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EXHIBIT 10.11
CASEWARE, INC.
CO-SALE AGREEMENT
March 4, 1994
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CASEWARE, INC.
Co-Sale Agreement
This Co-Sale Agreement is made as of the 4th day of March, 1994 by and
among CaseWare, Inc., a California corporation (the "Company"), Norwest Equity
Partners, IV, A Minnesota Limited Partnership, Brentwood Associates VI, L.P.,
Advanced Technology Ventures III and X. Xxxxxxx XxXxxx (hereinafter referred to
collectively as the "Shareholders") and Xxxx Xxx, Co-Trustee, and Xxx Xxxxxxx,
Trustee (each individually a "Founder" and collectively the "Founders").
In consideration of the mutual covenants set forth herein, the parties
agree as follows:
1. Definitions.
(a) "Shares" shall mean shares of the Company's Common Stock, Series A
Preferred Stock and other securities of the Company now owned or subsequently
acquired by the Founders.
(b) "Preferred Stock" shall mean the Company's outstanding Series A
Preferred Stock.
(c) "Common Stock" shall mean the Company's Common Stock and shares of
Common Stock issued or issuable upon conversion of the Company's Preferred
Stock.
2. Sales by a Founder.
(a) If any Founder proposes to sell, assign or otherwise transfer any
Shares in any transaction or series of related transactions that will result in
the transfer of 50,000 or more Shares, then such Founder shall promptly give
written notice (the "Notice") to the Company, which will in turn give written
notice to each Shareholder, at least 20 business days prior to the closing of
such sale or transfer. The Notice shall describe in reasonable detail the terms
and conditions of the proposed sale or transfer including, without limitation,
the type and number of Shares to be sold, assigned or otherwise transferred, the
nature of such sale, assignment or transfer, the consideration to be paid, and
the name and address of each prospective purchaser, assignee or transferee. In
the event that the sale, assignment or transfer is being made pursuant to the
provisions of paragraphs 3(a) or 3(b) hereof, the Notice shall state under which
paragraph the sale, assignment or transfer is being made.
(b) Subject to the terms of this Agreement, each Shareholder shall have
the right, severally, exercisable upon written notice to such Founder within 15
business days after receipt of the Notice, to participate in such sale,
assignment or transfer of Shares on the same terms and conditions as stated in
the Notice. To the extent the Shareholders exercise such right of participation
in accordance with the terms and conditions set forth below, the number of
Shares that the Founder may sell in the transaction shall be correspondingly
reduced.
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(c) Each Shareholder may sell all or any part of that number of shares
of Common Stock (on an as-converted basis) then held by it equal to the product
obtained by multiplying (i) the aggregate number of shares of Common Stock (on
an as-converted basis) covered by the Notice by (ii) a fraction the numerator of
which is the number of shares of Common Stock (on an as-converted basis) owned
by such Shareholder at the time of the sale, assignment or transfer and the
denominator of which is the sum of the number of shares of Common Stock (on an
as-converted basis) owned by the Founder and all Shareholders at the time of the
sale, assignment or transfer.
(d) If any Shareholder fails to elect to fully participate in such
Founder's sale pursuant to this paragraph 2, such Shareholder shall give notice
of such failure to the Founder and the Company. The Company shall in turn give
notice to each of the Shareholders who did so elect (the "Participants"). Such
notice may be made by telephone if confirmed in writing within two days. The
Participants shall have five days from the date such notice was given to agree
to sell their pro rata share of the unsold portion. For purposes of this
paragraph, a Participant's pro rata share shall be (on an as-converted basis)
the ratio of (x) the number of shares of Common Stock held by such Participant
to (y) the total number of shares of Common Stock held by the Participants.
(e) Each Participant shall effect its participation in the sale by
promptly delivering to the Founder for transfer to the prospective purchaser one
or more certificates, properly endorsed for transfer, that represent:
(i) the type and number of shares of Common Stock that such
Participant elects to sell; or
(ii) that number of shares of Preferred Stock that is at such
time convertible into the number of shares of Common Stock which such
Participant elects to sell; provided, however, that if the prospective purchaser
objects to the delivery of Preferred Stock in lieu of Common Stock, such
Participant shall convert such Preferred Stock into Common Stock in accordance
with the Company's Articles of Incorporation and deliver Common Stock as
provided in subparagraph 2(e)(i) above. The Company agrees to make any such
conversion concurrent with the actual transfer of such shares to the transferee.
