EXHIBIT 10.28
EXECUTION COPY
INVESTORS' RIGHTS AGREEMENT
INVESTORS' RIGHTS AGREEMENT, dated as of the 10th day of March, 1999, by
and among Xxxx.xxx, Inc. (formerly named iNAME, INC.), a Delaware corporation
(the "Company"), doing business at 00 Xxxxxxxx, Xxxxx 000, Xxx Xxxx, Xxx Xxxx,
the undersigned holders of Class E Preferred Stock of the Company (the
"Purchasers"), and Xxxxxx Xxxxxx, residing at 000 Xxxxxxxxxxxxx Xxxx, Xxxxxxx,
Xxx Xxxxxx, in his capacities as holder of Class A Preferred Stock, Class B
Common Stock and controlling stockholder (the "Controlling Stockholder"). The
Company, the Controlling Stockholder and the Purchasers are collectively
referred to as the "Parties."
WHEREAS, the Company and the Purchasers are parties to a certain Class E
Preferred Stock Purchase Agreement dated as of the date hereof (the "Stock
Purchase Agreement"); and
WHEREAS, in order to induce the Purchasers to enter into the Stock Purchase
Agreement, the Purchasers and the Company agree that this Agreement shall govern
the rights of the Parties with respect to the subject matter set forth herein
and in connection with the terms and provisions as set forth herein;
NOW, THEREFORE, in consideration of the promises and mutual agreements
hereinafter contained, the Parties do hereby agree as follows:
ARTICLE I
DEFINITIONS AND TERMS
Section 1.1 DEFINITIONS. The following terms, as used herein, shall have
the following meanings:
"Act" means the Securities Act of 1933, as amended.
"Affiliate" means, with respect to any Person, any Person directly or
indirectly controlling, controlled by, or under common control with such Person.
"Agreement" means this Agreement, as the same may be amended or
supplemented from time to time in accordance with the terms hereof.
"Books and Records" means all books, ledgers, files, reports, documents,
plans and operating records of, or maintained by, the Company, and all other
data in the possession of the Company relating to or reasonably required for the
operation of the Company's business.
"Class A Common Stock" means the shares of Class A Common Stock that the
Company is authorized to issue pursuant of the Company's Amended and Restated
Certificate of Incorporation, as amended from time to time.
"Class A Preferred Stock" means the shares of Class A Preferred Stock that
the Company is authorized to issue pursuant of the Company's Amended and
Restated Certificate of Incorporation, as amended from time to time.
"Class A Preferred Stock Purchase Agreement" means the Class A Preferred
Stock Purchase Agreement dated May 27, 1997, the Purchase and Sale Agreement
dated December 17, 1997 and the Purchase and Sale Agreement dated January 5,
1998, among the Company and the holders of Class A Preferred Stock that are
signatories thereto, as amended.
"Class B Common Stock" means the shares of Class B Common Stock that the
Company is authorized to issue pursuant of the Company's Amended and Restated
Certificate of Incorporation, as amended from time to time.
"Class C Preferred Stock" means the shares of Class C Preferred Stock that
the Company is authorized to issue pursuant of the Company's Amended and
Restated Certificate of Incorporation, as amended from time to time.
"Class C Stock Purchase Agreement" means the Class C Stock Purchase
Agreement dated July 31, 1998 among the Company and the holders of Class C
Preferred Stock.
"Class E Demand Registration" has the meaning set forth in Section 2.1.3.
of this Agreement.
"Class E Preferred Stock" means the shares of Class E Preferred Stock that
the Company is authorized to issue pursuant of the Company's Amended and
Restated Certificate of Incorporation, as amended from time to time.
"Company Stock" means any shares of any class of authorized capital stock
in the Company.
"Competitor" has the meaning set forth in Section 3.3 of this Agreement.
"Confidential Information" means any information concerning the businesses
and affairs of the Company that is not generally available to the public.
"Controlling Stockholder" has the meaning set forth in the preface above.
