EXHIBIT 4.3
SIXTH AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
THIS SIXTH AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this
"Agreement") is entered into as of November 30, 1998 among Vignette Corporation,
a Delaware corporation (the "Company") and the Stockholders on Exhibit A and
Exhibit B attached hereto (individually a "Purchaser" and collectively the
"Purchasers") and such other parties ("Other Parties") as may from time to time
and with the consent of the Company become parties hereto. Xxxx X. Xxxxxx and
Xxxx Xxxxxx are referred to herein individually as a "Founder" and together as
the "Founders." The Founders, the Stockholders on Exhibit B attached hereto and
such Other Parties are collectively referred to as the "Common Stockholders."
RECITALS:
WHEREAS, the Company and certain of the Purchasers are parties to a
Fifth Amended and Restated Stockholders Agreement, dated as of April 22, 1998
(the "Prior Stockholders Agreement");
WHEREAS, the Company and Olympus Growth Fund II, L.P., Olympus
Executive Fund, L.P., Axa U.S. Growth Fund LLC, U.S. Growth Fund Partners C.V.,
Double Black Diamond II LLC, 45th Parallel LLC, Almanori Limited, Multinvest
LLC, Parallel Capital I LLC, Vendome Capital LLC, Attractor Dearborn Partners,
LP, Attractor Institution LP, Attractor LP, East Peak Partners, Pivotal
Partners, L.P., Xxxxx X. Xxxxxxxxxx 1985 Trust, Xxxxx Xxxxxxxxxx, Xxxxxx
XxXxxxxx, ATGF II and Xxxxxx Xxxxxxx Xxxx Xxxxxx Equity Funding, Inc.
(collectively, the "Series H Purchasers") have entered into a Stock Purchase
Agreement, dated the date hereof (the "Purchase Agreement"), providing, among
other things, for the purchase by the Series H Purchasers of shares of the
Company's Series H Convertible Preferred Stock, par value $0.01 per share (the
"Series H Preferred Stock");
WHEREAS, the Company, the Purchasers and the Series H Purchasers
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 by such Purchasers as are necessary to amend and restate the Prior
Stockholders Agreement is a condition to the closing of the issuance, sale and
purchase of the Series H Preferred Stock pursuant to the Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. Voting Provisions.
A. Composition of Board of Directors. The shares of Series A
Preferred Stock, Series B Preferred Stock, Series C Preferred Stock, Series E
Preferred Stock, Series F Preferred Stock and Series H 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, Series F
Preferred Stock and Series H 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 (as such terms are
defined in Exhibit A hereto); 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 Fourth 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
Purchaser Director designated by Sigma shall be Xxxxxx X. Xxxxxx, the Purchaser
Director position to be designated by CNET shall be vacant 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.
B. Compensation Committee. The Board of Directors shall
establish 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.
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C. Vacancies; Removal. In the event of any vacancy in the Board
of 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.
D. Meetings; Quorum. The Company agrees to hold regularly
scheduled 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.
E. Special Board Observation Privileges. Adobe, Xxxxxxx River,
a representative designated by GSCPLP and a representative designated by the
Series H Purchaser entities managed by Partech International (as such terms are
defined in Exhibit A hereto) 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.
F. Expenses. The Company shall reimburse all Persons (as
defined in 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
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reasonable out-of-pocket expenses incurred in attending meetings of the Board of
Directors and such committees.
G. Indemnification Agreements. At the date hereof and on each
later 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
each Purchaser Director and each other director of the Company who is elected or
appointed to the Board of Directors on such date.
H. Material Transactions with CNET. The unanimous approval of
the 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.
2. Provisions Relating to Restricted Stock.
A. General Restrictions on Transfer of Capital Stock;
Dividends.
(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
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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.
B. Right of First Refusal.
(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
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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 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
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such Purchaser's shares of Common Stock, Series A Preferred Stock, Series B
Preferred Stock, Series C Preferred Stock, Series E Preferred Stock, Series F
Preferred Stock and Series H 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, Series F
Preferred Stock and Series H 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,
Series F Preferred Stock or Series H 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, Series F Preferred Stock or Series H 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, Series E Preferred Stock, Series F Preferred Stock and
Series H 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, Series F Preferred
Stock and Series H 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.
C. Voting of Restricted Stock.
(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.
3. Preemptive Rights.
A. Pre-Qualified Public Offering. If, prior to a Qualified
Public 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,
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Series C Preferred Stock, Series E Preferred Stock, Series F Preferred Stock and
Series H 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) 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 (as such term is defined in Exhibit A hereto),
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, dated as of April 22,
1998 among the Company, Adobe, Amerindo, Attractor, Austin Ventures, Xxxxxxx
River, GSCP, H&Q and Sigma (as such terms are defined in Exhibit A hereto), (j)
issuances of Shares pursuant to the Purchase Agreement (k) issuances of Series D
Warrants from time to time by the Company or issuances of Equity Securities upon
exercise thereof, or (l) 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, Series F Preferred Stock and Series H
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.
