EXHIBIT 10.27
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AMENDMENT NO. 1 TO THE
STOCKHOLDERS AGREEMENT OF XXX.XXX, INC.
This Amendment No. 1, dated as of December 24, 2002 (this "Amendment"),
amends that certain Stockholders Agreement, dated as of December 24, 2001, by
and among XXX.xxx, Inc. (the "Company") and the Investors thereto (the
"Agreement"). Capitalized terms not defined herein shall have the meaning set
forth in the Agreement.
WHEREAS, simultaneously herewith the Company has entered into an
agreement with Fleet National Bank ("Fleet") pursuant to which Fleet shall
provide a revolving line of credit (the "Fleet Line of Credit") for up to an
aggregate of $15 million to the Company to finance acquisitions, working capital
and other general corporate requirements;
WHEREAS, borrowings by the Company under the Fleet Line of Credit will
be guaranteed (together the "Guaranties") by VantagePoint Venture Partners III
(Q), L.P., VantagePoint Venture Partners III, L.P., VantagePoint Communications
Partners, L.P., and VantagePoint Venture Partners 1996, L.P. (collectively, the
"VantagePoint Entities"), Columbia Capital Equity Partners II (QP), LP, Columbia
Capital Equity Partners II (Cayman), LP, Columbia Capital Equity Partners II,
LP, Columbia Capital Investors, LLC, Columbia Capital Equity Partners III (QP),
LP, Columbia Capital Equity Partners III (Cayman), LP, Columbia Capital Equity
Partners III (AI), LP, and Columbia Capital Investors III, LLC (collectively the
"Columbia Entities"), Xxxxxxx River Partnership X, A Limited Partnership,
Xxxxxxx River Partnership X-A, A Limited Partnership, Xxxxxxx River Friends X-B,
LLC, and Xxxxxxx River Friends X-C, LLC (collectively the "Xxxxxxx River
Entities"), or The Lafayette Investment Fund, L.P. ("Lafayette"), or any other
person approved by Fleet in its sole and absolute discretion (together with the
VantagePoint Entities, Columbia Entities, Xxxxxxx River Entities, and Lafayette,
the "Guarantors");
WHEREAS, in order to induce the Guarantors to provide the Guaranties,
the Company has agreed to issue, from time to time, one or more warrants to
purchase an aggregate of 12,950,000 shares of the Company's Common Stock, and to
provide holders of such warrants with registration rights with respect to the
Common Stock issuable upon exercise or conversion of such warrants; and
WHEREAS, the undersigned believe it is in the best interests of the
Company to amend the Agreement to provide for such registration rights and
matters related thereto.
NOW THEREFORE in consideration of the premises and the agreements
herein contained, the receipt and sufficiency of which are hereby acknowledged,
the undersigned, intending to be bound hereby, agree as follows:
1. The following term in the Agreement shall be amended and restated in
its entirety as set forth below:
"Investor" shall mean the Series X Investors, the Series Y
Investors and the holders of any Warrants.
2. Section 3.1(a) of the Agreement shall be amended by deleting the
first sentence of Section 3.1(a) and replacing it with the following:
"(a) At any time on or after July 1, 2002, one or more holders
(the "Initiating Holders") of at least 50% of the shares (the
"Conversion Shares") of the Company's common stock, par value
$0.0005 per share (the "Common Stock"), to be issued or
issuable (i) upon conversion of either the Series X Preferred
Stock or the Series Y Preferred Stock then outstanding and
(ii) upon exercise or conversion of the outstanding Warrants
issued in connection with the guaranty of Company's
obligations under the Guarantee Agreement with the Guarantors
thereto, dated as of October 8, 2002, as amended, (the
"Warrants"), to purchase up to 12,950,000 shares of the
Company's Common Stock (the "Warrant Shares"), and in the case
of both subsections (i) and (ii) of this sentence which have
not been (A) registered under the Act pursuant to an effective
registration statement filed thereunder and disposed of in
accordance with the registration statement covering them or
(B) publicly sold pursuant to Rule 144 under the Act
(collectively, the "Registrable Shares") may notify (the
"Initiating Holder Notice") the Company in writing that it or
they intend to offer or cause to be offered for public sale
Registrable Shares held by them and, if applicable, that they
intend to distribute the Registrable Shares by means of an
underwriting.