(f) The stock certificate or certificates that each Participant delivers
to the Founder pursuant to paragraph 2(e) shall be transferred to the
prospective purchaser in consummation of the sale of the Shares pursuant to the
terms and conditions specified in the Notice, and the Founder shall concurrently
therewith remit to such Participant that portion of the sale proceeds to which
such Participant is entitled by reason of its participation in such sale. To the
extent that any prospective purchaser or purchasers prohibits such assignment or
otherwise refuses to purchase shares or other securities from a Participant
exercising its rights of co-sale hereunder, the Founder shall not sell to such
prospective purchaser or purchasers any Shares unless and until, simultaneously
with such sale, the Founder shall purchase such shares or other securities from
such Participant.
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(g) The exercise or non-exercise of the rights of the Participants
hereunder to participate in one or more sales of Shares made by the Founder
shall not adversely affect their rights to participate in subsequent sales of
Shares subject to paragraph 2(a).
3. Exempt Transfers.
(a) Notwithstanding the foregoing, the co-sale rights of the
Shareholders shall not apply to (i) any pledge of Shares made pursuant to a bona
fide loan transaction that creates a security interest in such Shares, (ii) any
transfer to another Founder or to the ancestors, descendants or spouse of a
Founder or to trusts for the benefit of such persons or a Founder; or (iii) any
bona fide gift; provided that (A) the transferring Founder shall inform the
Shareholders of such pledge, transfer or gift prior to effecting it and (B) the
pledgee, transferee or donee shall agree in writing to be bound by and comply
with all provisions of this Agreement. Such transferred Shares shall remain
"Shares" hereunder, and such pledgee, transferee or donee shall be treated as a
"Founder" for purposes of this Agreement.
(b) Notwithstanding the foregoing, the provisions of paragraph 2 shall
not apply to the sale of any Shares (i) to the public pursuant to a registration
statement filed with, and declared effective by, the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities Act")
or (ii) to the Company.
4. Prohibited Transfers.
(a) In the event a Founder should sell, assign or otherwise transfer any
Shares in contravention of the co-sale rights of the Shareholders under
paragraph 2 of this Agreement (a "Prohibited Transfer"), the Shareholders shall
have the put option provided below, and the Founder shall be bound by the
applicable provisions of such option.
(b) In the event of a Prohibited Transfer, each Shareholder, severally,
shall have the right to sell to the Founder the type and number of shares of
Common Stock (on an as-converted basis) equal to the number of shares such
Shareholder would have been entitled to sell to the purchaser had the Prohibited
Transfer been effected pursuant to and in compliance with the terms of paragraph
2 hereof. Such sale shall be made on the following terms and conditions:
(i) The price per share at which such shares are to be sold to the
Founder shall be equal to the price per share paid by the purchaser to the
Founder in the Prohibited Transfer.
(ii) Within 30 days after the later of the dates on which the
Shareholders desiring to sell (the "Selling Shareholders") (A) received notice
of the Prohibited Transfer or (B) otherwise became aware of the Prohibited
Transfer, the Selling Shareholders shall, if exercising the option created
hereby, deliver to the Founder the certificate or certificates representing
shares to be sold under this paragraph 4(b), each certificate to be properly
endorsed for transfer.
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(iii) The Founder shall, upon receipt of the certificate or
certificates for such shares, pay the aggregate purchase price therefor in cash
or by other means acceptable to the Selling Shareholder.
5. Miscellaneous.
5.1 Governing Law. This Agreement shall be governed by and construed
under the laws of the State of California as applied to agreements among
California residents made and to be performed entirely within the State of
California.
5.2 Amendment. Any provision may be amended and the observance thereof
may be waived (either generally or in a particular instance and either
retroactively or prospectively), only by the written consent of (i) as to the
Company, only by the Company, (ii) as to the Shareholders, seventy-five percent
(75%) in interest of the Shares held by the Shareholders and their assignees,
pursuant to paragraph 5.3 hereof, and (iii) as to the Founders, fifty percent
(50%) in interest of the Common Stock held by the Founders, provided that any
Shareholder or any Founder may waive any of its rights hereunder without
obtaining the consent of any other Shareholder or Founder, respectively. Any
amendment or waiver effected in accordance with clauses (i), (ii) and (iii) of
this paragraph shall be binding upon the Shareholders, the Company and the
Founder in question and their respective successors and assigns.
