EXHIBIT 4.4
FIFTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is entered into as of November 30, 1998, among Vignette
Corporation, a Delaware corporation (the "Company") and the Stockholders on
Exhibit A and Exhibit B attached hereto (individually a "Holder" and
collectively the "Holders").
RECITALS:
WHEREAS, the Company and certain of the Holders have entered into a
Fourth Amended and Restated Registration Rights Agreement, dated April 22, 1998
(the "Prior Registration Agreement"), providing for the registration of the
offering of certain shares of the Company's capital stock held by certain of the
Holders;
WHEREAS, the Company and Olympus Growth Fund II, L.P., Olympus
Executive Fund, L.P., Axa U.S. Growth Fund LLC, U.S. Growth Fund Partners C.V.,
Double Black Diamond II LLC, 45th Parallel LLC, Almanori Limited, Multinvest
LLC, Parallel Capital I LLC, Vendome Capital LLC, Attractor Dearborn Partners,
LP, Attractor Institution LP, Attractor LP, East Peak Partners, Pivotal
Partners, L.P., Xxxxx X. Xxxxxxxxxx 1995 Trust, Xxxxx Xxxxxxxxxx, Xxxxxx
XxXxxxxx, ATGF II, and Xxxxxx Xxxxxxx Xxxx Xxxxxx Equity Funding, Inc.
(collectively, the "Series H Purchasers") have entered into a Stock Purchase
Agreement, dated the date hereof (the "Purchase Agreement"), providing, among
other things, for the purchase by the Series H Purchasers of shares of the
Company's Series H Convertible Preferred Stock, par value $0.01 per share (the
"Series H Preferred Stock");
WHEREAS, the Company, the Holders and the Series H Purchasers desire
to amend the Prior Registration Agreement on the terms hereinafter set forth;
and
WHEREAS, the execution and delivery of this Agreement by the Company
and by such number of Holders as are necessary to amend and restate the Prior
Registration Agreement is a condition to the closing of the issuance, sale and
purchase of the Series H Preferred Stock pursuant to the Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Definitions. For purposes of this Agreement, the following terms
shall have the meanings indicated:
"Commission" means the United States Securities and Exchange
Commission.
"Common Stock" means the Company's Common Stock, par value $0.01 per
share.
"Founder" means Xxxx Xxxxxx, Xxxx Xxxxxx and the Holders on Exhibit B
attached hereto.
"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, an unincorporated
organization and a governmental entity or any department, agency or political
subdivision thereof.
"Registrable Founders Stock" means all Common Stock and other capital
stock of the Company now or hereafter owned and held by any Founder and
transferee of any Founder.
"Registrable Series A and Series B Stock" means all Series A Preferred
Stock and Series B Preferred Stock and all Common Stock and other capital stock
of the Company acquired upon the conversion of such Preferred Stock by any
Holder and transferee of any Holder.
"Registrable Series C Stock" means all Series C Preferred Stock and
all Common Stock and other capital stock of the Company acquired upon the
conversion of such Preferred Stock by CNET and any permitted transferee of CNET.
"Registrable Series E Stock" means all Series E Preferred Stock and
all Common Stock and other capital stock of the Company acquired upon the
conversion of such Preferred Stock by any Holder and any permitted transferee of
any Holder.
"Registrable Series F Stock" means all Series F Preferred Stock and
all Common Stock and other capital stock of the Company acquired upon the
conversion of such Preferred Stock by any Holder and any permitted transferee of
any Holder.
"Registrable Series H Stock" means all Series H Preferred Stock and
all Common Stock and other capital stock of the Company acquired upon the
conversion of such Preferred Stock by any Holder and any permitted transferee of
any Holder.
"Registrable Stock" means all Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series E Preferred Stock, Series F
Preferred Stock, Series H Preferred Stock, Common Stock and other capital stock
of the Company now or hereafter owned and held by any Holder and transferee of
any Holder.
"Securities Act" means the Securities Act of 1933, as amended.
"Series A Preferred Stock" means the Company's Series A Convertible
Preferred Stock, par value $0.01 per share.
"Series B Preferred Stock" means the Company's Series B Convertible
Preferred Stock, par value $0.01 per share.
"Series C Preferred Stock" means the Company's Series C Convertible
Preferred Stock, par value $0.01 per share.
"Series E Preferred Stock" means the Company's Series E Convertible
Preferred Stock, par value $0.01 per share.
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"Series F Preferred Stock" means the Company's Series F Convertible
Preferred Stock, par value $0.01 per share.
"Series H Preferred Stock" means the Company's Series H Convertible
Preferred Stock, par value $0.01 per share.
2. Demand Registrations.
A. Requests for Registration.
(i) At any time and from time to time after January 31,
2001, the holders of at least 66-2/3% of the Registrable Series A and Series B
Stock then outstanding may request registration under the Securities Act of the
offering of all or any part of the Registrable Stock held by such Holders (each,
a "Demand Registration"), subject to the terms and conditions of this Agreement.
