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EXHIBIT 10.5
REQUISITE TECHNOLOGY, INC.
SECOND AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
THIS SECOND AMENDED AND RESTATED SHAREHOLDERS AGREEMENT (the
"AGREEMENT") is made and entered into this 13th day of September, 1999, by and
among Requisite Technology, Inc., a Delaware corporation (the "COMPANY"), those
certain holders of the Company's Common Stock listed on Exhibit A hereto (the
"KEY SHAREHOLDERS") and the persons and entities listed on Exhibit B hereto (the
"INVESTORS").
WITNESSETH:
WHEREAS, the Key Shareholders and certain of the Investors are parties
to an Amended and Restated Shareholders Agreement dated as of August 25, 1997
(the "PRIOR AGREEMENT"); and
WHEREAS, the Key Shareholders are the beneficial owners of the number
of shares of the Common Stock of the Company set forth opposite their name on
Exhibit A hereto; and
WHEREAS, the Company proposes to sell shares of its Series E Preferred
Stock (the "SERIES E PREFERRED STOCK") to certain of the Investors pursuant to
the Series E Preferred Stock Purchase Agreement of even date herewith (the
"FINANCING");
WHEREAS, in connection with the consummation of the Financing, the
Company, the Key Shareholders and the Investors have agreed to amend the Prior
Agreement and replace such Agreement in its entirety with this Agreement to
provide for the future voting of their shares of the Company's capital stock as
set forth below;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1
VOTING
1.1 COMMON SHARES; INVESTOR SHARES.
(a) The Key Shareholders each agree to hold all shares of voting
capital stock of the Company registered in their respective names or
beneficially owned by them as of the date hereof and any and all other
securities of the Company legally or beneficially acquired by each of the Key
Shareholders after the date hereof (hereinafter collectively referred to as the
"COMMON SHARES"), subject to the provisions of this Agreement, and to vote the
Common Shares in accordance with the provisions of this Agreement.
(b) The Investors each agree to hold all shares of voting capital
stock of the Company now owned or hereinafter acquired by them (including but
not limited to all shares of
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Common Stock issued upon conversion of the Company's Series A Preferred Stock,
Series B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock,
and Series E Preferred Stock) registered in their respective names or
beneficially owned by them as of the date hereof (and any and all other
securities of the Company legally or beneficially acquired by each of the
Investors after the date hereof) (hereinafter collectively referred to as the
"INVESTOR SHARES") subject to, and to vote the Investor Shares in accordance
with, the provisions of this Agreement.
1.2 VOTING.
(a) At each election of directors in which the holders of the
Series B Preferred Stock, voting together as a separate class, are entitled to
elect a director of the Company pursuant to Article III, Paragraph D, Section
2(d)(i) of the Company's Restated Certificate of Incorporation (the "RESTATED
CERTIFICATE"), the holders of Series B Preferred Stock that are parties hereto
shall vote their respective shares of Series B Preferred Stock so as to elect
such person designated by Xxxx, Xxxxxxx Ventures IV, L.P. (which person shall
initially be Xxxxx X. Xxxxxxxxxx).
(b) At each election of directors in which the holders of the
Series C Preferred Stock, voting together as a separate class, are entitled to
elect a director of the Company pursuant to Article III, Paragraph D, Section
2(d)(ii) of the Restated Certificate, the holders of Series C Preferred Stock
that are parties hereto shall vote their respective shares of Series C Preferred
Stock so as to elect such person designated by Trinity Ventures V, L.P. (which
person shall initially be Xxxx Xxxxxx).
(c) At each election of directors in which the holders of Common
Stock, voting together as a separate class, are entitled to elect four directors
of the Company pursuant to Article III, Paragraph D, Section 2(d)(iii) of the
Restated Certificate, the holders of Common Stock that are parties hereto shall
vote their respective shares of Common Stock so as to elect (i) the then current
Chief Executive Officer of the Company, (ii) such person as may be nominated by
the then current Chief Executive Officer of the Company and mutually acceptable
to the other members of the Company's Board of Directors, and (iii) such other
persons who shall be nominated by the Company who are mutually acceptable to the
existing members of the Company's Board of Directors.
