EXHIBIT 10.18
STOCKHOLDERS AGREEMENT
This Stockholders Agreement (this "AGREEMENT") dated as of August 18,
1998, is by and among (i) Art Technology Group, Inc., a Delaware corporation
(the "COMPANY"), (ii) Tudor Private Equity Fund, L.P., Raptor Global Fund, L.P.,
Raptor Global Fund, Ltd. and Affiliates of the foregoing who become parties to
this Agreement by executing a Supplemental Agreement (collectively, "TUDOR
PARTIES"), (iii) persons who are Xxxx Affiliates and who become parties to this
Agreement by executing a Supplemental Agreement (collectively, "XXXX PARTIES")
and persons (other than Tudor Parties and Xxxx Parties) who become parties to
this Agreement by executing a Supplemental Agreement, (iv) the persons listed on
SCHEDULE 1 hereto (collectively, the "SERIES C STOCKHOLDERS"), (v) SOFTBANK
Ventures, Inc., a Japanese corporation (the "SERIES B STOCKHOLDER"), (vi)
Mandanjeet Singh and B.U. Xxxxx (collectively, the "SERIES A STOCKHOLDERS"),
(vii) Xxxxxxxxxxxx Xxxxx and Xxxxxx Xxxxx (individually, a "FOUNDER" and
collectively, the "FOUNDERS") and (viii) each other person who becomes a party
to this Agreement by executing an Instrument of Accession in the form of
SCHEDULE 2 hereto. Capitalized terms used and not otherwise defined upon first
usage herein have the respective meanings ascribed to them in the Purchase
Agreement (as defined below).
The Persons listed in clauses (ii)-(iii) of the preceding paragraph
(including their respective successors and permitted assigns) are sometimes
referred to in this Agreement as (individually) a "PURCHASER" or (collectively)
the "PURCHASERS." The Persons referred to in clauses (iv) through (vii) of the
preceding paragraph (including their respective successors and permitted
assigns) are sometimes referred to in this Agreement as (individually) an
"EXISTING STOCKHOLDER" or (collectively) the "EXISTING STOCKHOLDERS." The
Purchasers and the Existing Stockholders are sometimes referred to in this
Agreement as (individually) a "STOCKHOLDER" or (collectively) the
"STOCKHOLDERS." Any person who becomes a party to this Agreement by executing an
Instrument of Accession in the form of SCHEDULE 2 hereto shall be deemed to be a
Stockholder for all purposes hereunder, having the same rights and obligations
of the Stockholder whom such party succeeds.
WHEREAS, the Company and the Purchasers desire to enter into a Series D
Senior Participating Convertible Redeemable Preferred Stock Purchase Agreement
(the "PURCHASE AGREEMENT"), dated as of the date hereof, pursuant to which the
Company will issue and sell certain securities to the Purchasers on the terms
and conditions set forth therein;
WHEREAS, but for the execution and delivery of this Agreement by the
Company and the Existing Stockholders, the Purchasers would not be willing to
enter into the Purchase Agreement or to consummate the transactions thereby
contemplated, which transactions will benefit the Company and the Existing
Stockholders of the Company;
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WHEREAS, to induce the Purchasers to enter into the Purchase Agreement
and to consummate the transactions contemplated thereby, the Company and the
Existing Stockholders are willing to enter into this Agreement
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt of which is hereby acknowledged, the
parties hereto hereby agree as follows:
This Agreement replaces and supercedes in its entirety (i) Articles III
and IV and all other provisions related thereto contained in that certain
Stockholders Agreement, dated as of December 23, 1996, as amended, by and among
the Company, the Founders, the Series A Stockholders, the Series B Stockholder
and any other persons listed therein and parties thereto, and (ii) Section 7.2
of the Series B Preferred Stock Purchase Agreement, dated as of December 23,
1996, by and among the Company and the Series B Stockholder, and each of the
Stockholders Agreement and such Section 7.2 of the Series B Preferred Stock
Purchase Agreement hereby are terminated and shall have no further force and
effect.
1. VOTING AGREEMENT.
(a) AGREEMENT WITH RESPECT TO VOTING.
(i) For so long as this Agreement remains in effect and any shares of
Series D Preferred Stock of the Company remain outstanding, each Stockholder
shall vote any and all shares of the Company's capital stock held by him or it
from time to time, and shall use his or its best efforts to cause the several
members of the Company's board of directors (the "BOARD OF DIRECTORS") to vote,
so as to elect members of the Board of Directors, to maintain the membership of
the Board of Directors, and to cause the Company to act or abstain from acting,
in accordance with all of the provisions of this Agreement.
(ii) Each Existing Stockholder hereby grants to the Purchasers (acting
pursuant to the vote or consent of the Purchasers holding at least a majority of
the shares of Common Stock issued or issuable upon conversion of all shares of
Series D Preferred Stock sold and purchased pursuant to the Purchase Agreement)
an irrevocable proxy and power of attorney, coupled with an interest, to vote
all shares of the Company's capital stock held by such Existing Stockholder from
time to time solely to the extent necessary to carry out the provisions of this
Section 1 in the event of any breach by such Existing Stockholder of his or her
obligations under this Section 1.
(b) BOARD OF DIRECTORS. The Board of Directors shall be composed of not
more than seven (7) directors, elected as follows:
(i) Up to two (2) of the directors shall be elected by the holders of a
majority of the outstanding shares of Series D Preferred Stock, voting
separately as a class; one (1) of such directors shall be designated by the
Tudor Parties in their sole discretion, initially such director shall be Xxxxxx
X. Xxxxxxxx, and one (1) of such directors shall be designated by the
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Xxxx Parties in their sole discretion, PROVIDED THAT the Xxxx Parties purchase
in the aggregate at least 468,750 shares of Series D Preferred Stock; in the
event that the Xxxx Parties have not purchased at least 468,750 shares of Series
D Preferred Stock in the aggregate and, after the date hereof, either (a) the
Tudor Parties or persons identified to the Company by a Tudor Entity or (b) GMN
Investors II, L.P. (and/or its affiliates) purchase in the aggregate an
additional 312,500 shares of Series D Preferred Stock, then the Tudor Parties or
GMN Investors II, L.P., as the case may be, shall be entitled to designate the
second director in their sole discretion.
(ii) Two (2) of the directors (each of whom must be members of
management of the Company) shall be elected by the holders of a majority of the
outstanding shares of Common Stock, voting separately as a class.
(iii) One (1) of the directors shall be elected by the holders of a
majority of the outstanding shares of Series C Preferred Stock, voting
separately as a class; initially such director shall be Xxxxxx X.
Xxxxxxx.