Any request (a "Registration Request") for a Demand Registration shall specify
(a) the approximate number of shares of Registrable Series A and Series B Stock
requested to be registered (but not less than a majority of the total number of
shares of Registrable Series A and Series B Stock then outstanding), and (b) the
intended method of distribution of such shares. Within ten days after the date
of its receipt of such request, the Company will give written notice of such
requested registration to all other Holders of Registrable Stock and, subject to
paragraph 2A(vi), will include in such registration all shares of Registrable
Stock which Holders of Registrable Stock request the Company to include in such
registration by written notice given to the Company within 15 days after the
date of sending of the Company's notice.
(ii) At any time and from time to time after January 31,
2001, the holders of at least 66-2/3% of the Registrable Series E Stock then
outstanding may request registration under the Securities Act of the offering of
all or any part of the Registrable Stock held by such Holders (each, a "Demand
Registration"), subject to the terms and conditions of this Agreement. Any
request (a "Registration Request") for a Demand Registration shall specify (a)
the approximate number of shares of Registrable Series E Stock requested to be
registered (but not less than a majority of the total number of shares of
Registrable Series E Stock then outstanding), and (b) the intended method of
distribution of such shares. Within ten days after the date of its receipt of
such request, the Company will give written notice of such requested
registration to all other Holders of Registrable Stock and, subject to paragraph
2A(vi), will include in such registration all shares of Registrable Stock which
Holders of Registrable Stock request the Company to include in such registration
by written notice given to the Company within 15 days after the date of sending
of the Company's notice.
(iii) At any time and from time to time after January 31,
2001, the holders of at least 66-2/3% of the Registrable Series F Stock then
outstanding may request registration under the Securities Act of the offering of
all or any part of the Registrable Stock held by such Holders (each, a "Demand
Registration"), subject to the terms and conditions of this Agreement. Any
request (a "Registration Request") for a Demand Registration shall specify (a)
the approximate number of shares of Registrable Series F Stock requested to be
registered (but not less than a majority of the total number of shares of
Registrable Series F Stock then outstanding), and (b) the intended method of
distribution of such shares. Within ten days after
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the date of its receipt of such request, the Company will give written notice of
such requested registration to all other Holders of Registrable Stock and,
subject to paragraph 2A(vi), will include in such registration all shares of
Registrable Stock which Holders of Registrable Stock request the Company to
include in such registration by written notice given to the Company within 15
days after the date of sending of the Company's notice.
(iv) At any time and from time to time after January 31,
2001, the holders of at least 66-2/3% of the Registrable Series H Stock then
outstanding may request registration under the Securities Act of the offering of
all or any part of the Registrable Stock held by such Holders (each, a "Demand
Registration"), subject to the terms and conditions of this Agreement. Any
request (a "Registration Request") for a Demand Registration shall specify (a)
the approximate number of shares of Registrable Series H Stock requested to be
registered (but not less than a majority of the total number of shares of
Registrable Series H Stock then outstanding), and (b) the intended method of
distribution of such shares. Within ten days after the date of its receipt of
such request, the Company will give written notice of such requested
registration to all other Holders of Registrable Stock and, subject to paragraph
2A(vi), will include in such registration all shares of Registrable Stock which
Holders of Registrable Stock request the Company to include in such registration
by written notice given to the Company within 15 days after the date of sending
of the Company's notice.
(v) Subject to paragraph 4, the Holders of Registrable
Series A and Series B Stock will be entitled to request up to two Demand
Registrations at any time and from time to time and the Holders of Registrable
Series E Stock, Registrable Series F Stock and Registrable Series H Stock will
be entitled to request up to two Demand Registrations at any time and from time
to time.
(vi) In connection with a Demand Registration with respect
to Registrable Series A and Series B Stock, a registration will not count as one
of the Demand Registrations paid for by the Company (as provided in paragraph 4)
unless the holders of Registrable Series A and Series B Stock are able to
register the offering of and sell at least 50% of the shares of Registrable
Series A and Series B Stock requested to be included in such registration. In
connection with a Demand Registration with respect to Registrable Series E
Stock, a registration will not count as one of the Demand Registrations paid for
by the Company (as provided in paragraph 4) unless the holders of Registrable
Series E Stock are able to register the offering of and sell at least 50% of the
shares of Registrable Series E Stock requested to be included in such
registration. In connection with a Demand Registration with respect to
Registrable Series F Stock, a registration will not count as one of the Demand
Registrations paid for by the Company (as provided in paragraph 4) unless the
holders of Registrable Series F Stock are able to register the offering of and
sell at least 50% of the shares of Registrable Series F Stock requested to be
included in such registration. In connection with a Demand Registration with
respect to Registrable Series H Stock, a registration will not count as one of
the Demand Registrations paid for by the Company (as provided in paragraph 4)
unless the holders of Registrable Series H Stock are able to register the
offering of and sell at least 50% of the shares of Registrable Series H Stock
requested to be included in such registration.
(vii) The Company will not include in any Demand Registration
the offering of any securities other than shares of Registrable Stock and
securities to be
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registered for offering and sale on behalf of the Company without the prior
written consent of the Holders of a majority of the shares of Registrable Series
A and Series B Stock, Registrable Series E Stock, Registrable Series F Stock or
Registrable Series H Stock, as the case may be, included in such registration.
