EXHIBIT 4.3
FIFTH AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
THIS FIFTH AMENDED AND RESTATED STOCKHOLDERS 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"), 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"),
Xxxxxxxxx & Xxxxx California ("H&QC"), H&Q Vignette Investors ("H&QVI" and
together with H&QC, "H&Q"), Sigma Partners III, L.P., a Delaware limited
partnership ("Sigma Partners"), Sigma Associates III, L.P., a Delaware limited
partnership ("Sigma Associates"), 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 X. Xxxxxx,
Xxxx Xxxxxx and such other parties ("Other Parties") as may from time to time
and with the consent of the Company become parties hereto. Adobe, Amerindo,
Attractor, Austin Ventures, Xxxxxxx River, CNET, GSCP, H&Q and Sigma are
referred to herein individually as a "Purchaser" and collectively the
"Purchasers." Xxxx X. Xxxxxx and Xxxx Xxxxxx are referred to herein
individually as a "Founder" and together as the "Founders." The Founders and
such Other Parties are collectively referred to as the "Common Stockholders."
RECITALS:
WHEREAS, the Company, Adobe, Attractor, Austin Ventures, Xxxxxxx
River, CNET, Sigma and the Founders are parties to a Fourth Amended and Restated
Stockholders Agreement, dated as of July 17, 1997 (the "Prior Stockholders
Agreement");
WHEREAS, the Company, Adobe, Amerindo, Attractor, Austin Ventures,
Xxxxxxx River, GSCP, H&Q and Sigma have entered into a Stock Purchase Agreement,
dated the date hereof (the "Purchase Agreement"), providing, among other things,
for the purchase by Adobe, Amerindo, Austin Ventures, Xxxxxxx River, GSCP, H&Q
and Sigma 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, Sigma and the Founders desire to amend the Prior Stockholders
Agreement on the terms hereinafter set forth; and
WHEREAS, the execution and delivery of this Agreement by the Company
and each Purchaser and Founder 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. Voting Provisions.
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1A. Composition of Board of Directors. The shares of Series A
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Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series E
Preferred Stock and Series F Preferred Stock and, unless the context requires
otherwise, the shares of Common Stock (as such terms are defined in paragraph
4K) issued or issuable upon the conversion of such shares of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series E Preferred
Stock and Series F Preferred Stock are referred to in this Agreement as the
"Shares." The Purchasers and the Common Stockholders agree that in any election
of directors of the Company, they shall vote all shares of capital stock of the
Company owned or controlled by them, including all Shares, to elect a Board of
Directors comprising six directors (unless reduced to a fewer number of
directors as described below) designated as follows:
(i) two shall be directors designated by the holders of a
majority of the Common Stock held by the Common Stockholders;
(ii) one shall be designated by Austin Ventures, one shall
be designated by Sigma and one shall be designated by CNET; and
(iii) one shall be designated by the holders of a majority
of the Common Stock held by the Common Stockholders and the Shares, voting
together as a single class.
In the event shares of Series A Preferred Stock or Series B Preferred Stock are
redeemed in a Mandatory Redemption (as defined in part 3 of Article V.B of the
Company's Third Amended and Restated Certificate of Incorporation, as hereafter
amended or restated), Austin Ventures, Sigma and CNET shall cause the directors
designated by them in (ii) above to resign, and the number of directors
constituting the entire Board of Directors shall be reduced by three directors.
Each director designated in (i) above is referred to as a "Common
Stockholder Director." Each director designated in (ii) above is referred to as
a "Purchaser Director." The director designated in (iii) above is referred to
as the "At Large Director." Until notice is given to the contrary, the
Purchaser Director designated by Austin Ventures shall be Xxxx X. Xxxxxxxx, the
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Purchaser Director designated by Sigma shall be Xxxxxx X. Xxxxxx, the Purchaser
Director designated by CNET shall be Xxxxxx X. Xxxxx and the Common Stockholder
Directors shall be Xxxx X. Xxxxxx and Xxxx Xxxxxx.
The obligation to vote shares in accordance with this paragraph 1A
shall be specifically applicable to and enforceable against any transferees of
the parties hereto.
