIGHTS,
RESTRICTED STOCK AND STOCK OPTION AGREEMENT
THIS AMENDMENT NO. 4 (the "Amendment"), dated as of June 17, 1999 between
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MatrixOne, Inc., formerly called Adra Systems, Inc., a Delaware Corporation
(the "Company"), each of the investors listed on the Schedule of H Investors
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attached hereto (the "H Investors") , and those other parties listed as
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Stockholders on the signature pages attached hereto (the "Stockholders").
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WHEREAS the Company and the Stockholders are parties to a certain Amended
and Restated Registration Rights, Restricted Stock and Stock Option Agreement,
dated as of October 11, 1988, as amended as follows: (i) by Amendment No. 1,
dated as of June 26, 1991; (ii) by Amendment No. 2 dated as of August 19, 1991
and (iii) as further amended by Amendment No. 3 dated as of October 1, 1997 (the
"Agreement").
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WHEREAS pursuant to a stock purchase agreement (the "Class H Purchase
----------------
Agreement") dated the date hereof, the H Investors are purchasing 937,500 shares
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( the "Purchased Shares") of the Company's Class H Convertible Preferred Stock,
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$1.00 par value (the "Class H Preferred Stock"); and
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WHEREAS, as a condition to entering into the Class H Purchase Agreement,
the H Investors have requested and the Company desires to grant registration
rights with respect to the Purchased Shares;
WHEREAS, the H Investors are parties to the Agreement pursuant to their
purchase of the Company's Class G Convertible Preferred Stock on October 1,
1997; and
WHEREAS, the Company, the Stockholders and the H Investors desire to amend
the Agreement as hereinafter set forth;
NOW THEREFORE, the parties agree as follows:
1. All capitalized terms used in this Amendment not otherwise defined
herein shall have the meaning given to them in the Agreement. For purposes of
any notice to be sent to any H Investor under the Agreement, notice shall be
deemed given when delivered in accordance with the notice provisions of the
Class H Purchase Agreement.
2. Amendments to Registration Agreement.
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(a) Section 1.27 is hereby amended and restated in its entirety as
follows:
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"1.27 `Stock' means: (i) the Class A Preferred Stock, the Class
B Preferred Stock, the Class C Preferred Stock, the Class D
Preferred Stock, the Class E Preferred Stock, the Class F
Preferred Stock, the Class G Preferred Stock and the Class H
Preferred Stock; (ii) any Common Stock issued on conversion of
any of the Class A Preferred Stock, Class B Preferred Stock,
Class C Preferred Stock, Class D Preferred Stock, Class E
Preferred Stock, Class F Preferred Stock, Class G Preferred Stock
and Class H Preferred Stock; (iii) Common Stock issued upon
exercise of any of the 1984 Options, the 1985 Options, the 1987
Options, the 1988 Options or the 1988 E Options; (iv) any Common
Stock issued upon exercise of any Warrant issued pursuant to a
certain Note and Warrant Purchase Agreement among the Company and
certain investors dated as of October 16, 1987; (v) any shares of
Merger Common Stock and any equity security of the Company issued
as a dividend or distribution thereon or in exchange therefor or
upon conversion thereof (whether such stock is held by a
Stockholder or its assignees, other than persons acquiring shares
of stock in an underwritten public offering), but not to other
stock of the same class or any other class which is now or
hereafter may be outstanding."
(b) The following sections of the Agreement are hereby amended and
restated in their entirety as follows:
"Section 1.25.1 `Registrable Securities' means (i) any Class G
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Preferred Stock issued pursuant to the Class G Purchase
Agreement, (ii) any Class H Preferred Stock issued pursuant to
the Class H Purchase Agreement; (iii) any Common Stock issued or
issuable with respect to the securities referred to in clauses
(i) or (ii) above or by way of a stock dividend or stock split or
in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization but not to other
stock of the same class or any other class which is now or
hereafter may be outstanding. As to any particular Registrable
Securities, such securities shall cease to be Registrable
Securities when they have been distributed to the public pursuant
to an offering registered under the Securities Act or sold to the
public through a broker, dealer or market maker in compliance
with Rule 144 under the Securities Act (or any similar rule then
in force) or repurchased by the Company
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or any Subsidiary. For purposes of this Agreement, a Person shall
be deemed to be a holder of Registrable Securities, and the
Registrable Securities shall be deemed to be in existence,
whenever such Person has the right to acquire directly or
indirectly such Registrable Securities (upon conversion or
exercise in connection with a transfer of securities or
otherwise, but disregarding any restrictions or limitations upon
the exercise of such right), whether or not such acquisition has
actually been effected, and such Person shall be entitled to
exercise the rights of a holder of Registrable Securities
hereunder."