(d) At each election of directors in which the holders of Common
Stock and Preferred Stock, voting together as a separate class, are entitled to
elect all remaining directors of the Company pursuant to Article III, Paragraph
D, Section 2(d) of the Restated Certificate, the holders of Common Stock and
Preferred Stock shall vote their respective shares of Common Stock and Preferred
Stock so as to elect such person or persons as are nominated by the Company who
are mutually acceptable to the existing members of the Board of Directors (which
persons shall initially be Xxxxxx X. Washing).
1.3 LEGEND.
(a) Concurrently with the execution of this Agreement, there
shall be imprinted or otherwise placed, on certificates representing the Common
Shares and the Investor Shares the following restrictive legend (the "LEGEND"):
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THE SHARES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO THE TERMS AND CONDITIONS OF A SHAREHOLDERS AGREEMENT
WHICH PLACES CERTAIN RESTRICTIONS ON THE VOTING OF THE SHARES
REPRESENTED HEREBY. ANY PERSON ACCEPTING ANY INTEREST IN SUCH
SHARES SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL
THE PROVISIONS OF SUCH AGREEMENT. A COPY OF SUCH SHAREHOLDERS
AGREEMENT WILL BE FURNISHED TO THE RECORD HOLDER OF THIS
CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST TO REQUISITE
TECHNOLOGY, INC., AT ITS PRINCIPAL PLACE OF BUSINESS.
(b) The Company agrees that, during the term of this Agreement,
it will not remove, and will not permit to be removed (upon registration of
transfer, reissuance of otherwise), the Legend from any such certificate and
will place or cause to be placed the Legend on any new certificate issued to
represent Common Shares or Investor Shares theretofore represented by a
certificate carrying the Legend.
1.4 SUCCESSORS. The provisions of this Agreement shall be binding upon
the successors in interest to any of the Common Shares or Investor Shares. The
Company shall not permit the transfer of any of the Common Shares or Investor
Shares on its books or issue a new certificate representing any of the Common
Shares or Investor Shares unless and until the person to whom such security is
to be transferred shall have executed a written Agreement, substantially in the
form of this Agreement, pursuant to which such person becomes a party to this
Agreement and agrees to be bound by all the provisions hereof as if such person
were a Key Shareholder or Investor, as applicable.
1.5 OTHER RIGHTS. Except as provided by this Agreement, each Key
Shareholder and Investor shall exercise the full rights of a shareholder with
respect to the Common Shares and the Investor Shares, respectively.
ARTICLE 2
TERMINATION
2.1 This Agreement shall continue in full force and effect from the
date hereof through the earliest of the following dates, on which it shall
terminate in its entirety:
(a) the date of the closing of a firmly underwritten public
offering of the Company's Common Stock pursuant to a registration statement
filed with, and declared effective under the Securities Act of 1933, as amended;
or
(b) upon the occurrence of an Asset Transfer or Acquisition (each
as defined in the Restated Certificate); or
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(c) at such time as less than 2,000,000 shares of the Company's
Preferred Stock are outstanding or at such time as less than 300,000 shares of
the Company's Series D Preferred Stock are outstanding (in either case as
adjusted for stock splits and the like); or
(d) ten (10) years from the date of this Agreement; or
(e) the date as of which the parties hereto terminate this
Agreement by written consent of a majority in interest of the Investors and a
majority in interest of the Key Shareholders; provided that this Agreement may
not be terminated without the consent of at least two-thirds in interest of the
holders of Series B Preferred Stock who are parties hereto and the holders of at
least two-thirds in interest of the holders of Series C Preferred Stock who are
parties hereto.
ARTICLE 3
MISCELLANEOUS
3.1 PRIOR AGREEMENT. The undersigned parties who constitute the
requisite parties to amend the Prior Agreement hereby agree that the Prior
Agreement is null and void and superseded by the rights and obligations set
forth in this Agreement.
3.2 OWNERSHIP. Each Key Shareholder represents and warrants to the
Investors that (i) he now owns the Common Shares, free and clear of liens or
encumbrances, and has not, prior to or on the date of this Agreement, executed
or delivered any proxy or entered into any other voting agreement or similar
arrangement other than one which has expired or terminated prior to the date
hereof, and (ii) such Key Shareholder has full power and capacity to execute,
deliver and perform this Agreement, which has been duly executed and delivered
by, and evidences the valid and binding obligation of, such Key Shareholder
enforceable in accordance with its terms.