3. Section 4.3 of the Agreement is deleted in its entirety and replaced
with the following paragraph:
"4.3 Entire Agreement; Amendment. This Agreement, as amended by this
Amendment, constitutes the entire agreement of the parties with respect
to the subject matter hereof and neither this Agreement nor any
provision hereof may be waived, modified, amended or terminated except
by a written agreement signed by the party against whom the waiver is
to be effective; provided, however, that the Series X Investors holding
at least a majority of the outstanding shares of Series X Preferred
Stock, voting as a separate class, the Series Y Investors holding at
least a majority of the outstanding shares of Series Y Preferred Stock,
voting as a separate class, and the holders of any Warrants then
outstanding representing at least a majority of the Warrant Shares,
voting as a separate class, may effect any such waiver, modification,
amendment or termination on behalf of all of the Series X Investors,
Series Y Investors and the holders of the Warrants, respectively;
provided, further, however, that (i) any such waiver, amendment or
modification made with the consent of less than all of the Series X
Investors may only be made in a manner which applies to all Series X
Investors in the same fashion, (ii) any such waiver, amendment or
modification made with the consent of less than all of the Series Y
Investors may only be made in a manner which applies to all Series Y
Investors in the same fashion, (iii) any such waiver, amendment or
modification made with the consent of less than all holders of the
Warrants may only be made in a manner which applies to all such holders
of the Warrants in the same fashion; and (iv) if this Agreement is
amended, modified or terminated, or a waiver with respect to all
parties hereto is given, without the unanimous consent of the Series X
Investors, the Series Y Investors, or the holders of the Warrants, all
such Series X Investors, Series Y Investors or holders of the Warrants
that are not a party to such agreement shall be given prompt notice of
such amendment, modification, termination or waiver. No waiver
hereunder shall be deemed a waiver of any subsequent breach or default
of the same or similar nature."
4. Section 4.5 of the Agreement is deleted in its entirety and replaced
with the following paragraph:
"4.5 Additional Parties. The Company shall take all necessary action to
ensure that each person who shall on or after the date hereof acquire
shares of Series X Preferred Stock, Series Y Preferred Stock or
Warrants shall become a party to this Agreement by executing and
delivering to the Company an Instrument of Adherence, and such
additional party shall thereafter be added to Annex I hereto and be
deemed a Series X Investor, Series Y Preferred Investor or a holder of
Warrants, as the case may be, for all purposes of this Agreement
without the requirement of consent of the other parties hereto."
5. By their signature below, each of VantagePoint Venture Partners III
(Q), L.P., VantagePoint Venture Partners III, L.P., VantagePoint Communications
Partners, L.P. and VantagePoint Venture Partners 1996, L.P., as holders of
"Registrable Securities" under that certain Amended and Restated Investors
Rights Agreement, dated as of July 16, 1999 (the "Rights Agreement"), by and
among the Company and the investors party thereto, as amended to the date
hereof, hereby consents pursuant to Section 1.11 of the Rights Agreement to the
registration rights set forth in this Amendment.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment or have
caused it to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
XXX.XXX, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Chief Executive Officer
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SERIES Y INVESTORS:
COLUMBIA CAPITAL EQUITY PARTNERS II (QP), L.P.
By: Columbia Capital Equity Partners, L.P.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Chief Financial Officer
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COLUMBIA CAPITAL EQUITY PARTNERS II (CAYMAN), L.P.
By: Columbia Capital Equity Partners, LP.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Chief Financial Officer
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COLUMBIA CAPITAL EQUITY PARTNERS II, L.P.
By: Columbia Capital Equity Partners, L.P.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Chief Financial Officer
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COLUMBIA CAPITAL INVESTORS, LLC
By: Columbia Capital, LLC
Its: Manager
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Chief Financial Officer
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COLUMBIA CAPITAL EQUITY PARTNERS III (QP), L.P.
By: Columbia Capital Equity Partners III, L.P.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Chief Financial Officer
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COLUMBIA CAPITAL EQUITY PARTNERS III (CAYMAN), L.P.
By: Columbia Capital Equity Partners III, L.P.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Chief Financial Officer
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COLUMBIA CAPITAL EQUITY PARTNERS III (AI), L.P.
By: Columbia Capital Equity Partners III, L.P.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Chief Financial Officer
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COLUMBIA CAPITAL INVESTORS III, LLC
By: Columbia Capital III, LLC,
Its: Manager
By: /s/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
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Title: Chief Financial Officer
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THE LAFAYETTE INVESTMENT FUND, L.P.
By: Lafayette Investment Partners, L.P.
Its: Sole general partner
By: Lafayette Private Equities, Inc.
Its: Sole general partner
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
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Title: Vice President
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XXXXXXX RIVER PARTNERSHIP X, A LIMITED PARTNERSHIP
By: Xxxxxxx River X GP, LLC
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Managing Member
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XXXXXXX RIVER PARTNERSHIP X-A, A LIMITED
PARTNERSHIP
By: Xxxxxxx River X GP, LLC
Its: General Partner
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Managing Member
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XXXXXXX RIVER FRIENDS X-B, LLC
By: Xxxxxxx River Friends, Inc.
Its: Manager
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
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Title: Authorized Officer
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XXXXXXX RIVER FRIENDS X-C, LLC
By: Xxxxxxx River Friends, Inc.
Its: Manager
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxx
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Title: Authorized Officer
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SERIES X INVESTORS:
VANTAGEPOINT VENTURE PARTNERS III (Q), L.P.
By: VantagePoint Venture Associates III, L.L.C.,
its general partner
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Managing Member
VANTAGEPOINT VENTURE PARTNERS III, L.P.
By: VantagePoint Venture Associates III, L.L.C.,
its general
partner
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Managing Member
VANTAGEPOINT COMMUNICATIONS PARTNERS, L.P.
By: VantagePoint Communications Associates,
L.L.C., its general partner
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Managing Member
VANTAGEPOINT VENTURE PARTNERS 1996, L.P.
By: VantagePoint Associates, L.L.C.,
its general partner
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
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Managing Member