"Fully Diluted Shares Outstanding" has the meaning set forth in Section
4.3.3. of this Agreement.
"Incidental Registration" has the meaning set forth in Section 2.1.1. of
this Agreement.
"Indemnified Party" and "Indemnifying Party" has the meaning set forth in
Section 2.6.3. of this Agreement.
"Other Shareholders' Consent" means the consent by the holders of Class A
Preferred Stock purchased pursuant to the Class A Preferred Stock Purchase
Agreement and by the holders of the Class C Preferred Stock purchased pursuant
to the Class C Preferred Stock Purchase Agreement to the amendment of the
Consent, Amendment and Waiver and Investors' Rights
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Agreement dated as of July 31, 1998 among the Company and the investors
signatory thereto (the "Preferred Stock Investors' Rights Agreement") to permit,
in connection with an Incidental Registration, the Purchasers to include their
Registrable Securities on a pro rata basis with such Class A Preferred Stock and
Class C Preferred Stock to the extent that such Class A Preferred Stock and/or
Class C Preferred Stock is included in such registration pursuant to incidental
registration rights as contemplated by clause (C) of Section 2.1.2. hereof and
not demand registration rights as contemplated by clause (A) of Section 2.1.2.
hereof.
"Party" has the meaning set forth in the preface above.
"Person" means an individual, a partnership, a limited liability company, a
corporation, an association, a joint stock company, a trust, a joint venture, an
unincorporated organization, or a governmental entity (or any department,
agency, or political subdivision thereof).
"Purchasers" has the meaning set forth in the preface above.
"Registrable Securities" means (i) the Class A Common Stock issuable or
issued upon conversion of the Shares, (ii) any Class A Common Stock of the
Company issued as (or issuable upon the conversion or exercise of any warrant,
right or other security that is issued as) a dividend or other distribution with
respect to, or in exchange for or in replacement of the securities referenced in
clauses (i) and (ii), and (iii) any other shares of capital stock of the Company
into or for which the securities referenced in clause (i) and (ii) may be
converted into or exchanged pursuant to a recapitalization or reclassification
of the Company's capital stock.
"SEC" means the Securities and Exchange Commission.
"Security Interest" means any mortgage, pledge, lien, encumbrance, charge,
or other security interest, other than (A) liens for taxes not yet due and
payable or for taxes that the taxpayer is contesting in good faith through
appropriate proceedings, (B) purchase money liens securing rental payments under
capital lease arrangements, and (C) liens, charges, encumbrances, easements,
rights-of-way, building and use restrictions, exceptions, reservations and
limitations that do not in any material respect adversely detract from the value
of the property subject thereto or materially impair the operation of the
Company.
"Shares" means the shares of Class E Preferred Stock issued or to be issued
to the Purchasers pursuant to the Stock Purchase Agreement, as the same may be
amended.
Section 1.2 OTHER TERMS. Other terms may be defined elsewhere in the text
of this Agreement and, unless otherwise indicated, shall have such meaning
throughout this Agreement.
Section 1.3 OTHER DEFINITIONAL PROVISIONS. The words "herein," "hereof,"
"hereto" and "hereunder" and words of similar import, when used in this
Agreement, shall refer to this Agreement as a whole and not to any particular
provision of this Agreement. The terms defined in the singular shall have a
comparable meaning when used in the plural, and vice versa, and in such gender,
as the sense and circumstances require.
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ARTICLE II
REGISTRATION RIGHTS
The Company and the Purchasers covenant and agree as follows:
Section 2.1 REGISTRATION
2.1.1. INCIDENTAL REGISTRATION. If at any time the Company proposes to
register any Company Stock under the Act for its own account or for the
account of any of its stockholders, in connection with an underwritten
public offering of such Company Stock, on a form that would also permit
registration of the Registrable Securities, the Company shall, each such
time, give the Purchasers not less than twenty (20) days written notice of
such proposed registration (the "Incidental Registration"). Upon the
written request of the Purchasers, given within twenty (20) days after
receipt of any such notice from the Company, the Company shall, subject to
Section 2.1.2., cause to be included in such registration all of the
Registrable Securities the Purchasers request be registered in such
registration. There shall be no restriction with respect to the number of
times the Purchasers may request such Incidental Registration.
