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EXHIBIT 10.27
EXECUTION COPY
DIGITAL COMMERCE CORPORATION
STOCKHOLDERS AGREEMENT
This Agreement, dated as of March 13, 2000, is among Digital Commerce
Corporation, a Delaware corporation (the "Company"), Weston Presidio Capital
III, L.P., a Delaware limited partnership, Highland Capital Partners V Limited
Partnership, a Delaware limited partnership, and the other Investors listed in
Schedule A (collectively, and together with their permitted successors and
assigns, the "Investors"), the other holders of Preferred Stock listed on
Schedule A hereto (collectively, together with their permitted successors and
assigns and the Investors, the "Preferred Holders"), and the other stockholders
of the Company listed from time to time in Schedule A. The parties agree as
follows:
1. DEFINITIONS. Except as the context otherwise explicitly requires, (a) the
capitalized term "Section" refers to sections of this Agreement, (b) the
capitalized term "Exhibit" refers to exhibits to this Agreement, (c) references
to a particular Section include all subsections thereof and (d) the word
"including" shall be construed as "including without limitation". Accounting
terms used in this Agreement and not otherwise defined herein shall have the
meanings provided in GAAP. Certain capitalized terms are used in this Agreement
as specifically defined in this Section 1 as follows:
1.1. "Common Stock" means the Company's Common Stock, $0.01 par value.
1.2. "Community Property" is defined in Section 6.12.
1.3. "Company" is defined in the preamble.
1.4. "Co-Sale Notice" is defined in Section 3.1.
1.5. "Co-Sale Percentage" is defined in Section 3.2
1.6. "Convertible Securities" shall mean any indebtedness, shares or other
securities convertible into or exchangeable for Common Stock.
1.7. "Fair Market Value" shall mean the fair market value of the Common
Stock or Preferred Stock, as applicable, on the trading day immediately
preceding the event triggering the determination of Fair Market Value,
determined as follows: (i) if such stock is listed or admitted to trade on a
national securities exchange, the closing price of such stock on such national
securities exchange, (ii) if such stock is not listed on a national securities
exchange, then the closing price of such stock quoted on the National Market
System of the National Association of Securities Dealers, Inc., (iii) if such
stock is not listed to trade on the National Market System, the mean between the
bid and asked price for such stock on any electronic quotation system, or
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(iv) if such stock is not listed or admitted to trade on a national securities
exchange, the National Market System or any electronic quotation system, the
Board of Directors of the Company shall establish the Fair Market Value of such
stock.
1.8. "Investor" is defined in the preamble.
1.9. "Members of the Immediate Family", as applied to any individual, means
each parent, spouse, child, brother, sister or the spouse of a child, brother or
sister of the individual, and each trust or family limited partnership created
for the benefit of one or more of such persons.
1.10. "Options" shall mean rights, options or warrants to subscribe for,
purchase or otherwise acquire either Common Stock or Convertible Securities.
1.11. "Outside Offer" is defined in Section 2.1.1.
1.12. "Person" means an individual, partnership, corporation, company,
association, trust, joint venture, unincorporated organization, business trust,
limited liability company and any governmental department or agency or political
subdivision.
1.13. "Preferred Directors" is defined in Section 4.
1.14. "Preferred Holders" is defined in the Preamble.
1.15. "Preferred Stock" means the Company's Series B Redeemable Convertible
Preferred Stock, par value $0.01 per share, Series C Redeemable Convertible
Preferred Stock, par value $0.01 per share and Series D Redeemable Convertible
Preferred Stock, par value $0.01 per share.
1.16. "Proportionate Share" means, as of any date, a fraction, the
numerator of which is the number of shares of Common Stock (assuming the
conversion of all Convertible Securities held by such Stockholder) owned by the
subject Stockholder and the denominator of which is the aggregate number of
shares of all outstanding Common Stock (assuming the conversion of all
outstanding Convertible Securities and the exercise of all outstanding Options).