1B. Compensation Committee. The Board of Directors shall establish
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and maintain a compensation committee comprised of two of the Purchaser
Directors and a director designated by the chief executive officer of the
Company. The compensation committee of the Board of Directors shall be vested
with the authority to approve salaries, bonuses and other compensation and
benefits of officers and key employees of the Company and its subsidiaries, and
will administer the Approved Plans (as defined in paragraph 4K) and any other
stock option, incentive or compensation plans or arrangements.
1C. Vacancies; Removal. In the event of any vacancy in the Board of
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Directors, each of the Purchasers and the Common Stockholders agrees to vote all
Shares and shares of Common Stock owned or controlled by them and to otherwise
use their best efforts to fill such vacancy so that the Board of Directors of
the Company will include directors designated as provided in paragraph 1A. Each
of the Purchasers and the Common Stockholders agrees to vote all Shares and
shares of Common Stock owned or controlled by them for the removal of a director
whenever (but only whenever) there shall be presented to the Board of Directors
the written direction that such director be removed, signed by the holders of a
majority of the Shares, in the case of a Purchaser Director, or by the holders
of a majority of the Common Stock held by the Common Stockholders, in the case
of a Common Stockholder Director, or by the holders of a majority of the Common
Stock held by the Common Stockholders and the Shares, in the case of the At
Large Director. Each of the parties agrees to use its best efforts to cause
designees to be elected to the Board of Directors as provided in paragraph 1A.
1D. Meetings; Quorum. The Company agrees to hold regularly scheduled
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meetings of the Board of Directors as determined by a majority of the Board of
Directors. The Company will give each Purchaser that is entitled hereunder to
either appoint a Purchaser Director or designate an observer pursuant to
paragraph 1E below (so long as such Purchaser holds any Shares) written notice
at least three days (24 hours, in the case of a telephone meeting) in advance of
all meetings of the Board of Directors and all meetings of committees of the
Board of Directors. If the Purchaser Director designated by a Purchaser is not
able to attend a Board of Directors meeting or a meeting of a committee on which
he serves, such Purchaser may designate any one person to attend as an observer.
The Company shall furnish each such Purchaser with a copy of the minutes and
other records of all meetings and other actions taken by the Board of Directors
and its committees and all written material given to directors in connection
with such meeting at the same time such materials and information are given to
the directors. If the Company proposes to take any action by written consent in
lieu of a meeting of its Board of Directors or any committee thereof, the
Company shall give written notice thereof to each Purchaser Director prior to
the effective date of such consent describing in reasonable detail the nature
and the substance of such action.
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1E. Special Board Observation Privileges. Adobe, Xxxxxxx River and a
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representative designated by GSCPLP shall each receive notices of each meeting
of the Company's Board of Directors and any committee thereof, and each shall be
entitled to designate a representative to attend all such Board of Directors and
committee meetings and to speak at or otherwise participate in such meetings to
the extent permitted from time to time by the Board of Directors or such
committee.
1F. Expenses. The Company shall reimburse all Persons (as defined in
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paragraph 4K) serving as directors for their actual and reasonable out-of-pocket
expenses incurred in attending meetings of the Board of Directors and all
committees thereof and otherwise incurred in fulfilling their duties as
directors. If the Purchaser Director designated by a Purchaser is unable to
attend a meeting of the Board of Directors or a committee on which he serves,
the Company shall reimburse one representative of such Purchaser for actual and
reasonable out-of-pocket expenses incurred in attending meetings of the Board of
Directors and such committees.
1G. Indemnification Agreements. At the date hereof and on each later
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date that a Purchaser Director or any other director is first elected or
appointed to the Board of Directors, the Company shall enter into an
indemnification agreement in substantially the form attached as Exhibit A with
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each Purchaser Director and each other director of the Company who is elected or
appointed to the Board of Directors on such date.
1H. Material Transactions with CNET. The unanimous approval of the
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Board of Directors shall be required for all material transactions between the
Company and CNET. For purposes of this paragraph 1H, the term "material
transaction" shall mean any of the following:
(i) any transaction, or series of similar transactions, to which
the Company is to be a party, in which the amount involved exceeds 5% of the
consolidated assets of the Company and its Subsidiaries as of the end of the
Company's most recently completed fiscal quarter and in which CNET, any of its
subsidiaries, officers or directors or nominees for director, any beneficial
holder of five percent or more of CNET's outstanding capital stock, or CNET's
designee to the Company's Board of Directors will have a direct or indirect
material interest; or
(ii) indebtedness owed by CNET, any of its subsidiaries, officers
or directors or nominees for director, any beneficial holder of five percent or
more of CNET's outstanding capital stock, or CNET's designee to the Company's
Board of Directors, to the Company in an amount in excess of 5% of the
consolidated assets of the Company and its Subsidiaries as of the end of the
Company's most recently completed fiscal quarter.
