STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (the "Agreement"), dated as of July 10, 2001 by and
among (i) Xxxxxxxx Communications, LLC, a Delaware limited liability company
("Xxxxxxxx"), (ii) iBeam Broadcasting Corporation, a Delaware corporation (the
"Company"), (iii) the other stockholders of the Company set forth on the
signature page hereto (the "Other Stockholders") and (iii) each other Person
(defined below) who becomes a party to this Agreement in accordance with the
terms hereof.
W I T N E S S E T H:
WHEREAS, this Agreement shall become effective (the "Effective Date") on
the date of, and simultaneously with, the closing under the Stock Purchase
Agreement, dated as of June 24, 2001 between the Company, Xxxxxxxx and the Other
Stockholders (the "Stock Purchase Agreement");
WHEREAS, on the Effective Date, (i) the authorized capital stock of the
Company will consist of 413,000,000 shares of common stock, $.0001 par value
(the "Common Stock"), and 10,000,000 shares of preferred stock, $.0001 par value
(the "Preferred Stock") of which 3,000,000 shares will be designated Series A
Convertible Preferred Stock, $.0001 par value (the "Series A Preferred Stock")
and (ii) the issued and outstanding capital stock of the Company will consist of
127,353,381 shares of Common Stock and 2,400,939 shares of Series A Preferred
Stock, with ___________ shares of Common Stock reserved for issuance upon the
exercise of certain stock options and warrants and upon conversion of the Series
A Preferred Stock; and
WHEREAS, on the Effective Date Xxxxxxxx shall hold 1,800,704 shares of
Series A Preferred Stock and the Other Stockholders shall hold, in the
aggregate, 600,235 shares of Series A Preferred Stock;
NOW THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following terms
have the following meanings:
"Affiliate" as applied to any Person, shall mean any other Person directly
or indirectly controlling or controlled by or under, direct or indirect, common
control with such Person. For the purposes of this definition, control when used
with respect to any Person means the power to direct the management and policies
of such person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing. Notwithstanding the
foregoing, neither Xxxxxxxx and its Affiliates nor the Other Stockholders and
their respective Affiliates shall be deemed Affiliates of the Company for
purposes of this Agreement.
"beneficially own" and "beneficial ownership" have the meanings given to
them in Rule 13d-3 under the Exchange Act.
"Board of Directors" shall mean the Board of Directors of the Company.
"Business Day" shall mean each day other than Saturdays, Sundays and days
when commercial banks are authorized to be closed for business in New York, New
York.
"Certificate of Designations" shall mean the Certificate of Designations of
the Series A Preferred Stock attached hereto as Exhibits A.
"Charter Documents" shall mean the Certificate of Incorporation and By-Laws
of the Company, in effect as of the Effective Date, attached hereto as Exhibits
B and C, respectively.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Common Stock" shall have the meaning set forth in the recitals.
"Company" shall have the meaning set forth in the preamble.
"Company Offered Securities" shall have the meaning set forth in Section
6.1.
"Effective Date" shall have the meaning set forth in the recitals.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Indebtedness" of any Person at any date shall include (i) all indebtedness
of such Person for borrowed money or for the deferred purchase price of property
or services, including earn-out or similar contingent purchase amounts, (ii) any
other indebtedness of such Person which is evidenced by a note, mortgage, bond,
debenture or similar instrument, (iii) all obligations of such Person under
capitalized leases, (iv) all payments made or to be made pursuant to
sale-leaseback transactions, (v) all payments made or to be made pursuant to a
non-compete payment obligation, change of control payment obligation, and
severance and retention obligations, and (vi) all guarantees by such Person of
obligations of others whether or not such Person has assumed or otherwise become
directly liable for the payment thereof.
"MD&A" shall mean a management's discussion and analysis of the Company's
financial condition and results of operation comparable to the discussion that
is required to be included in periodic reports filed under the Exchange Act.
"Notices" shall have the meaning set forth in Section 8.6.
"Permitted Transferee" shall mean with respect to any Person, any other
Person that is an Affiliate of the such Person.
"Person" shall mean an individual or a corporation, limited liability
company, partnership, trust, or any other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Preemptive Rights Offer" shall have the meaning set forth in Section 6.1.
"Preemptive Rights Offer Notice" shall have the meaning set forth in
Section 6.1.
"Preemptive Rights Transaction" shall have the meaning set forth in Section
6.1.
"Preferred Stock" shall have the meaning set forth in the recitals.
"Registration Rights Agreements" shall mean the Registration Rights
Agreement, dated as of the date hereof, by and between the Company, Xxxxxxxx and
the Other Stockholders, attached hereto as Exhibit D.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations thereunder.
"Series A Preferred Stock" shall have the meaning set forth in the
recitals.
"Shares" shall mean, collectively, the Common Stock and the Preferred
Stock. Whenever this Agreement refers to a number or percentage of Shares, such
number or percentage shall be calculated as if each of the Shares had been
exchanged or converted into shares of Common Stock immediately prior to such
calculation regardless of the existence of any restrictions on or conditions to
such exchange or conversion.
"Standstill Period" shall have the meaning set forth in Section 5.1.
"Stock Purchase Agreement" shall have the meaning set forth in the
recitals.
"Subsidiary" shall mean, with respect to any Person, (a) a corporation a
majority of whose capital stock with voting power, under ordinary circumstances,
to elect directors is at the time, directly or indirectly, owned by such Person,
by a Subsidiary of such Person, or by such Person and one or more Subsidiaries
of such Person, (b) a partnership in which such Person or a Subsidiary of such
Person is, at the date of determination, a general partner of such partnership,
or (c) any other Person in which such Person, a Subsidiary of such Person or
such Person and one or more Subsidiaries of such Person, directly or indirectly,
at the date of determination thereof, has (i) at least a majority ownership
interest or (ii) the power to elect or direct the election of the directors or
other governing body of such Person.
"Transaction Documents" shall have the meaning set forth in the Stock
Purchase Agreement.
"Transfer" shall mean (i) when used as a noun: any direct or indirect
transfer, sale, assignment, pledge, hypothecation, encumbrance or other
disposition and (ii) when used as a verb: to directly or indirectly transfer,
sell, assign, pledge, hypothecate, encumber, or otherwise dispose of.