"Section 1.16-1 'Qualified Public Offering' means the sale in
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an underwritten public offering of shares of Common Stock (a
"Public Offering") in which the price paid for each such share by
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the public shall be at least equal to 3.0 multiplied by the
Initial Conversion Price (appropriately adjusted to reflect stock
splits, stock dividends, combinations of shares and the like).
"Section 1.35 'Initial Conversion Price' of the Class G
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Convertible Preferred Stock shall be equal to $5.80 per share and
for the Class H Convertible Preferred Stock shall be equal to
$8.00 per share.
(c) Article I of the Agreement is hereby amended by adding the
following Sections:
"Section 1.38 'Class H Preferred Stock' means the Class H
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Convertible Preferred Stock, $1.00 par value, of the Company
issued pursuant to the Class H Purchase Agreement.
"Section 1.39 'Class H Purchase Agreement' means the Class H
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Convertible Preferred Stock Purchase Agreement, dated the date of
Amendment No. 4 of this Agreement, between the Company, ▇▇▇▇▇▇▇
▇▇▇▇▇ and ▇▇▇▇▇ IT Fund (collectively the "H Investors")."
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(d) Section 3.3 of the Agreement is hereby amended and restated in its
entirety as follows:
"3.3(a) Required Registrations. Any holder of Stock excluding
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any holder of Class G or Class H Preferred Stock, provided such
holder, together with any other holder
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exercising rights pursuant to this Section 3.3, holds at least
35% of the then outstanding shares of Stock (excluding, however,
for purposes of calculation of such percentage, any shares of
Common Stock issued upon the exercise of any 1984 Option, any
1985 Option, any 1987 Option, any 1988 Option, any 1988 E Option,
any Class G Preferred Stock or any Class H Preferred Stock),
shall have the right to require the Company to effect any
necessary registration or qualification in connection with any
proposed transfer or disposition of Stock, but, if the Company is
otherwise in registration on Form S-1, or S-2 at the time of
demand, or if it has just completed a registration at the time of
demand, then not prior to ninety days after the effective date of
any such registration. If requested by such holder to register or
qualify any Stock excluding any Class G or Class H Preferred
Stock, the Company shall promptly give written notice of such
request to all registered holders of Stock excluding any Class G
or Class H Preferred Stock. Any holder of Stock excluding any
Class G or Class H Preferred Stock desiring to have any of its
Stock included in such registration or qualification shall,
within 20 days after its receipt of such notice from the Company,
notify the Company of the number of shares of Stock which it
desires to have so included and the manner in which it proposes
to dispose of such Stock. The Company shall, as expeditiously as
possible, endeavor in good faith to effect any registration or
qualification, to give any notification, to obtain any
governmental approval and to effect listing with any securities
exchange on which the Stock of the Company is then listed, which
may be required to permit each holder of Stock who has given the
Company a timely request or notice pursuant to this Section 3.3
to dispose of the Stock referred to in such request or notice in
the manner specified therein. The Company's obligations pursuant
to this Section 3.3 to effect registrations under the 1933 Act
shall be limited to two such registrations."
(e) Article III of the Agreement is hereby amended by amending and
restating in their entirety the following Sections:
"3.3(b) Class G or Class H Required Registrations.
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(a) Requests for Registration. At any time, the holders of the
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Registrable Securities may request registration under the
Securities Act of all or any
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portion of their Registrable Securities on Form S-1 or any
similar long-form registration ("Long-Form Registrations"),
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as set forth in paragraph (b) below. All registrations
requested pursuant to this Section 3.3(b) are referred to
herein as "Demand Registrations." Each request for a Demand
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Registration shall specify the approximate number of
Registrable Securities requested to be registered. Within
ten days after receipt of any such request, the Company
shall give written notice of such requested registration to
all other holders of Registrable Securities and shall
include in such registration all Registrable Securities with
respect to which the Company has received written requests
for inclusion therein within 15 days after the receipt of
the Company's notice.