If the managing underwriter(s) of any such offering advise the Company in
writing that in their opinion the number of shares of Registrable Stock and, if
permitted hereunder, other securities in such offering, exceeds the number of
shares of Registrable Stock and other securities, if any, which can be sold in
an orderly manner in such offering within a price range acceptable to the
Holders of a majority of the shares of Registrable Series A and Series B Stock,
Registrable Series E Stock, Registrable Series F Stock or Registrable Series H
Stock, as the case may be, initially requesting registration, the Company will
include in such registration, prior to the inclusion of any securities which are
not shares of Registrable Series A and Series B Stock, Registrable Series E
Stock, Registrable Series F Stock or Registrable Series H Stock, as the case may
be, subject to a Registration Request the number of shares requested to be
included which in the opinion of such underwriters can be sold in an orderly
manner within the price range of such offering, in the following order of
priority: (i) first, pro rata among the Holders of Registrable Series A and
Series B Stock, Registrable Series E Stock, Registrable Series F Stock or
Registrable Series H Stock, as the case may be, making the Registration Request
on the basis of the number of shares that such Holders have requested be
included in the registration, (ii) second, to the Company, (iii) third, pro rata
among the Holders of other Registrable Stock requesting to be included in such
registration on the basis of the number of shares that such holders have
requested be included in the registration, and (iv) fourth, pro rata among the
holders of the other securities, if any, requested to be included in such
registration on the basis of the number of shares that such holders have
requested be included in the registration.
B. Selection of Managing Underwriter(s). The holders of a majority of
the then outstanding shares of Registrable Series A and Series B Stock,
Registrable Series E Stock, Registrable Series F Stock or Registrable Series H
Stock, as the case may be, requesting a registration will have the right to
select one or more underwriters to manage any offering which is the subject of a
Demand Registration, subject to the Company's approval which will not be
unreasonably withheld.
C. Registrations on Forms S-2 and S-3. Following its initial public
offering of securities under the Securities Act, the Company shall use its
reasonable best efforts to qualify for registration on Forms S-2 or S-3 or any
comparable or successor form or forms. After the Company has qualified for the
use of Form S-2 or S-3, in addition to the rights contained in paragraph 2A, the
Holders of at least 25% of the Registrable Series A and Series B Stock shall
have the right at any time and from time to time to request up to two
registrations on Form S-2 and an unlimited number of registrations on Form S-3.
After the Company has qualified for the use of Form S-2 or S-3, in addition to
the rights contained in paragraph 2A, the Holders of at least 25% of the
Registrable Series E Stock shall have the right at any time and from time to
time to request up to two registrations on Form S-2 and an unlimited number of
registrations on Form S-3. After the Company has qualified for the use of Form
S-2 or S-3, in addition to the rights contained in
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paragraph 2A, the Holders of at least 25% of the Registrable Series F Stock
shall have the right at any time and from time to time to request up to two
registrations on Form S-2 and an unlimited number of registrations on Form S-3.
After the Company has qualified for the use of Form S-2 or S-3, in addition to
the rights contained in paragraph 2A, the Holders of at least 25% of the
Registrable Series H Stock shall have the right at any time and from time to
time to request up to two registrations on Form S-2 and an unlimited number of
registrations on Form S-3. After the Company has qualified for the use of Form
S-3, (i) the holders of at least 25% of the Registrable Series C Stock shall
have the right at any time and from time to time to request an unlimited number
of registrations on Form S-3 and (iii) the holders of at least 25% of the
Registrable Founders Stock shall have the right at any time and from time to
time to request an unlimited number of registrations on Form S-3. Such requests
shall be in writing and shall state the number of shares of Registrable Stock
proposed to be disposed of and the intended method of distribution of such
shares by such Holder or Holders.
D. Right to Defer Registration. The Company shall not be obligated to
effect any registration on behalf of any Holder or transferee thereof within 180
days after the effective date of a previous registration in which such Holder or
transferee participated. The Company may postpone for up to 180 days the filing
or the effectiveness of a registration statement for a Demand Registration set
forth above if (i) the Company determines that such registration might have an
adverse effect on any proposal or plan by the Company to engage in any
acquisition of assets (other than in the ordinary course) or any merger,
consolidation, tender offer or similar transaction or (ii) any other material,
nonpublic development or transaction is pending; provided that the Company may
not postpone the filing or effectiveness of a registration statement pursuant to
this sentence more frequently than once during any period of 12 consecutive
months.
3. Piggyback Registrations.
A. Right to Piggyback. If the Company proposes to register any
offering of its securities under the Securities Act (other than pursuant to a
Demand Registration or registration solely in connection with an employee
benefit or stock ownership plan) and the registration form to be used may be
used for the registration of Registrable Stock (a "Piggyback Registration"), the
Company will give prompt written notice to all Holders of Registrable Stock of
its intention to effect such a registration (each a "Piggyback Notice"). Subject
to subparagraph 3B below, the Company will include in such registration all
shares of Registrable Stock which Holders of Registrable Stock request the
Company to include in such registration by written notice given to the Company
within 15 days after the date of sending of the Company's notice.