"Transferee" shall mean any Person to whom Shares have been Transferred in
compliance with the terms of this Agreement.
"Voting Stock" means the capital stock of any class or kind ordinarily
having the power to vote generally for the election of directors (or other
persons or bodies performing similar functions) of the Company. With respect to
the Company, as of the Effective Date, Voting Stock includes (i) the Common
Stock, and (ii) the Series A Preferred Stock.
"Xxxxxxxx Nominees" shall have the meaning set forth in Section 4.l(a).
ARTICLE II
RESTRICTIONS ON TRANSFERS
Section 1.2 Transfers in Accordance with this Agreement. Any attempt to
Transfer, or purported Transfer of, any of the Shares held by Xxxxxxxx, the
Other Stockholders or their respective Permitted Transferees in violation of the
terms of this Agreement shall be null and void and the Company shall not
register upon its books, and shall direct its transfer agent not to register on
its books any such Transfer. A copy of this Agreement shall be filed with the
Secretary of the Company and the Company's transfer agent and kept with the
records of the Company.
Section 1.3 Restrictions on Transfer.
(1) Except as set forth below, prior to the second anniversary of the date
hereof, Xxxxxxxx and its Permitted Transferees shall not Transfer any Shares
except (i) to a Permitted Transferee, (ii) pursuant to an effective registration
statement filed with the Commission (including a registration statement
contemplated by the Registration Rights Agreement) or (iii) to any other
stockholder of the Company who is bound by the terms of this Agreement.
(2) Following the second anniversary hereof and subject to the other terms
of this Agreement, Xxxxxxxx and its Permitted Transferees may, subject to
applicable law, Transfer any Shares to any Person, provided that if such
Transferee is not a Permitted Transferee then such Transferee must, to the
extent it becomes a party to this Agreement, agree that it waives and otherwise
has no rights under Section 4.2(b). Subject to the other terms of this
Agreement, after the date hereof, the Other Stockholders and their respective
Permitted Transferees may, subject to applicable law, Transfer any Shares to any
Person. Prior to any Transfer of Shares by Xxxxxxxx, an Other Stockholder or
their Permitted Transferees which is not registered under the Securities Act,
the proposed transferor shall give written notice to the Company of such
transferor's intention to effect such Transfer. Each such notice shall describe
the manner of the proposed Transfer. If within three (3) Business Days after
receipt by the Company of such notice, the Company requests in writing an
opinion of counsel for such transferor that the proposed Transfer may be
effected without registration of such Shares under the Securities Act, then
prior to Transferring such Shares, such transferor shall provide the Company an
opinion of counsel (which counsel and opinion shall each be reasonably
satisfactory to the Company) that such Transfer may be effected without
registration of such Shares under the Securities Act.
(3) No Transfer provided in the foregoing clauses (a) and (b) of this
Section 2.2 (other than pursuant to an effective registration statement filed
with the Commission) shall be permitted unless (i) the certificates representing
such Shares issued to the Transferee bear the legend provided in Section 2.3 and
(ii) the Transferee (if not already a party hereto) has executed and delivered
to each other party hereto, as a condition precedent to such Transfer, an
instrument or instruments, reasonably satisfactory to the Company, confirming
that the Transferee agrees to be bound by the terms of this Agreement in the
same manner as such Transferee's transferor, except as otherwise provided in
this Agreement.
(4) The Company agrees that it will not unreasonably deny any request for a
waiver of the restrictions set forth in this Section 2.2 made by Xxxxxxxx, the
Other Stockholders or their respective Permitted Transferees.
Section 1.4 Legend. Xxxxxxxx and the Other Stockholders hereby agree that
each outstanding certificate representing Shares issued to it and its Permitted
Transferees, or any certificate issued in exchange for or upon conversion of any
similarly legended certificate, shall bear a legend reading substantially as
follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES LAWS, AND
MAY BE OFFERED AND SOLD ONLY IF SO REGISTERED OR AN EXEMPTION FROM REGISTRATION
IS AVAILABLE. THE SHARES REPRESENTED BY THIS CERTIFICATE ALSO ARE SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE STOCKHOLDERS AGREEMENT,
DATED AS OF JULY 10, 2001, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY. NO
TRANSFER OF SUCH SHARES WILL BE MADE ON THE BOOKS OF THE COMPANY UNLESS
ACCOMPANIED BY EVIDENCE OF COMPLIANCE WITH THE TERMS OF SUCH AGREEMENT AND BY AN
AGREEMENT OF THE TRANSFEREE TO BE BOUND BY THE RESTRICTIONS SET FORTH IN THE
STOCKHOLDERS AGREEMENT.
Section 1.5 Right of First Refusal.
(1) Except with respect to a Transfer of Common Stock pursuant to an
effective registration statement in an underwritten public offering (which will
be subject to Section 2.5 below), if at any time Xxxxx & Company Incorporated,
Touch America, Inc. or any their respective Permitted Transferees (each, an
"Offeror") proposes to Transfer any Shares to any Person other than to one of
its Permitted Transferees (such Person, a "Third Party"), the Offeror shall,
before such Transfer, deliver to Xxxxxxxx an offer (the "Offer") to Transfer
such Shares to Xxxxxxxx upon the terms set forth in this Section 2.4. The Offer
shall (i) state that the Offeror proposes to Transfer the Shares, (ii) specify
the number of Shares (the "Offered Shares") proposed to be Transferred, and
(iii) state the terms (including the purchase price) of the proposed Transfer.
The Offer shall remain open and irrevocable for a period of fifteen (15) days
(the "Acceptance Period") from the date of its receipt by Xxxxxxxx.
(2) Xxxxxxxx may accept the Offer by delivering to the Offeror written
notice within the Acceptance Period, which notice shall state the number (the
"Accepted Number") of Offered Shares Xxxxxxxx desires to purchase. Xxxxxxxx may
exercise its right to purchase any or all of the Offered Shares pursuant to the
Offer.
(3) The Transfer of Offered Shares to Xxxxxxxx, to the extent Xxxxxxxx has
exercised its rights under this Section 2.4, shall be made on a business day, as
designated by the Offeror, not less than 10 nor more than 30 days after
expiration of the Acceptance Period on the terms and conditions specified in the
Offer, which terms and conditions shall be identical to the terms of the
proposed Transfer to the Third Party.