(iv) One (1) of the directors shall be elected by the holders of a
majority of the outstanding shares of Series B Preferred Stock, voting
separately as a class, but only until the first date on which there are less
than 50,000 shares of Series B Preferred Stock outstanding or the outstanding
shares of Series B Preferred Stock represent less than five percent (5%) of the
outstanding shares of Common Stock (on a fully diluted basis assuming conversion
of all shares of Preferred Stock and exercise of all options, warrants and other
rights to acquire capital stock of the Company), in which event such director
shall be elected by a majority of the outstanding shares of Common Stock, Series
B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock
(assuming conversion of the Series B Preferred Stock, Series C Preferred Stock
and Series D Preferred Stock), voting separately as a class, and which director
shall not be a member of management of the Company.
(v) One (1) of the directors (who shall not be a member of management
of the Company) shall be elected by a majority of the outstanding shares of
Common Stock, Series B Preferred Stock, Series C Preferred Stock and Series D
Preferred Stock (assuming conversion of the Series B Preferred Stock, Series C
Preferred Stock and the Series D Preferred Stock), initially, such director
shall be Xxxxx X. Xxxxx.
(vi) Any director elected pursuant to this Section 1(b) may be removed
before the expiration of his term of office, with or without cause, and any
vacancy caused by the death, incapacity, resignation, removal, or other
termination of service of any director, may be filled, by (and only by) the
affirmative vote of the holders of at least a majority of the shares of the
class or series of capital stock by which such director was elected, voting as a
class or series separately from all other classes and series of capital stock.
(vii) Both of the directors elected by the holders of a majority of the
outstanding shares of the Series D Preferred Stock pursuant to Section 1(b)(i)
above shall have the right,
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at all times, to be a member of any audit, compensation, nominating, executive
or other committee formed by the Board of Directors of the Company.
(viii) In the absence of a designation or election of either or both of
the two (2) directors pursuant to Section 1(b)(i) above, one representative of
each of Tudor Parties and the Xxxx Parties shall have visitation rights with
respect to all meetings of the Board of Directors.
2. RESTRICTIONS ON TRANSFER OF SECURITIES.
(a) CERTAIN DEFINITIONS. As used in this Agreement:
(i) "PERMITTED TRANSFEREE(S)" means, with respect to (a) Stockholders
who are natural persons ("INDIVIDUAL STOCKHOLDERS"), such Individual
Stockholder's spouse, parents, siblings, children, and grandchildren, and any
trust for the benefit of such Individual Stockholders or such Individual
Stockholder's spouse, parents, children or grandchildren, and (b) Tudor Parties,
any person in Tudor Parties' sole discretion, including, without limitation, its
Affiliates or Affiliated Groups (each, as defined in the Purchase Agreement) or
any mutual funds or other pooled investment vehicles or entities for which Tudor
Parties or its Affiliates or Affiliated Groups serve as a general partner,
managing member, investment advisor or in another similar capacity.
(ii) "TRANSFER" means any sale, pledge, assignment, encumbrance, gift,
or other disposition or transfer of shares of Common Stock or other equity
securities of the Company (as used in this Agreement, the terms "EQUITY
SECURITY" and "EQUITY SECURITIES" include without limitation options, warrants,
and other rights to acquire shares of the Company's capital stock, and
securities and other instruments that are convertible into or exchangeable for
shares of the Company's capital stock, and/or any legal or beneficial interest
in any of the foregoing), or any legal or beneficial interest therein, including
any tender or transfer in connection with any merger, recapitalization,
reclassification, or tender or exchange offer (for all or any part of the
Company's equity securities), whether or not the person proposing to make any
such transfer votes for any transaction involving any such Transfer.
(b) GENERAL. No Existing Stockholder shall make, cause or participate
in any Transfer, or enter into, consent to, or vote in favor of any transaction
that would result in any Transfer by him or her, unless all the provisions of
this Agreement that are applicable to such Transfer have been complied with,
EXCEPT that (i) any Existing Stockholder may Transfer equity securities of the
Company to any Permitted Transferee, if prior to such Transfer to such Permitted
Transferee such Permitted Transferee agrees in writing by delivering an
Instrument of Accession in the form of SCHEDULE 2 hereto to the Company (naming
the Purchasers as intended third-party beneficiaries) to be bound by all of the
terms of this Agreement that are applicable to such appropriate transferring
Existing Stockholder(s) and (ii) an individual Existing Stockholder may Transfer
equity securities of the Company to the Company in accordance with the terms of
any repurchase provisions
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contained in any employment or other agreement between the Company and such
individual Existing Stockholder (any such Transfer, a "PERMITTED TRANSFER").
(c) PROHIBITED TRANSFERS VOID. Any attempted Transfer in violation of
the terms of this Agreement shall be ineffective to vest in any purported
transferee any right, title, or interest in or to the securities purported to be
Transferred, and the Company shall not recognize any such purported transferee
as the holder or owner of such securities for any purpose, including without
limitation for purposes of exercising voting rights or rights to receive
dividends or other distributions in respect of such securities.
3. CO-SALE RIGHTS AS TO STOCK TRANSFERS (OTHER THAN FOUNDERS
TRANSFERS).
(a) TRANSFER NOTICE. At least 45 days prior to any proposed Transfer
(other than a Permitted Transfer) by an Existing Stockholder (other than a
Founder) of any class or series of capital stock of the Company equal to 15% or
more of the outstanding shares of Common Stock of the Company (on a
fully-diluted basis assuming the conversion or exchange of all outstanding
Derivative Securities), in one transaction or in the aggregate as a result of a
series of transactions, each such Existing Stockholder (the "TRANSFERRING
Stockholder") shall give written notice (the "TRANSFER NOTICE") to the Company
and to each of the Purchasers, in accordance with Section 9.2 hereof, setting
forth (i) the number and class of equity securities proposed to be transferred
or sold by the Transferring Stockholder (the "OFFERED SECURITIES"), (ii) the
anticipated date of the proposed Transfer and the names and addresses of the
proposed transferees, and (iii) the material terms of the proposed Transfer,
including the cash and/or other consideration to be received in respect of such
Transfer. If one or more Existing Stockholders (other than a Founder) propose to
engage in or engages in a series of Transfers involving 15% or more of the
outstanding shares of Common Stock of the Company (on a fully-diluted basis
assuming conversion or exchange of all outstanding Derivative Securities), then
each Existing Stockholder (other than a Founder) proposing to engage or engaging
in each transaction in such series will give the Transfer Notice provided for in
this Section 3(a) with respect to such transaction, and the co-sale rights
provided for in Section 3(b), the Put Rights provided for in Section 3(d) and
other rights provided for herein will apply to each such transaction. If a
transaction is one of a series of transactions to which this Section 3(a)
applies, but one or more transactions in a series have occurred prior to the
date of such proposed transaction, the effect of such prior transactions when
taken together with the proposed transaction, in the aggregate, involving 15% of
the Common Stock of the Company (on a fully-diluted basis assuming conversion or
exchange of all Derivative Securities), then each such earlier Transfer by each
such prior Transferring Stockholder will be deemed to be a Prohibited Transfer
for which the Purchasers shall be entitled to Put Rights as provided for in
Section 3(d). For purposes of complying with this Section 3, the Company will
maintain a record of all transactions to which this Agreement applies.