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2. Provisions Relating to Restricted Stock.
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2A. General Restrictions on Transfer of Capital Stock; Dividends.
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(i) For purposes of this Agreement, "Restricted Stock" is
Common Stock now owned or subsequently acquired by any Common Stockholder or a
transferee of a Common Stockholder in a Permitted Transfer (as defined below).
During the term of this Agreement, none of the shares of Restricted Stock may be
sold, assigned, transferred, pledged, encumbered or otherwise disposed of (a
"transfer") except in a "Permitted Transfer" or a transfer that complies with
the provisions of paragraphs 2B and 2C.
(ii) Any attempted transfer of shares of Restricted Stock other
than in accordance with this Agreement shall be null and void and the Company
shall refuse to recognize any such transfer and shall not reflect on its records
any change in record ownership of shares of Restricted Stock pursuant to any
such transfer.
(iii) The following transfers of Restricted Stock (each such
transfer being a "Permitted Transfer", and each transferee in such transfer
being a "Permitted Transferee") may be made free of the restrictions and
requirements of paragraphs 2B and 2C hereof: (a) an individual holder of
Restricted Stock may transfer any or all of the shares of Restricted Stock owned
by him to his spouse or children, or to trusts established for the benefit of
his spouse or children, provided that the transferee grants to the transferor an
irrevocable proxy coupled with an interest to vote all of the shares of
Restricted Stock so transferred and agrees to be bound by the provisions of this
Agreement, including, without limitation, paragraphs 2B and 2C; (b) provided
that the transferee agrees to be bound by the provisions of this Agreement, a
partnership, corporation or trust holding Restricted Stock may transfer any
shares of Restricted Stock owned by such holder (1) to its Affiliates (as
defined under the Securities Act of 1933), (2) to its general or limited
partners, shareholders or beneficiaries, or (3) to an entity owned by or
organized for the benefit of the general or limited partners, shareholders,
officers, directors, employees, Affiliates or beneficiaries of such holder, as
applicable, (c) a holder of Restricted Stock may pledge any shares of Restricted
Stock owned by such holder to secure the repayment of any bona fide indebtedness
owing by such holder, the Company or any Subsidiary to a financial institution,
provided that such holder retains the power to vote the shares of Restricted
Stock so pledged until such time as the pledgee shall have realized upon the
pledge and that the provisions of this Agreement, including, without limitation,
paragraphs 2B and 2C, shall be applicable to the shares of Restricted Stock so
pledged and (iv) a holder of Restricted Stock may sell Restricted Stock to the
Company pursuant to an agreement under which the Company has the option to
repurchase such Restricted Stock upon the occurrence of certain events,
including the termination of employment by or service to the Company or any
subsidiary of the Company.
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2B. Right of First Refusal.
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(i) Subject to paragraph 2B(v), whenever and as often as any
Common Stockholder or a Permitted Transferee of a Common Stockholder desires to
sell any shares of Restricted Stock pursuant to a bona fide written offer to
purchase such shares, such Common Stockholder (the "Selling Holder" for purposes
of this paragraph 2B) shall give written notice (the "Notice," for purposes of
this paragraph 2B) to the Company, to each Founder who on the date of such
Notice is a full-time employee of the Company and each holder of Shares (each an
"Offeree," for the purposes of this paragraph 2B) to such effect, enclosing a
copy of such offer and specifying the number of shares of Restricted Stock which
the Selling Holder desires to sell, the name of the person or persons to whom
the Selling Holder desires to make such sale and the consideration per share of
Common Stock which has been offered in connection with such offer.