B. Priority on Primary Registrations. If a Piggyback Registration
relates to an underwritten public offering of equity securities by the Company
and the managing underwriters of such offering advise the Company in writing
that in their opinion the number of securities requested to be included in such
registration exceeds the number which can be sold in an orderly manner in such
offering within a price range acceptable to the Company, the Company will
include in such registration (i) first, the securities proposed to be sold by
the Company, (ii) second, the Registrable Series A and Series B Stock,
Registrable Series E Stock, Registrable Series F Stock and Registrable Series H
Stock requested to be included in such registration, pro rata among the Holders
of such Registrable Series A and Series B Stock, Registrable Series E Stock,
Registrable Series F Stock and Registrable Series H Stock on the basis of the
number of shares owned by each such Holder, (iii) third, the Registrable
Founders Stock and Registrable Series C Stock requested to be included in such
registration, pro rata
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among the Holders of such Registrable Founders Stock and Registrable Series C
Stock on the basis of the number of shares owned by each such Holder, and (iv)
fourth, other securities requested to be included in such registration.
C. Priority on Secondary Registrations. If a Piggyback Registration
relates to an underwritten public offering of equity securities by holders of
the Company's securities and the managing underwriters of such offering advise
the Company in writing that in their opinion the number of securities requested
to be included in such registration exceeds the number which can be sold in an
orderly manner in such offering within a price range acceptable to the holders
initially requesting such registration, the Company will include in such
registration (i) first, the securities requested to be included therein by the
holders requesting such registration, (ii) second, the Registrable Series A and
Series B Stock, Registrable Series E Stock, Registrable Series F Stock and
Registrable Series H Stock requested to be included in such registration, pro
rata among the Holders of such Registrable Series A and Series B Stock,
Registrable Series E Stock, Registrable Series F and Registrable Series H Stock
on the basis of the number of shares owned by each such Holder, and (iii) third,
the Registrable Founders Stock and Registrable Series C Stock requested to be
included in such registration, pro rata among the Holders of such Registrable
Founders Stock and Registrable Series C Stock on the basis of the number of
shares owned by each such Holder.
4. Registration Procedures. Whenever the Holders of Registrable Stock have
requested that any Registrable Stock be registered pursuant to this Agreement,
the Company will use its best efforts to effect the registration and the sale of
such Registrable Stock in accordance with the intended method of distribution
thereof and will as expeditiously as possible:
(i) prepare and file with the Commission a registration statement
with respect to such Registrable Stock and use its best efforts to cause such
registration statement to become effective, provided, that before filing a
registration statement or prospectus or any amendments or supplements thereto,
the Company will furnish to the counsel selected by the Holders of a majority of
the Registrable Stock covered by such registration statement copies of all such
documents proposed to be filed, which documents will be subject to the review of
such counsel;
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
a period of up to six months, and comply with the provisions of the Securities
Act with respect to the disposition of all securities covered by such
registration statement during such period in accordance with the intended
methods of distribution by the sellers thereof set forth in such registration
statement;
(iii) furnish to each seller of Registrable Stock included in such
registration such number of copies of such registration statement, each
amendment and supplement thereto, the prospectus included in such registration
statement (including each preliminary prospectus) and such other documents as
such seller may reasonably request in order to facilitate the disposition of
such Registrable Stock by such seller;
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(iv) use its best efforts to register or qualify such Registrable
Stock under such other securities or blue sky laws of such jurisdictions as any
seller reasonably requests and do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to consummate the
disposition in such jurisdictions of the Registrable Stock owned by such seller,
provided, that the Company will not be required (i) to qualify generally to do
business in any jurisdiction where it would not otherwise be required to qualify
but for this subparagraph, (ii) to subject itself to taxation in any such
jurisdiction or (iii) to consent to general service of process in any such
jurisdiction;
(v) notify each seller of such Registrable Stock, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, of the happening of any event as a result of which the
prospectus included in such registration statement contains an untrue statement
of a material fact or omits any fact necessary to make the statements therein
not misleading and, at the request of any such seller, the Company will prepare
a supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Stock, such prospectus will not contain an
untrue statement of a material fact or omit to state any fact necessary to make
the statements therein, in light of the circumstances under which such
statements are made, not misleading;
(vi) cause all such Registrable Stock to be listed on each
securities exchange on which similar securities issued by the Company are then
listed and to be qualified for trading on each system on which similar
securities issued by the Company are from time to time qualified;
(vii) provide a transfer agent and registrar for all such
Registrable Stock not later than the effective date of such registration
statement and thereafter maintain such a transfer agent and registrar;
(viii) enter into such customary agreements (including underwriting
agreements in customary form) and take all such other actions as the holders of
a majority of the shares of Registrable Stock being sold or the underwriters, if
any, reasonably request in order to expedite or facilitate the disposition of
such Registrable Stock;
(ix) make available for inspection by any underwriter
participating in any disposition pursuant to such registration statement and any
attorney, accountant or other agent retained by any such underwriter, all
financial and other records, pertinent corporate documents and properties of the
Company, and cause the Company's officers, directors, employees and independent
accountants to supply all information reasonably requested by any such
underwriter, attorney, accountant or agent in connection with such registration
statement;
(x) otherwise use its best efforts to comply with all applicable
rules and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least 12 months beginning with the first day of the Company's first
full calendar quarter after the effective date of the registration statement,
which earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
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(xi) permit any Holder of Registrable Stock which might be deemed,
in the sole and exclusive judgment of such Holder, to be an underwriter or a
controlling person of the Company, to participate in the preparation of such
registration or comparable statement and to require the insertion therein of
material, furnished to the Company in writing, which in the reasonable judgment
of such Holder and its counsel should be included; and
(xii) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Registrable Stock included in such registration statement for sale in any
jurisdiction, the Company will use its reasonable best efforts promptly to
obtain the withdrawal of such order.