(b) CO-SALE RIGHTS. Upon the receipt of any Transfer Notice, then
subject to all of the provisions of this Section 3, each of the Purchasers may
elect to participate in the contemplated Transfer by delivering written notice
to the Transferring Stockholder within 30
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days after the effective date of such Transfer Notice. Each of the Purchasers so
electing will be entitled to sell in the contemplated Transfer, at the same
price and on the same terms as specified in the Transfer Notice, a number of
shares equal to (and not less than) the product obtained by multiplying (i) the
quotient determined by dividing (A) the number of shares of Common Stock held by
such Purchaser (for this purpose, including all shares of Common Stock that were
issued, or are issuable, upon conversion of shares of Preferred Stock and
exercise of Derivative Securities held by such Purchaser), by (B) the aggregate
number of shares of Common Stock held by the Transferring Stockholder (or Common
Stock issued or issuable upon the conversion of the shares of capital stock held
by such Transferring Stockholder) and all Purchasers electing to participate
(for this purpose, including all shares of Common Stock that were issued, or are
issuable, upon conversion of shares of Preferred Stock and exercise of
Derivative Securities held by such Purchasers), by (ii) the aggregate number of
shares to be sold in the contemplated Transfer. The Transferring Stockholder
will be entitled to sell in the contemplated Transfer the balance of the shares
proposed to be so sold. The Transferring Stockholder shall use his or her best
efforts to obtain the agreement of the prospective transferee(s) to the
participation of the Purchasers in any contemplated Transfer and shall not
Transfer any shares to such prospective transferee(s) unless such prospective
transferee(s) allows the participation of the Purchasers on the terms specified
herein. Subject to the foregoing, the Transferring Stockholder may, within 90
days after the expiration of the 30-day period referred to above, transfer the
Offered Securities (reduced by the number of shares of stock with respect to
which any of the Purchasers have elected to participate, if any) to the
transferee(s) identified in the Transfer Notice at a price and on terms no more
favorable to the Transferring Stockholder than specified in the Transfer Notice;
PROVIDED, that such transferee(s) shall first execute and deliver to the Company
a written agreement to be bound by all of the provisions of this Agreement
applicable to the Transferring Stockholder(s) and naming the Purchasers as
intended third-party beneficiaries of such agreement. However, if such Transfer
is not consummated within such 90-day period, the Transferring Stockholder shall
not transfer any of the Offered Securities as have not been purchased within
such period without again complying with all of the provisions of this Section
3.
(c) MULTIPLE SERIES, CLASSES OR TYPES OF STOCK. If the Offered
Securities consist of more than one series, class or type of equity security,
each of the Purchasers will have the right to transfer hereunder such
Purchaser's PRO RATA share of each such series, class or type of equity
security; provided, however, that (i) if such Purchaser does not hold any of
such series, class or type of equity security proposed to be transferred, and
the proposed transferee or transferees are not willing to purchase some other
series, class or type of equity security from such Purchaser as part of such
Purchaser's PRO RATA share, or (b) if the proposed transferee or transferees are
not willing to purchase any equity securities from such Purchaser (the
consummation of a Transfer under each such circumstance being referred to herein
as an "INCOMPLETE CO-SALE"), then such Purchaser shall have the Put Right set
forth in Section 3(d).
(d) REFUSAL TO TRANSFER AND PUT RIGHT. If a Transferring Stockholder
transfers Common Stock or other equity securities in contravention of the
co-sale rights set forth in
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Section 3(b) (a "PROHIBITED Transfer") or is deemed to have engaged in a
Prohibited Transfer pursuant to Section 3(a) hereof, or if any Incomplete
Co-Sale occurs with respect to a Purchaser, then any Purchaser (but only a
Purchaser) may require such Transferring Stockholder to purchase from such
Purchaser, for cash or such other consideration as the Transferring Stockholder
received in the Prohibited Transfer or Incomplete Co-Sale, that number of shares
of Common Stock or other equity securities having a purchase price equal to the
aggregate purchase price such Purchaser would have received in connection with
such Prohibited Transfer or Incomplete Co-Sale if such Purchaser had exercised
and been able to consummate such co-sale pursuant to Section 3(b) (the "PUT
RIGHT"). Such Put Right may be exercised at any time by delivery of a written
notice to the Transferring Stockholder and the Company (a "PUT NOTICE") within
ten days after such Purchaser becomes aware of the Prohibited Transfer or
Incomplete Co-Sale. The closing of such sale to the Transferring Stockholder
under such Put Right will occur within seven (7) days after the date of such Put
Notice. Notwithstanding the foregoing provisions of this Section 3(d), if the
Prohibited Transfer is one of a series of transactions to which Section 3(a)
applies, but which occurred prior to the provision of any Transfer Notice with
respect thereto, then: (a) the Company will promptly give to each Transferring
Stockholder in such earlier transaction or transactions a notice that such
Transferring Stockholder is required to give, within ten days, to the Company
and the Purchasers (and such Transferring Stockholder will be required to give
such notice within such ten-day period) a written notice signed by the
Transferring Stockholder (the "TRANSFERRING STOCKHOLDER PUT NOTICE") stating,
with respect to such earlier transaction, the information provided for in
Section 3(a); (b) each Purchaser may exercise its Put Right with respect to such
earlier transaction by delivering a Put Notice to the Transferring Stockholder
and the Company within ten (10) days after such Transferring Stockholder Put
Notice is given; and (c) the closing of the sale by the Transferring Stockholder
under such Put Right will occur within seven (7) days after the date of such Put
Notice.
4. FIRST REFUSAL AND CO-SALE RIGHTS AS TO FOUNDERS TRANSFERS
(a) TRANSFER NOTICE. At least 45 days prior to any proposed Transfer
(other than a Permitted Transfer) by a Founder of any shares of any class(es) or
series of capital stock of the Company in one transaction or as a result of a
series of transactions, such Founder (the "TRANSFERRING FOUNDER") shall give
notice (the "FOUNDERS TRANSFER NOTICE") to each other Founder, the Company, the
Series A Stockholders, the Series B Stockholders and each of the Purchasers, in
accordance with Section 9.2 hereof, setting forth (i) the number and class of
equity securities proposed to be transferred or sold by the Transferring Founder
(the "FOUNDERS OFFERED SECURITIES"), (ii) the anticipated date of the proposed
Transfer and the names and addresses of the proposed transferees, and (iii) the
material terms of the proposed Transfer, including the cash and/or other
consideration to be received in respect of such Transfer.