1.17. "Proposed Shares" has the meaning ascribed to it in Section 3.1(a).
1.18. "Proposed Buyer" is defined in Section 3.
1.19. "Proposed Sale" is defined in Section 3.1(a).
1.20. "Purchase Agreement" means the Securities Purchase Agreement dated as
of the date hereof, as from time to time in effect, among the Company and the
Investors.
1.21. "Required Holders" means those Investors who own at least a majority
of the Series D Preferred Stock then outstanding (on an as converted basis).
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1.22. "Selling Stockholder" means a Stockholder selling Shares under
Sections 2 or 3.
1.23. "Shares" means all shares of any class of capital stock, including
Options and Convertible Securities, of the Company owned by any Stockholder, and
all shares of capital stock issued with respect to, in exchange for or upon
conversion of any such shares, Options or Convertible Securities; provided,
however, that (a) for purposes of the purchase rights contained in Section 2 and
the co-sale rights contained in Section 3, Shares shall not include Options and
(b) once any such shares have been sold in a sale which complies with Sections
2.1, 2.2 or 2.3 they shall cease to be Shares.
1.24. "Stockholders" means all stockholders and option holders of the
Company listed from time to time as Stockholders in Schedule A and all other
persons who become party to this Agreement pursuant to Section 2.3, and their
permitted successors and assigns.
1.25. "Transfer" means sell, assign, encumber, pledge, hypothecate, give
away or dispose of or transfer in any other manner, whether voluntarily,
involuntarily, by operation of law, pursuant to judicial process, divorce
decree, property settlement, bankruptcy or otherwise.
2. TRANSFER RESTRICTIONS AND PURCHASE RIGHTS.
2.1. Transfers of Shares. Each Stockholder agrees that such Stockholder
will not Transfer any Shares owned by such Stockholder or allow the power to
vote Shares owned by such Stockholder to be exercised by anyone other than such
Stockholder (except through ordinary proxies, revocable at the option of such
Stockholder) except that such Stockholder may (a) Transfer Shares in the manner
permitted by Sections 2.2 or 2.3 or (b) Transfer Shares pursuant to this Section
2 in compliance with the co-sale rights provisions in Section 3:
2.1.1. Outside Offer. A Selling Stockholder wishing to
Transfer Shares shall prepare an offer (the "Outside Offer") that sets
forth the number of Shares proposed to be sold, the minimum purchase
price, the proposed method of sale and the proposed purchaser or type of
purchaser.
2.1.2. Company Purchase Offer. The Selling Stockholder shall
offer to sell all or any portion of the Shares described in the Outside
Offer to the Company by delivering to the Company, with a copy to the
other Stockholders, a copy of the Outside Offer and a written offer to
sell to the Company all of such Shares on the terms contained in the
Outside Offer. If the Company elects to purchase such Shares, it shall
purchase such Shares in accordance with Section 2.4.
2.1.3. Other Stockholders Purchase Offer. If, within 10 days
after receipt by the Company of the Outside Offer from the Selling
Stockholder, the Company does not elect to purchase all of the Shares
described in the Outside Offer, then the Selling Stockholder shall
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offer to sell the Shares not chosen for purchase by the Company to the
other Stockholders pro rata according to their Proportionate Shares by
delivering to each such other Stockholder a written offer to sell to such
other Stockholder such other Stockholder's Proportionate Share on the
terms contained in the Outside Offer. If any other Stockholders elect to
purchase Shares, they shall purchase such Shares in accordance with
Section 2.4.
2.1.4. Remaining Shares. If, within 10 days after receipt by the
other Stockholders of the written offer described in Section 2.1.3 from
the Selling Stockholder, the other Stockholders do not elect to purchase
all Shares not chosen for purchase by the Company, then the Selling
Stockholder may Transfer any remaining Shares in accordance with the terms
of the Outside Offer during the 90-day period immediately following the
10- day notice period referred to above in Section 2.1.3, subject,
however, to the co-sale rights provided in Section 3 in favor of each
Stockholder who has notified the Selling Stockholder in writing within
such 10-day notice period of its interest in exercising its co-sale rights
with respect to any such sale. If such shares are not so purchased during
such 90-day period, they shall again become subject to this Section 2.1.