(4) If the number of Offered Shares exceeds the Offered Shares with respect
to which Xxxxxxxx exercised its rights under this Section 2.4, the Offer shall
be deemed to be withdrawn with respect to such excess and the Offeror may
Transfer, subject to the provisions of Section 2 hereof, such excess Offered
Shares on the terms, conditions and purchase price specified in the Offer (which
shall be the same terms, conditions and purchase price available to Xxxxxxxx
exercising rights pursuant to this Section 2) to any Third Party within 60 days
after expiration of the Acceptance Period, so long as such Third Party agrees in
writing to become a party hereto and be bound hereby. If such Transfer is not
made within such 60-day period, the restrictions provided for in this Section 2
shall again become effective.
(5) In the event an Offeror or such Third Party, as the case may be, shall
modify the terms of the proposed Transfer of Offered Shares in any way, the
Offeror shall send an amended Offer to Xxxxxxxx. Xxxxxxxx shall, if it so
desires to exercise its right of Offer, as so amended, prior to the later of
five (5) days after the date such amended Offer is received by the Company or
the end of the original Acceptance Period, deliver to the Offeror an amended
notice of acceptance specifying the amended Accepted Number and/or such other
amended term of Xxxxxxxx' acceptance pursuant to this Section 2.
(6) This Section 2.4 is subject to Article V. Accordingly, to the extent
that Xxxxxxxx and its Permitted Transferees are prohibited from acquiring
Offered Shares as a result of the restrictions imposed by Article V, Xxxxxxxx
shall have the right to assign (without the consent of the other parties hereto)
its right to purchase such Offered Shares to any Person who is not an Affiliate
of Xxxxxxxx, provided that (i) such Person agrees to be bound by the terms of
this Agreement, including Section 2.4 and Section 2.5, and (ii) such Person has
the financial capability to purchase such Offered Shares. In the event that
Xxxxxxxx does not purchase any or all of the Offered Shares and the Offeror
Transfers such Offered Shares to a Third Party (other than pursuant to an
effective registration statement) then, prior to such Transfer, such Third Party
must agree to be bound by the terms of this Agreement, including Section 2.4 and
Section 2.5.
Section 1.6 Right of First Offer in Underwritten Offering.
(1) If at any time an Offeror proposes to Transfer any shares of Common
Stock to a Third Party pursuant to an effective registration statement in an
underwritten public offering, the Offeror shall, before such Transfer, deliver
to Xxxxxxxx an offer (the "Underwritten Offer") to Transfer to Xxxxxxxx, upon
the terms set forth in this Section 2.5, (i) such shares of Common Stock, (ii)
if such Offeror then holds shares of Series A Preferred Stock, such number of
shares of Series A Preferred Stock which, upon conversion into shares of Common
Stock, would equal the number of shares of Common Stock proposed to be
Transferred pursuant to an effective registration statement in such underwritten
public offering, and (iii) if such Offeror then holds shares of both Common
Stock and Series A Preferred Stock, a combination of shares of Common Stock and
Series A Preferred Stock which, on an as if converted basis, is equal to the
number of shares of Common Stock proposed to be Transferred pursuant to an
effective registration statement in such underwritten public offering. The
Underwritten Offer shall (i) state that the Offeror proposes to Transfer the
shares of Common Stock and Series A Preferred Stock, as the case may be, (ii)
specify the number of shares of Common Stock and Series A Preferred Stock, as
the case may be, proposed to be Transferred (the "Underwritten Offered Shares"),
and (iii) state the terms of the proposed Transfer (including the per share
purchase price as determined in Section 2.5(c)). The Underwritten Offer shall
remain open and irrevocable for a period of fifteen (15) days (the "Underwritten
Acceptance Period") from the date of its receipt by Xxxxxxxx. At the time of
delivery of the Underwritten Offer to Xxxxxxxx, the Offeror must have a bona
fide intention to Transfer such shares of Common Stock pursuant to an effective
registration statement in an underwritten public offering within 105 days of
delivery of such Underwritten Offer.
(2) Xxxxxxxx may accept the Underwritten Offer by delivering to the Offeror
written notice (the "Underwritten Acceptance Notice") within the Underwritten
Acceptance Period, which notice shall state the number of Underwritten Offered
Shares Xxxxxxxx desires to purchase. Xxxxxxxx may exercise its right to purchase
any or all of the Underwritten Offered Shares pursuant to the Underwritten
Offer. The actual combination of shares of Common Stock and Series A Preferred
Stock referred to in clause (iii) of the first sentence of Section 2.5(a) shall
be determined by Xxxxxxxx in its sole discretion based on the shares of Common
Stock and Series A Preferred Stock held by the Offeror at the time of the
Underwritten Offer is received by Xxxxxxxx.
(3) The per share purchase price of the Underwritten Offered Shares shall
be determined as follows: (i) for Underwritten Offered Shares which are Common
Stock, the per share purchase price of such Underwritten Offered Shares shall be
the average per share Closing Price (as defined below) of the Common Stock
during the period beginning on the date of receipt by Xxxxxxxx of the
Underwritten Offer and ending on the date Xxxxxxxx delivers to the Offeror the
Underwritten Acceptance Notice (the "Common Stock Purchase Price"), and (ii) for
Underwritten Offered Shares which are Series A Preferred Stock, the per share
purchase price of such Underwritten Offered Shares shall be the product of (A)
the Common Stock Purchase Price, and (B) the number equal to the number of
shares of Common Stock into which each share of Series A Preferred Stock is
convertible on the Underwritten Closing Date (as defined below). "Closing Price"
means, as to any particular day, the average closing prices on such day of the
sales of Common Stock on all domestic securities exchanges on which the Common
Stock may at the time be listed, or, if there have been no sales on any such
exchanges on any day, the average of the highest bid and lowest asked prices on
all such exchanges at the end of such day, or, if on any day the Common Stock is
not so listed on a domestic securities exchange, the average of the
representative bid and asked prices quoted on the NASDAQ Stock Market as of 4:00
P.M., New York City time, on such day, or, if on any day the Common Stock is not
listed on a domestic securities exchange or quoted on the NASDAQ Stock Market,
the average of the highest bid and lowest asked prices on such day in the
domestic over-the-counter market as reported by the National Quotation Bureau,
Incorporated, or any similar or successor organization (and in each such case
excluding any trades that are not bona fide, arm's-length transactions). (4) The
Transfer of Underwritten Offered Shares to Xxxxxxxx, to the extent Xxxxxxxx has
exercised its rights under this Section 2.5, shall be made on a business day, as
designated by Xxxxxxxx, not less than 10 nor more than 30 days after expiration
of the Underwritten Acceptance Period (the "Underwritten Closing Date") on the
terms and conditions specified in the Underwritten Offer.