If any such registration or comparable statement refers to any Holder by name or
otherwise as the holder of any securities of the Company and if, in such
Holder's sole and exclusive judgment, such Holder is or might be deemed to be a
controlling person of the Company, such Holder shall have the right to require
(a) the inclusion in such registration statement of language, in form and
substance reasonably satisfactory to such Holder, to the effect that the holding
of such securities by such Holder is not to be construed as a recommendation by
such Holder of the investment quality of the Company's securities covered
thereby and that such holding does not imply that such Holder will assist in
meeting any future financial requirements of the Company, or (b) in the event
that such reference to such Holder by name or otherwise is not required by the
Securities Act or any similar federal statute then in force, the deletion of the
reference to such Holder; provided, that with respect to this clause (b) such
Holder shall furnish to the Company an opinion of counsel to such effect, which
opinion and counsel shall be reasonably satisfactory to the Company.
5. Registration Expenses.
A. Definitions. The term "Registration Expenses" means all expenses
incident to the Company's performance of or compliance with 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, and fees and expenses of counsel for the Company and all
independent certified public accountants, underwriters (excluding discounts and
commissions, which shall be paid by the selling shareholders out of the proceeds
of the applicable offering) and other Persons retained by the Company.
B. Payment. The Company shall pay the Registration Expenses (other
than fees and disbursements of counsel for the Holders, except as set forth in
the following sentence) in connection with two Demand Registrations requested by
Holders of Registrable Series A and B Stock, two Demand Registrations requested
by Holders of Registrable Series E Stock, two Demand Registrations requested by
Holders of Registrable Series F Stock, two Demand Registrations requested by
Holders of Registrable Series H Stock, up to two registrations on Form S-2 and
any and all registrations on Form S-3 pursuant to paragraph 2C and any and all
Piggyback Registrations. In connection with each Demand Registration and each
Piggyback Registration, the Company will reimburse the Holders of Registrable
Stock covered by such registration for the reasonable fees and disbursements of
one counsel chosen by the Holders of a majority of the Registrable Stock
initially requesting such registration.
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6. Indemnification.
A. Indemnification by the Company. The Company agrees to indemnify, to
the extent permitted by law, each Holder, its officers and directors and each
Person who controls such Holder (within the meaning of the Securities Act)
against all losses, claims, damages, liabilities and expenses caused by any
untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus or preliminary prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such Holder expressly for use
therein or by such Holder's failure to deliver a copy of the registration
statement or prospectus or any amendments or supplements thereto after the
Company has furnished such Holder with a sufficient number of copies of the
same. In connection with an underwritten offering, the Company will indemnify
such underwriters, their officers and directors and each Person who controls
such underwriters (within the meaning of the Securities Act) to the same extent
as provided above with respect to the indemnification of the Holders.
B. Indemnification by Holders. In connection with any registration
statement in which a Holder is participating, each such Holder will furnish to
the Company in writing such information and affidavits as the Company reasonably
requests for use in connection with any such registration statement or
prospectus and, to the extent permitted by law, will indemnify the Company, its
directors and officers and each Person who controls the Company (within the
meaning of the Securities Act) against any losses, claims, damages, liabilities
and expenses resulting from any untrue or alleged untrue statement of material
fact contained in the registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto or any omission or
alleged omission of a material fact required to be stated therein or necessary
to make the statements therein not misleading (but only to the extent that such
untrue statement or omission is contained in any information or affidavit so
furnished in writing by such Holder) and any failure by each such Holder to
deliver a copy of the registration statement or prospectus or any amendments or
supplements thereto after the Company has furnished such Holder with a
sufficient number of copies of the same; provided, that the obligation to
indemnify will be individual to each Holder and will be limited to the net
amount of proceeds received by such Holder from the sale of Registrable Stock
pursuant to such registration statement.
C. Notice: Defense of Claims. Any Person entitled to indemnification
hereunder will (i) give prompt written notice to the indemnifying party of any
claim with respect to which it seeks indemnification and (ii) unless in such
indemnified party's reasonable judgment a conflict of interest between such
indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party will not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a
10
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim.