2.2. Transfers by Operation of Law or in Violation of Agreement. Subject
to Section 2.3.1, if Shares owned by a Stockholder are subject to Transfer
pursuant to any bankruptcy or insolvency law or proceeding, any divorce
proceeding, any probate proceeding after the Stockholder's death or otherwise by
operation of law or court order or decree, or if any Transfer of Shares is made
or attempted contrary to this Agreement, or if an offer to sell Shares is not
delivered to the Company and the other Stockholders as and when required by this
Agreement, the Company and the other Stockholders shall have the right to
purchase any or all of such Shares from such Stockholder, such Stockholder's
legal representative or such Stockholder's transferees at any time before or
after the Transfer, at (a) the Fair Market Value of such Shares in connection
with any Transfer made or to be made pursuant to bankruptcy or insolvency law or
proceeding, divorce proceeding, probate proceeding or otherwise by operation of
law or court order or decree and (b) at the lesser of the Fair Market Value of
such Shares or the price paid by the Transferee(s) in connection with any
Transfer not made in compliance with the requirements of this Agreement.
2.3. Certain Permitted Transfers. The following Transfers may be made
without complying with the provisions of Section 2.1 or Section 3.
2.3.1. Transfers to Immediate Family. Any Stockholder may transfer
any of such Stockholder's Shares to Members of the Immediate Family of
such Stockholder so long as (a) each transferee executes a counterpart of
this Agreement agreeing to be bound as a Stockholder, and (b) Shares are
not held by more than Members of the Immediate Family of such Stockholder.
2.3.2. Public Offering. A Stockholder may sell any Shares in a
public offering registered under the federal Securities Act of 1933, as
amended, or in a transaction permitted by Rule 144 thereunder, whereupon
such shares shall no longer be Shares.
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2.3.3. Fund Investors. Any Stockholder that constitutes an
investment fund may transfer Shares to its limited partners, members,
stockholders or other investors so long as such transferee executes a
counterpart of this Agreement as a Stockholder.
2.3.4. Solomon Transfer. Xxxx Xxxxxxx may transfer any Shares to a
limited liability company, limited partnership, corporation or other
entity of which he has at least a majority of the voting and total equity
interests.
2.3.5. Corporations, etc. Any Stockholder that constitutes a
corporation, limited liability company, limited partnership or similar
entity may transfer Shares to its affiliates that control, or are under
common control with, or that are controlled by, such Stockholder.
2.4. Purchases of Stock.
2.4.1. Election by Company and Stockholders. In the event of Outside
Offers under Section 2.1 or in the event the Company has the right to
purchase Shares under Section 2.2, the Company shall have the right to
determine whether to purchase any or all of the Shares available for
purchase by delivering written notice of the number of Shares to be
purchased to the Selling Stockholder and the other Stockholders within 10
days after receipt of the Outside Offer by the Company or the date upon
which the Company first has knowledge of its purchase right under Section
2.2. If the Selling Stockholder is a director or has a representative
serving as a director, such director shall not vote on the question of
whether the Company should purchase such Selling Stockholder's Shares or
any matter relating thereto, but for purposes of establishing a quorum
such director shall attend any directors meetings at which such question
or matter is considered. The other Stockholders may purchase any remaining
Shares not purchased by the Company pro rata based on the respective
Proportionate Shares of Stockholders wishing to purchase Shares, or as
they may otherwise agree. In the event that one or more Stockholders do
not elect to purchase all of the shares offered to such Stockholders
pursuant to this Section 2, each Stockholder electing to purchase Shares
pursuant to this Section 2 may purchase any remaining Shares offered under
this Section 2 not purchased by the other Stockholders pro rata based on
the respective Proportionate Shares of such Stockholders wishing to
purchase additional Shares, or as they may otherwise agree.