(5) If the number of Underwritten Offered Shares exceeds the Underwritten
Offered Shares with respect to which Xxxxxxxx exercised its rights under this
Section 2.5, the Underwritten Offer shall be deemed to be withdrawn with respect
to such excess and the Offeror may Transfer, subject to the provisions of
Section 2 hereof, such excess Underwritten Offered Shares to any Third Party,
provided that such Transfer is made pursuant to an effective registration
statement in an underwritten public offering within 90 days after expiration of
the Acceptance Period. If such Transfer is not made pursuant to an effective
registration statement in an underwritten public offering within such 90-day
period, the restrictions provided for in this Section 2 shall again become
effective.
(6) This Section 2.5 is subject to Article V. Accordingly, to the extent
that Xxxxxxxx and its Permitted Transferees are prohibited from acquiring
Underwritten Offered Shares as a result of the restrictions imposed by Article
V, Xxxxxxxx shall have the right to assign (without the consent of the other
parties hereto) its right to purchase such Underwritten Offered Shares to any
Person who is not an Affiliate of Xxxxxxxx, provided that (i) such Person agrees
to be bound by the terms of this Agreement, including Section 2.4 and Section
2.5, and (ii) such Person has the financial capability to purchase such
Underwritten Offered Shares.
ARTICLE III
ADDITIONAL RIGHTS AND OBLIGATIONS OF
XXXXXXXX, THE OTHER STOCKHOLDERS AND THE COMPANY
Section 1.7 Access to Information; Confidentiality. Upon the request of
Xxxxxxxx, the Company shall afford Xxxxxxxx and its accountants, counsel and
other representatives reasonable access to all of the properties, books,
contracts, commitments and records (including, but not limited to, tax returns)
of the Company and its Subsidiaries that are reasonably requested. Xxxxxxxx
will, and will cause its agents and other representatives to, conduct any such
investigations on reasonable advance notice, during normal business hours, with
reasonable numbers of persons and in such a manner as not to interfere
unreasonably with the normal operations of the Company and its Subsidiaries.
Except as otherwise required by applicable law, neither the Company nor any of
its Subsidiaries shall be required to provide access to or to disclose
information where such access or disclosure would jeopardize the attorney-client
privilege of the Person in possession or control of such information, or would
violate any applicable law. The parties hereto will make appropriate substitute
disclosure arrangements under circumstances in which the restrictions of the
preceding sentence apply. Xxxxxxxx shall, and shall use its reasonable best
efforts to cause its representatives to, keep confidential all such information
to the same extent such information is treated as confidential by the Company.
The obligation to keep such information confidential shall not apply to (i) any
information that (x) was already in Xxxxxxxx' possession prior to the disclosure
thereof by the Company, (y) was then generally known to the public, or (z) was
disclosed to Xxxxxxxx by a third party not known by Xxxxxxxx to be bound by an
obligation of confidentiality or (ii) disclosures made as required by law, legal
process or stock exchange rule. If either Xxxxxxxx or its Affiliates is
nonetheless, in the opinion of their respective counsel, compelled to disclose
information concerning the Company to any tribunal or governmental body or
agency or else stand liable for contempt or suffer other censure or penalty,
Xxxxxxxx and such Affiliate may disclose such information to such tribunal or
governmental body or agency without liability hereunder.
Section 1.8 Furnishing of Information. (a) The Company shall deliver to
Xxxxxxxx and the Other Stockholders, as the case may be, as long as such Person
(together with its Permitted Transferees) beneficially owns in the aggregate 10%
or more of the Shares issued pursuant to the Stock Purchase Agreement on the
Effective Date:
(1) As promptly as practical, but in no event later than 30 days after the
end of each calendar month, a copy of the monthly financial reporting package
for such month customarily prepared for the Company's Chief Executive Officer;
(2) As promptly as practical, but in no event later than 45 days after the
close of each of its first three quarterly accounting periods during any fiscal
year of the Company, the consolidated balance sheet of the Company as at the end
of such quarterly period, and the related consolidated statements of operations,
stockholders' equity and cash flows for such quarterly period, and for the
elapsed portion of the fiscal year ended with the last day of such quarterly
period, and in each case setting forth comparative figures for the related
periods in the prior fiscal year all of which shall be certified by the Chief
Financial Officer of the Company, to have been prepared in accordance with
generally accepted accounting principles, subject to year-end audit adjustments,
together with an MD+A;
(3) As promptly as practical, but in no event later than 90 days after the
close of each fiscal year of the Company, the consolidated balance sheet of the
Company as of the end of such fiscal year and the related consolidated
statements of operations, stockholders' equity and cash flows for such fiscal
year, in each case setting forth comparative figures for the preceding fiscal
year, and certified by independent certified public accountants of recognized
national standing, together with an MD+A; and
(iv) All reports, if any, filed by the Company or any Subsidiary of the
Company with the Commission under the Exchange Act, as promptly as practical,
but in no event later than 5 days after filing any such reports with the
Commission.
ARTICLE IV
CORPORATE GOVERNANCE AND VOTING
Section 1.9 Board of Directors of the Company.