(b) Number of Long-Form Registrations. The holders of a
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majority of Registrable Securities, and after a Qualified
Public Offering 20% of the holders of Registrable
Securities, shall be entitled to request (i) four (4) Long-
Form Registrations in which the Company shall pay all
Registration Expenses ("Company-paid Long-Form
----------------------
Registrations"). A registration shall not count as one of
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the permitted Long-Form Registrations until it has become
effective, and no Long-Form Registration shall count as one
of the permitted Long-Form Registrations unless the holders
of Registrable Securities are able to register and sell at
least 90% of the Registrable Securities requested to be
included in such registration; provided that in any event
the Company shall pay all Registration Expenses in
connection with any registration initiated as a Company-paid
Long-Form Registration whether or not it has become
effective and whether or not such registration has counted
as one of the permitted Company-paid Long-Form
Registrations.
(c) Selection of Underwriters. The holders of a majority of the
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Registrable Securities initially requesting a Long-Form
registration hereunder shall have the right to select the
investment banker(s) and manager(s) to administer the
offering, subject to the
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Company's approval which shall not be unreasonably withheld.
(i) Other Registration Rights. Except as provided in this
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Agreement, the Company shall not grant to any Persons
the right to request the Company to register any equity
securities of the Company, or any securities
convertible or exchangeable into or exercisable for
such securities, without the prior written consent of
the holders of at least a majority of the Registrable
Securities; provided that the Company may grant rights
to other Persons to (i) participate in Piggyback
Registrations so long as such rights are subordinate to
the rights of the holders of Registrable Securities
with respect to such Piggyback Registrations and (ii)
request registrations so long as the holders of
Registrable Securities are entitled to participate in
any such registrations with such Persons pro rata on
the basis of the number of shares owned by each such
holder.
(d) Priority on Demand Registrations. The Company shall not
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include in any Demand Registration any securities which are
not Registrable Securities without the prior written consent
of the holders of at least a majority of the Registrable
Securities included in such registration except as otherwise
provided in Section 3.4. If a Demand Registration is an
underwritten offering and the managing underwriters advise
the Company in writing that in their opinion the number of
Registrable Securities and, if permitted hereunder, other
securities requested to be included in such offering exceeds
the number of Registrable Securities and other securities,
if any, which can be sold therein without adversely
affecting the marketability of the offering, the Company
shall include in such registration prior to the inclusion of
any securities which are not Registrable Securities, the
number of Registrable Securities requested to be included
which in the opinion of such underwriters can be sold
without
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adversely affecting the marketability of the offering, pro
rata among the respective holders thereof on the basis of
the amount of Registrable Securities owned by each such
holder. Any Persons other than holders of Registrable
Securities who participate in Demand Registrations which are
not at the Company's expense must pay their share of the
Registration Expenses as provided in Section 3.38 hereof.
(e) Restrictions on Long-Form Registrations. The Company shall
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not be obligated to effect any Long-Form Registration within
180 days after the effective date of a previous Long-Form
Registration or a previous registration in which the holders
of Registrable Securities were given piggyback rights
pursuant to Section 3.4 and in which there was no reduction
in the number of Registrable Securities requested to be
included. The Company may postpone for up to 180 days the
filing or the effectiveness of a registration statement for
a Demand Registration if the Company and the holders of at
least a majority of the Registrable Securities agree that
such Demand Registration would reasonably be expected to
have a material adverse effect on any proposal or plan by
the Company or any of its Subsidiaries to engage in any
acquisition of assets (other than in the ordinary course of
business) or any merger, consolidation, tender offer,
reorganization or similar transaction; provided that in such
event, the holders of Registrable Securities initially
requesting such Demand Registration shall be entitled to
withdraw such request and, if such request is withdrawn,
such Demand Registration shall not count as one of the
permitted Demand Registrations hereunder and the Company
shall pay all Registration Expenses in connection with such
registration.