3.3 FURTHER ACTION. If and whenever the Common Shares are sold, the Key
Shareholders or the personal representative of the Key Shareholders shall do all
things and execute and deliver all documents and make all transfers, and cause
any transferee of the Common Shares to do all things and execute and deliver all
documents, as may be necessary to consummate such sale consistent with this
Agreement.
3.4 SPECIFIC PERFORMANCE. The parties hereto hereby declare that it is
impossible to measure in money the damages which will accrue to a party hereto
or to their heirs, personal representatives, or assigns by reason of a failure
to perform any of the obligations under this Agreement and agree that the terms
of this Agreement shall be specifically enforceable. If any party hereto or his
heirs, personal representatives, or assigns institutes any action or proceeding
to specifically enforce the provisions hereof, any person against whom such
action or proceeding is brought hereby waives the claim or defense therein that
such party or such personal representative has an adequate remedy at law, and
such person shall not offer in any such action or proceeding the claim or
defense that such remedy at law exists.
3.5 GOVERNING LAW. This Agreement, and the rights of the parties
hereto, shall be governed by and construed in accordance with the laws of the
State of Delaware as such laws
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apply to agreements among Delaware residents made and to be performed entirely
within the State of Delaware.
3.6 AMENDMENT. This Agreement may be amended only by an instrument in
writing signed by the Company, a majority in interest of the Investors and a
majority in interest of the Key Shareholders. Notwithstanding the foregoing, (i)
Section 1.2(a) may be amended, and any provision therein may be waived, with
only the consent of two-thirds in interest of the holders of Series B Preferred
Stock who are parties hereto and (ii) Section 1.2(b) may be amended, and any
provision therein may be waived, with only the consent of two-thirds in interest
of the holders of Series C Preferred Stock who are parties hereto. For purposes
of calculating a majority in interest of the Investors and the Key Shareholders,
such calculation shall be made as if all outstanding options, warrants and other
securities have been converted into outstanding shares of capital stock of the
Company.
3.7 SEVERABILITY. If any provision of this Agreement is held to be
invalid or unenforceable, the validity and enforceability of the remaining
provisions of this Agreement shall not be affected thereby.
3.8 SUCCESSORS. This Agreement shall inure to the benefit of and be
binding upon the parties hereto and their respective heirs, successors, assigns,
administrators, executors and other legal representatives.
3.9 ADDITIONAL SHARES. In the event that subsequent to the date of this
Agreement any shares or other securities (other than any shares or securities of
another corporation issued to the Company's shareholders pursuant to a plan of
merger) are issued on, or in exchange for, any of the Common Shares or Investor
Shares by reason of any stock dividend, stock split, consolidation of shares,
reclassification or consolidation involving the Company, such shares or
securities shall be deemed to be Common Shares or Investor Shares, as the case
may be, for purposes of this Agreement.
3.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original but all of which together
shall constitute one and the same agreement.
3.11 WAIVER. No waivers of any breach of this Agreement extended by any
party hereto to any other party shall be construed as a waiver of any rights or
remedies of any other party hereto or with respect to any subsequent breach.
3.12 ATTORNEY'S FEES. In the event that any suit or action is
instituted to enforce any provision in this Agreement, the prevailing party
shall be entitled to all costs and expenses of maintaining such suit or action,
including reasonable attorneys' fees.
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IN WITNESS WHEREOF, the parties hereto have executed this Second
Amended and Restated Shareholders Agreement as of the date first above written.
COMPANY: INVESTORS:
REQUISITE TECHNOLOGY, INC. XXXX, XXXXXXX VENTURES IV, L.P.
By: Fourth MDV Partners, L.L.C.,
General Partner
By: /s/ XXXXXXX X. XXXXX
-------------------------------------
By: /s/ XXXXX XXXXXXXXXX
-----------------------------------------
KEY SHAREHOLDERS Member
/s/ XXXXXXX X. XXXXX
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Xxxxxxx Xxxxx
MDV IV ENTREPRENEURS' NETWORK FUND, L.P.