(1) The Company and its directors have taken all appropriate and necessary
action to (i) cause the Board of Directors of the Company, as of the Effective
Date, to be composed of nine (9) members and divided into three (3) classes
designated as Class I, Class II and Class III, each class consisting of three
(3) directors, and (ii) reclassify one of the existing Class III directors as a
Class II director. For so long as Xxxxxxxx, together with any and all of its
Permitted Transferees, beneficially own in the aggregate 25% or more of the
Shares beneficially owned by Xxxxxxxx on the Effective Date, the size of the
Board of Directors shall not exceed nine (9) members. Xxxxxxxx shall be entitled
to nominate four members to the Board of Directors (collectively, the "Xxxxxxxx
Nominees"). One Xxxxxxxx Nominee shall be classified as a Class I Director of
the Company, two Xxxxxxxx Nominees shall be classified as Class II Directors of
the Company and one Xxxxxxxx Nominees shall be classified as a Class III
Director of the Company.
(2) The Company and its directors have taken all appropriate action to
cause the appointment of the Xxxxxxxx Nominees to become effective as of the
Effective Date. For so long as Xxxxxxxx, together with any and all of its
Permitted Transferees, beneficially own in the aggregate 25% or more of the
Shares beneficially owned by Xxxxxxxx on the Effective Date, Xxxxxxxx, the Other
Stockholders and each of their Permitted Transferees shall vote all of its
Voting Stock of the Company, and shall take all other necessary or desirable
actions within their control, and the Company shall take all necessary or
desirable action within its control, to cause the Xxxxxxxx Nominees to be
nominated for and elected to the Board of Directors.
(3) The Company shall use its best efforts to call, or cause the
appropriate officers and directors of the Company, to call, a special meeting of
stockholders of the Company, as applicable, to cause the removal (with or
without cause) of any Xxxxxxxx Nominee if Xxxxxxxx requests such director's
removal in writing for any reason and the Other Stockholders agree to vote their
Voting Stock to remove such director. Xxxxxxxx shall have the right to designate
a new nominee in the event any Xxxxxxxx Nominee shall be so removed under this
Section 4.1(c) or shall vacate his directorship for any reason.
(4) The initial Xxxxxxxx Nominees shall be Xxxxxx Xxxxxx, Xxxx Xxxxxxxxx,
Xx., Xxxxx Xxxxx and Xxxx Xxxxx. Any other person designated by Xxxxxxxx as a
Xxxxxxxx Nominee shall either be (x) an employee or director of Xxxxxxxx or its
Affiliates or (y) if not such an employee or director of Xxxxxxxx or its
Affiliates, a person who is reasonably acceptable to the Company.
(5) At such time as Xxxxxxxx, together with any and all of its Permitted
Transferees, cease to beneficially own in the aggregate 50% or more of the
Shares beneficially owned by Xxxxxxxx on the Effective Date but such Persons
beneficially own in the aggregate 25% or more of the Shares beneficially owned
by Xxxxxxxx on the Effective Date, Xxxxxxxx shall be entitled to nominate only
three Xxxxxxxx Nominees in accordance with this Section 4. At such time as
Xxxxxxxx, together with any and all of its Permitted Transferees, cease to
beneficially own in aggregate 25% or more of the Shares beneficially owned by
Xxxxxxxx on the Effective Date but such Persons beneficially own in the
aggregate 10% or more of the Shares beneficially owned by Xxxxxxxx on the
Effective Date, Xxxxxxxx shall be entitled to nominate only two Xxxxxxxx
Nominees in accordance with this Section 4. At such time as Xxxxxxxx, together
with any and all of its Permitted Transferees, cease to beneficially own in
aggregate 10% or more of the Shares beneficially owned by Xxxxxxxx on the
Effective Date, Xxxxxxxx shall no longer be entitled to nominate any Xxxxxxxx
Nominees in accordance with this Section 4. Xxxxxxxx shall take all appropriate
action to cause one or more of the Xxxxxxxx Nominees to resign as a director of
the Company as necessary to comply with this Section 4.1(e).
(6) The Company, the Other Stockholders and Xxxxxxxx shall take all such
action to cause one of the Xxxxxxxx Nominees to be Chairman of the Compensation
Committee of the Board of Directors.
(7) The Company and its directors have established, and will continue to
take all such action necessary to maintain, an Executive Committee of the Board
of Directors, comprised of three members as follows (i) the Company's Chief
Executive Officer, (ii) an executive vice president or more senior executive
officer of the Company who is also a director of the Company and (iii) a
Xxxxxxxx Nominee, provided that the right of Xxxxxxxx to have a Xxxxxxxx Nominee
on the Executive Committee of the Board of Directors shall be effective only
during such periods of time that Xxxxxxxx is entitled to have three or more
nominees on the Board of Directors. The duties of the Executive Committee shall
be established by the Board of Directors and shall include, among other things,
the development of the Company's annual business plan, which plan shall be
submitted to the Board of Directors for approval each fiscal year. As long as
Xxxxxxxx, together with any and all of its Permitted Transferees, beneficially
owns, in the aggregate, at least aggregate 25% or more of the Shares
beneficially owned by Xxxxxxxx on the Effective Date, the annual business plan
of the Company and any material adjustments to such plan shall require the
affirmative vote of a majority of the entire Board of Directors and the
affirmative vote of each Xxxxxxxx Nominee. In the event that the Company's
annual business plan and any material adjustments thereto is not approved by the
requisite vote set forth in the previous sentence, the annual business plan of
the Company shall revert back to the Company's previous annual business plan, or
in the case of any material adjustments, shall not be so adjusted. The Executive
Committee shall have authority, subject to applicable law, to take all actions
that (A) are ancillary to or arise in the normal course of the businesses of the
Company, and (B) implement and are consistent with resolutions of the Board of
Directors, provided, however, that such Executive Committee shall not be
authorized to take any action which, if proposed to be taken by the full Board
of Directors, would require the affirmative vote of the Xxxxxxxx Nominees in
accordance with Section 4.2. Each committee of the Board of Directors shall
include a proportionate number of Xxxxxxxx nominees equal to the percentage of
Xxxxxxxx nominees on the entire Board of Directors.