2.4.2. Closing on Stock Sales. The acceptance of any offer or
exercise of any right to purchase hereunder shall be by notice given in
accordance with Section 7.2 and shall specify a date of closing not
earlier than 10 business days nor later than 15 business days after the
delivery (or deemed delivery) of such notice. At the closing, the
purchaser shall pay the purchase price by certified or bank check drawn on
immediately available funds and payable to the order of the Selling
Stockholder. Certificates for the Shares to be purchased, duly endorsed or
accompanied by duly executed stock powers, in each case with signatures
guaranteed, if reasonably requested by the purchaser, shall be delivered
at the closing by the Selling Stockholder. In addition, the purchaser may
reasonably request waivers of any tax
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liens and evidence of good title and authority of any representative
before tendering payment.
3. CO-SALE RESTRICTIONS. A Stockholder may sell any Shares in accordance with
Section 2.1 to a Person (the "Proposed Buyer") only if the Stockholders who
notified the Selling Stockholder of their interest in exercising co-sale rights
as contemplated by Section 2.1.4 are offered the chance to participate in such
sale in the manner and on the terms set forth in this Section 3.
3.1. Offer. An Outside Offer delivered pursuant to Section 2.1.3 will also
be deemed to be a notice (the "Co-Sale Notice") to the recipient Stockholders of
the opportunity to exercise their rights under this Section 3.
(a) The complete terms of the proposed sale described in the Outside
Offer (the "Proposed Sale"), including the number of Shares (the "Proposed
Shares") proposed to be sold, will be effective with respect to both
Section 2 and this Section 3; and
(b) The Co-Sale Notice will be deemed to be an offer by the Selling
Stockholder to include in the Proposed Sale to the Proposed Buyer, at the
option of such Stockholders, that number of the Stockholders' Shares as is
determined in accordance with Section 3.2, on the same terms and
conditions as the Selling Stockholder shall sell the Shares to be sold by
the Selling Stockholder.
3.2. Time and Manner of Exercise. If any of the Stockholders desires to
accept the offer contained in the Co-Sale Notice, such Stockholder shall notify
the Selling Stockholder in writing within 10 days after receipt of the Co-Sale
Notice. If none of the Stockholders has so accepted such offer in writing, they
shall be deemed to have waived all of their rights with respect to the Proposed
Sale, and the Selling Stockholder shall thereafter be free to sell the Shares
specified in the Co-Sale Notice pursuant to the Proposed Sale. Any acceptance by
any Stockholder of the offer contained in the Co-Sale Notice shall be
irrevocable except as hereinafter provided. Each Stockholder who has elected to
participate in such Proposed Sale shall be entitled to sell in the Proposed
Sale, on the same terms and conditions as the Selling Stockholder, the Co-Sale
Percentage of the aggregate number of Shares then held by it. The "Co-Sale
Percentage" shall mean the fraction, expressed as a percentage, the numerator of
which is the total number of Proposed Shares contained in the Co-Sale Notice
that are not being purchased pursuant to Sections 2.1.2 or 2.1.3 and the
denominator of which is aggregate number of Shares held by the Selling
Stockholder immediately before delivery of the Co-Sale Notice; provided,
however, that in the event one or more Stockholders do not elect to sell in the
Proposed Sale, each Stockholder electing to sell in the Proposed Sale may
include additional Shares in such Proposed Sale pro rata based on the respective
Proportionate Shares of such Stockholders wishing to sell in such Proposed Sale,
or as they may otherwise agree.