(b) PURCHASERS' OPTIONS AND RIGHTS. Upon the giving of any Founders
Transfer Notice, then subject to all of the provisions of this Section 4, (v)
the Company, (w) each Founder other than the Transferring Founder (the "BUYING
FOUNDER"), (x) each Series A
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Stockholder, (y) each Series B Stockholder and (z) each Purchaser (each of the
persons in clauses (v)-(z), a "PURCHASING PARTY" or collectively, the
"PURCHASING PARTIES") will or may, as applicable, have certain options and
rights as follows.
(i) RIGHTS OF FIRST REFUSAL. Each Purchasing Party will have
the option, but not the obligation, to purchase up to that portion of the
Founders Offered Securities, on the same terms as are specified in the Founders
Transfer Notice, including any deferred payment terms, PROVIDED, that the
Purchasers will have the right to substitute cash in the amount of the fair
market value of any non-cash consideration proposed to be received from the
proposed transferees, as shall equal the product obtained by multiplying (A) the
quotient obtained by dividing (I) the number of shares of Common Stock held by
such Purchasing Party (for this purpose, including all shares of Common Stock
that were issued to or that are issuable upon conversion of shares of stock held
by such Purchasing Party) by (II) the aggregate number of shares of Common Stock
held by all Purchasing Parties electing to purchase (for this purpose, including
all shares of Common Stock issued to or that are issuable upon conversion of
shares of Preferred Stock and exercise of Derivative Securities held by such
Purchasing Parties) by (B) the number of Founders Offered Securities. Within 30
days after the effective date of the Founders Transfer Notice, each of the
Purchasing Parties will give written notice to the Transferring Founder stating
whether it elects to exercise such option, and if so, as to how many of the
Founders Offered Securities it elects to exercise such option. Failure by any
Purchasing Party to give such notice within such time period will be deemed an
election by it not to exercise its option. The closing of the purchase and sale
of the Founders Offered Securities to the Purchasing Parties will take place as
soon as is reasonably practicable at such date, time, and place as the
Purchasing Parties may reasonably determine. As to any Founders Offered
Securities that the Purchasing Parties do not elect to purchase hereunder,
subject to the provisions of Section 4(b)(ii) hereof, the Transferring Founder
will thereafter be free for a period of 90 days after expiration of the 30-day
period referred to above to consummate the Transfer described in the Founders
Transfer Notice to the transferee(s) specified therein, at the price and on the
other terms set forth therein; PROVIDED, that such transferee(s) first
execute(s) and deliver(s) to the Company a written agreement to be bound by all
of the provisions of this Section 4) and naming the Purchasing Parties as
intended third-party beneficiaries of such agreement. However, if such Transfer
is not consummated within such 90-day period, the Transferring Founder will not
Transfer any of the Founders Offered Securities as have not been purchased
within such period without again complying with all of the provisions of this
Section 4.
(ii) CO-SALE RIGHTS. Upon receipt of a Founders Transfer
Notice, each of the Purchasing Parties (other than any Purchasing Party who has
elected to purchase any of the Founders Offered Securities pursuant to Section
4(b)(i) hereof and other than the Company) may elect to participate in the
contemplated Transfer by delivering written notice to the Transferring Founder
within 30 days after the effective date of such Founders Transfer Notice. Each
of the Purchasing Parties so electing (each a "SELLING PARTY" and collectively
the "SELLING PARTIES") will be entitled to sell in the contemplated Transfer, at
the same price and on the same terms as specified in the Founders Transfer
Notice, a number of shares of Common Stock equal to (and not less than) the
product obtained by multiplying (i) the
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quotient determined by dividing (A) the number of shares of Common Stock held by
each such Selling Party (for this purpose, including all shares of Common Stock
that were issued to or that are issuable upon conversion of shares of stock and
exercise of Derivative Securities held by such Selling Parties), by (B) the
aggregate number of shares of Common Stock held by the Transferring Founder
(including all shares of Common Stock issuable upon conversion of the shares of
Preferred Stock held by such Transferring Founder) and all other Selling Parties
(for this purpose, including all shares of Common Stock that were issued to or
are issuable upon conversion of shares of Preferred Stock and exercise of
Derivative Securities held by such Selling Parties), by (ii) the aggregate
number of shares to be sold in the contemplated Transfer. The Transferring
Founder will be entitled to sell in the contemplated Transfer the balance of the
shares of the shares proposed to be so sold. The Transferring Founder shall use
his or her best efforts to obtain the agreement of the prospective transferee(s)
to the participation of each Selling Party in any contemplated Transfer and
shall not Transfer any shares to such prospective transferee(s) unless such
prospective transferee(s) allows the participation of each Selling Party on the
terms specified herein. Subject to the foregoing and to the provisions of
Section 4(b)(i) above, the Transferring Founder may, within 90 days after the
expiration of the 30-day period referred to above, transfer the Founders Offered
Securities (reduced by the number of shares of stock with respect to which any
of the Selling Parties have elected to participate, if any) to the Purchasing
Parties and/or the transferee(s) identified in the Founders Transfer Notice at a
price and on terms no more favorable to the Transferring Founder than specified
in the Transfer Notice; PROVIDED, that such transferee(s) shall first execute
and deliver to the Company a written agreement to be bound by all of the
provisions of this Agreement applicable to the Transferring Founder(s) and
naming the Purchasing Parties as intended third-party beneficiaries of such
agreement. However, if such Transfer is not consummated within such 90-day
period, the Transferring Founder shall not transfer any of the Founders Offered
Securities as have not been purchased within such period without again complying
with all of the provisions of this Section 4.
(c) MULTIPLE SERIES, CLASSES OR TYPES OF STOCK. If the Founders Offered
Securities consist of more than one series, class or type of equity security,
each of the Purchasers will have the right to transfer hereunder such
Purchaser's PRO RATA share of each such series, class or type of equity
security; provided, however, that (i) if such Purchaser does not hold any of
such series, class or type of equity security proposed to be transferred, and
the proposed transferee or transferees are not willing to purchase some other
series, class or type of equity security from such Purchaser as part of such
Purchaser's PRO RATA share, or (b) if the proposed transferee or transferees are
not willing to purchase any equity securities from such Purchaser (the
consummation of a Transfer under each such circumstance being referred to herein
as an "INCOMPLETE FOUNDERS CO-SALE"), then such Purchaser shall have the Limited
Put Right set forth in Section 4(d).