"3.5 Registration on Forms S-2 and S-3. Following the first
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offering of Class A Common Stock by the Company pursuant to a
registration under the 1933 Act, the Company shall use its best
efforts to meet, as soon as possible, the eligibility
requirements for a secondary distribution of its Class A Common
Stock under the 1933 Act on Form S-2 or
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Form S-3 (or any similar form promulgated by the Commission). To
that end, the Company shall register (whether or not required by
law to do so) its Class A Common Stock under the 1934 Act no
later than 30 days prior to the end of the Company's fiscal year
following the effective date of the first registration of any
securities of the Company under the ▇▇▇▇ ▇▇▇. If the effective
date of the public offering is less than 30 days prior to the end
of the Company's fiscal year, the registration under the 1934 Act
shall occur prior to the end of such fiscal year. After the
Company is eligible for the registration of its Class A Common
Stock under the 1933 Act on Form S-2 or Form S-3 (or similar
form), the Company will, upon written request of (i) any holder
or holders of shares of Stock, excluding any holder of Class G
Preferred Stock or Class H Preferred Stock, having an aggregate
market value of not less than $1,000,000 and constituting greater
than 4% of the outstanding shares of Stock (excluding, however,
for purposes of calculation of such percentage, any shares of
Common Stock issued upon the exercise of any 1984 Options, 1985
Options, 1987 Options, 1988 Options, 1988 E Options, Class G
Preferred Stock or Class H Preferred Stock) of the Company to
register or qualify such Stock pursuant to this Section 3.5 or
(ii) the holders of a majority of Registrable Securities (and
after a Qualified Public Offering 10% of the holders of
Registrable Securities), promptly give written notice of such
request to all registered holders of Stock, any holder of Stock
desiring to have any of its Stock included in such registration
or qualification shall, within 20 days after its receipt of such
notice from the Company, notify the Company of the number of
shares of Stock which it desires to have so included and the
manner in which it proposes to dispose of such Stock. The Company
shall, as expeditiously as possible, endeavor in good faith to
effect a registration under the 1933 Act on Form S-2 or Form S-3
(or similar form) of all Stock referred to in a request or notice
timely given to the Company pursuant to this Section 3.5, and to
effect any registration or qualification of such Stock under any
state law, and any listing of such Stock with any securities
exchange on which the Class A Common Stock of the Company is then
listed, which may be required to permit the sale or disposition
of such Stock in the manner specified in such request or notices.
The Company shall not be required to cause a registration
statement to become
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effective pursuant to Section 3.5 prior to 90 days following the
effective date of the most recent registration by the Company
under the 1933 Act, or more than twice during any year.
"3.6(b) Registration Expenses.
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(a) All expenses incident to the Company's performance of or
compliance with Article III of this Agreement, including
without limitation all registration and filing fees, fees
and expenses of compliance with securities or blue sky laws,
printing expenses, messenger and delivery expenses, fees and
disbursements of custodians, and fees and disbursements of
counsel for the Company and all independent certified public
accountants, underwriters (excluding discounts and
commissions) and other Persons retained by the Company (all
such expenses being herein called "Registration Expenses"),
---------------------
shall be borne as provided in Article III of this Agreement,
except that the Company shall, in any event, pay its
internal expenses (including, without limitation, all
salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any
annual audit or quarterly review, the expense of any
liability insurance and the expenses and fees for listing
the securities to be registered on each securities exchange
on which similar securities issued by the Company are then
listed or on the NASD automated quotation system.
(b) In connection with each Demand Registration and each
Piggyback Registration, the Company shall reimburse the
holders of Registrable Securities included in such
registration for the reasonable fees and disbursements of
one counsel chosen by the holders of a majority of the
Registrable Securities included in such registration for the
purpose of rendering a legal opinion on behalf of such
holder in connection with any underwritten Demand
Registration or Piggyback Registration.
(c) To the extent Registration Expenses are not required to be
paid by the Company, each holder of
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securities included in any registration hereunder shall pay
those Registration Expenses allocable to the registration of
such holder's securities so included, and any Registration
Expenses not so allocable shall be borne by all sellers of
securities included in such registration in proportion to
the aggregate selling price of the securities to be so
registered.
"3.7(b) Holdback Agreements.
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(a) Each holder of Registrable Securities and each holder of
Stock shall not effect any public sale or distribution
(including sales pursuant to Rule 144) of equity securities
of the Company, or any securities convertible into or
exchangeable or exercisable for such securities, during the
seven days prior to and the 90-day (or, 180-day period in
the case of the Company's Initial Public Offering) beginning
on the effective date of any underwritten Demand
Registration or any underwritten Piggyback Registration in
which Registrable Securities are included (except as part of
such underwritten registration), unless the underwriters
managing the registered public offering and ▇▇▇▇▇▇▇ ▇▇▇▇▇
otherwise agree.
(b) The Company (i) shall not effect any public sale or
distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for such
securities, during the seven days prior to and during the
90-day period (or, 180-day period in the case of the
Company's Initial Public Offering) beginning on the
effective date of any underwritten Demand Registration or
any underwritten Piggyback Registration (except as part of
such underwritten registration or pursuant to registrations
on Form S-8 or any successor form), unless the underwriters
managing the registered public offering and ▇▇▇▇▇▇▇ ▇▇▇▇▇
otherwise agree, and (ii) shall use its best efforts to
cause each holder of at least 10% (on a fully-diluted basis)
of its Common Stock, or any securities convertible into or
exchangeable or exercisable for Common Stock, purchased from
the Company at any time after the
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date of this Agreement (other than in a registered public
offering) to agree not to effect any public sale or
distribution (including sales pursuant to Rule 144) of any
such securities during such period (except as part of such
underwritten registration, if otherwise permitted), unless
the underwriters managing the registered public offering
otherwise agree.
