EXHIBIT 4.4
FOURTH AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
THIS FOURTH AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this
"Agreement") is entered into as of April 22, 1998, among Vignette Corporation, a
Delaware corporation (the "Company"), Adobe Ventures II, L.P., a California
limited partnership ("Adobe"), ATGF II, a Panamanian corporation ("ATGF"),
Xxxxxx Master Trust ("LMT"), Xxxxx X. Xxxxxxxxxx 1995 Trust ("RHC Trust"), Xxxxx
Xx ("Yu" and together with ATGF, LMT and RHC Trust, "Amerindo"), Attractor LP, a
Delaware limited partnership ("ALP"), Attractor Dearborn Partners LP, a Delaware
limited partnership ("ADP"), Attractor Institution LP ("AILP" and together with
ALP and ADP, "Attractor"), Austin Ventures IV-A, L.P., a Delaware limited
partnership ("Austin A"), Austin Ventures IV-B, L.P., a Delaware limited
partnership ("Austin B" and, collectively with Austin A, "Austin Ventures"),
Xxxxxxx River Partnership VIII, a Limited Partnership, a Delaware limited
partnership ("CRP VIII"), Xxxxxxx River VIII-A LLC, a Delaware limited liability
company ("CR VIII-A" and together with CRP VIII, "Xxxxxxx River"), CNET, Inc., a
Delaware corporation ("CNET"), Xxxx Xxxxxxxxxx ("Xxxxxxxxxx"), GS Capital
Partners II, L.P., a Delaware limited partnership ("GSCPLP"), GS Capital
Partners II Offshore, L.P., a Cayman Islands limited partnership ("GSCPO"),
Xxxxxxx, Sachs & Co. Verwaltungs GmbH, a German private stock company ("GSCV"),
The Xxxxxxx Xxxxx Group, L.P., a Delaware limited partnership ("GSG" and
together with GSCPLP, GSCPO and GSCV, "GSCP"), Xxxx X. Xxxxxx ("Xxxxxx"),
Xxxxxxxxx & Xxxxx California ("H&QC"), H&Q Vignette Investors, L.P. ("H&QVI" and
together with H&QC, "H&Q"), Xxxx Xxxxxx ("Xxxxxx"), Xxxx Xxxxxxxx ("Xxxxxxxx")
Xxxx Xxxxx ("Xxxxx"), Xxxxxx Xxxxxxxx ("Xxxxxxxx"), Xxxxxx Xxxxxxxx
("Xxxxxxxx"), Xxxxxx Xxxx ("Xxxx"), Sigma Associates III, L.P., a Delaware
limited partnership ("Sigma Associates"), Sigma Partners III, L.P., a Delaware
limited partnership ("Sigma Partners"), Sigma Investors III, L.P., a Delaware
limited partnership ("Sigma Investors"), Xxxx Xxxxxxx ("Xxxxxxx" and,
collectively with Sigma Partners, Sigma Associates and Sigma Investors,
"Sigma"), Xxxx Xxxxxxx ("Xxxxxxx") and Xxxx Xxxxxx ("Xxxxxx"). Xxxxxx and
Xxxxxx are referred to herein as the "Founders", and together with Adobe,
Amerindo, Attractor, Austin Ventures, Xxxxxxx River, CNET, Xxxxxxxxxx, GSCP,
H&Q, Husick, Josowitz, Lynch, Petersen, Xxxxxxxx, Xxxx, Sigma, Xxxxxxx
individually a "Holder" and collectively the "Holders".