2.1.2. PRO RATA INCIDENTAL REGISTRATION OF COMPANY STOCK. If the
managing underwriter of any offering described in the first sentence of
Section 2.1.1 determines that the number of shares proposed to be sold by
the Company or by other stockholders of Company Stock is greater than the
number of shares that the underwriter believes feasible to sell at the
time, at the price and upon the terms approved by the Company, then the
number of shares of Company Stock that the underwriter believes may be sold
shall be allocated for inclusion in the registration statement in the
following order of priority: (A) Company Stock sold for the account of any
holders of the Company's securities if the registration was initiated by
such holders pursuant to contractual demand registration rights and Company
Stock sold for the account of Lycos, Inc. ("Lycos"), pursuant to
contractual incidental registration rights that permit it to participate in
such an offering on a pro rata basis with such holders, pro rata among such
holders and Lycos according to the number of shares requested to be
registered by such holders and Lycos; (B) Company Stock sold for the
account of the Company; and (C) (x) if the Other Shareholders' Consent is
obtained on or before the consummation of the Company's initial public
offering, pro rata among any other holders of securities of the Company
exercising contractual incidental registration rights (other than holders
described in clause (A) above if pursuant to a demand right and other than
Lycos as described in clause (A) above) and the Purchasers according to the
number of shares requested to be registered by such other holders and the
Purchasers; provided, however, that (1) as between the Company, on the one
hand, and the Purchasers and other holders referred to in clause (C) above,
on the other hand, at least ten percent (10%) of the Purchasers'
Registrable Securities and of such other holders' registrable securities
requested to be included shall be included in such underwriting (other than
the initial underwriting); and (2) the right of such other holders and the
Purchasers to participate in the offering shall have priority over Class A
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Common Stock held by employees of the Company and Class B Common Stock held
by employees of the Company or (y) if the Other Shareholders' Consent is
not obtained on or before the consummation of the Company's initial public
offering, pro rata among any other holders of securities of the Company
exercising contractual incidental registration rights (other than holders
described in clause (A) above if pursuant to a demand right and other than
Lycos as described in clause (A) above) and, subject to the provisos set
forth in clauses (1) and (2) below, the Purchasers according to the number
of shares requested to be registered by such other holders and the
Purchasers; provided, however, that (1) as between the Company, on the one
hand, and the holders of Class A Preferred Stock purchased pursuant to the
Class A Preferred Stock Purchase Agreement, the holders of Class C
Preferred Stock purchased pursuant to the Class C Preferred Stock Purchase
Agreement and the Purchasers, on the other hand, at least ten percent (10%)
of such holders' registrable securities requested to be included shall be
included in such underwriting (other than the initial underwriting); (2)
the right of the holders of the Class A Preferred Stock and the holders of
the Class C Preferred Stock to participate in such underwriting shall have
priority over the holders of the Class E Preferred Stock, the holders of
Class A Common Stock and the holders of Class B Common Stock; and (3) the
right of the holders of any Company Stock held by Persons who are not
employees of the Company shall have priority over Class A Common Stock held
by employees of the Company and Class B Common Stock held by employees of
the Company. If any Purchaser disapproves of the terms of the underwriting,
it may elect to withdraw therefrom by written notice to the Company and the
managing underwriter; provided, however, the election to withdraw occurs
within ten (10) days after such Purchaser receives notice of the terms of
the underwriting.