(d) LIMITED PUT RIGHT. If a Transferring Founder transfers Common Stock
or other equity securities in contravention of the co-sale rights set forth in
Section 4(b)(ii) (a "PROHIBITED FOUNDERS TRANSFER"), or if any Incomplete
Founders Co-Sale occurs with respect to a Purchaser, then any Purchaser (but
only a Purchaser) may require such Transferring
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Founder to purchase from such Purchaser, for cash or such other consideration as
the Transferring Founder received from the Prohibited Founders Transfer or from
the Incomplete Founders Co-Sale, that number of shares of Common Stock or other
equity securities having a purchase price equal to the aggregate purchase price
such Purchaser would have received in connection with such Prohibited Founders
Transfer or Incomplete Founders Co-Sale if such Purchaser had exercised and been
able to consummate such co-sale pursuant to Section 4(b)(ii) (the "LIMITED PUT
RIGHT"). Such Limited Put Right may be exercised at any time by delivery of a
written notice to the Transferring Founder and the Company (a "LIMITED PUT
NOTICE") within ten days after such Purchaser becomes aware of the Prohibited
Founders Transfer or the Incomplete Founders Co-Sale. The closing of such sale
to the Transferring Founder under such Limited Put Right will occur within seven
days after the date of such Limited Put Notice.
5. PROCEDURES FOR INVOLUNTARY TRANSFERS.
(a) TRANSFER UPON DEATH. This Agreement shall not be construed to
prevent a transfer of any equity securities of the Company by an Individual
Stockholder by will or intestate succession, PROVIDED that the person so
acquiring such securities (a "TRANSFEREE UPON DEATH") immediately notifies the
Company of such acquisition and executes and delivers to the Company an
agreement to be bound by all of the provisions of this Agreement applicable to
such applicable Individual Stockholder and naming the Purchasers as intended
third-party beneficiaries of such agreement, and PROVIDED, FURTHER, that the
Company and the Purchasers shall have the option to purchase from such acquiring
person the securities so acquired as if, and upon the same terms and conditions
as if, at the time of such acquisition such acquiring person had given a
Transfer Notice or Founders Transfer Notice in accordance with the provisions of
Section 3 or 4, as applicable, of this Agreement, stating a price equal to the
Fair Market Value of such securities (as determined in accordance with Section
5(c) below).
(b) TRANSFERS BY OPERATION OF LAW. In the event that any Existing
Stockholder: (i) files a voluntary petition under any bankruptcy or insolvency
law or a petition for the appointment of a receiver or makes an assignment for
the benefit of creditors, (ii) is subjected involuntarily to such a petition or
assignment or to an attachment or other legal or equitable interest with respect
to any equity securities of the Company and such involuntary petition or
assignment or attachment is not discharged within 90 days, or (iii) is subjected
to any other possible transfer of any equity securities of the Company by
operation of law, including without limitation an assignment pursuant to a
divorce decree or other similar proceeding, then such Existing Stockholder shall
notify the Company and each Purchaser of such event and the Company and each
Purchaser shall have an option to purchase from any receiver, petitioner,
assignee, transferee, or other person obtaining an interest in such equity
securities (a "TRANSFEREE BY LAW") all or any portion of such equity securities
and all interests therein as if, and upon the same terms and conditions as if,
at the time of such event such Transferee by Law had given a Transfer Notice or
Founders Transfer Notice in accordance with the provisions of Section 3 or 4, as
applicable, of this Agreement, stating a
-11-
price equal to the Fair Market Value of such equity securities (as determined in
accordance with Section 5(c) below).
(c) DETERMINATION OF FAIR MARKET VALUE. For the purposes of this
Agreement only, the "FAIR MARKET VALUE" of securities of the Company shall be
determined as follows. The Company and the Transferee Upon Death or Transferee
By Law (as the case may be) (each an "INVOLUNTARY TRANSFEREE") shall in good
faith attempt to agree upon the fair market value of such securities. "Fair
Market Value" shall in all cases be calculated on the assumption of an
arms'-length sale at open market value (taking into account any discount
applicable to a minority interest and/or illiquidity). If such Fair Market Value
has not been agreed upon within 30 days after the date of the deemed Transfer
Notice or Founders Transfer Notice, then within five days after the end of that
30-day period, the Company, the Purchasers, and the Involuntary Transferee shall
in good faith agree upon and appoint an appraiser. Within 60 days after such
appointment, the appraiser shall submit to the Company, the Purchasers, and the
Involuntary Transferee a written appraisal of the Fair Market Value, which shall
be conclusive. Each of the Company and the Involuntary Transferee shall be
responsible for one-half of the fees and expenses of such appraiser.
6. PRE-EMPTIVE RIGHTS.
6.1. PRE-EMPTIVE RIGHTS. Subject to the exclusions set forth in Section
6.3 of this Agreement, and to the provisions of the following sentence in this
Section 6.1, if at any time after the Closing and prior to a Qualified Public
Offering, the Company authorizes the offer, issuance, or sale, or offers, issues
or sells to any Person (the "OFFEREE") any shares of Common Stock, Derivative
Securities or any other securities of the Company (whether as newly issued
shares or other securities or from the Company's treasury), the Company will
first offer to sell, by written notice, to each Purchaser and Series B
Stockholder a portion (such person's "PORTION") of such shares or securities
authorized to be offered, issued or sold, or proposed to be offered, issued or
sold equal to the product obtained by multiplying (i) the number of such shares
or securities authorized to be offered, issued or sold, or proposed to be
offered, issued or sold by the Company, by (ii) the quotient obtained by
dividing (A) the number of shares of Common Stock held by such Purchaser or
Series B Stockholder (for this purpose, including all shares of Common Stock
that were issued to or are issuable upon conversion of shares of Preferred Stock
and exercise of Derivative Securities held by such Purchaser or Series B
Stockholder), by (B) the sum of (I) the aggregate number of shares of Common
Stock issued and outstanding as of such date and (II) the aggregate number of
shares of Common Stock issuable upon conversion of all outstanding shares of
Series B Preferred Stock and Series D Preferred Stock plus the number of shares
of Common Stock issuable upon conversion of all of the Derivative Securities
held by each Purchaser and Series B Stockholder.