(ii) Upon receipt of the Notice, the Offerees shall initially
have the first right and option to purchase the shares proposed to be sold for
cash at the same purchase price and on the same terms as specified in the
Notice, pro rata according to their respective holdings of Common Stock and
Shares, exercisable for seven days after receipt of the Notice. Failure of any
Offeree to respond to the Notice within the seven-day period shall be deemed to
constitute a notification to the Selling Holder of such Offeree's decision not
to exercise the first right and option to purchase shares of Restricted Stock
under this paragraph 2B. If any Offeree fails to exercise its first right and
option, the Selling Holder shall give written notice to each of the other
Offerees who has elected to purchase his or her or its pro rata share of the
shares of Restricted Stock proposed to be transferred, and each such Offeree
shall have the right, exercisable for a period of three days from the date of
receipt of such Notice, to purchase the remaining shares of Restricted Stock,
pro rata according to the Common Stock and Shares held by all such electing
Offerees or in such other proportions as they may agree upon. In the event such
consideration includes non-cash consideration, the dollar value of such non-cash
consideration shall be its Fair Market Value (as defined in paragraph 4K). The
Offerees may exercise the right and option provided above by giving written
notice of exercise to the Selling Holder within such seven-day period,
specifying the date (not later than three days from the date of expiration of
all applicable first right and options to purchase shares under this paragraph)
upon which payment of the purchase price for the shares purchased pursuant to
this paragraph shall be made. The Selling Holder shall deliver to the Offeree(s)
at the Company's principal office, at least one day prior to the payment date,
wire transfer instructions, and on the payment date specified in such notice,
the certificate or certificates representing such shares, properly endorsed for
transfer, against payment of the purchase price therefor by the Offeree(s) in
immediately available funds.
(iii) In the event that all of the shares of Restricted Stock
proposed to be transferred are not purchased by the Offerees, the Company shall
have the right and option to purchase the balance of the shares proposed to be
sold for cash at the purchase price per share specified in the Notice,
exercisable for seven days after expiration of the option period set forth in
paragraph 2B(ii). The Company may assign its right and option to purchase such
Restricted Stock to any other person. Failure of the Company to respond to such
Notice within such seven-day period shall be deemed to constitute a notification
to the Selling Holder of the Company's decision
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not to exercise the first right and option to purchase such shares under this
paragraph. The Company may exercise its right and option to purchase such
Restricted Stock by giving written notice of exercise to the Selling Holder
within such seven-day period, specifying the date (not later than three days
from the date of such notice) upon which payment of the purchase price for the
shares shall be made. The Selling Holder shall deliver to the Company's
principal office, on or before the payment date specified in such notice, the
certificate or certificates representing the shares being purchased by the
Company, properly endorsed for transfer, against payment of the purchase price
therefor by the Company in immediately available funds.
(iv) If all the shares of Restricted Stock proposed to be
transferred are not purchased by the Offerees and the Company in accordance with
this paragraph 2B, the Selling Holder shall not be required to sell any of the
shares of Restricted Stock proposed to be transferred to the Offerees or to the
Company, and during the 60-day period commencing on the expiration of the rights
and options provided for in this paragraph, may sell all (but not less than all)
of such shares to the transferee named in the Notice for a consideration equal
to or greater than the consideration specified in the Notice, free of the
restrictions contained in paragraphs 2B and 2C (but subject to the other terms
and conditions of this Agreement).
(v) Whenever and as often as any Common Stockholder shall
receive a bona fide offer to purchase any shares of Restricted Stock from a
prospective purchaser which the Selling Holder wishes to accept, each Purchaser
shall have the right, at such Purchaser's option, either to exercise its rights
under paragraph 2B(ii) or to participate in the sale to the prospective
purchaser pursuant to this paragraph 2B(v). The Selling Holder will use
reasonable best efforts to arrange for the sale to the prospective purchaser of
the number of each such Purchaser's shares of Common Stock, Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series E Preferred
Stock and Series F Preferred Stock which bears the same proportion to the total
number of shares of Common Stock, Series A Preferred Stock, Series B Preferred
Stock, Series C Preferred Stock, Series E Preferred Stock and Series F Preferred
Stock owned by such Purchaser as the number of shares of Restricted Stock being
sold by the Selling Holder bears to the total number of shares of Restricted
Stock owned by the Selling Holder, as applicable, at the purchase price per
share and on the terms and conditions specified in the Notice. For purposes of
this paragraph 2B(v), a Purchaser may elect to sell Common Stock at the purchase
price per share specified for the Common Stock in the Notice, and may elect to
sell Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock, Series E Preferred Stock or Series F Preferred Stock at the purchase
price per share of Common Stock specified for the Common Stock in the Notice
multiplied by the number of shares of Common Stock into which a share of Series
A Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series E
Preferred Stock or Series F Preferred Stock, as applicable, is then convertible.