5.3 Transfer of Co-Sale Rights. The Shareholders' rights of co-sale
under this Agreement may be assigned or otherwise conveyed to a transferee or
assignee of shares of Common Stock held by a Shareholder, who shall be
considered a "Shareholder" for purposes of this Agreement, provided that (a) the
Company is given written notice by such Shareholder at the time of or within a
reasonable time after said transfer, stating the name and address of said
transferee or assignee and identifying the securities with respect to which such
co-sale rights are being assigned and (b) the transferee acquires Common Stock
in a private transaction.
5.4 Term. This Co-Sale Agreement shall terminate upon the earlier of (i)
the closing of a firm commitment underwritten public offering pursuant to an
effective registration statement under the Securities Act of 1933, as amended,
covering the offer and sale of the Company's Common Stock, (ii) the closing of
the Company's sale of all or substantially all of its assets or the acquisition
of the Company by another entity by means of merger or consolidation resulting
in the exchange of the outstanding shares of the Company's capital stock for
securities or consideration issued, or caused to be issued, by the acquiring
entity or its subsidiary and (iii) five (5) years from the date hereof.
5.5 Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be deemed effectively given upon
personal delivery or upon confirmed delivery by facsimile or telecopy, or on the
fifth day (or the tenth day if to a party with a foreign address) following
mailing by registered or certified mail, return receipt requested, postage
prepaid, addressed to the party to be notified as set forth on the signature
page hereof or at such other address as such party may designate by advance
written notice to the other parties hereto. Notwithstanding the foregoing, the
telephone notice permitted by paragraph 2(d) shall be effective at the time it
is given.
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5.6 Entire Agreement. This Agreement constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof.
5.7 Severability. In the event one or more of the provisions of this
Agreement should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
5.8 Separability. Any invalidity, illegality, or limitation of the
enforceability with respect to any Shareholder of any one or more of the
provisions of this Agreement, or any part thereof, whether arising by reason of
the law of any such Shareholder's domicile or otherwise, shall in no way affect
or impair the validity, legality, or enforceability of this Agreement with
respect to other Shareholders. In case any provision of this Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired.
5.9 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
5.10 Legends. The Founders and the Shareholders agree that any shares of
Common Stock now or hereafter held by it may be stamped with appropriate legends
evidencing the terms of this Agreement.
5.11 Injunctive Relief. The parties to this Agreement acknowledge that
the remedy at law for the breach of the respective obligations hereunder is
inadequate and agree to be subject to injunctive and other equitable relief in
addition to any other remedies that may be available.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the parties as of the date first above written.
THE COMPANY:
CASEWARE, INC.
000 Xxxxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000-0000
Attn: President
By: /s/ Xxxx X. Xxx
------------------------------------
Title: President
---------------------------------
THE SHAREHOLDERS:
NORWEST EQUITY PARTNERS, IV,
A MINNESOTA LIMITED PARTNERSHIP
By: Itasca Partners, General Partner
------------------------------------
By /s/ Xxxxxx X. Still
------------------------------------
Xxxxxx X. Still, General Partner
BRENTWOOD ASSOCIATES VI, L.P.
By: Brentwood VI Ventures L.P.,
------------------------------------
its General Partner
By /s/ G. Xxxxxxxx Xxxxx
------------------------------------
G. Xxxxxxxx Xxxxx, General Partner
ADVANCED TECHNOLOGY VENTURES III
By /s/ Xxx X. Xxxxxxx
------------------------------------
Xxx X. Xxxxxxx, General Partner
/s/ X. Xxxxxxx XxXxxx
----------------------------------------
X. Xxxxxxx XxXxxx
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THE FOUNDERS:
/s/ Xxxx Xxx
-----------------------------------------
Xxxx Xxx, Co-Trustee, The Xxx Living
Trust dated May 26, 1988
108 Pacifica, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000-0000
/s/ Xxx Xxxxxxx
-----------------------------------------
Xxx Xxxxxxx, Trustee, The Zechter
Family Trust dated July 18, 1985
108 Pacifica, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000-0000
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Consent of Spouse:
I acknowledge that I have read the foregoing Agreement and that I know
its contents. I am aware that by its provisions if I and/or my spouse agree to
sell all or part of the shares of the Company held of record by either or both
of us, including my community interest in such shares, if any, co-sale rights
(as described in the Agreement) must be granted to the Shareholders by the
seller. I hereby agree that those shares and my interest in them, if any, are
subject to the provisions of the Agreement and that I will take no action at any
time to hinder operation of, or violate, the Agreement. I understand that the
parties to the foregoing Agreement relied on my promise herein when entering
into such Agreement.