6.2. PROCEDURE. Each Purchaser and Series B Stockholder will be
entitled (but not obligated) to purchase all or part of such person's Portion at
the same price and on the same terms as such stock or securities are to be
offered to the Offeree. Each such person may exercise such purchase rights
within 30 days after receipt of written notice from the
-12-
Company describing in reasonable detail the stock or securities to be offered to
the Offeree, the purchase price thereof, the payment terms, and such person's
percentage allotment. If any person fails in whole or in part to exercise the
purchase rights hereunder within such 30-day period (other than by reason of the
Company's failure to comply with the provisions of this Section 6), then each
(other) Purchaser (but only a Purchaser) shall have the right to acquire such
Portion (which right may be exercised by any such Purchaser by indication in
such Purchaser's notice to the Company of its exercise of purchase rights
hereunder its desire to acquire additional securities, or otherwise). If
oversubscribed for, any such Portion not purchased by the person initially
entitled thereto shall be allocated among the (other) Purchasers desiring to
acquire such Portion PRO RATA in proportion to the numbers of shares of Common
Stock held by each such (other) Purchaser (including shares of Common Stock
issuable upon conversion or exchange or exercise, directly or indirectly, of
Preferred Stock and Derivative Securities held by such (other) Purchaser). The
Company may sell so much, and only so much, of any Portion as to which no
Purchasers, having been offered the right to purchase such Portion in accordance
with all of the provisions of this Section 6, have exercised such purchase
rights, to the Offeree at the same price and on the same terms as those offered
to such holder, PROVIDED, that in the event that the whole of each Purchaser's
Portion of such securities is not sold to the Offeree within 60 days following
the lapse of the 30-day exercise period provided to the Purchasers, such unsold
securities will once again be subject to the purchase rights hereunder. In the
event that shares of Common Stock or Derivative Securities are authorized to be
issued and sold by the Company for services, property, or other non-cash
consideration, each Purchaser will be allowed to participate in such issue and
sale by substituting cash in the amount of the fair market value, per share, of
such non-cash consideration.
6.3. EXCLUDED TRANSACTIONS. The prohibitions and rights provided in
this Section 6 will not apply to (i) shares of Common Stock issued by the
Company pursuant to stock dividends, stock splits, recapitalizations, and
similar transactions; (ii) shares of Common Stock issued upon conversion or
exchange, directly or indirectly, of any shares of Preferred Stock, including
the Series D Preferred Stock, the Series C Preferred Stock, the Series B
Preferred Stock and the Series A Preferred Stock, and upon the exercise of the
Warrants, (iii) options to purchase Common Stock, pursuant to the Company's 1996
Stock Option Plan or pursuant to any employee benefit plan approved by the Board
of Directors, and any shares of Common Stock issued upon the exercise thereof;
(iv) up to 56,296 shares of Series C Preferred Stock issued upon the exercise of
warrants issued to Silicon Valley Bank; (v) up to 425,532 shares of Series B
Preferred Stock issued upon the exercise of warrants issued to SOFTBANK
Ventures, Inc.; and (vi) warrants issued to commercial lenders solely in
connection with the establishment of a working capital line and the issuance of
stock upon the exercise thereof and not to exceed 200,000 shares.
7. RESTRICTIVE LEGENDS. For so long as this Agreement remains in
effect, the Company will use its best efforts to ensure that the certificates
representing any shares of capital stock or other securities of the Company held
by any Stockholder bear restrictive legends in substantially the following form:
-13-
"The securities represented by this certificate are subject to certain
restrictions with respect to the voting and the transfer of such
securities set forth in a Stockholders Agreement, dated as of August
18, 1998, by and among the issuer of such securities and the registered
holder of this certificate (or such holder's predecessor-in-interest)
and certain others. A copy of such agreement is on file and may be
inspected by the registered holder of this certificate at the principal
executive office of the issuer."
8. TERMINATION OF RESTRICTIONS. This Agreement, and all restrictions on
transfer contained herein, will terminate immediately upon the closing of the
first to occur of (i) a Qualified Public Offering (as defined in the Purchase
Agreement), or (ii) the sale, transfer, or other disposition of all or
substantially all of the Company's assets or more than 50% of the voting equity
securities to one or more Persons (other than any wholly owned subsidiary of the
Company) in a single transaction or series of related transactions, whether
effected through a merger, consolidation, sale of assets or securities, or
otherwise. No such termination shall affect the rights or liabilities of any
Person in respect of any breach of this Agreement prior to such termination.
9. MISCELLANEOUS PROVISIONS.
9.1. AMENDMENTS, CONSENTS, WAIVERS, ETC.
(a) This Agreement or any provision hereof may be amended or terminated
by the agreement of the Company, Purchasers holding at least a majority of the
outstanding shares of Series D Preferred Stock then held by Purchasers, and
Existing Stockholders holding at least a majority of the shares of Common Stock
(on an as-converted basis) then held by Existing Stockholders (except that any
amendments adversely affecting the rights of the Xxxx Parties, without similarly
affecting the rights of the other Purchasers, must be approved by the Xxxx
Parties holding at least a majority of the shares of Common Stock (on an
as-converted basis) then held by the Xxxx Parties and any amendments adversely
affecting the rights of the Tudor Parties, without similarly affecting the
rights of the other Purchasers, must be approved by the Tudor Parties holding at
least a majority of the shares of Common Stock on an as-converted basis) then
held by the Tudor Parties); and the observance of any provision of this
Agreement that is for the benefit of the Purchasers may be waived (either
generally or in a particular instance, and either retroactively or
prospectively), and any consent, approval, or other action to be given or taken
by the Purchasers pursuant to this Agreement may be given or taken by the
consent of the holders of at least a majority of the holders of Series D
Preferred Stock; PROVIDED, HOWEVER, that any Purchaser may in writing waive, as
to itself only, the benefits of any provision of this Agreement.
(b) No course of dealing between or among any of the parties to this
Agreement shall operate as a waiver of any rights under this Agreement. No
waiver of any breach or default hereunder shall be valid unless in a writing
signed by the waiving party. No failure or other delay by any Person in
exercising any right, power, or privilege hereunder shall be or operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power, or
privilege.
-14-
9.2. NOTICES. All notices, requests, payments, instructions or other
documents to be given hereunder shall be in writing or by written
telecommunication, and shall be deemed to have been duly given, if (i) delivered
personally (effective upon delivery), (ii) by certified mail, return receipt
requested, postage prepaid (effective five business days after dispatch), (iii)
sent by a reputable, established courier service that guarantees overnight
delivery (effective the next business day), or (iv) dispatched by telecopier (if
the telecopy is in complete, readable form, effective upon dispatch), at the
appropriate and applicable address appearing in the books and records of the
Company.
9.3. COUNTERPARTS. This Agreement may be executed by the parties in
separate counterparts, each of which when so executed and delivered shall be an
original, but all of which together shall constitute one and the same
instrument. In pleading or proving this Agreement, it shall not be necessary to
produce or account for more than one such counterpart.
9.4. CAPTIONS. The captions of sections or subsections of this
Agreement are for reference only and shall not affect the interpretation or
construction of this Agreement.