If the prospective purchaser will not purchase all the shares which the Selling
Holder and the Purchasers wish to sell pursuant to this paragraph 2B(v), the
number of shares which the Selling Holder and Purchasers shall be entitled to
sell to such prospective purchaser shall be a number of shares equal to the
number of shares which the prospective purchaser desires to purchase times a
fraction, the numerator of which is the number of shares of Restricted Stock
beneficially owned by the Selling Holder or the number of shares of Common
Stock, Series A Preferred Stock, Series B Preferred Stock, Series C Preferred
Stock,
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Series E Preferred Stock and Series F Preferred Stock beneficially owned by each
selling Purchaser, as appropriate, and the denominator of which is the aggregate
number of shares of Restricted Stock, Common Stock, Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series E Preferred Stock and
Series F Preferred Stock beneficially owned by the Selling Holder and all such
selling Purchasers. An Offeree may exercise his or her or its right under this
paragraph by written notice given within seven days after receipt of the Notice.
2C. Voting of Restricted Stock.
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(i) In the event that a Founder is no longer employed by the
Company, such holder shall vote all his shares in accordance with the other
Founder, as long as such other Founder is employed by the Company.
(ii) In the event that neither Founder is employed by the
Company, all the Founders shall vote their shares as directed by the chief
executive officer of the Company on the date of such vote.
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3. Preemptive Rights.
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3A. Pre-Qualified Public Offering. If, prior to a Qualified Public
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Offering (as defined in paragraph 4K), the Company shall issue any Equity
Securities (as defined in paragraph 4K) consisting of Common Stock or other
Equity Securities, each Founder who on the date of the notice of such proposed
issuance referred to below is a full-time employee of the Company and each
holder of shares of Series A Preferred Stock, Series B Preferred Stock, Series
C Preferred Stock, Series E Preferred Stock and Series F Preferred Stock shall
be entitled to purchase the portion of such Common Stock or Equity Securities to
be issued necessary in order that the aggregate shares of Common Stock and
Shares held by such holder constitute the same percentage of all Common Stock
(assuming the conversion, exercise or exchange of all Equity Securities) after
the issuance of such Common Stock or Equity Securities as before the issuance
thereof; provided, however, that such preemptive right shall not apply to (a)
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issuances of Common Stock or Equity Securities pursuant to an Approved Plan (as
defined in paragraph 4K), (b) issuances of Common Stock or Equity Securities
pursuant to warrants granted in connection with a capital equipment financing,
(c) issuances of Common Stock or Equity Securities upon the conversion, exercise
or exchange of Equity Securities to which the preemptive right was applicable,
(d) issuances of Common Stock or Equity Securities in connection with an
exercise of the preemptive rights granted hereunder, (e) issuances of Shares
pursuant to the Stock Purchase Agreement, dated as of February 5, 1996, among
the Company, Austin Ventures, Sigma and the Founders, (f) issuances of Shares
pursuant to the Stock Purchase Agreement, dated as of July 19, 1996, among the
Company and CNET, (g) issuances of Shares pursuant to the Stock Purchase
Agreement, dated as of June 6, 1997, among the Company, Attractor, Austin
Ventures and Sigma, (h) issuances of Shares pursuant to the Stock Purchase
Agreement, dated as of July 17, 1997, among the Company, Adobe, Austin Ventures,
Xxxxxxx River, Sigma, the Founders and certain other parties, (i) issuances of
Shares pursuant to the Purchase Agreement (j) issuances of Series D Warrants
from time to time by the Company or issuances of Equity Securities upon exercise
thereof, or (k) issuances of Common Stock upon conversion of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock, Series E Preferred Stock and Series F Preferred Stock. The price of
securities which each holder becomes entitled to purchase by reason hereof shall
be the same price at which such securities are proposed to be offered to others.
