EXHIBIT 10.27.1
AMENDMENT TO RIGHTS AGREEMENT
This Amendment dated as of September 28, 2004 (the "AMENDMENT"), to the
Rights Agreement (the "RIGHTS AGREEMENT"), dated as of September 2, 2004,
between Callidus Software Inc., a Delaware corporation (the "Company"), and
American Stock Transfer & Trust Company, as Rights Agent (the "RIGHTS AGENT"),
is being executed at the direction of the Company, by and between the Company
and the Rights Agent. Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to such terms in the Rights Agreement.
WHEREAS, the Company wishes to supplement and amend the Rights Agreement,
as permitted by Section 23 thereof;
NOW, THEREFORE, in consideration of the foregoing and the agreements,
provisions and covenants contained in this Amendment, each of the Company and
the Rights Agent agrees as follows:
1. Amendments to Rights Agreement.
(a) Clause (iv) of the proviso to the definition of "ACQUIRING
PERSON" contained in Section 1(a) of the Rights Agreement is hereby
amended and restated in its entirety as follows:
"(iv) Crosspoint Venture Partners 1997, L.P., Crosspoint
Venture Partners LS 1999, Crosspoint Venture Partners LS 2000,
Crosspoint Venture Partners 2000 Q, L.P. and Crosspoint Venture
Partners 2000, L.P. (collectively, "CROSSPOINT") together with
its Affiliates and Associates, shall not be an "Acquiring
Person", so long as Crosspoint and its Affiliates and Associates
do not Beneficially Own or become the Beneficial Owner of in
excess of 6,850,000 shares of Common Stock, other than shares of
Common Stock that Crosspoint or its Affiliates or Associates
becomes the Beneficial Owner of pursuant to a dividend or
distribution paid or made by the Company on the outstanding
Common Stock or pursuant to a split or subdivision of the
outstanding Common Stock."
2. Effective Date. This Amendment shall become effective as of the
day and year first written above. Except as modified by this Amendment, the
Rights Agreement shall remain in full force and effect without any
modification.
3. Certification Pursuant to Section 23 of the Rights Agreement. The
certificate referred to in Section 23 of the Rights Agreement stating that
this Amendment is in compliance with the terms of the Rights Agreement has
been executed by an appropriate officer or director of the Company and is
attached as Annex A hereto.
4. Inconsistencies. In the event of a conflict or inconsistency
between this Amendment and the Rights Agreement and the exhibits thereto,
the provisions of this Amendment shall govern.
5. Counterparts. This Amendment may be executed in counterparts,
each of which shall constitute an original and all of which, when taken
together, shall constitute one agreement.
[SIGNATURES FOLLOW]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed and delivered as of the day and year first written above.
CALLIDUS SOFTWARE INC.
By: /s/ Ronald J. Fior
-----------------------------------------
Name: Ronald J. Fior
Title: Vice President, Finance and Chief
Financial Officer
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Herbert J. Lemmer
-----------------------------------------
Name: Herbert J. Lemmer
Title: Vice President
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ANNEX A
CALLIDUS SOFTWARE INC.
CERTIFICATE PURSUANT TO SECTION 23
OF THE RIGHTS AGREEMENT
I, Ronald J. Fior, Vice President, Finance and Chief Financial Officer of
Callidus Software Inc., a Delaware corporation (the "COMPANY"), do hereby
certify pursuant to Section 23 of the Rights Agreement (the "RIGHTS AGREEMENT")
dated as of September 2, 2004, between the Company and American Stock Transfer &
Trust Company, as Rights Agent, that the proposed amendment to the Rights
Agreement dated September 28, 2004 is in compliance with the terms of the Rights
Agreement.
IN WITNESS WHEREOF, I have signed this certificate.
Dated: September 28, 2004
By:
-----------------------------------------
Name: Ronald J. Fior
Title: Vice President, Finance and Chief
Financial Officer
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