9.5. BINDING EFFECT AND BENEFITS; ASSIGNMENT. This Agreement shall bind
and inure to the benefit of the parties hereto and their respective successors
and permitted assigns. Except as otherwise provided in this Agreement, the
provisions of this Agreement that are for the Purchasers' benefit as the holders
of any Purchased Securities shall inure to the benefit of all permitted
transferees of Purchased Securities. Except as specifically permitted hereby, no
party hereto may assign its rights or delegate its obligations under this
Agreement without the prior written consent of the Company and the holders of a
majority of the outstanding shares of Series D Preferred Stock (or of Common
Stock, issued or issuable upon conversion thereof), and any attempted assignment
or delegation without such consent shall be void and of no effect. Nothing in
this Agreement shall confer any rights or remedies on any Person other than the
parties hereto and their respective successors and permitted assigns.
9.6. CONSTRUCTION. The language used in this Agreement is the language
chosen by the parties to express their mutual intent, and no rule of strict
construction shall be applied against any party.
9.7. ENTIRE AGREEMENT. This Agreement contains the entire understanding
and agreement among the parties with respect to the matters contained herein, or
between or among any of them, and replaces and supersedes any prior
understandings or agreements between or among any of them, with respect to the
subject matter hereof, including that certain Stockholders Agreement, dated as
of December 23, 1996, as amended, by and among the Company, the Founders, the
Series A Stockholders, the Series B Stockholders and the other persons listed
therein and Section 7.2 of that certain Series B Preferred Stock Purchase
Agreement, dated as of December 23, 1996, by and among the Company and the
Series B Stockholder.
-15-
9.8. SEVERABILITY. No invalidity or unenforceability of any section of
this Agreement or any portion thereof shall affect the validity or
enforceability of any other section or the remainder of such section.
9.9. EQUITABLE RELIEF. Each of the parties acknowledges that any breach
by such party of his, her, or its obligations under this Agreement would cause
substantial and irreparable damage to one or more of the other parties and that
money damages would be an inadequate remedy therefor. Accordingly, each party
agrees that the other parties or any of them shall be entitled to an injunction,
specific performance, and/or other equitable relief to prevent the breach of
such obligations.
9.10. GOVERNING LAW. This Agreement shall be governed by and
interpreted and construed in accordance with the internal laws of the State of
Delaware (without reference to principles of conflicts or choice of law).
-16-
IN WITNESS WHEREOF, each of the parties has executed this Stockholders
Agreement as an agreement under seal on and as of the date first above written.
ART TECHNOLOGY GROUP, INC.
By /s/ Xxxx Xxxxx
----------------------------------------
Name:
Title: President/CEO
SERIES D STOCKHOLDERS
TUDOR PRIVATE EQUITY FUND, L.P.
By /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
Tudor Global Trading LLC as General Partner
RAPTOR GLOBAL FUND, L.P.
By /s/ Xxxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
Tudor Investment Corporation as General Partner
RAPTOR GLOBAL FUND, LTD.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
Tudor Investment Corporation as Investment
Advisor
-18-
SERIES B STOCKHOLDER
SOFTBANK VENTURES, INC.
By: /s/ Yoshitaka Kitao
-------------------------------------
Name: Yoshitaka Kitao
Title: President and CEO
-19-
AS TO ALL SECTIONS (OTHER THAN
SECTION 6):
SERIES A STOCKHOLDERS
MANDANJEET SINGH
/s/ Mandanjeet Singh
----------------------------------------
B.U. XXXXX
/s/ B.U. Xxxxx
----------------------------------------
-20-
AS TO ALL SECTIONS (OTHER THAN
SECTIONS 3 AND 6):
FOUNDERS
XXXXXXXXXXXX XXXXX
/s/ Xxxxxxxxxxxx Xxxxx
--------------------------------------
XXXXXX XXXXX
/s/ Xxxxxx Xxxxx
---------------------------------------
-21-
AS TO ALL SECTIONS (OTHER THAN
SECTIONS 4 AND 6):
SERIES C STOCKHOLDERS
/s/ Xxxxxx X. Myhven
---------------------------------------
Xxxxxx X. Myhven
/s/ Xxxxxxx Xxxxx
--------------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxxxx Xxxxxxxx
--------------------------------------
The Xxxxxxxx Long Range Partnership
By:
Name: Xxxxxxx Xxxxxxxx
Title: General Partner
/s/ Xxx X. Xxxxxxx
---------------------------------------
Xxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxx, Xx. Trust
---------------------------------------
/s/ Xxxxx X. Xxxxxx, Xx. Trustee
---------------------------------------
Xxxxx X. Xxxxxx, Xx. Trust
/s/ Xxxxxxxx Family Limited Partnership
----------------------------------------
Xxxxxxxx Family Limited Partnership
By: /s/ Xxxxxxxx X. XxXxxxxx
Name: Xxxxxxxx X. XxXxxxxx
Title: Trustee
/s/ Xxxx X. Xxxxxx
---------------------------------------
Wyndcrest ATG Holdings, Ltd.
By:
Name: Xxxx X. Xxxxxx
Title: General Partner
/s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxxxxxx Xxxxx
--------------------------------------
Xxxxxxxx Xxxxx
/s/ Xxxxxxx Xxxxxxxx
--------------------------------------
Xxxxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxx
--------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxx Xxxxxxxx
--------------------------------------
Xxxx Xxxxxxxx
/s/ Xxxxx X. Xxxxx
--------------------------------------
Xxxxx X. Xxxxx
/s/ X.X. Xxxxxxxxxx
---------------------------------------
Osprey Venture Capital Limited Partnership
By:
Name: X.X. Xxxxxxxxxx
Title: General Partner
---------------------------------------
---------------------------------------
SCHEDULE 1
LIST OF SERIES C STOCKHOLDERS
Xxxxxx X. Xxxxxx
Xxxxxxx Xxxxx
The Xxxxxxxx Long Range Partnership
Xxx X. Xxxxxxx
Xxxxx X. Xxxxxx Xx. Trust
Xxxxxxxx Family Limited Partnership
Wyndcrest ATG Holdings, Ltd.
Xxxxxx X. Xxxxxxx
Xxxxxxxx Xxxxx
Xxxxxxx Xxxxxxxx
Xxxxxx Xxxxxx
Xxxx Xxxxxxxx
Xxxxx X. Xxxxx
Osprey Venture Capital Limited Partnership
SCHEDULE 2
TO STOCKHOLDERS
AGREEMENT
INSTRUMENT OF ACCESSION
Reference is made to that certain Stockholders Agreement dated as of
August 18, 1998, a copy of which is attached hereto (as amended and in effect
from time to time, the "STOCKHOLDERS AGREEMENT"), among Art Technology Group,
Inc. (the "COMPANY") and the Stockholders (as defined therein).