B. First Qualified Public Offering. In the Company's first
Qualified Public Offering, each Purchaser of Series F Preferred Stock and Series
H 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 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
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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); for Purchasers of Series H Preferred Stock, 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 H 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 H 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). Notwithstanding the foregoing sentence, (i)
the Proportionate Shares of Purchasers of Series F Preferred Stock, in the
aggregate, as Purchasers of Series F Preferred Stock, may not exceed 10% of such
offering, (ii) the Proportionate Shares of Purchasers of Series H Preferred
Stock, in the aggregate, as Purchasers of Series H Preferred Stock, may not
exceed the lesser of (x) the percentage of such offering sold by selling
stockholders of the Company and (y) 2.5% of such offering, (iii) except as
provided below, Amerindo shall not be entitled to purchase a Proportionate Share
hereunder with respect to its Series H Preferred Stock, and, with respect to
this paragraph 3B only, the number of shares of Series H Preferred Stock
outstanding immediately before the offering shall not include the Series H
Preferred Stock held by Amerindo, (iv) in the event that any holder of Series H
Preferred Stock does not purchase its full Proportionate Share, the
Proportionate Share of each purchasing holder of Series H Preferred Stock shall
increase by the product of (A) the portion of shares not purchased, and (B) (x)
the number of shares of Series H Preferred Stock held by such purchasing holder
of Series H Preferred Stock divided by (y) the number of shares of Series H
Preferred Stock outstanding immediately before the offering less the number of
shares of Series H Preferred Stock of the holders not purchasing their
Proportionate Share, (v) in the event that all holders of Series H Preferred
Stock other than Amerindo do not purchase the full number of shares available
for purchase by the holders of Series H Purchasers under (ii) above, Amerindo
shall be entitled to purchase the number of Equity Securities equal to the
difference between (x) the aggregate amount of shares purchased by all other
holders of Series H Preferred Stock, in the aggregate, as Purchasers of Series H
Preferred Stock and (y) the maximum number of shares available for purchase by
the holders of Series H Purchasers under (ii) above, (vi) any holder of Series H
Preferred Stock may assign the right to purchase its Proportionate Share to an
Affiliate of such Series H Purchaser or to an entity managed by Partech
International, and (vii) 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 of an oversubscription
of the Proportionate Shares, such shares shall be allocated first so that each
of Attractor, Amerindo and the Series H Purchasers receives its full
Proportionate Share (and in the event that such shares are insufficient for each
of Attractor, Amerindo and the Series H Purchasers to receive their full
Proportionate Share, then each of Attractor's, Amerindo's and the Series H
Purchasers' Proportionate Share
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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 and Series H Preferred Stock
becomes entitled to purchase by reason hereof shall be the same price at which
such securities are initially offered to the public.
C. Procedures. A holder may exercise its right under paragraph
3A 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, Series F Preferred Stock and Series H 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,
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, Series F Preferred Stock and
Series H 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 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.
A. Legends on Certificates. During the term of this Agreement,
each 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
10
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.
B. 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 Series E Preferred Stock
and/or Series F Preferred Stock, respectively, then outstanding, voting as a
separate class.
(iv) Notwithstanding the foregoing paragraphs 4B(i) and
(ii), this Agreement may not be amended to materially and adversely affect the
holders of Series H Preferred Stock without the affirmative vote of the holders
of at least 80% of the Series H Preferred Stock then outstanding, voting as a
separate class.
C. 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 Xxxxxxxxx,
Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xxxxxxx X. Xxxxxx, President and
Chief Executive Officer, (fax (000) 000-0000); or at such other address or
addresses as may have been furnished in writing by the Company to the
Purchasers, with a copy to Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx &
Xxxxxxxxx, LLP, 0000 Xxxxxxx xx Xxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000,
Attention: Xxxxx X. Xxxxx (fax (000) 000-0000);
11
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) 896-
0400).
If to Attractor, at 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxxxxx,
Xxxxxxxxxx 00000, Attention: Xxxxxx Xxxxxxx (fax (000) 000-0000); or at such
other address or addresses as may have been furnished to the Company in writing
by Attractor, with a copy to 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 Xxxx 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 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).
12
If to the Series H Purchasers, at the respective addresses provided on
the signature page attached hereto; or at such other address or addresses as may
have been furnished to the Company in writing, with a copy to Xxxxxx Xxxxxxx
Xxxxxxxx & Xxxxxx, Professional Corporation, 9020-I Capital of Xxxxx Xxxxxxx
Xxxxx, Xxxxxxxx X, Xxxxx 000, Xxxxxx, Xxxxx 00000, Attention: Xxxx Xxxxxx (fax
(000) 000-0000).
If to a Founder or other Purchaser, at the address specified for such
person in the Purchase Agreement; or at such other address as may have been
furnished to the Company in writing by such person.
Notices provided in accordance with this paragraph 4C shall be deemed
delivered upon personal delivery or two business days after deposit in the mail.
D. 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.
E. 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.
F. 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.
G. Headings. The headings of this Agreement are for convenience
only and do not constitute a part of this Agreement.
H. 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.
I. 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.
J. 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.
13
K. 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.
"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, $13.09 if determined with
respect to Series F Preferred Stock or $13.07 if determined with respect to
Series H 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.
