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Exhibit 4.07
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EXHIBIT 4.07
AMENDMENT NUMBER SEVEN TO INVESTOR RIGHTS AGREEMENT
The undersigned hereby consents and agrees to this Amendment (this
"Amendment") of that certain Investor Rights Agreement, dated as of March 31,
1992 and amended as of April 1, 1992, January 20, 1995, July 12, 1995, August
30, 1995, December 2, 1995 and March 14, 1996 (the "Agreement"), among
Macromedia, Inc., a Delaware corporation formerly named MMAW Consolidation Corp.
(the "Company"), and the Investors listed on Schedule A thereto, James R. Von
Ehr, II, Kevin F. Crowder, Frederick Krueger, Richard Krueger, Josh Rosen, Mats
Myrberg, John Dalton, Anthony Wood and Stephen Shannon. The undersigned is
currently a "Holder" as defined in the Agreement. This Amendment is contingent
upon the closing of the merger of Newco, a Delaware corporation and wholly-owned
subsidiary of Macromedia, with and into FutureWave Software, Inc., a California
corporation ("FWS"), in a reverse triangular merger (the "Merger"), with FWS to
be the surviving corporation. The Amendment will be deemed given as of the date
of the consummation of the Merger. References to Sections and capitalized terms
in this Amendment that are not otherwise defined herein will have the meaning
ascribed to them in the Agreement.
1. S-3 REGISTRATION OF FWS SHARES
(a) After the date hereof, Charles Jackson, Jonathan Gay, Robert
Tatsumi and Michelle Welsh (referred to herein as the "FWS Shareholders") may
request in writing that the Company effect a registration on Form S-3 for the
resale by such FWS Shareholder of all or any of the shares of Macromedia Common
Stock that the Company issues to such FWS Shareholder upon consummation of the
Merger (the shares of Macromedia Common Stock to be issued to the FWS
Shareholders or any of them upon the Merger are referred to as the "FWS
Shares"), and any related qualification or compliance with respect to all or a
part of the FWS Shares owned by such FWS Shareholder. Upon receipt of such
request, the Company will:
(i) promptly give written notice of the proposed
registration, and any related qualification or compliance, to the other FWS
Shareholder(s); and
(ii) file a registration statement on Form S-3 as provided
above within 30 days after receipt of such request and, as soon as practicable,
effect such registration (and all such qualifications and compliances as may be
so requested) as would permit the sale and distribution of all or such portion
of such FWS Shareholder's FWS Shares as are specified in such request, together
with all or a portion of the FWS Shares of the other FWS Shareholder joining in
such request as are specified in a written request given within 15 days after
receipt of such written notice from the Company; provided, however:
(A) that the FWS Shareholder(s) will sell FWS
Shares pursuant to such registration only during an "FWS Permitted Window" (as
defined below), only in "brokers' transactions" (as defined in Rule 144 under
the Act) and only
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during the two-year period commencing with the effective date of the Merger and
the Company will have no obligation to keep a registration statement on Form S-3
effective and/or current after two years following the effective date of the
Merger;
(B) no FWS Shareholder will sell any FWS Shares,
and no FWS Permitted Window will commence, until after the publication of the
first quarterly financial statements of the Company that include at least 30
days of combined operating results of the Company and FWS;
(C) no FWS Shareholder will sell pursuant to such
registration, within 12 months after the date on which the Merger is
consummated, 50% or more of the FWS Shares issued to such FWS Shareholder;
(D) that, if the Company furnishes to the FWS
Shareholder(s) a certificate signed by the President or the Chief Executive
Officer of the Company stating that, in the good faith judgment of the Board of
Directors of the Company, it would be seriously detrimental to the Company and
its stockholders for such Form S-3 registration to be effected at such time (or,
in the case a "Notice of Resale" (as defined below) has been given, that it
would be seriously detrimental to the Company and its stockholders for the FWS
Permitted Window to commence or continue at such time) due to the existence of a
material development or potential material development involving the Company
which the Company would be obligated to disclose in the prospectus contained in
the Form S-3 registration statement, which disclosure would in the good faith
judgment of the Board of Directors of the Company be premature or otherwise
inadvisable at such time and would have a material adverse affect upon the
Company and its stockholders, the Company will have the right to defer the
filing of the Form S-3 registration statement (or the commencement or
continuation of the FWS Permitted Window, as the case may be)during any period
in which the securities trading window is closed for the Company's directors and
executive officers; and
(E) that the Company will not be required to effect
any such registration, qualification or compliance in any particular
jurisdiction in which the Company would thereby be required to qualify to do
business or to execute a general consent to service of process.