The undersigned, _____________________, in order to become the owner or
holder of ______ shares of the _________ Stock, $0.01 par value per share (the
"SHARES"), of the Company, hereby agrees that by execution hereof the
undersigned is a [Purchaser]/[Series A Stockholder]/[Series B
Stockholder]/[Series C Stockholder] party to the Stockholders Agreement subject
to all of the restrictions and conditions set forth in such Stockholders
Agreement, and all of the Shares purchased by the undersigned in connection
herewith (and any and all shares of stock of the Company issued in respect
thereof) are subject to all the restrictions and conditions applicable thereto
as set forth in the Stockholders Agreement. This Instrument of Accession shall
take effect and shall become a part of said Stockholders Agreement immediately
upon execution.
Executed as of the date set forth below under the laws of the State of
Delaware.
Signature:
-------------------------------
Address:
-------------------------------
-------------------------------
-------------------------------
Date:
-------------------------------
Accepted:
ART TECHNOLOGY GROUP, INC.
By:
------------------------------------
Date:
----------------------------------
FIRST AMENDMENT TO
STOCKHOLDERS' AGREEMENT
This FIRST AMENDMENT, dated as of September 10, 1998 (the "AMENDMENT"),
is by and among Art Technology Group, Inc., a Delaware corporation (the
"COMPANY") and the shareholders of the Company listed on the signature pages
hereto (the "STOCKHOLDERS"). Capitalized terms used herein without definition
shall have the meanings assigned to such terms in the Stockholders Agreement (as
defined below).
WHEREAS, the Company and the Stockholders are party to that certain
Stockholders Agreement, dated as of August 18, 1998 (the "STOCKHOLDERS
AGREEMENT"); and
WHEREAS, the parties have agreed to amend the Stockholders Agreement.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which is acknowledged,
the Company and the Stockholders hereby agree as follows:
1. AMENDMENT TO STOCKHOLDERS AGREEMENT. Each of the parties hereto
hereby agrees that Section 9.1(a) of the Stockholders Agreement is hereby
amended and restated to read in its entirety as follows:
"(a) This Agreement or any provision hereof may be amended or
terminated by the agreement of the Company, Purchasers holding at least a
majority of the outstanding shares of Series D Preferred Stock then held by
Purchasers, and Existing Stockholders holding at least a majority of the shares
of Common Stock (on an as-converted basis) then held by Existing Stockholders
(except that (i) any amendments adversely affecting the rights of the Xxxx
Parties, without similarly affecting the rights of the other Purchasers, must be
approved by the Xxxx Parties holding at least a majority of the shares of Common
Stock (on an as-converted basis) then held by the Xxxx Parties, any amendments
adversely affecting the rights of the Tudor Parties, without similarly affecting
the rights of the other Purchasers, must be approved by the Tudor Parties
holding at least a majority of the shares of Common Stock on an as-converted
basis) then held by the Tudor Parties, and (iii) any amendments adversely
affecting the rights of GMN Investors II, L.P. and its affiliates, without
similarly affecting the rights of the other Purchasers, must be approved by GMN
Investors II, L.P.); and the observance of any provision of this Agreement that
is for the benefit of the Purchasers may be waived (either generally or in a
particular instance, and either retroactively or prospectively), and any
consent, approval, or other action to be given or taken by the Purchasers
pursuant to this Agreement may be given or taken by the consent of the holders
of at least a majority of the holders of Series D Preferred Stock; PROVIDED,
HOWEVER, that any Purchaser may in writing waive, as to itself only, the
benefits of any provision of this Agreement."
2. CONDITIONS TO EFFECTIVENESS. This Amendment shall become effective
upon the execution of this Amendment by each of the Company and the requisite
number of Stockholders as is required by the terms of the Stockholders Agreement
to render this Amendment effective.
-2-
3. NO OTHER AMENDMENTS. Except as expressly provided in this Amendment,
all of the terms and conditions of the Stockholders Agreement remain unchanged,
and the terms and conditions of the Stockholders Agreement as amended hereby
remain in full force and effect.
4. EXECUTION IN COUNTERPARTS. This Amendment may be executed in any
number of counterparts and by each party on a separate counterpart, each of
which when so executed and delivered shall be an original, but all of which
together shall constitute one instrument. In proving this Amendment, it shall
not be necessary to produce or account for more than one such counterpart signed
by the party against whom enforcement is sought.
5. MISCELLANEOUS. This Amendment shall be deemed to be a contract under
seal under the laws of the State of Delaware and shall for all purposes be
construed in accordance with and governed by the laws of the State of Delaware.
-3-
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
ART TECHNOLOGY GROUP, INC.
By /s/ Xxxx Xxxxx
---------------------------------
Name:
Title:
SERIES D STOCKHOLDERS
TUDOR PRIVATE EQUITY FUND, L.P.
By /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Partner
Tudor Global Trading LLC as General Partner
RAPTOR GLOBAL FUND, L.P.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Partner
Tudor Investment Corporation as General Partner
RAPTOR GLOBAL FUND, LTD.
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Partner
Tudor Investment Corporation as Investment Advisor
SERIES B STOCKHOLDER
SOFTBANK VENTURES, INC.
By:
----------------------------------
Name:
Title:
SERIES A STOCKHOLDERS
MANDANJEET SINGH
-------------------------------------
B.U. XXXXX
-------------------------------------
FOUNDERS
XXXXXXXXXXXX XXXXX
/s/ Xxxxxxxxxxxx Xxxxx
--------------------------------------
XXXXXX XXXXX
/s/ Xxxxxx X. Xxxxx
--------------------------------------
SERIES C STOCKHOLDERS
-------------------------------------
Xxxxxx X. Myhven
------------------------------------
Xxxxxxx Xxxxx
-5-
-------------------------------------
The Xxxxxxxx Long Range Partnership
By:
Name:
Title:
-------------------------------------
Xxx X. Xxxxxxx
-------------------------------------
Xxxxx X. Xxxxxx, Xx. Trust
-------------------------------------
Xxxxxxxx Family Limited Partnership
By:
Name:
Title:
-------------------------------------
Wyndcrest ATG Holdings, Ltd.
By:
Name:
Title:
-------------------------------------
Xxxxxx X. Xxxxxxx
-------------------------------------
Xxxxxxxx Xxxxx
-------------------------------------
Xxxxxxx Xxxxxxxx
-------------------------------------
Xxxxxx Xxxxxx
-6-
-------------------------------------
Xxxx Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxx
-------------------------------------
Osprey Venture Capital Limited Partnership
By:
Name:
Title:
-------------------------------------
-------------------------------------