3.3. Time and Manner of Closing. Each of the Stockholders participating in
any Proposed Sale shall take such actions and execute such documents and
instruments as shall be reasonably
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necessary in order to consummate the Proposed Sale expeditiously on the same
terms as the Selling Stockholder. If at the end of 90 days following the date on
which the Co-Sale Notice was given the Selling Stockholder has not completed the
Proposed Sale in accordance with the terms hereof, the Stockholders shall be
released from their obligations hereunder. All costs and expenses incurred by
the Selling Stockholder in connection with any sale, including without
limitation all attorneys' fees and disbursements and any finders' or brokerage
fees or commissions, shall be allocated pro rata among the Selling Stockholder
and the Stockholders according to the number of shares sold by each. The portion
of such costs and expenses allocable to each Stockholder shall be remitted to
the Selling Stockholder promptly after notice thereof demonstrating reasonable
supporting calculations. At the closing of any sale under this Section 3.3, each
Stockholder shall deliver certificates representing the Shares to be sold by it
pursuant to this Section 3, duly endorsed for transfer and (if requested in
writing by the Proposed Buyer) with signature guaranteed, and with any stock
transfer tax stamps affixed, against delivery of the applicable purchase price.
As a condition to the Transfer of Shares pursuant to this Section 3.3, the
Proposed Buyer shall execute a joinder to this Agreement and any shares sold to
the Proposed Buyer in accordance with this Section 3.3 shall continue to be
subject to this Agreement.
4. VOTING AGREEMENT. Each party hereto agrees (a) to vote all Shares owned by
such party to cause the Board of Directors of the Company to consist of seven
directors and (b) to vote all shares of the Company's capital stock owned by
such party, as the case may be, (i) to refrain from violating the rights of the
Investors as set forth in the Purchase Agreement, the Investor Agreements, the
Material Agreements (each as defined in the Purchase Agreement) and (ii) to
elect as directors (A) so long as WPC holds at least 50% of the number of Shares
held by it as of the date hereof, one person nominated by a majority of the WPC
Holders (as defined in the Purchase Agreement) and reasonably acceptable to the
Company; (B) so long as Highland holds at least 50% of the number of Shares held
by it as of the date hereof, one person nominated by a majority of the Highland
Holders (as defined in the Purchase Agreement) and reasonably acceptable to the
Company (the persons serving a directors pursuant to clause (A) and (B) shall be
referred to herein as the "Preferred Directors"); (C) four individuals nominated
by a majority of the then-existing Board of Directors, other than the Preferred
Directors; and (D) one individual who is not an officer or employee of the
Company nominated by all of the then existing directors, including the Preferred
Directors; provided, however, that the foregoing clause (b) shall not prevent
any party from voting on any other matter that may properly be taken up by the
stockholders of the Company, including the election of directors that are not
the subject of this Agreement. In the event either WPC or Highland are no longer
entitled to nominate a Preferred Director, such Preferred Director shall be
nominated by the Required Holders.
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5. LEGEND. Each certificate evidencing Shares shall contain the following
legend:
THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN TRANSFER RESTRICTIONS AS SET FORTH IN A STOCKHOLDERS
AGREEMENT DATED AS OF MARCH 13, 2000, A COPY OF WHICH IS ON FILE
IN THE OFFICES OF THE COMPANY AND WILL BE FURNISHED TO THE HOLDER
HEREOF WITHOUT CHARGE UPON WRITTEN REQUEST.
6. GENERAL.
6.1. Remedies. The parties shall have all remedies for breach of this
Agreement available to them provided by law or equity. Without limiting the
generality of the foregoing, in addition to all other rights and remedies
available at law or in equity, the parties shall be entitled to obtain specific
performance of the obligations of each party to this Agreement and immediate
injunctive relief. In the event any action or proceeding is brought in equity to
enforce the same, neither the Company nor any party will urge, as a defense,
that an adequate remedy at law exists.