3B. First Qualified Public Offering. In the Company's first
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Qualified Public Offering, each Purchaser of Series F Preferred Stock shall be
entitled to purchase a portion (the "Proportionate Share") of such Equity
Securities to be issued in such offering. Subject to the limitations of the
following sentence, for Purchasers of Series F Preferred Stock other than
Attractor, the Proportionate Share shall be that portion of the shares to be
issued in such offering, necessary in order that (I) the sum of (A) the
Proportionate Share and (B) the number of shares of Common Stock issuable upon
conversion of the Series F Preferred Stock held by such Purchaser divided by
(II) the number of shares of Common Stock outstanding immediately after such
offering (assuming the full conversion, exercise or exchange of all Equity
Securities) equals (x) the number of shares of Common Stock issuable upon
conversion of the Series F Preferred Stock held by such Purchaser divided by (y)
the number of shares of Common Stock outstanding immediately before such
offering (assuming the full conversion, exercise or exchange of all Equity
Securities); for
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Attractor, the Proportionate Share shall be that portion of the shares to be
issued in such offering, necessary in order that (I) the sum of (A) the
Proportionate Share and (B) the number of shares of Common Stock issuable upon
conversion of the Series E Preferred Stock and Series F Preferred Stock held by
Attractor divided by (II) the number of shares of Common Stock outstanding
immediately after such offering (assuming the full conversion, exercise or
exchange of all Equity Securities) equals (x) the number of shares of Common
Stock issuable upon conversion of the Series E Preferred Stock and Series F
Preferred Stock held by Attractor divided by (y) the number of shares of Common
Stock outstanding immediately before such offering (assuming the full
conversion, exercise or exchange of all Equity Securities). Notwithstanding the
foregoing sentence, (i) such Proportionate Shares, in the aggregate, may not
exceed 10% of such offering and (ii) the Proportionate Shares may be cut back to
the extent deemed necessary to the success of such offering by the managing
underwriter thereof in its reasonable opinion confirmed in writing to the
Purchasers not less than two weeks prior to the effective date of the
registration statement covering such securities; provided, however, in the event
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of an oversubscription of the Proportionate Shares, such shares shall be
allocated first so that each of Attractor and Amerindo receives its full
Proportionate Share (and in the event that such shares are insufficient for each
of Attractor and Amerindo to receive their full Proportionate Share, then each
of Attractor's and Amerindo's Proportionate Share shall be cut back pro rata,
based upon their full Proportionate Share) and second, among the remaining
Series F Purchasers pro rata based upon their respective holdings of Series F
Preferred Stock. The price of securities which each such Purchaser of Series F
Preferred Stock becomes entitled to purchase by reason hereof shall be the same
price at which such securities are initially offered to the public.
3C. Procedures. A holder may exercise its right under paragraph 3A
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to purchase Equity Securities by paying the purchase price therefor at the
principal office of the Company within ten days after receipt of notice from the
Company (which notice by the Company shall be given at least 15 days before the
issuance of the Equity Securities) stating the number or amount of Equity
Securities it intends to issue and the price and characteristics thereof. In
the first Qualified Public Offering, the Company shall give notice to the
holders of Series E Preferred Stock and Series F Preferred Stock at least 15
days prior to the filing of the registration statement relating to such offering
stating the number or amount of Equity Securities the Company intends to issue
and the anticipated offering price and characteristics thereof. A Purchaser may
exercise his or its right under paragraph 3B to purchase Equity Securities by
giving notice to the Company of his or its commitment to purchase within ten
days after receipt of the Company's notice and paying the purchase price
therefor on the date and at the place of the closing of such offering. The
holder shall pay such purchase price in cash or by check; provided, however,
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that if the Company is indebted to such holder, the holder shall be entitled, at
the holder's sole option, to credit against the purchase price all or any
portion of the Company's indebtedness to such holder which is then due (accrued
but unpaid dividends on the Series A Preferred Stock, Series B Preferred Stock,
Series C Preferred Stock, Series E Preferred Stock and Series F Preferred Stock
shall not be deemed to be indebtedness for purposes of such credit). A holder's
contractual preemptive rights hereunder shall be deemed to be exercised
immediately prior to the close of business on the day of payment of the purchase
price in accordance with the foregoing provisions, and at such time such holder
shall be treated for all purposes as the record holder of the Equity Securities,
as the case may be. As
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promptly as practicable (and in any event within ten days) on or after the
purchase date, the Company shall issue and deliver at its principal office a
certificate or certificates for the number of full shares of Common Stock or the
number of full shares or amount, whichever is applicable, of Equity Securities
together with cash for any fraction of a share or portion of an Equity Security
at the purchase price to which the holder is entitled hereunder.