RECITALS:
WHEREAS, the Company, Adobe, Attractor, Austin Ventures, Xxxxxxx
River, CNET, Sigma, Erramouspe, Husick, Josowitz, Lynch, Petersen, Prasifka,
Xxxx and the Founders have entered into a Third Amended and Restated
Registration Rights Agreement, dated July 17, 1997 (the "Prior Registration
Agreement"), providing for the registration of the offering of certain shares of
the Company's capital stock held by Attractor, Austin Ventures, CNET, Sigma and
the Founders;
WHEREAS, the Company, Adobe, Amerindo, Attractor, Austin Ventures,
Xxxxxxx River, GSCP, H&Q, Sigma and Xxxxxxx have entered into a Stock Purchase
Agreement, dated the date hereof (the "Purchase Agreement"), providing, among
other things, for the purchase by Adobe, Amerindo, Attractor, Austin Ventures,
Xxxxxxx River, GSCP, Sigma and Xxxxxxx of
shares of the Company's Series F Convertible Preferred Stock, par value $0.01
per share (the "Series F Preferred Stock");
WHEREAS, the Company, Adobe, Attractor, Austin Ventures, Xxxxxxx
River, CNET, Erramouspe, Husick, Josowitz, Lynch, Petersen, Prasifka, Xxxx,
Sigma and the Founders 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 each Holder is a condition to the closing of the issuance, sale and purchase
of the Series F 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.
"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 Stock" means all Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series E 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.
"Series F Preferred Stock" means the Company's Series F Convertible
Preferred Stock, par value $0.01 per share.
2. Demand Registrations.
--------------------
2A. 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(v), 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(v), 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 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(v), 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) 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 and Registrable Series F Stock will be
entitled to request up to two Demand Registrations at any time and
from time to time.
(v) 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.
(vi) The Company will not include in any Demand Registration the
offering of any securities other than shares of Registrable Stock and
securities to be 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 or Registrable Series F 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 or Registrable Series F
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 or Registrable Series F 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 or Registrable Series F 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.
2B. 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 or Registrable Series 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.
2C. 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 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-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.
2D. 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.
-----------------------
3A. 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.
3B. 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 and Registrable Series F 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 and Registrable Series F
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 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.
3C. 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 and Registrable Series F 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 and
Registrable Series F 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;
(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;
(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.
---------------------
5A. 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.
5B. 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, 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.
6. Indemnification.
---------------
6A. 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.
6B. 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.
6C. 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
conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim.
6D. 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; and (iii) if requested by the managing underwriter or
underwriters, agrees not to sell Registrable Stock or other securities held by
such Person 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.
-------------
8A. 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.
8B. 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.
8C. 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. mail, return receipt requested, postage prepaid:
If to the Company, at Vignette Corporation, 0000 Xxx Xxxx Xxxx, Xxxxx
000, Xxxxxx, Xxxxx 00000, Attention: Xxxx X. Xxxxxx, President (fax (512) 502-
0280), or at such other address or addresses as may have been furnished in
writing by the Company to the Holders, with a copy to Xxxxxxx, Phleger &
Xxxxxxxx LLP, 000 Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, Attention:
Xxxxxxx X. Xxxxxxx (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)
000-0000).
If to Attractor, at 0000 Xxxx Xxxx Xxxx, Xxxxx 000, Xxxxx Xxxx,
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 X. 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 (512) 482-
6859).
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).
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 a Founder or Lynch, Prasifka, Erramouspe, Petersen, Ryan,
Husick, Xxxxxxxx or Xxxxxxx, 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.
8D. 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.
8E. 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 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,
or (vi) 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.
8F. 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.
8G. 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.
8H. 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.
8I. Headings. The headings of this Agreement are for convenience
--------
only and do not constitute a part of this Agreement.
8J. 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.
8K. 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.
8L. 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.
IN WITNESS WHEREOF, this Agreement has been executed by the
parties hereto as of the date first written above.
VIGNETTE CORPORATION
By:/s/ Xxxx X. Xxxxxx
------------------
Xxxx X. Xxxxxx,
President
ADOBE VENTURES II, L.P.
By: H & Q Adobe Ventures Management II, LLC,
Its General Partner
By: /s/ Xxxxxx Xxxxxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
-------------------------------
Title: Attorney-in-Fact
------------------------------
ATGF II
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Xxxxxxx X. Xxxxx,
Director
XXXXXX MASTER TRUST
By: Amerindo Investment Advisors Inc.