6.2. Notices. Any notice or other communication in connection with this
Agreement or the Investor Securities shall be deemed to be delivered if in
writing addressed as provided below and if either (a) actually delivered at such
address, whether by telecopy, overnight or two-day courier (b) in the case of a
letter, seven business days shall have elapsed after the same shall have been
deposited in the United States mails, postage prepaid and registered or
certified, return receipt requested or (c) transmitted to any address outside of
the United States, by telecopy and confirmed by overnight or two-day courier:
If to the Company, to it at 00000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 000, Xxxxxx,
Xxxxxxxx 00000, telecopy: (000) 000-0000, telephone: (000) 000-0000, or at such
other address as the Company shall have specified by notice actually received by
the Principal Holders.
If to the Investors, to the Investors' respective addresses set forth on
Schedule A or B, or at such other address as the Investors shall have specified
by notice actually received by the Company, in each case with a copy to WPC and
Highland.
If to any other Stockholder, to it at its address set forth in the
securities registers of the Company.
6.3. Amendments, Waiver and Consents. Any provision in this Agreement to
the contrary notwithstanding, changes in or additions to this Agreement may be
made, and compliance with any covenant or provision herein set forth may be
omitted or waived, only by written agreement signed by (a) the Company, (b) the
Required Holders so long as any shares of the Series D Preferred Stock are
outstanding, and (c) Stockholders holding an aggregate of at least a majority of
the Shares held by all Stockholders (assuming the exercise of all Options and
conversion of all Convertible Securities held by such Stockholders) and if, in
each such case, copies of such
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modification are delivered to any parties who did not execute the same;
provided, however, that any such modification adversely affecting the
Stockholders in a manner distinct from the effect of such modification on the
Investors shall require the written consent of the affected Stockholders holding
a majority of the Shares of such affected Stockholders (assuming the exercise of
all Options and conversion of all Convertible Securities held by the Investors).
6.4. Binding Effect; Assignment. This Agreement shall be binding upon and
inure to the benefit of the personal representatives, successors and assigns of
the respective parties hereto. The Company shall not have the right to assign
its rights or obligations hereunder or any interest herein without obtaining the
prior written consent of the Required Holders and the other Stockholders holding
an aggregate of at least a majority of such other Shares (assuming the exercise
of all Options and conversion of all Convertible Securities held by all
Stockholders). The Stockholders may assign or transfer their rights under this
Agreement to the extent permitted herein and by the other agreements between the
respective parties and the Company.
6.5. Termination. This Agreement shall terminate at the time immediately
prior to the consummation of a Qualified Public Offering (as defined in the
Certificate of Designation for the Preferred Stock).
6.6. Severability. If any provision of this Agreement shall be found by
any court of competent jurisdiction to be invalid or unenforceable, such
provision shall, to the maximum extent allowable by law, be modified by such
court so that it becomes enforceable and, as modified, shall be enforced as any
other provision hereof, all the other provisions hereof continuing in full force
and effect.
6.7. Headings. The headings contained in this Agreement are for reference
purposes only and shall not in any way affect the meaning or interpretation of
this Agreement.
6.8. Entire Agreement. This Agreement constitutes the entire agreement of
the parties with respect to the subject matter hereof and supersedes all prior
and contemporaneous understandings, whether written or oral.
6.9. Joinder of Additional Parties. Future holders of the Company's
capital stock (or of options, warrants, conversion rights or other rights to
acquire such capital stock) may become party hereto as a Stockholder by
executing a joinder hereto in a form reasonably satisfactory to the Company.
6.10. Counterparts. This Agreement may be executed in counterparts, all of
which together shall constitute the same instrument.
6.11. Choice of Law. This Agreement shall be governed by and construed in
accordance with the laws (other than the conflict of laws rules) of the State of
Delaware.