/s/ Xxxxxxx Xxxxx Xxx
---------------------------------------
(Signature)
/s/ Xxxxxx Xxxxxxx
---------------------------------------
(Signature)
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CONTINUUS SOFTWARE CORPORATION
AMENDMENT TO CO-SALE AGREEMENT
This Amendment to Co-Sale Agreement ("Amendment") is entered into as of
November 6, 1995, by and among Continuus Software Corporation, a California
corporation and formerly known as CaseWare, Inc. (the "Company"), Norwest Equity
Partners, IV, a Minnesota Limited Liability Company, Brentwood Associates VI,
L.P., Advanced Technology Ventures III and X. Xxxxxxx XxXxxx (collectively, the
"Existing Shareholders"), Xxxx Xxx, Trustee, and Xxx Xxxxxxx, Trustee (each a
"Founder") and Accel IV L.P., Accel Keiretsu L.P., Accel Investors `95 L.P.,
Xxxxxxx X. Xxxxxxxxx Partners and Norwest Equity Partners, V, a Minnesota
Limited Liability Company (each a "New Shareholder"). The Amendment amends that
certain Co-Sale Agreement dated as of March 4, 1994 (the "Agreement").
Capitalized terms contained herein shall have the meanings set forth in the
Agreement.
WHEREAS, the Company has entered into a Stock Purchase Agreement of even
date herewith (the "Stock Purchase Agreement") providing for the issuance and
sale of shares of Series C Preferred Stock of the Company (the "Financing").
WHEREAS, the Company and the Existing Shareholders desire to amend the
Agreement as set forth below; and
WHEREAS, the execution of this Amendment by the parties is a condition
to the Financing as set forth in Section 4.7 of the Stock Purchase Agreement.
NOW, THEREFORE, In consideration of the foregoing premises and the
mutual promises set forth below, and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties to this Amendment agree
as follows:
1. The definition of "Shareholders" set forth in the preamble to the
Agreement is hereby amended to mean the parties listed on the attached Schedule
A.
2. The definition of "Shares" set forth in Section 1(a) of the Agreement
is hereby amended to read in its entirety as follows:
"(a) "Shares" shall mean shares of the Company's Common Stock, Series A
Preferred Stock, Series B Preferred Stock and other securities of the
Company now owned or subsequently acquired by the Founders."
3. The definition of "Preferred Stock" set forth in Section 1(b) of the
Agreement is hereby amended to read in its entirety as follows:
"(b) "Preferred Stock" shall mean the Company's outstanding Series A,
Series B and Series C Preferred Stock."
4. "Shares" appearing therein with the phrase "Common and Preferred
Stock."
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5. Section 5.3 of the Agreement is hereby amended by replacing all
references to "Common Stock" appearing therein with the phrase "Common and
Preferred Stock."
6. This Amendment shall be deemed an amendment to the Agreement and
shall become effective when executed by the Company, the undersigned Existing
Shareholders and New Shareholders. Except as expressly amended pursuant to this
Amendment, the Agreement shall continue in full force and effect.
7. This Amendment shall be governed by the laws of the State of
California as applicable to contracts entered into and performed entirely within
the State of California.
8. This Amendment may be executed in counterparts, each of which shall
be enforceable against the party actually executing such counterpart, and which
together shall constitute one instrument.
[The Remainder of this Page is Intentionally Left Blank]
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This Amendment is hereby executed as of the date first above written.
THE COMPANY:
CONTINUUS SOFTWARE CORPORATION
By: /s/ Xxxx Xxxx
-------------------------------------------
Title: President and Chief Executive Officer
----------------------------------------
THE EXISTING SHAREHOLDERS:
NORWEST EQUITY PARTNERS, IV,
A MINNESOTA LIMITED PARTNERSHIP
By: Itasca Partners
-------------------------------------------
General Partner
By: /s/ Xxxxx X. Xxxx
-------------------------------------------
Xxxxx X. Xxxx, Partner
BRENTWOOD ASSOCIATES VI, L.P.