For the purposes of this Section 1, a "FWS Permitted Window" is a period
commencing on the third business day after the release of the Company's
quarterly or annual earnings report, as the case may be, to the public and ends
thirty days before the end of the next fiscal quarter. In order to cause an FWS
Permitted Window to commence, an FWS Shareholder must first give written notice
to the Company of such FWS shareholder's present intention to sell some or all
of such FWS Shareholder's FWS Shares pursuant to such registration (a "Notice of
Resale"). Upon receipt of such Notice of Resale, the Company will give written
notice to the FWS Shareholder as soon as practicable, but in no event more than
five business days after such receipt, that the prospectus contained in the
registration statement is current (it may be necessary for the Company during
this period to supplement the prospectus or make an appropriate filing under the
1934 Act so as to cause the prospectus to become current) and that the FWS
Permitted Window will commence on the date of such notice by the Company or that
the Company is required
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under the Act and the regulations thereunder to amend the registration statement
in order to cause the prospectus to be current (unless a certificate of the
President or the Chief Executive Officer is delivered as provided in (ii)(D)
above). In the event that the Company determines an amendment is necessary as
provided above, it will file and cause the amendment to become effective as soon
as practicable; whereupon it will notify the FWS shareholder that the FWS
Permitted Window will then commence.
(b) All expenses incurred in connection with such registration,
and any related qualification or compliance, including, without limitation, all
registration, filing, qualification, printers' and accounting fees, fees and
disbursements of counsel for the Company and the reasonable fees and
disbursements of one counsel for the FWS Shareholders (the fees of such counsel
not to exceed $20,000) shall be borne by the Company.
(c) A registration effective pursuant to this Section 1 will not
be counted as a demand for registration under Section 1.2 of the Agreement and
will not trigger any registration or notice rights under Section 1.3 or 1.12 of
the Agreement.
(d) Paragraphs (b), (c), (d) and (f) of Section 1.4 of the
Agreement will apply to a registration under this Section 1, provided that the
term "Holder" will, for the purposes hereof be deemed to refer only to the FWS
Shareholders.
(e) It will be a condition precedent to the obligations of the
Company to register pursuant to this Section 1 any FWS Shares of any FWS
Shareholders that such FWS Shareholders furnish to the Company for inclusion in
the S-3 registration statement such information regarding such FWS Shareholder
and the FWS Shares held by such FWS Shareholder as will be required to effect
the registration of such FWS Shareholders of FWS Shares; provided, however that
no FWS Shareholders will be required to make any representations or warranties
or agreements with the Company except as to such matters.
2. AMENDMENT OF DEFINITIONS OF "REGISTRABLE SECURITIES" AND "HOLDERS."
For purposes of Sections 1.9, 1.10, 1.11(a), (c) and (d), 1.13, 1.14, 1.15
(provided that the market stand-off provided for in Section 1.15 will apply to
the FWS Shares only if the FWS Shareholders are permitted to include their FWS
Shares in the applicable registration without limitation) 1.16 and 3.1 through
3.9 (except that, notwithstanding anything to the contrary in Section 3.9, no
amendment to the Agreement that materially changes this Amendment may be made
without the written consent of the FWS Shareholder(s) holding at least a
majority of the FWS Shares) of the Agreement (specifically excluding the other
Sections of this Agreement), (a) the term "Registrable Securities" will be
deemed to include the FWS Shares and (b) the term "Holders" will be deemed to
include the FWS Shareholders so long as such individuals hold FWS Shares. The
provisions of Section 1.2, 1.3, 1.5, 1.6, 1.7, 1.8, 1.11(b), 1.12, 2.1, 2.2,
2.3, 2.4, 2.5, 2.6, 2.7 and 2.8 will not apply to the FWS Shareholders or any of
their FWS Shares. The provisions of Section 1.4 will apply to the FWS
Shareholders and their shares of Macromedia Common Stock only to the extent
explicitly provided for in Section 1 of this Amendment.
3. EFFECTIVENESS OF AMENDMENT. As provided in Section 3.9 of the
Agreement, this Amendment shall be binding upon each holder of any Registrable
Securities then
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outstanding, any future holder of such Registrable Securities and the Company.
This Amendment shall be effective when (a) the written consent of Macromedia and
the holders of a majority of the Registrable Securities currently outstanding is
obtained, and (b) the Merger has been consummated as evidenced by the filing of
the Agreement of Merger, the Articles of Merger and such other certificates and
agreements as may be required by the Secretaries of State of the States of
Delaware and California. This Consent shall be void and have no effect if the
Agreement and Plan of Reorganization dated as of December 31, 1996 is terminated
in accordance with its terms before the Merger is consummated.
4. COUNTERPARTS. This Amendment 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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MACROMEDIA, INC. HOLDER OF REGISTRABLE SECURITIES
By: /s/ Robert K. Burgess
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Robert K. Burgess, Authorized Signature
President
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Printed Name
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Authorized Signature
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Printed Name
ACCEPTANCE BY THE FWS SHAREHOLDERS
Agreed to and Accepted:
Charles H. Jackson and Hallie E. Jackson,
as Trustees FOB the Jackson Living Trust
/s/ Charles H. Jackson
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Charles H. Jackson, Trustee
/s/ Hallie E. Jackson
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Hallie E. Jackson, Trustee
/s/ Jonathan Gay
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Jonathan Gay
/s/ Robert Tatsumi
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Robert Tatsumi
/s/ Michelle Welsh
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Michelle Welsh
[SIGNATURE PAGE TO AMENDMENT NUMBER SEVEN TO
INVESTOR RIGHTS AGREEMENT]
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