By: Fourth MDV Partners, L.L.C.,
General Partner
/s/ X X XXXXXXXXXX
-------------------------------------
Xxxxx Xxxxxxxxxx
By: /s/ XXXXX XXXXXXXXXX
-----------------------------------------
/s/ XXXXX XXXX Member
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Xxxxx Xxxx
SEQUEL LIMITED PARTNERSHIP
/s/ XXXXXXXXXXX X. XXXXX
-------------------------------------
Xxxxxxxxxxx Xxxxx By: Sequel Venture Partners, L.L.C.,
General Partner
/s/ XXXXXXX XXXXX
-------------------------------------
Xxxxxxxx Xxxxx
By: /s/ XXXXXX X. WASHING
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Manager
/s/ XXXXX XXXX
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Xxxxx Xxxx
LIBERTY VENTURES I, L.P.
/s/ XXXXXX X. WASHING By: Liberty Ventures, Inc.
------------------------------------- Managing General Partner
Xxx Washing
By: /s/ XXXXX XXXXXXXX XXXXX
------------------------------------- -----------------------------------------
Xxxxx Washing Vice President
/s/ XXXX XXXXXXXXXXXX
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Xxxx Xxxxxxxxxxxx TRINITY VENTURES V, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
/s/ XXXXX XXXXX By: Trinity TVL Partners V, L.P.,
------------------------------------- A California Limited Partnership
Xxxxx Xxxxx Its General Partner
By: /s/ XXXXX XXX
-----------------------------------------
SECOND AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
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/s/ XXXX XXXXXXXXXXXX
-------------------------------------
Xxxx Xxxxxxxxxxxx
/s/ XXXX XXXXXXXXXXXX
-------------------------------------
Ramachandran Family Trust
/s/ XXXXX XXXXX
-------------------------------------
Xxxxx Xxxxx
/s/ XXXX XXXXX
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Xxxx Xxxxx
SECOND AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
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TRINITY V SIDE-BY-SIDE FUND, L.P.,
A CALIFORNIA LIMITED PARTNERSHIP
By: Trinity TVL Partners V, L.P.,
A California Limited Partnership
Its General Partner
By: /s/ XXXXX XXX
-----------------------------------
General Partner
By:
-----------------------------------
XXXXXXX X. XXXXX
By:
-----------------------------------
XXXXXXXX X. XXXXX
By:
-----------------------------------
XXXXXXXX X. XXXXXXX
By:
-----------------------------------
XXXXXX X. XXXXXXX
By: /s/ XXXXXX X. WASHING
-----------------------------------
XXXXXX X. WASHING
CORPORATE EXPRESS INC.
By: /s/ XXXX XXXXXXX
-----------------------------------
Name: Xxxx Xxxxxxx
---------------------------------
Title: President, N.A. Operations
--------------------------------
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XXXXXXX AND XXXXX XXXXX
COMDISCO, INC.
By:
-----------------------------------
Name:
---------------------------------
Title:
--------------------------------
SECOND AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
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SEQUEL EURO LIMITED PARTNERSHIP
By: Sequel Venture Partners, L.L.C.,
General Partner
By:
-----------------------------------
Manager
SECOND AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
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EXHIBIT A
LIST OF KEY SHAREHOLDERS
NAME NUMBER OF SHARES
---- ----------------
Xxxxxxx Xxxxx 307,310
Xxxxx Xxxxxxxxxx 41,250
Xxxxx Xxxx 175,410
Xxxxxxxxxxx Xxxxx 125,000
Xxxxxxxx Xxxxx 46,666
Xxxxx Xxxx 270,540
Xxx Washing 155,000
Xxxxx Washing 10,000
Xxxx Xxxxxxxxxxxx 78,798
Xxxx Xxxxxxxxxxxx 39,321
Ramachandran Family Trust 39,164
Xxxxx Xxxxx 78,798
Xxxxx Xxxxx 78,485
Xxxx Xxxxx 260,000
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EXHIBIT B
LIST OF INVESTORS
Xxxx, Xxxxxxx Ventures IV, L.P.
MDV IV Entrepreneurs' Network Fund, L.P.
Sequel Limited Partnership
Sequel Euro Limited Partnership
Trinity Ventures V, L.P.
Trinity V Side-by-Side Fund, L.P.
Liberty Ventures I, L.P.
Xxxxxxx X. and Xxxxxxxx X. Xxxxx
Xxxxxxxx X. and Xxxxxx X. Xxxxxxx
Xxxxxx X. Washing
Corporate Express, Inc.
Xxxxxxx and Xxxxx Xxxxx
Comdisco, Inc.