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Xxxxxxx X. Xxxxx,
Attorney-in-Fact
XXXXX X. XXXXXXXXXX 1995 TRUST
By: /s/ Xxxxx X. Xxxxxxxxxx
----------------------------------
Xxxxx X. Xxxxxxxxxx,
Trustee
/s/ Xxxxx Xx
-------------------------------------
Xxxxx Xx
ATTRACTOR LP
ATTRACTOR DEARBORN PARTNERS LP
ATTRACTOR INSTITUTION LP
By: MM Attractor Ventures LLC,
Its General Partner
By: /s/ Xxxxxx Xxxxxxx
--------------------------
Xxxxxx Xxxxxxx,
Manager
AUSTIN VENTURES IV-A, X.X.
XXXXXX VENTURES IV-B, L.P.
By: AV Partners IV, L.P.,
Its General Partner
By: /s/ Xxxx X. Xxxxxxxx
-------------------------
Xxxx X. Xxxxxxxx,
General Partner
XXXXXXX RIVER PARTNERSHIP VIII, A LIMITED PARTNERSHIP
By: Xxxxxxx River VIII GP Limited Partnership,
Its General Partner
By: /s/ Xxx X. Xxxxxxxxxxx
-----------------------------------
Xxx X. Xxxxxxxxxxx,
General Partner
XXXXXXX RIVER VIII-A LLC
By: Xxxxxxx River Friends VII, Inc., Manager
By: /s/ Xxx X. Xxxxxxxxxxx
-----------------------------------
Xxx X. Xxxxxxxxxxx,
Vice President
CNET, INC.
By: /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------
Title: COO
---------------------------------
GS CAPITAL PARTNERS II, L.P.
By: GS Advisors, L.P.
Its General Partner
By: GS Advisors, Inc.
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx,
President
GS CAPITAL PARTNERS II OFFSHORE, L.P.
By: GS Advisors II (Cayman), L.P.
Its General Partner
By: GS Advisors II, Inc.
Its General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx,
President
XXXXXXX, SACHS & CO. VERWALTUNGS GmbH
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx
Managing Director
and
[SIGNATURE ILLEGIBLE]
---------------------------------------
Name:
Registered Agent
THE XXXXXXX XXXXX GROUP, L.P.
By: The Xxxxxxx Sachs Corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------
Xxxxxxx X. Xxxxxxxx,
Executive Vice President
XXXXXXXXX & XXXXX CALIFORNIA
By: /s/ Xxxxxx Berterreche
------------------------------------
Name: Xxxxxx Berterreche
----------------------------------
Title: Attorney-in-Fact
---------------------------------
H&Q VIGNETTE INVESTORS, L.P.
By: /s/ Xxxxxx Berterreche
------------------------------------
Name: Xxxxxx Berterreche
----------------------------------
Title: Attorney-in-Fact
---------------------------------
SIGMA ASSOCIATES III, L.P.
SIGMA INVESTORS III, L.P.
SIGMA PARTNERS III, L.P.
By: Sigma Management III, L.P.,
Its General Partner
By: /s/ Xxxxxxxx Xxxx
-------------------------------------
Name: Xxxxxxxx X. Xxxx
-----------------------------------
Title: General Partner
----------------------------------
/s/ Xxxx X. Xxxxxxx
----------------------------------------
Xxxx Xxxxxxx,
Individually
/s/ Xxxx X. Xxxxxx
----------------------------
Xxxx X. Xxxxxx,
Founder
/s/ Xxxx Xxxxxx
----------------------------
Xxxx Xxxxxx,
Founder
/s/ Xxxx Xxxxx
----------------------------
Xxxx Xxxxx
/s/ Xxxxxx Xxxxxxxx
----------------------------
Xxxxxx Xxxxxxxx
/s/ Xxxx Xxxxxxxxxx
----------------------------
Xxxx Xxxxxxxxxx
/s/ Xxxxxx Xxxxxxxx
----------------------------
Xxxxxx Xxxxxxxx
/s/ Xxxxxx Xxxx
----------------------------
Xxxxxx Xxxx
/s/ Xxxx Xxxxxx
----------------------------
Xxxx Xxxxxx
/s/ Xxxx Xxxxxxxx
----------------------------
Xxxx Xxxxxxxx
/s/ Xxxx Xxxxxxx
----------------------------
Xxxx Xxxxxxx