By: Brentwood VI Ventures L.P.,
-------------------------------------------
its General Partner
By: /s/ G. Xxxxxxxx Xxxxx
-------------------------------------------
G. Xxxxxxxx Xxxxx, General Partner
ADVANCED TECHNOLOGY VENTURES III
By: /s/ Xxx X. Xxxxxxx
-------------------------------------------
Xxx X. Xxxxxxx, General Partner
/s/ X. Xxxxxxx XxXxxx
-----------------------------------------------
X. Xxxxxxx XxXxxx
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THE FOUNDERS:
/s/ Xxxx X. Xxx
-----------------------------------------------
Xxxx Xxx, Co-Trustee,
The Xxx Living Trust dated 5/26/88
/s/ Xxxxxxx Xxxxx Xxx
-----------------------------------------------
Xxxxxxx Xxxxx Xxx, Co-Trustee,
The Xxx Living Trust dated 5/26/88
/s/ Xxx Xxxxxxx
-----------------------------------------------
Xxx Xxxxxxx, Trustee,
The Zechter Family Trust
dated July 18, 1995
NEW INVESTORS:
ACCEL IV L.P.
By: Accel IV Associates L.P.
-------------------------------------------
Its General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------------
General Partner
ACCEL KEIRETSU L.P.
By: Accel Partners & Co., Inc.
-------------------------------------------
Its General Partners
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------------
Its:
-------------------------------------------
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ACCEL INVESTORS `95 L.P.
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------------
General Partner
XXXXXXX X. XXXXXXXXX PARTNERS
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------------
General Partner
NORWEST EQUITY PARTNERS, V,
A MINNESOTA LIMITED LIABILITY PARTNERSHIP
By: Itasca Partners IV, L.L.P.
-------------------------------------------
General Partner
By: /s/ Xxxxx X. Xxxx
-------------------------------------------
Xxxxx X. Xxxx, Partner
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SCHEDULE A
List of Shareholders
Norwest Equity Partners, IV,
a Minnesota Limited Liability Partnership
Brentwood Associates, VI, L.P.
Advanced Technology Ventures III
X. Xxxxxxx XxXxxx
Xxxx Xxx, Co-Trustee,
Xxxxxxx Xxxxx Xxx, Co-Trustee,
The Xxx Living Trust dated 5/26/88
Xxx Xxxxxxx, Trustee,
The Zechter Family Trust
dated July 18, 1995
Norwest Equity Partners, V,
a Minnesota Limited Liability Partnership
Accel IV L.P.
Accel Keiretsu L.P.
Accel Investors `95 X.X.
Xxxxxxx X. Xxxxxxxxx Partners
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CONTINUUS SOFTWARE CORPORATION
SECOND AMENDMENT TO CO-SALE AGREEMENT
This Second Amendment to Co-Sale Agreement ("Second Amendment") is
entered into as of May 30, 1996, by and among Continuus Software Corporation, a
California corporation (the "Company"), Norwest Equity Partners, IV, a Minnesota
Limited Partnership, Norwest Equity Partners, V, a Minnesota Limited
Partnership, Brentwood Associates VI, L.P., Advanced Technology Ventures III,
Accel IV L.P., Accel Keiretsu L.P., Accel Investors `95 L.P., Xxxxxxx X.
Xxxxxxxxx Partners, X. Xxxxxxx XxXxxx, Comdisco, Inc. and Xxxxx X. XxXxxxxxx
(each a "Shareholder") and The Xxx Living Trust dated May 26, 1988 and The
Zechter Family Trust dated March 6, 1996 (each a "Founder"). The Second
Amendment amends that certain Co-Sale Agreement dated as of March 4, 1994, as
subsequently amended by that certain Amendment to Co-Sale Agreement dated as of
November 16, 1995 between the Company and the parties set forth therein (the
Co-Sale Agreement, as amended, is referred to herein as the "Agreement").
WHEREAS, the Company has entered into a Stock Purchase Agreement of even
date herewith (the "Stock Purchase Agreement") providing for the issuance and
sale of shares of Series D Preferred Stock of the Company and Warrants to
purchase shares of Common Stock of the Company (the "Financing").