(8) In the event that a director on the Board who is an "independent
director" under the rules and regulations of the Nasdaq Stock Market (other than
any Xxxxxxxx Nominee) resigns, is removed from office or otherwise ceases to be
a director, the Company shall, and Xxxxxxxx and the Other Stockholders shall
take such action within their respective control to cause the Company to, comply
with the "independent director" requirements of The Nasdaq Stock Market, and the
Company shall have the right to approve the replacement of such "independent
director." So long as Xxxxxxxx beneficially owns less than a majority of the
outstanding Voting Stock, Xxxxxxxx agrees that (i) it shall not call a special
meeting of the Company's stockholders or take any other action for the purpose
of removing the non-Xxxxxxxx Nominees on the Board of Directors, and (ii) in the
event a non-Xxxxxxxx Nominee resigns, is removed from office or otherwise ceases
to be a director, the remaining non-Xxxxxxxx Nominees on the Board of Directors
shall have the right to appoint a replacement director.
(9) Each committee of the Board of Directors, to which authority has been
delegated, shall keep complete and accurate minutes and records of all actions
taken by such committee, prepare such minutes and records in a timely fashion
and promptly distribute such minutes and records to each member of the Board of
Directors.
(10) The parties agree that upon the request of Xxxxxxxx, the Company shall
cause the Board of Directors of any Subsidiary of the Company to include such
number of individuals designated by Xxxxxxxx in the same proportion of the total
number of members of the Board of Directors of such Subsidiary as the proportion
of the Company's Board of Directors to which Xxxxxxxx is entitled pursuant to
Section 4.1.
Section 1.10 Action by the Board of Directors.
(1) Except as provided herein, all decisions of the Board of Directors
shall require the affirmative vote of a majority of the directors of the Company
then in office, or a majority of the members of an Executive Committee of the
Board of Directors, to the extent such decisions may be delegated to an
Executive Committee pursuant to applicable law and Section 4.1(g).
(2) As long as Xxxxxxxx, together with any and all of its Permitted
Transferees, beneficially owns in aggregate 40% or more of the Shares
beneficially owned by Xxxxxxxx on the Effective Date, without the affirmative
vote of each of the Xxxxxxxx Nominees, the Company shall not, and it shall cause
each of its Subsidiaries not to, directly or indirectly, (i) incur a significant
amount of Indebtedness in the aggregate (which for purposes of this clause (i),
any amount in excess of $10 million in the aggregate shall be deemed to be
significant); (ii) redeem, purchase or otherwise acquire for value, or set apart
money or other property for any mandatory purchase or other similar fund for the
redemption, purchase or acquisition of any shares of Common Stock or Junior
Stock (as defined in the Certificates of Designations), except for the
repurchase by the Company of up to 5% of the outstanding Common Stock of the
Company outstanding on the Effective Date; (iii) declare or pay any dividend or
make any distribution (whether in cash, shares of capital stock of the Company,
or other property) on shares of Common Stock or Junior Stock; (iv) sell, lease,
license or otherwise dispose of, in any single transaction or series of related
transactions, a significant amount of the property and other assets of the
Company, (v) amend, alter or repeal, in any manner whatsoever, the designations,
preferences, privileges and relative rights and limitations and restrictions of
the Series A Preferred Stock, (vi) increase or decrease the number of authorized
shares of Common Stock or Preferred Stock, (vii) enter into any transaction
which results, directly or indirectly, in the sale, merger, consolidation or
corporate reorganization of, or other similar transaction involving, the
Company, including, without limitation, any transaction which would result in a
Change in Control (as defined in the Certificates of Designations) of the
Company, (viii) create (by reclassification or otherwise), authorize or issue
any new class or series of equity security having designations, preferences,
privileges or rights senior to, or on parity with, the Series A Preferred Stock,
(ix) create (by reclassification or otherwise), authorize or issue any class,
series or shares of capital stock or other securities junior to the Series A
Preferred Stock if such junior securities may be redeemed in any circumstance on
or prior to the Final Redemption Date (as defined in the Certificates of
Designations"), (x) amend, alter or repeal any of the provisions of the Charter
Documents or the Certificates of Designations in a manner that would adversely
affect the holders of the Series A Preferred Stock; (xi) adopt, and if adopted,
amend or waive any provision of, a shareholder rights plan or similar plan or
agreement, (xii) effect a voluntary liquidation, dissolution or winding up of
the Company; or (xiii) voluntarily file for bankruptcy, or otherwise seek
protection under any federal or state bankruptcy or similar law.
(3) Until the 6th month anniversary of the date hereof, any termination of
Xxxxxxxx Xxxxxxx'x, Xxxxxx Xxxxx' or Xxxxx Xxxxxxxx'x employment by the Company
without Cause (as defined in the Company's Retention Bonus Plan) shall require
the affirmative vote of a majority of the Board of Directors. Notwithstanding
anything to the contrary herein, the approval of the termination of such persons
employment may not be delegated to a committee of the Board of Directors.
Section 1.11 Certificates of Designations; Charter Documents. (a) The
Certificate of Designations, as in effect on the date hereof, is set forth in
Exhibit A hereto. The Charter Documents, as in effect on the date hereof, are
set forth in Exhibits B and C hereto.
(1) The Company covenants that it will act in accordance with its Charter
Documents and the Certificate of Designations. The Company shall take all action
necessary, to ensure that (i) the Charter Documents and Certificate of
Designations do not, at any time, conflict with the provisions of this
Agreement, and (ii) unless an amendment is approved by the Board of Directors in
accordance with Section 4.2, the Charter Documents and the Certificate of
Designations continue to be in effect in the forms attached hereto.
Section 1.12 Meetings of Stockholders. The Other Stockholders and Xxxxxxxx
agree that their representatives shall meet, either in person or by
teleconference, at least five (5) Business Days prior to any meeting of
stockholders of the Company to discuss their respective views and opinions with
regard to the matters proposed for consideration at such stockholders meeting.
ARTICLE V
STANDSTILL
Section 1.13 Standstill (a) Without the prior written consent of the
Company or except as provided in this Agreement, from the date hereof until the
second anniversary of the date hereof (the "Standstill Period"), each of
Xxxxxxxx and the Other Stockholders shall not, and shall not permit any of their
respective Permitted Transferees or other Affiliates to, acquire, publicly
announce an intention to acquire, or agree to acquire beneficial ownership of
any Voting Stock of the Company resulting in an increase in their respective
percentage beneficial ownership, at such time, of the Company's Voting Stock on
a fully diluted basis.