14
"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.
"Series H Preferred Stock" means the Company's Series H 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/ Xxxxxxx X. Xxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxx,
President and Chief Executive Officer
SIGNATURE PAGE TO VIGNETTE CORPORATION
SIXTH AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
PURCHASER:
--------------------------------------------------
(Name of Purchaser)
--------------------------------------------------
(Signature of Purchaser or Authorized Signatory)
--------------------------------------------------
(Print or Type Name and Title if Purchaser is not
an Individual)
Address:
--------------------------------------
--------------------------------------
--------------------------------------
Telephone:
--------------------------------------
Facsimile:
--------------------------------------
with a copy to:
Name:
--------------------------------------
Address:
--------------------------------------
--------------------------------------
--------------------------------------
Telephone:
--------------------------------------
Facsimile:
--------------------------------------
PLEASE PROVIDE ALL OF THE ABOVE-REQUESTED INFORMATION
SIGNATURE PAGE TO VIGNETTE CORPORATION
SIXTH AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
EXHIBIT A
PURCHASERS
Adobe
Adobe Ventures II, L.P. ("Adobe Ventures")
Adobe Incentive Partners, L.P. ("Adobe Incentive")
H&Q Adobe Ventures Management II, L.L.C. ("H&Q Adobe" and together with
Adobe Ventures and Adobe Incentive, "Adobe")
Amerindo
ATGF II ("ATGF")
Pivotal Partners, L.P. ("Pivotal")
Xxxxx Xxxxxxxxxx ("Stableford")
Xxxxxx XxXxxxxx ("XxXxxxxx")
Xxxxxx Master Trust ("LMT")
Xxxxx X. Xxxxxxxxxx 1995 Trust ("RHC Trust")
Xxxxx Xx ("Yu" and together with ATGF, Pivotal, Stableford, McDonald,
LMT and RHC Trust, "Amerindo")
Attractor
Attractor LP ("ALP")
Attractor Dearborn Partners LP ("ADP")
Attractor Institution LP ("AILP" and together with ALP and ADP,
"Attractor")
Austin Ventures
Austin Ventures IV-A, L.P. ("Austin A")
Austin Ventures IV-B, L.P. ("Austin B")
Austin Ventures V Affiliates Fund, LP ("Austin V Affiliates")
Austin Ventures V, L.P. ("Austin V" and together with Austin A, Austin B
and Austin V Affiliates, "Austin Ventures")
Xxxxxx Xxxxxx
Xxxxxxx River
Xxxxxxx River Partnership VIII ("CRP VIII")
Xxxxxxx River VIII-A LLC ("CR VIII-A and together with CRP VIII, "Xxxxxxx
River")
CNET
CNET, Inc. ("CNET")
Xxxxxxx Xxxx
Xxxxx Xxxxxxxx
East Peak Partners
Xxxxxxx Xxxxxxxx
Xxxx X. Xxxxxx
A-1
GSCP
GS Capital Partners II, L.P. ("GSCPLP")
GS Capital Partners II Offshore, L.P. ("GSCPO")
Xxxxxxx, Sachs & Co. Verwaltungs GmbH ("GSCV" and together with GSCPLP and
GSCPO, "GSCP")
H&Q
Xxxxxxxxx & Xxxxx California ("H&QC")
H&Q Vignette Investors ("H&QVI" and together with H&QC, "H&Q")
Xxxx Xxxxxxxxx
Xxx Xxxxxxxx
Xxxxxx Xxxxxx
Xxxxxx Xxxxxxx Xxxx Xxxxxx Equity Funding, Inc.
Olympus Growth Fund II, L.P.
Olympus Executive Fund, L.P.
Xxxxx Xxxxxxxxx
Partech
Axa U.S. Growth Fund LLC
U.S. Growth Fund Partners C.V.
Double Black Diamond II LLC
45th Parallel LLC
Almanori Limited
Multinvest LLC
Parallel Capital I LLC
Vendome Capital LLC
Xxxxxxx X. Xxxxxx
Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxxxx
Sigma
Sigma Partners III, L.P. ("Sigma Partners")
Sigma Associates III, L.P. ("Sigma Associates")
Sigma Investors III, L.P. ("Sigma Investors")
Xxxx Xxxxxxx ("Xxxxxxx," and together with Sigma Partners, Sigma Associates
and Sigma Investors, "Sigma")
Xxxxxx Still
A-2
Xxxxxxxx X. Xxxxxx
Xxxxxxxxxxx X. Xxxxxxx
Xxxx Xxxxxx
Xxxxxx Xxxxx
A-3
EXHIBIT B
TRANSFEREES OF FOUNDERS STOCK
Xxxxxx Xxxxxxxx
Xxxx Xxxxxxxx
Xxxx Xxxxx
Xxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxxxxx Xxxxxx
Xxxxxx Xxxxxx
Xxxxx Xxxxxx
Xxxxxx Xxxx
Xxxx and Xxxxx Xxxxxx
Xxxx Xxxxxxxxx
Xxxx Xxxxxxxxx, Xx.
Xxxxxx and Xxxxxx Xxxxxx
B-1