WHEREAS, the Company and the Shareholders desire to amend the Agreement
as set forth below; and
WHEREAS, the execution of this Amendment by the parties is a condition
to the Financing as set forth in Section 4.8 of the Stock Purchase Agreement.
NOW, THEREFORE, In consideration of the foregoing premises and the
mutual promises set forth below, and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties to this Amendment agree
as follows:
1. The definition of "Shareholders" set forth in the preamble to the
Agreement is hereby amended to mean the parties listed on the attached Schedule
A.
2. The definition of "Shares" set forth in Section 1(a) of the Agreement
is hereby amended to read in its entirety as follows:
"(a) "Shares" shall mean shares of the Company's Common Stock, Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock and other securities of the Company now owned
or subsequently acquired by the Founders."
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3. The definition of "Preferred Stock" set forth in Section 1(b) of the
Agreement is hereby amended to read in its entirety as follows:
"(b) "Preferred Stock" shall mean the Company's outstanding Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock and
Series D Preferred Stock."
4. This Second Amendment shall be deemed an amendment to the Agreement
and shall become effective when executed by the Company and the undersigned
Shareholders. Except as expressly amended pursuant to this Second Amendment, the
Agreement shall continue in full force and effect.
5. This Second Amendment shall be governed by the laws of the State of
California as applicable to contracts entered into and performed entirely within
the State of California.
6. This Second Amendment may be executed in two or more counterparts,
each of which shall be enforceable against the party actually executing such
counterpart, and which together shall constitute one instrument.
[The Remainder of this Page is Intentionally Left Blank]
This Amendment is hereby executed as of the date first above written.
THE COMPANY:
CONTINUUS SOFTWARE CORPORATION
By: /s/ Xxxx Xxxx
-------------------------------------------
Title: President and Chief Executive Officer
----------------------------------------
SHAREHOLDERS:
NORWEST EQUITY PARTNERS, IV,
A MINNESOTA LIMITED PARTNERSHIP
By: Itasca Partners
-------------------------------------------
General Partner
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By: /s/ Xxxxx X. Xxxx
-------------------------------------------
Xxxxx X. Xxxx, Partner
NORWEST EQUITY PARTNERS, V,
A MINNESOTA LIMITED PARTNERSHIP
BY: ITASCA PARTNERS IV, L.L.P.
-------------------------------------------
GENERAL PARTNER
By: /s/ Xxxxx X. Xxxx
-------------------------------------------
Xxxxx X. Xxxx, Partner
BRENTWOOD ASSOCIATES VI, L.P.
By: Brentwood VI Ventures L.P.,
-------------------------------------------
its General Partner
By: /s/ G. Xxxxxxxx Xxxxx
-------------------------------------------
G. Xxxxxxxx Xxxxx, General Partner
ADVANCED TECHNOLOGY VENTURES III
By: /s/ Xxx X. Xxxxxxx
-------------------------------------------
Xxx X. Xxxxxxx, General Partner
/s/ X. Xxxxxxx XxXxxx
-----------------------------------------------
X. XXXXXXX XXXXXX
ACCEL IV L.P.
By: Accel IV Associates L.P.
-------------------------------------------
Its General Partner
By: /s/ X. Xxxxxx Sednaoui
-------------------------------------------
General Partner
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ACCEL KEIRETSU L.P.
By: Accel Partners & Co., Inc.
-------------------------------------------
Its General Partners
By: /s/ X. Xxxxxx Sednaoui
-------------------------------------------
Its:
------------------------------------------
ACCEL INVESTORS `95 L.P.
By: /s/ X. Xxxxxx Sednaoui
-------------------------------------------
General Partner
XXXXXXX X. XXXXXXXXX PARTNERS
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------
General Partner
COMDISCO, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Its: Assistant Vice President
------------------------------------------
/s/ Xxxxx X. XxXxxxxxx
-----------------------------------------------
XXXXX X. XXXXXXXXX
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THE FOUNDERS:
THE XXX LIVING TRUST DATED MAY 26, 1988
/s/ Xxxx X. Xxx
-----------------------------------------------
Xxxx Xxx, Co-Trustee
/s/ Xxxxxxx Xxxxx Xxx
-----------------------------------------------
Xxxxxxx Xxxxx Xxx, Co-Trustee
THE ZECHTER FAMILY TRUST DATED MARCH 6, 1996
/s/ Xxx Xxxxxxx
-----------------------------------------------
Xxx Xxxxxxx, Trustee
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SCHEDULE A
List of Shareholders
Norwest Equity Partners, IV,
a Minnesota Limited Partnership
Norwest Equity Partners, V,
A Minnesota Limited Liability Partnership
Brentwood Associates VI, L.P.