D. Survival; Contribution. The indemnification provided for under this
Agreement will remain in full force and effect regardless of any investigation
made by or on behalf of the indemnified party or any officer, director or
controlling Person of such indemnified party and will survive the transfer of
securities. The Company also agrees to make such provisions as are reasonably
requested by any indemnified party for contribution to such party in the event
the Company's indemnification is unavailable for any reason.
7. Participation in Underwritten Registrations. No Person may participate
in any registration hereunder which is underwritten unless such Person (i)
agrees to sell such Person's securities on the basis provided in any
underwriting arrangements approved by the Person or Persons entitled hereunder
to approve such arrangements; (ii) completes and executes all questionnaires,
powers of attorney, indemnities, standstill or holdback agreements, underwriting
agreements and other documents required under the terms of such underwriting
arrangements, provided, that no Holder of Registrable Stock included in any
underwritten registration shall be required to make any representations or
warranties to the Company or the underwriters other than representations and
warranties regarding such Holder and such Holder's intended method of
distribution. In any case, each Holder, if requested by the managing underwriter
or underwriters, agrees not to sell Registrable Stock or other securities held
by such Holder in any transaction other than pursuant to such underwriting for
such period (not to exceed 180 days) as determined at the discretion of the
Board of Directors of the Company, provided, that no holder of Registrable Stock
shall be required to enter into such an agreement unless each other Holder of
Registrable Stock, each director and executive officer of the Company and each
other holder of at least five percent of the Common Stock then outstanding
enters into a substantially identical agreement relating to such underwriting.
8. Miscellaneous.
A. No Inconsistent Agreements. The Company will not hereafter enter
into any agreement with respect to its securities which is inconsistent with or
violates the rights granted to the Holders of Registrable Stock in this
Agreement.
B. Adjustments Affecting Registrable Stock. The Company will not take
any action, or permit any change to occur, with respect to its securities for
the purpose of materially and adversely affecting the ability of the Holders of
Registrable Stock to include such Registrable Stock in a registration undertaken
pursuant to this Agreement or materially and adversely affecting the
marketability of such Registrable Stock in any such registration (including,
without limitation, effecting a stock split or a combination of shares),
provided, that this subparagraph 8B shall not apply to actions or changes with
respect to the Company's business, balance sheet, earnings or revenues where the
effect of such actions or changes on the Registrable Stock is merely incidental.
C. Notices. All notices, requests, consents, and other communications
under this Agreement shall be in writing and shall be delivered personally or by
facsimile transmission or by overnight delivery service or mailed by first class
certified or registered U.S.
11
mail, return receipt requested, postage prepaid (capitalized entity names other
than "Company" are defined in Exhibit A hereto):
If to the Company, at Vignette Corporation, 0000 Xxx Xxxx Xxxxxxxxx,
Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xxxxxxx X. Xxxxxx, President and
Chief Executive Officer (fax (000) 000-0000), or at such other address or
addresses as may have been furnished in writing by the Company to the Holders,
with a copy to Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP,
0000 Xxxxxxx xx Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, Attention: Xxxxx
X. Xxxxx (fax (000) 000-0000).
If to Adobe, at 0 Xxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (fax
(000) 000-0000); or at such other address or addresses as may have been
furnished to the Company in writing by Adobe.
If to Amerindo, at Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxx Xxxxxxxx (fax (000) 000-0000); or at such
other address as may have been furnished in writing to the Company by Amerindo,
with a copy to Xxxxxxxxx, Xxxxx, Fields & Younger, P.C., 000 Xxxxx Xxxxxxxx,
Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx Xxxxx (fax (213) 896-
0400).
If to Attractor, at 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxxx Xxxxxxx (fax (000) 000-0000); or at such
other address or addresses as may have been furnished to the Company in writing
by Attractor, with a copy to Xxxxxxxxx, Xxxxx, Fields & Younger, P.C., 000 Xxxxx
Xxxxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxxx 00000, Attention: Xxxx Xxxxx (fax
(000) 000-0000).
If to Austin Ventures, at 1300 Xxxxxxx Tower, 000 Xxxx 0xx Xxxxxx,
Xxxxxx, Xxxxx 00000, Attention: Xxxx Xxxxxxxx (fax (000) 000-0000); or at such
other address or addresses as may have been furnished to the Company in writing
by Austin Ventures, with a copy to Xxxxxx & Xxxx, L.L.P., 000 Xxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xxxxxxx X. Xxxx (fax (000) 000-0000).
If to Xxxxxxx River, at 0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxx Colony
Corporate Center, Waltham, Massachusetts 02154, Attention: Xxx Xxxxxxxxxxx (fax
(000) 000-0000); or at such other address or addresses as may have been
furnished to the Company in writing by Xxxxxxx River.
If to CNET, at 000 Xxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxx (fax (000) 000-0000); or at such other address or
addresses as may have been furnished to the Company in writing by CNET, with a
copy to Xxxxxx & Xxxx, L.L.P., 0000 Xxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx
00000, Attention: Xxx X. Xxxxx (fax (000) 000-0000).