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6.12. Joinder of Spouses. The Company shall require that the spouse of
each Stockholder who is a natural person consent and agree to the terms of this
Agreement by executing and delivering a Consent and Agreement of Spouse to
Stockholders Agreement substantially in the form of Exhibit A. It is
acknowledged that certain Stockholders and other individuals who may acquire
Shares after the date hereof and are bound as Stockholders by the terms hereof
may be married or may become married during the term of this Agreement and that
their respective spouses may have an interest in any or all of the Shares held
by such Stockholders to the extent such Shares constitute or become community
property, or are or may be held in joint tenancy or as tenants by the entireties
(collectively, "Community Property") by reason of their respective spouses'
rights to acquire, manage, control or dispose of Community Property. If any
married Stockholder is required to sell his or her Shares pursuant to the terms
of this Agreement, the spouse of each Stockholder agrees, by executing the
Consent and Agreement of Spouse to Stockholders Agreement, to cause any and all
rights to and interest in such Shares that such spouse may then have (or claim
to have) to be sold, in like manner and upon the same terms and conditions, as
set forth in this Agreement.
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The parties hereto have executed this Agreement under seal as of the date
first above written.
DIGITAL COMMERCE CORPORATION
By /s/ Xxxx Xxxxxx
--------------------------------
Title: President
WESTON PRESIDIO CAPITAL III, L.P.
By: WESTON PRESIDIO CAPITAL
MANAGEMENT III, L.P.
By /s/ Xxxxx X. xxx Xxxxxxxxx
--------------------------------
Title:
WESTON PRESIDIO ENTREPRENEUR FUND, L.P.
By: WESTON PRESIDIO CAPITAL
MANAGEMENT III, L.P.
By /s/ Xxxxx X. xxx Xxxxxxxxx
--------------------------------
Title:
HIGHLAND CAPITAL PARTNERS V LIMITED
PARTNERSHIP
BY: HIGHLAND MANAGEMENT PARTNERS V
LIMITED PARTNERSHIP, its
General Partner
BY: HIGHLAND MANAGEMENT PARTNERS V,
INC., its General Partner
By: /s/ Illegible
-------------------------
Authorized Officer
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HIGHLAND CAPITAL PARTNERS V-B LIMITED
PARTNERSHIP
By: HIGHLAND MANAGEMENT PARTNERS V
LIMITED PARTNERSHIP, its
General Partner
By: HIGHLAND MANAGEMENT PARTNERS V,
INC., its General Partner
By: /s/ Illegible
-------------------------
Authorized Officer
HIGHLAND ENTREPRENEURS' FUND V LIMITED
PARTNERSHIP
By: HEF V LIMITED PARTNERSHIP, its
General Partner
By: HIGHLAND MANAGEMENT PARTNERS V,
INC., its General Partner
By: /s/ Illegible
-------------------------
Authorized Officer
eSENTINEL VENTURE CAPITAL, L.L.C.
By: SENTINEL CAPITAL PARTNERS, L.P.,
its member
By: SENTINEL PARTNERS, L.P., its
general partner
By: SENTINEL PARTNERS, INC., its
general partner
By: /s/ Illegible
--------------------------------
Name:
Title:
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00
xXXXXXXXX XXXXXXX XXXXXXX XX, X.X.X.
By: SENTINEL CAPITAL PARTNERS II, L.P.,
its member
By: SENTINEL PARTNERS II, L.P., its
general partner
By: SENTINEL PARTNERS II, INC., its
general partner
By: /s/ Illegible
-----------------------------------
Name:
Title:
XXXXX X. XXXXXXXXXX
/s/ Xxxxx X. Xxxxxxxxxx
----------------------------------------
XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
----------------------------------------
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SAP INVESTMENTS, INC.
By /s/ Xxxxx X. XxXxx
-----------------------------------
Name: Xxxxx X. XxXxx
Title: Chief Executive Officer
XXXX XXXXXXX
/s/ Xxxx Xxxxxxx
----------------------------------------
XXXX XXXXXX
/s/ Xxxx Xxxxxx
-----------------------------------
XXXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
-----------------------------------
ATOCHA, L.P.
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Xxxxxx Xxxxxxx, general partner
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THE ROMAN ARCH FUND L.P.