4. General Provisions.
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4A. Legends on Certificates. During the term of this Agreement, each
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certificate representing shares of Common Stock or Shares will bear a legend in
substantially the following form:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE AND THE SALE,
ASSIGNMENT, TRANSFER, PLEDGE OR OTHER DISPOSITION AND VOTING THEREOF
ARE SUBJECT TO CERTAIN RESTRICTIONS AND AGREEMENTS CONTAINED IN A
STOCKHOLDERS AGREEMENT AMONG THE COMPANY AND CERTAIN OF ITS
STOCKHOLDERS, AS AMENDED FROM TIME TO TIME. A COPY OF THE STOCKHOLDERS
AGREEMENT AND ALL APPLICABLE AMENDMENTS THERETO WILL BE FURNISHED BY
THE COMPANY TO THE RECORD HOLDER OF THIS CERTIFICATE WITHOUT CHARGE
UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL PLACE OF BUSINESS
OR REGISTERED OFFICE."
The Company shall make a notation on its records and give instructions to any
transfer agent of the Shares or Common Stock in order to implement the
restrictions on transfer established in this Agreement.
4B. Termination; Amendment.
----------------------
(i) This Agreement shall terminate upon the earlier to occur of (a)
a Qualified Public Offering, (b) the written agreement of the Company and the
holders of 80% or more of the Shares then outstanding and the holders of at
least a majority of the Common Stock outstanding, or (c) the acquisition by a
single purchaser of all of the issued and outstanding shares of the Common Stock
and the Shares. Notwithstanding the foregoing sentence, this Agreement shall
survive a Qualified Public Offering to the extent necessary to satisfy paragraph
3B. hereof.
(ii) This Agreement may be amended by the written agreement of the
Company and the holders of 80% or more of the Shares then outstanding.
(iii) Notwithstanding the foregoing paragraphs 4B.(i) and (ii), this
Agreement may not be amended to materially and adversely affect the holders of
Series E Preferred Stock and/or Series F Preferred Stock without the affirmative
vote of the holders of at least 95% of the
11
Series E Preferred Stock and/or Series F Preferred Stock, respectively, then
outstanding, voting as a separate class.
4C. Notices. All notices, requests, consents, and other
-------
communications under this Agreement shall be in writing and shall be delivered
personally, by facsimile transmission, by overnight delivery service or 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 Purchasers, 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
Attention: Xxxxx Xxxxxxxxxx (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 Buchalter, Nemer, 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 Buchalter, Nemer, 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 X. 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)
000-0000).
If to Xxxxxxx River, at 0000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxx Colony
Corporate Center, Waltham, Massachusetts 02154, Attention: Xxx Xxxxxxxxxxx (fax
(000) 000-0000); or at such other address or addresses as may have been
furnished to the Company in writing by Xxxxxxx River.
If to CNET, at 000 Xxxxxxxx Xxxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxx (fax (000) 000-0000); or at such other address or
addresses as may have been
12
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, at his address set forth below his signature to this
Agreement.
Notices provided in accordance with this paragraph 4C shall be deemed
delivered upon personal delivery or two business days after deposit in the mail.
4D. 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.
4E. 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.
4F. Reorganization. The provisions of this Agreement shall apply to
--------------
any shares or other securities resulting from any stock split or reverse split,
stock dividend, reclassification, subdivision, consolidation or reorganization
of any shares or other equity securities of the Company and to any shares or
other securities of the Company or of any successor company which may be
received by any of the parties hereto by virtue of their respective ownership of
any shares of Common Stock and Shares of the Company.
4G. Headings. The headings of this Agreement are for convenience
--------
only and do not constitute a part of this Agreement.
13
4H. 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.
4I. Binding Effect. The rights and obligations of each Purchaser
--------------
under this Agreement may be assigned by such Purchaser to any person or entity
to which Shares are transferred by such Purchaser, and such transferee shall be
deemed a "Purchaser" for purposes of this Agreement, provided that the
transferee provides written notice of such assignment to the Company.
4J. Entire Agreement. This Agreement is intended to be the sole
----------------
agreement of the parties as it relates to this subject matter and does hereby
supersede all other agreements of the parties relating to the subject matter
hereof including, without limitation, the Prior Stockholders Agreement.
4K. Definitions. For purposes of this Agreement, the following terms
-----------
shall have the meanings indicated:
"Approved Plan" means the Company's 1995 Stock Option/Stock Issuance
-------------
Plan as in effect on the date hereof, as amended from time to time and any other
written stock option purchase or similar incentive plan; provided that any such
amendment or other plan is approved by a majority of the Board of Directors,
with a majority of the Purchaser Directors concurring.