If to GSCP, at 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention:
Xxx X. Xxxxxxxx (fax (000) 000-0000); or at such other address or addresses as
may have been furnished to the Company in writing by GSCP, with a copy to
Venture Law Group, 0000 Xxxx Xxxx Xxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, Attention:
Xxxxxx Xxxx (fax (000) 000-0000).
12
If to H&Q, at 0 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx
00000, Attention: Xxxxxxx Xxxxxx (fax (000) 000-0000); or at such other address
or addresses as may have been furnished to the Company in writing by H&Q.
If to Sigma, c/o Sigma Partners at 20 Xxxxxx Xxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxxxx X. Xxxxxx (fax (000) 000-0000);
or at such other address or addresses as may have been furnished to the Company
in writing by Sigma, with a copy to Xxxxxx & Xxxx, L.L.P., 000 Xxxxxxxx Xxxxxx,
Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xxxxxxx X. Xxxx (fax (000) 000-0000).
If to the Series H Purchasers, to the respective addresses shown on
the signature page attached hereto, or at such other address as may have been
furnished to the Company in writing, with a copy to Xxxxxx Xxxxxxx Xxxxxxxx &
Xxxxxx, Professional Corporation, 9020-I Capital of Xxxxx Xxxxxxx Xxxxx,
Xxxxxxxx X, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xxxx Xxxxxx (fax (512)
000-0000).
If to a Founder or other Holder not listed above, at the address
specified for such person in the Purchase Agreement; or at such other address or
addresses as may have been furnished to the Company in writing by such person.
Notices provided in accordance with this paragraph 8C shall be deemed
delivered upon personal delivery or two business days after deposit in the mail.
D. Remedies. Any Person having rights under any provision of
this Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
E. Amendments and Waivers. Except as otherwise provided
herein, no amendment, modification, termination or cancellation of this
Agreement shall be effective as to (i) the Company, unless made in writing
signed by the Company, (ii) the Holders of Registrable Series A and Series B
Stock, unless made in writing signed by the Holders of a majority of the then
outstanding shares of Registrable Series A and Series B Stock, (iii) the Holders
of Registrable Series C Stock, unless made in writing signed by the Holders of a
majority of the then outstanding shares of Registrable Series C Stock, (iv) the
Holders of Registrable Series E Stock, unless made in writing signed by the
Holders of 66-2/3% of the then outstanding shares of Registrable Series E Stock;
provided, however, that no amendment, modification, termination or cancellation
of this Agreement that materially and adversely affects the Holders of the
Registrable Series E Stock shall be effective unless made in writing signed by
the Holders of 95% of the then outstanding shares of Registrable Series E Stock,
(v) the Holders of Registrable Series F Stock, unless made in writing signed by
the Holders 66-2/3% of the then outstanding shares of Registrable Series F
Stock; provided, however, that no amendment, modification, termination or
cancellation of this Agreement that materially and adversely affects
13
the Holders of the Registrable Series F Stock shall be effective unless made in
writing signed by the Holders of 95% of the then outstanding shares of
Registrable Series F Stock; (vi) the Holders of Registrable Series H Stock,
unless made in writing signed by the Holders of 66-2/3% of the then outstanding
shares of Registrable Series H Stock; provided, however, that no amendment,
modification, termination or cancellation of this Agreement that materially and
adversely affects the Holders of the Series H Stock shall be effective unless
made in writing signed by the Holders of 80% of the then outstanding shares of
Registrable Series H Stock; or (vii) the Holders of Registrable Founders Stock,
unless made in writing signed by the Holders of a majority of the then
outstanding shares of Registrable Founders Stock.
F. Successors and Assigns. This Agreement, and the rights and
obligations of each Holder hereunder, may be assigned by such Holder to any
person or entity to which Registrable Stock is transferred by such Holder, and
such transferee shall be deemed a "Holder" for purposes of this Agreement;
provided that the transferee provides written notice of such assignment to the
Company.
G. Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
H. Entire Agreement. This Agreement embodies the entire
agreement and understanding between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings
relating to such subject matter including, without limitation, the Prior
Registration Agreement; provided, however, that the parties hereto acknowledge
and agree that Phoenix Leasing Incorporated ("Phoenix") holds rights as a Holder
in accordance with that certain First Amendment to the Registration Rights
Agreement, dated as of July 19, 1996, by and among Phoenix, Austin Ventures,
Sigma, CNET and the Company.
I. Headings. The headings of this Agreement are for
convenience only and do not constitute a part of this Agreement.
J. Governing Law. The construction, validity and
interpretation of this Agreement will be governed by the internal laws of the
State of Texas without giving effect to any choice of law or conflict of law
provision or rule (whether of the State of Texas or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State
of Texas.
K. Further Assurances. Each party to this Agreement hereby
covenants and agrees, without the necessity of any further consideration, to
execute and deliver any and all such further documents and take any and all such
other actions as may be necessary to appropriately carry out the intent and
purposes of this Agreement and to consummate the transactions contemplated
hereby.
L. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall be one and the same document.
14
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the date first written above.