Advanced Technology Ventures III
X. Xxxxxxx XxXxxx
The Xxx Living Trust dated May 26, 1988
Xxxx Xxx, Co-Trustee,
Xxxxxxx Xxxxx Xxx, Co-Trustee,
The Zechter Family Trust dated March 6, 1996
Xxx Xxxxxxx, Trustee
Accel IV L.P.
Accel Keiretsu L.P.
Accel Investors `95 X.X.
Xxxxxxx X. Xxxxxxxxx Partners
Comdisco, Inc.
Xxxxx X. XxXxxxxxx
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CONTINUUS SOFTWARE CORPORATION
THIRD AMENDMENT TO CO-SALE AGREEMENT
This Third Amendment to Co-Sale Agreement ("Third Amendment") is entered
into as of May 19, 1997, by and among Continuus Software Corporation, a
California corporation (the "Company"), Norwest Equity Partners, IV, a Minnesota
Limited Partnership, Norwest Equity Partners, V, a Minnesota Limited
Partnership, Brentwood Associates VI, L.P., Advanced Technology Ventures III,
Accel IV L.P., Accel Keiretsu L.P., Accel Investors `95 L.P., Xxxxxxx X.
Xxxxxxxxx Partners, X. Xxxxxxx XxXxxx, Comdisco, Inc. and Xxxxx X. XxXxxxxxx
(each a "Shareholder") and The Xxx Living Trust dated May 26, 1988 and The
Zechter Family Trust dated March 6, 1996 (each a "Founder"). The Third Amendment
amends that certain Co-Sale Agreement dated as of March 4, 1994, as subsequently
amended by that certain Amendment to Co-Sale Agreement dated as of November 16,
1995 between the Company and the parties set forth therein and by that certain
Second Amendment to Co-Sale Agreement dated as of May 30, 1996 between the
Company and the parties set forth therein (the Co-Sale Agreement, as amended, is
referred to herein as the "Agreement").
WHEREAS, the Company has entered into a Stock Purchase Agreement of even
date herewith (the "Stock Purchase Agreement") providing for the issuance and
sale of shares of Series E Preferred Stock of the Company and Warrants to
purchase shares of Series E Preferred Stock of the Company (the "Financing").
WHEREAS, the Company and the Shareholders desire to amend the Agreement
as set forth below; and
WHEREAS, the execution of this Amendment by the parties is a condition
to the Financing as set forth in Section 4.8 of the Stock Purchase Agreement.
NOW, THEREFORE, In consideration of the foregoing premises and the
mutual promises set forth below, and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties to this Amendment agree
as follows:
1. The definition of "Shareholders" set forth in the preamble to the
Agreement is hereby amended to mean the parties listed on the attached Schedule
A.
2. The definition of "Shares" set forth in Section 1(a) of the Agreement
is hereby amended to read in its entirety as follows:
"(a) "Shares" shall mean shares of the Company's Common Stock, Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock and Series E Preferred Stock and other
securities of the Company now owned or subsequently acquired by the
Founders."
23
3. The definition of "Preferred Stock" set forth in Section 1(b) of the
Agreement is hereby amended to read in its entirety as follows:
"(b) "Preferred Stock" shall mean the Company's outstanding Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock,
Series D Preferred Stock and Series E Preferred Stock."
4. This Third Amendment shall be deemed an amendment to the Agreement
and shall become effective when executed by the Company and the undersigned
Shareholders. Except as expressly amended pursuant to this Third Amendment, the
Agreement shall continue in full force and effect.
5. This Third Amendment shall be governed by the laws of the State of
California as applicable to contracts entered into and performed entirely within
the State of California by California residents.
6. This Third Amendment may be executed in two or more counterparts,
each of which shall be enforceable against the party actually executing such
counterpart, and which together shall constitute one instrument.
[The Remainder of this Page is Intentionally Left Blank]
This Third Amendment is hereby executed as of the date first above
written.