(b) Notwithstanding anything in this Agreement (including this Section 5.1)
to the contrary, during the Standstill Period, (i) each of Xxxxxxxx, the Other
Stockholders and their respective Permitted Transferees and other Affiliates may
acquire additional Voting Stock upon the conversion or exchange of the Series A
Preferred Stock, (ii) each of Xxxxxxxx, the Other Stockholders and their
respective Permitted Transferees and other Affiliates may, subject to compliance
with applicable law, propose, announce and otherwise make an offer to purchase
all of the outstanding capital stock of the Company and pursuant to such offer
acquire such shares of capital stock, and (iii) each of Xxxxxxxx, the Other
Stockholders and their respective Permitted Transferees and other Affiliates may
make open market purchases of the Company's Voting Stock as may be necessary for
such Persons (either directly or through its Permitted Transferees) to maintain
their respective fully-diluted ownership percentage of the Company's Voting
Stock existing on the date hereof. The Company agrees that it will not
unreasonably deny any request for a waiver of the restrictions set forth in this
Article V made by Xxxxxxxx, the Other Stockholders or their respective Permitted
Transferees.
ARTICLE VI
PREEMPTIVE RIGHTS
Section 1.14 Preemptive Rights.
(1) In case the Company proposes at any time to issue or sell any shares of
equity securities of the Company (or securities convertible or exchangeable for
equity securities of the Company) issued by the Company after the date hereof
(collectively, the "Company Offered Securities"), the Company shall, no later
than twenty (20) days prior to the consummation of such transaction (a
"Preemptive Rights Transaction"), give notice in writing (the "Preemptive Rights
Offer Notice") to Xxxxxxxx, the Other Stockholders and their respective
Permitted Transferees of such Preemptive Rights Transaction. The Preemptive
Rights Offer Notice shall describe the proposed Preemptive Rights Transaction,
identify the proposed purchaser or purchasers, and contain an offer (the
"Preemptive Rights Offer") to sell Xxxxxxxx, the Other Stockholders and their
respective Permitted Transferees, at the same price and for the same
consideration to be paid by the proposed purchaser (provided, that, in the event
any of such consideration is non-cash consideration, at the election of
Xxxxxxxx, the Other Stockholders or their respective Permitted Transferees to
whom the Preemptive Rights Offer is made, Xxxxxxxx, the Other Stockholders and
their respective Permitted Transferees may pay cash equal to the value of such
non-cash consideration), all or any part of Xxxxxxxx', the Other Stockholders'
and their respective Permitted Transferees' pro rata portion of the Company
Offered Securities (which shall be a fraction of the Company Offered Securities
determined by dividing the number of shares of outstanding Voting Stock owned by
Xxxxxxxx, the Other Stockholders or such of their Permitted Transferees, as the
case may be, by the total number of outstanding shares of Voting Stock). If
Xxxxxxxx, the Other Stockholders or their respective Permitted Transferees to
whom a Preemptive Rights Offer is made fail to accept (each a "Non-Responding
Holder") in writing the Preemptive Rights Offer by the fifteenth (15th) day
after the Company's delivery of the Preemptive Rights Offer Notice, such
Non-Responding Holders shall have no further rights with respect to the proposed
Preemptive Rights Transaction and the Company may proceed with the proposed
Preemptive Rights Transaction, free of any right on the part of such
Non-Responding Holders, as the case may be, under this Section 6 in respect
thereof.
(2) The parties hereto agree that preemptive rights granted pursuant to
paragraph (a) of this Section 6.1 shall not be effective for issuances of shares
of Common Stock pursuant to the Company's 2000 Employee Stock Purchase Plan, in
accordance with the terms of such plan as in effect on the date hereof and
without giving effect to any amendment, alteration or repeal of any of the terms
of such plan or any increase in the number of shares of Common Stock reserved
for issuance under such plan. (1)
ARTICLE VII
TERMINATION
Section 1.15 Termination. Except as otherwise provided herein with respect
to certain specific provisions, this Agreement shall terminate upon the earlier
to occur of:
(1) the mutual agreement of Xxxxxxxx and the Company,
(2) Xxxxxxxx and its Permitted Transferees ceasing to beneficially own in
the aggregate 10% or more of the Shares beneficially owned by Xxxxxxxx on the
Effective Date, and
(3) with respect to each Other Stockholder, such Other Stockholder and its
Permitted Transferees ceasing to beneficially own in the aggregate 10% or more
of the Shares beneficially owned by such Other Stockholder on the Effective
Date.
ARTICLE VIII
MISCELLANEOUS
Section 1.16 Consolidation. In the event that in the reasonable judgment of
Xxxxxxxx, Xxxxxxxx or its Affiliates are required to consolidate their interest
in the Company for financial accounting purposes, then, at the request of
Xxxxxxxx, the Company, the Other Stockholders and Xxxxxxxx shall amend the terms
of the Transaction Documents such that the neither Xxxxxxxx nor its Affiliates
are required to consolidate their interest in the Company for financial
accounting purposes.
Section 1.17 No Inconsistent Agreements. The Company represents and agrees
that, as of the Effective Date, there is no (and from and after the Effective
Date they will not, and will cause its respective Subsidiaries and Affiliates
not to, enter into any) agreement with respect to any securities of the Company
or any of its Subsidiaries (and from and after the Effective Date Company shall
not take, or permit any of its Subsidiaries or Affiliates to take, any action)
that is inconsistent with the rights granted to Xxxxxxxx and the Other
Stockholders in this Agreement. Without limiting the foregoing, the Company
represents that there are no existing agreements relating to the voting or
registration of any equity securities of the Company or any of its Subsidiaries
other than the Company's Third Amended and Restated Investors Rights Agreement
dated April 28, 2000, and there are no other existing agreements between the
Company and any other holder of Shares relating to the transfer of any equity
securities of the Company or any of its Subsidiaries.
Section 1.18 Recapitalization. Exchanges, etc. If any capital stock or
other securities are issued in respect of, in exchange for, or in substitution
of, any Shares by reason of any reorganization, recapitalization,
reclassification, merger, consolidation, spin-off, partial or complete
liquidation, stock dividend, split-up, sale of assets, distribution to
stockholders or combination of the Shares or any other change in capital
structure of the Company, appropriate adjustments shall be made with respect to
the relevant provisions of this Agreement so as to fairly and equitably
preserve, as far as practicable, the original rights and obligations of the
parties hereto under this Agreement and the terms "Common Stock," "Preferred
Stock" and "Shares," each as used herein, shall be deemed to include shares of
such capital stock or other securities, as appropriate. Without limiting the
foregoing, whenever a particular number of Shares is specified herein, such
number shall be adjusted to reflect stock dividends, stock-splits, combinations
or other reclassifications of stock or any similar transactions.