By /s/ Xxxxxx Xxxxxxx
-------------------------------------
Xxxxxx Xxxxxxx, its E.V.P.
THE ROMAN ARCH FUND II L.P.
By /s/ Xxxxxx Xxxxxxx
-------------------------------------
Xxxxxx Xxxxxxx, its E.V.P.
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XXXXXXX CAPITAL CORP.
By /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
Title: President
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RRE VENTURES II L.P.
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx, its General Partner
RRE VENTURES FUND II L.P.
By /s/ Xxxxxx X. Xxxxxxx
--------------------------------------
Xxxxxx X. Xxxxxxx, its General Partner
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SCHEDULE A TO STOCKHOLDER AGREEMENT
Number and Type of Shares
Stockholders and Address Held on Date Hereof
------------------------ -------------------------
Weston Presidio Capital III, L.P. 2,448,907 shares of Series D Preferred Stock
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Weston Presidio Entrepreneur Fund, L.P. 121,902 shares of Series D Preferred Stock
Xxx Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Highland Capital Partners V 1,814,991 shares of Series D Preferred Stock
Limited Partnership
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Highland Capital Partners V-B 467,887 shares of Series D Preferred Stock
Limited Partnership
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Highland Entrepreneurs' Fund V 287,931 shares of Series D Preferred Stock
Limited Partnership
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
eSentinel Venture Capital, L.L.C. 51,373 shares of Series D Preferred Stock
000 Xxxxx Xxxxxx -- 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
19
eSentinel Venture Capital II, L.L.C. 856,945 shares of Series D Preferred Stock
000 Xxxxx Xxxxxx -- 00xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx X. Xxxxx 17,156 shares of Series D Preferred Stock
First Century Partners
00 Xxxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxx X. Xxxxxxxxxx 17,156 shares of Series D Preferred Stock
X.X. Xxxxxxxxxx & Co., Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
SAP Investments, Inc. 856,937 shares of Series D Preferred Stock
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxx Xxxxxxx 514,162 shares of Series D Preferred Stock
Shaker Investments
000 Xxxx Xxxxxx - Xxxxx 000
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
The Roman Arch Fund L.P. 64,270 shares of Series D Preferred Stock
Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
The Roman Arch Fund II L.P. 64,270 shares of Series D Preferred Stock
Xxx Xxx Xxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
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20
Xxxxxxx Capital Corp. 42,847 shares of Series D Preferred Stock
1370 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
RRE Ventures II L.P. 434,182 shares of Series D Preferred Stock
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
RRE Ventures Fund II L.P. 79,980 shares of Series D Preferred Stock
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxx Xxxxxx 25,000 shares of common stock
Digital Commerce Corporation 1,756,739 options
00000 Xxxxxxx Xxxxxx Xxxxx - Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Xxxxxxx X. Xxxxxxx 1,573,427 shares of common stock
Digital Commerce Corporation 925,000 options
00000 Xxxxxxx Xxxxxx Xxxxx - Xxxxx 000
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Atocha, L.P. 3,018,286 shares of common stock
0000 Xxxxxxxx Xxxxx 66,816 options
XxXxxx, Xxxxxxxx 00000 5,463,764 shares of Series B Preferred Stock
2,550,465 shares of Series C Preferred Stock
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21
EXHIBIT A
DIGITAL COMMERCE CORPORATION
STOCKHOLDERS AGREEMENT
CONSENT AND AGREEMENT OF SPOUSE
TO STOCKHOLDERS AGREEMENT
The undersigned, __________________, the spouse of ________________ (the
"Stockholder"), hereby consents to and agrees to be bound by the provisions of
that certain Stockholders Agreement dated as of March , 2000 among Digital
Commerce corporation, Weston Presidio Capital III, L.P., Highland Capital
Partners V Limited Partnership and the other Investors listed on Schedule A to
the Stockholders Agreement.
---------------------------
Signature
Dated:
--------------------
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