THE COMPANY:
CONTINUUS SOFTWARE CORPORATION
By: /s/ Xxxx Xxxxxx
-------------------------------------------
Title: Vice President, Finance
----------------------------------------
SHAREHOLDERS:
NORWEST EQUITY PARTNERS, IV,
A MINNESOTA LIMITED PARTNERSHIP
By: Itasca Partners
-------------------------------------------
General Partner
24
By: /s/ Xxxxx X. Xxxx
-------------------------------------------
Xxxxx X. Xxxx, Partner
NORWEST EQUITY PARTNERS, V,
A MINNESOTA LIMITED PARTNERSHIP
BY: ITASCA PARTNERS IV, L.L.P.
-------------------------------------------
GENERAL PARTNER
By: /s/ Xxxxx X. Xxxx
-------------------------------------------
Xxxxx X. Xxxx, Partner
BRENTWOOD ASSOCIATES VI, L.P.
By: Brentwood VI Ventures L.P.,
-------------------------------------------
its General Partner
By: /s/ G. Xxxxxxxx Xxxxx
-------------------------------------------
G. Xxxxxxxx Xxxxx, General Partner
ADVANCED TECHNOLOGY VENTURES III
By: /s/ Xxx X. Xxxxxxx
-------------------------------------------
Xxx X. Xxxxxxx, General Partner
ACCEL IV L.P.
By: Accel IV Associates L.P.
-------------------------------------------
Its General Partner
By: /s/ X. Xxxxxx Sednaoui
-------------------------------------------
General Partner
ACCEL KEIRETSU L.P.
By: Accel Partners & Co., Inc.
-------------------------------------------
Its General Partners
25
By: /s/ X. Xxxxxx Sednaoui
-------------------------------------------
Its: Chief Financial Officer
------------------------------------------
ACCEL INVESTORS `95 L.P.
By: /s/ X. Xxxxxx Sednaoui
-------------------------------------------
General Partner
XXXXXXX X. XXXXXXXXX PARTNERS
By: /s/ Xxxxxx X. Xxxxxxxxx
-------------------------------------------
General Partner
COMDISCO, INC.
By: /s/ Xxxx X. Xxxxxx
-------------------------------------------
Its: Assistant Vice President
-----------------------------------------
26
/s/ X. Xxxxxxx XxXxxx
-----------------------------------------------
X. XXXXXXX XXXXXX
/s/ Xxxxx X. XxXxxxxxx
-----------------------------------------------
XXXXX X. XXXXXXXXX
-----------------------------------------------
XXXX XXXXXX
THE FOUNDERS:
THE XXX LIVING TRUST DATED MAY 26, 1988
/s/ Xxxx X. Xxx
-----------------------------------------------
Xxxx Xxx, Co-Trustee
/s/ Xxxxxxx Xxxxx Xxx
-----------------------------------------------
Xxxxxxx Xxxxx Xxx, Co-Trustee
THE ZECHTER FAMILY TRUST DATED MARCH 6, 1996
/s/ Xxx Xxxxxxx
-----------------------------------------------
Xxx Xxxxxxx, Trustee
27
/s/ Xxx Xxxxxxx
-----------------------------------------------
THE XXX XXXXXXX ANNUITY TRUST,
Xxx Xxxxxxx, Trustee
/s/ Xxx Xxxxxxx
-----------------------------------------------
THE XXXXXX XXXXXX XXXXXXX
ANNUITY TRUST
Xxx Xxxxxxx, Trustee
28
SCHEDULE A
List of Shareholders
Norwest Equity Partners, IV,
a Minnesota Limited Partnership
Norwest Equity Partners, V,
A Minnesota Limited Liability Partnership
Brentwood Associates VI, L.P.
Advanced Technology Ventures III
X. Xxxxxxx XxXxxx
The Xxx Living Trust dated May 26, 1988
Xxxx Xxx, Co-Trustee,
Xxxxxxx Xxxxx Xxx, Co-Trustee,
The Xxx Xxxxxxx Annuity Trust,
Xxx Xxxxxxx, Trustee
The Xxxxxx Xxxxxx Xxxxxxx Annuity Trust,
Xxx Xxxxxxx, Trustee
Accel IV L.P.
Accel Keiretsu L.P.
Accel Investors `95 X.X.
Xxxxxxx X. Xxxxxxxxx Partners
Comdisco, Inc.
Xxxxx X. XxXxxxxxx