"Board of Directors" shall mean the board of directors of the Company.
------------------
"Common Stock" means, collectively, the Company's Common Stock, par
------------
value $0.01 per share, and any capital stock of any class of the Company
hereafter authorized which is not limited to a fixed sum or percentage of par or
stated value in respect to the rights of the holders thereof to participate in
dividends or in the distribution of assets upon any liquidation, dissolution or
winding up of the Company.
"Equity Security" means any stock or similar security, including
---------------
without limitation, securities containing equity features and securities
containing profit participation features, or any security convertible or
exchangeable, with or without consideration, into or for any stock or similar
security, or any security carrying any warrant or right to subscribe for or
purchase any stock or similar security, or any such warrant or right.
"Fair Market Value" means the fair market value as determined by a
-----------------
majority of the Board of Directors with a majority of the Purchaser Directors
concurring.
"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.
14
"Qualified Public Offering" means any underwritten offering by the
-------------------------
Company of shares of Common Stock to the public pursuant to an effective
registration statement under the Securities Act of 1933, then in effect, or any
comparable statement under any similar federal statute then in force, in which
(i) the aggregate cash proceeds to be received by the Company and selling
stockholders from such offering (without deducting underwriting discounts,
expenses and commissions) are at least $20,000,000, and (ii) the price per share
paid by the public for such shares is at least $3.00 if determined with respect
to Series A Preferred Stock or Series C Preferred Stock (as adjusted for stock
dividends, combinations and splits with respect to such shares), $4.95 if
determined with respect to Series B Preferred Stock (as adjusted for stock
dividends, combinations and splits with respect to such shares), $8.48 if
determined with respect to Series E Preferred Stock or $13.00 if determined with
respect to Series F Preferred Stock (as adjusted for stock dividends,
combinations and splits with respect to such shares).
"Series A Preferred Stock" means the Company's Series A 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 D Preferred Stock" means the Company's Series D Convertible
------------------------
Preferred Stock, par value $0.01 per share.
"Series D Warrants" means warrants to purchase Series D Preferred
-----------------
Stock issued from time to time by the Company including, without limitation,
that certain Warrant to Purchase 65,368 shares of Series D Convertible Preferred
Stock, dated December 31, 1996, originally issued to Xxxxx Xxxxxxx.
"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.
15
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
AUSTIN VENTURES IV-A, X.X.
XXXXXX VENTURES IV-B, L.P.
By: AV Partners IV, L.P.,
Its General Partner
By: /s/ Xxxx 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 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 Xxxxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxxxx,
President
XXXXXXX, SACHS & CO VERWALTUNGS
GmbH
By: /s/ Xxxxxxx Xxxxxxxx
-----------------------------------------
Name:
Managing Director
and
By: [SIGNATURE ILLEGIBLE]
-----------------------------------------
Name:
Registered Agent
THE XXXXXXX SACHS GROUP, L.P.
By: The Xxxxxxx Xxxxx Corporation
By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------------
Xxxxxxx X. Xxxxxxxx,
Executive Vice President
XXXXXXXXX & XXXXX CALIFORNIA
By: /s/ Xxxxxx Xxxxxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
-------------------------------
Title: Attorney-in-Fact
------------------------------
H&Q VIGNETTE INVESTORS, L.P.
By: /s/ Xxxxxx Xxxxxxxxxxxx
---------------------------------
Name: Xxxxxx Xxxxxxxxxxxx
-------------------------------
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 X. Xxxx
------------------------------
Name: Xxxxxxxx X. Xxxx
----------------------------
Title: General Partner
---------------------------
/s/ Xxxx Xxxxxxx
-----------------------------------
Xxxx Xxxxxxx
Individually
/s/ Xxxx X. Xxxxxx
-----------------------------------
Xxxx X. Xxxxxx,
Founder
Address: 00000 Xxxxxxxx Xxxxx Xxxxx
Xxxxxx, Xxxxx 00000
/s/ Xxxx Xxxxxx
-----------------------------------
Xxxx Xxxxxx,
Founder
Address: 00 Xxxxxx Xxxx
Xxxxx Xxxx, Xxxxx 00000
EXHIBIT A
INDEMNIFICATION AGREEMENT
See attached.