VIGNETTE CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxx,
President and Chief Executive Officer
SIGNATURE PAGE TO VIGNETTE CORPORATION
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
HOLDER
-------------------------------------------------
(Name of Holder)
-------------------------------------------------
(Signature of Holder or Authorized Signatory)
-------------------------------------------------
(Print or Type Name and Title if Holder is not an
Individual)
Address:
-------------------------------------
-------------------------------------
-------------------------------------
Telephone:
-------------------------------------
Facsimile:
-------------------------------------
with a copy to:
Name:
-------------------------------------
Address:
-------------------------------------
-------------------------------------
-------------------------------------
Telephone:
-------------------------------------
Facsimile:
-------------------------------------
PLEASE PROVIDE ALL OF THE ABOVE-REQUESTED INFORMATION
SIGNATURE PAGE TO VIGNETTE CORPORATION
FIFTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
EXHIBIT A
HOLDERS
Adobe
Adobe Ventures II, L.P. ("Adobe Ventures")
Adobe Incentive Partners, L.P. ("Adobe Incentive")
H&Q Adobe Ventures Management II, L.L.C. ("H&Q Adobe" and together with
Adobe Ventures and Adobe Incentive, "Adobe")
Amerindo
ATGF II ("ATGF")
Pivotal Partners, L.P. ("Pivotal")
Xxxxx Xxxxxxxxxx ("Xxxxxxxxxx")
Xxxxxx XxXxxxxx ("XxXxxxxx")
Xxxxxx Master Trust ("LMT")
Xxxxx X. Xxxxxxxxxx 1995 Trust ("RHC Trust")
Xxxxx Xx ("Yu" and together with ATGF, Pivotal, Stableford, McDonald,
LMT and RHC Trust, "Amerindo")
Xxxxxx Xxxxxxxx
Attractor
Attractor LP ("ALP")
Attractor Dearborn Partners LP ("ADP")
Attractor Institution LP ("AILP" and together with ALP and ADP,
"Attractor")
Austin Ventures
Austin Ventures IV-A, L.P. ("Austin A")
Austin Ventures IV-B, L.P. ("Austin B")
Austin Ventures V Affiliates Fund, LP ("Austin V Affiliates")
Austin Ventures V, L.P. ("Austin V" and together with Austin A, Austin B
and Austin V Affiliates, "Austin Ventures")
Xxxxxx Xxxxxx
Xxxxxxx River
Xxxxxxx River Partnership VIII ("CRP VIII")
Xxxxxxx River VIII-A LLC ("CR VIII-A and together with CRP VIII, "Xxxxxxx
River")
CNET
CNET, Inc. ("CNET")
Xxxxxxx Xxxx
Xxxxx Xxxxxxxx
East Peak Partners
Xxxxxxx Xxxxxxxx
A-1
Xxxx Xxxxxxxxxx
Xxxx X. Xxxxxx
GSCP
GS Capital Partners II, L.P. ("GSCPLP")
GS Capital Partners II Offshore, L.P. ("GSCPO")
Xxxxxxx, Sachs & Co. Verwaltungs GmbH ("GSCV" and together with GSCPLP and
GSCPO, "GSCP")
H&Q
Xxxxxxxxx & Xxxxx California ("H&QC")
H&Q Vignette Investors ("H&QVI" and together with H&QC, "H&Q")
Xxxx Xxxxxxxxx
Xxxxxxx Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxx Xxxxxxxx
Xxx Xxxxxxxx
Xxxxxx Xxxxxx
Xxxx Xxxxx
Xxxxxx Xxxxxxx Xxxx Xxxxxx Equity Funding, Inc.
Olympus Growth Fund II, L.P.
Olympus Executive Fund, L.P.
Xxxxx Xxxxxxxxx
Partech
Axa U.S. Growth Fund LLC
U.S. Growth Fund Partners C.V.
Double Black Diamond II LLC
45th Parallel LLC
Almanori Limited
Multinvest LLC
Parallel Capital I LLC
Vendome Capital LLC
Xxxx Xxx Xxxxxx
Xxxxxxx X. Xxxxxx
A-2
Xxxxxxx Xxxxx
Phoenix Leasing Incorporated
Xxxxxx Xxxxxxxx
Xxxxxxxx Xxxxxxxxx
Xxxxxx Xxxx
Sigma
Sigma Partners III, L.P. ("Sigma Partners")
Sigma Associates III, L.P. ("Sigma Associates")
Sigma Investors III, L.P. ("Sigma Investors")
Xxxx Xxxxxxx ("Xxxxxxx," and together with Sigma Partners, Sigma Associates
and Sigma Investors, "Sigma")
Xxxxxx Still
Xxxxxxxx X. Xxxxxx
Xxxxxxxxxxx X. Xxxxxxx
Xxxx Xxxxxxx
Xxxx Xxxxxx
Xxxxxx Xxxxx
A-3
EXHIBIT B
TRANSFEREES OF REGISTRABLE FOUNDERS STOCK
Xxxxxx Xxxxxxxx
Xxxx Xxxxxxxx
Xxxx Xxxxx
Xxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxx
Xxxx and Xxxxx Xxxxxx
Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx, Xx.
Xxxxxx and Xxxxxx Xxxxxx
B-1