Section 1.19 Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of the parties hereto, and their respective
successors and permitted assigns; provided that (i) neither this Agreement nor
any rights or obligations hereunder may be transferred or assigned by the
Company; and (ii) neither this Agreement nor any rights or obligations hereunder
may be transferred or assigned by Xxxxxxxx or the Other Stockholders except (A)
to any Person to whom it has Transferred Shares in compliance with this
Agreement and who has become bound by this Agreement pursuant to Section 2.2
hereof, and (B) to any Person pursuant Section 2.4(f).
Section 1.20 No Waivers; Amendments. (a) No failure or delay by any party
in exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
(1) This Agreement may not be amended or modified, nor may any provision
hereof be waived, other than by a written instrument signed by the Company and
Xxxxxxxx, provided that any amendment, modification or waiver that materially
and adversely affects the rights of one of the Other Stockholders hereunder
shall require the written consent of such Other Stockholder.
Section 1.21 Notices. All notices, demands, requests, consents or approvals
(collectively, "Notices") required or permitted to be given hereunder or which
are given with respect to this Agreement shall be in writing and shall be
personally delivered or mailed, registered or certified, return receipt
requested, postage prepaid (or by a substantially similar method), or delivered
by a reputable overnight courier service with charges prepaid, or transmitted by
hand delivery or facsimile, addressed as set forth below, or such other address
(and with such other copy) as such party shall have specified most recently by
written Notice. Notice shall be deemed given or delivered on the date of service
or transmission if personally served or transmitted by facsimile. Notice
otherwise sent as provided herein shall be deemed given or delivered on the
third business day following the date mailed or on the next business day
following delivery of such Notice to a reputable overnight courier service.
To the Company:
iBeam Broadcasting Corporation
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
To Xxxxxxxx:
Xxxxxxxx Communications, LLC
Xxx Xxxxxxxx Xxxxxx 00-0
Xxxxx, Xxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
To the Other Stockholders to the address and persons set
forth on the signature pages hereto.
Section 1.22 Inspection. So long as this Agreement shall be in effect, this
Agreement and any amendments hereto and waivers hereof shall be distributed to
all parties hereto after becoming effective and shall be made available for
inspection at the principal office of the Company.
Section 1.23 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE. EACH PARTY
HERETO CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE
COURTS WITHIN THE STATE OF DELAWARE.
Section 1.24 Headings. The section headings contained in this Agreement are
for reference purposes only and shall not affect the meaning or interpretation
of this Agreement.
Section 1.25 Entire Agreement. This Agreement, together with the other
Transaction Documents, constitutes the entire agreement and understanding among
the parties hereto with respect to the subject matter hereof and thereof and
supersedes any and all prior agreements and understandings, written or oral,
relating to the subject matter hereof.
Section 1.26 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdictions, it being intended that
all rights and obligations of the parties hereunder shall be enforceable to the
fullest extent permitted by law.
Section 1.27 Counterparts. This Agreement may be signed in counterparts,
each of which shall constitute an original and which together shall constitute
one and the same agreement.
Section 1.28 Required Approvals. If approval of this Agreement or any of
the transactions contemplated hereby shall be required by any governmental
agency or instrumentality or is considered to be necessary or advisable by the
parties hereto, all parties hereto shall use their reasonable best efforts to
obtain such approval.
Section 1.29 Public Disclosure. The Company shall not, and shall not permit
any of its Subsidiaries to, make any public announcements or disclosures
relating or referring to Xxxxxxxx, the Other Stockholder or any of their
respective Affiliates, or any of their respective directors, officers, employees
or agents (including, without limitation, any Person designated as a director of
the Company pursuant to the terms hereof) unless such Person has consented to
the form and substance thereof, which consent shall not be unreasonably withheld
except to the extent such disclosure is required by law or by stock exchange
regulation, provided that (i) any such required disclosure shall only be made,
to the extent consistent with the law, after consultation with such Person and
(ii) no such announcement or disclosure (except as required by law or by stock
exchange regulation) shall identify any such Person without such Person's prior
consent.
* * *
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
iBEAM BROADCASTING CORPORATION
By:
Name:
Title:
XXXXXXXX COMMUNICATIONS, LLC
By:
Name:
Title:
OTHER STOCKHOLDERS SIGNATURE PAGES FOLLOW
By execution of this signature page, the undersigned shall become an Other
Stockholder under, and a party to, the Stockholders Agreement, dated as of
_______ __, 2001 by and among iBeam Communications Corporation, Xxxxxxxx
Communications, LLC and the Other Stockholders.
Notice: XXXXX & COMPANY INCORPORATED
Xxxxx & Company Incorporated
000 0xx Xxxxxx - 0xx Xxxxx By:________________________________
New York, New York Name:
Fax: (000) 000-0000 Title:
Attn: Xxxx Xxxxx
By execution of this signature page, the undersigned shall become an Other
Stockholder under, and a party to, the Stockholders Agreement, dated as of
_______ __, 2001 by and among iBeam Communications Corporation, Xxxxxxxx
Communications, LLC and the Other Stockholders.
Notice: XXXX iBEAM, LLC
Xxxx iBeam, LLC
One North Franklin By:
Xxxxx 000 Name:
Xxxxxxx, Xxxxxxxx 00000 Title:
Fax: (000) 000-0000
By execution of this signature page, the undersigned shall become an Other
Stockholder under, and a party to, the Stockholders Agreement, dated as of
_______ __, 2001 by and among iBeam Communications Corporation, Xxxxxxxx
Communications, LLC and the Other Stockholders.
Notice: TOUCH AMERICA, INC.
Touch America, Inc.
000 Xxxxx Xxxx Xxxxxx Xx:________________________________
Xxxxx, XX 00000-0000 Name:
Fax: (000) 000-0000 Title
Attn: General Counsel