3. Severability. Whenever possible, each provision of this Amendment
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shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Amendment is held to be prohibited
or invalid under applicable law, such provision shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating the remainder of
this Amendment.
4. Counterparts. This Amendment may be executed simultaneously in two or
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more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together shall constitute one and the
same Amendment.
5. Governing Law. All issues and questions concerning the construction,
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validity, interpretation and enforcement of this Amendment and the exhibits and
schedules hereto shall be governed by, and 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 other jurisdiction other
than the State of Delaware.
6. Effectiveness. Pursuant to Section 5.2 of the Agreement, this
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Amendment shall become effective upon execution by the Company, the H Investors
and by Stockholders holding a majority of the aggregate outstanding shares of
Class A Preferred Stock, Class B Preferred Stock, Class C Preferred Stock, Class
D Preferred Stock, Class E Preferred Stock, Class F Preferred Stock, Class G
Preferred Stock and the Merger Common Stock voting together as a single class.
The Agreement, as amended hereby, is in all respects ratified and confirmed, and
all of the rights and powers created thereby and thereunder, as amended hereby
and hereunder, shall be and remain in full force and effect.
* * * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 4
to the Agreement on the date first written above.
MATRIXONE, INC.
By: /s/ ▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
Its: Chief Executive Officer
STOCKHOLDERS:
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/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
AMERICAN RESEARCH &
DEVELOPMENT I, L.P.
By: /s/ Authorized Signatory
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General Partner
PRIVATE EQUITY INVESTMENT
FUND, L.P.
By: Private Equity Investors, Inc.
By: /s/ Authorized Signatory
-----------------------------------
Title: Managing Director
-----------------------------------
-▇▇-
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ II, L.P.
By: /s/ Authorized Signatory
-----------------------------------
Title: General Partner
-----------------------------------
GILDE IT FUND
By: /s/ Authorized Signatory
-----------------------------------
Title: Investment Director
-----------------------------------
THE ▇▇▇▇▇ FOUNDATION
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL
PARTNERS V, L.P.
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital Management Company,
L.L.C., its General Partner
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Its: Managing Director
▇▇▇▇▇▇ CIP, L.P.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
-▇▇-
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇, ▇.▇.
By: /s/ Authorized Signatory
-----------------------------------
DSV PARTNERS III, L.P.
By: /s/ Authorized Signatory
-----------------------------------
DSV PARTNERS IV, L.P.
By: /s/ Authorized Signatory
-----------------------------------
EVERGREEN I LIMITED PARTNERSHIP
By its General Partner,
Back Bay Partners L.P.
By one of its General Partners,
▇▇▇▇ ▇▇▇▇▇▇▇ Venture Capital Management
By: /s/ Authorized Signatory
-----------------------------------
▇▇▇▇▇▇▇ FAMILY GROWTH
PORTFOLIO
By: /s/ Authorized Signatory
-----------------------------------
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ FUND, L.P.
By its General Partner,
▇▇▇▇▇▇, Holland Partners
By: /s/ Authorized Signatory
-----------------------------------
Managing General Partner
-▇▇-
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ FUND III, LIMITED
PARTNERSHIP
By its General Partner, Oxford Partners III,
Limited Partnership
By: /s/ Authorized Signatory
-----------------------------------
General Partner
OXFORD VENTURE FUND II LIMITED
PARTNERSHIP
By its General Partner,
Oxford Partners II
By: /s/ Authorized Signatory
-----------------------------------
Partner
LOMBARD ASSOCIATES
By: /s/ Authorized Signatory
-----------------------------------
THE ▇▇▇▇▇▇ ▇▇▇▇▇ FUND
By: /s/ Authorized Signatory
-----------------------------------
VENTURE FOUNDERS 1983, LIMITED
PARTNERSHIP
By its General Partner,
Venture Management Limited Partnership
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------
General Partner
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VENTURE FOUNDERS CAPITAL
LIMITED PARTNERSHIP
By its General Partner,
Venture Founders Partners Limited Partnership
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------
General Partner
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr.
-----------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Jr.
COMPAQ COMPUTER CORP.
By: /s/ Authorized Signatory
-----------------------------
Title:_____________________________