2.1.3. DEMAND REGISTRATION. On or after the earlier of (A) 180 days
after the effective date of a registration statement filed by the Company
in connection with an initial public offering of any Company Stock or other
securities under the Act, or (B) July 31, 2000, then, upon written request
of the Purchasers holding in the aggregate greater than twenty percent
(20%) of the Registrable Securities or Registrable Securities having a
minimum anticipated aggregate net offering proceeds of at least ten million
dollars ($10,000,000) that the Company effect the registration under the
Act of all or a portion of the Registrable Securities and specifying the
intended method of disposition thereof, the Company shall, within fifteen
(15) days after the Company has received such written notice, promptly
commence and use its best efforts to consummate the registration under the
Act of the Registrable Securities, or such portion thereof, and of all
other stock or securities which the Company has been requested to register
by any other holder of the Company's securities that is entitled to include
securities in such registration (the "Class E Demand Registration");
provided, however, that (1) the Purchasers shall be entitled to request one
(1) Class E Demand Registration, provided that either (a) the Registrable
Securities requested to be included in such Class E Demand Registration
constitute at least twenty percent (20%) of the total number of Registrable
Securities issued hereunder or (b) the anticipated gross receipts (before
underwriters discounts and commissions and costs of such registration) from
the offering exceed ten million dollars ($10,000,000), (2) a registration
will not count as the permitted Class E Demand Registration until it has
become effective, (3) the Company may delay the filing of a registration
statement under the Act as required by this Section 2.1.3. for a period of
up to sixty (60) days after the
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request of the Purchasers if the Board of Directors of the Company
determines in good faith that such Class E Demand Registration would be
materially adverse to the interests of the Company, and in such event, the
Purchasers will be entitled to withdraw such request and such Class E
Demand Registration will not be counted as the Class E Demand Registration
hereunder (provided, however, that the Company shall not use this right
more than once in any 180 day period) and (4) the Company will not be
required to effect a Class E Demand Registration within six (6) months
after the effective date of a registration in which the Purchasers were
given registration rights pursuant to Section 2.1.1. In the event that the
Purchasers exercise the demand registration right hereunder, and shares
requested to be registered by Lycos in connection therewith are included in
such registration on a pro rata basis with the Purchasers' Registrable
Securities, pursuant to section 11 of the letter agreement between Lycos
and the Company dated March 9, 1998 or otherwise, account for 30% or more
of the shares offered in such registered offering, then the Purchasers
shall have the right to one (1) additional Class E Demand Registration
hereunder. Subject to the terms and conditions hereof, the Purchasers'
right to request a registration under this Section 2.1.3. shall survive the
conversion of any Class E Preferred Stock into Class A Common Stock
2.1.4. PRO RATA DEMAND REGISTRATION OF COMPANY STOCK. (a) In the event
a Class E Demand Registration is initiated subsequent to the initial public
offering of any Company Stock or other securities under the Act and such
Class E Demand Registration is an underwritten offering, and the managing
underwriter advises the Purchasers and the Company in writing that in the
underwriter's opinion the number of shares requested to be included exceeds
the number that can be sold in such offering, then the number of shares of
Company Stock that the underwriter believes may be sold shall be allocated
for inclusion in the registration statement in the following order of
priority: (A) shares requested to be included by the Purchasers, together
with the shares requested to be included by Lycos to the extent Lycos is
entitled to participate in such offering on a pro rata basis with the
Purchasers, as applicable, pursuant to contractual incidental registration
rights, that in the opinion of such underwriter can be sold prior to the
inclusion of any securities of any other security holder of the Company;
provided that, if the managing underwriter advises the Company in writing
that in its opinion the aggregate number of shares requested for inclusion
by the Purchaser, together with such shares of Lycos, exceeds the number of
such shares that can be sold in such offering, then the Company shall
include in the registration statement only such number of shares, pro rata
among Purchasers and Lycos, based upon the number of shares requested to be
registered by the Purchaser and Lycos, which in the opinion of such
underwriter can be sold; (B) shares sold for the account of the Company;
and (C) pro rata among any other holders of securities of the Company
exercising contractual incidental registration rights other than any
holders whose shares are included pursuant to clause (A) above.
(b) In the event a Class E Demand Registration is initiated prior to
the Company giving notice under Section 2.1.1. that it proposes to register
any Company Stock under the Act in its initial public offering of any
Company Stock or other securities under the Act and such Class E Demand
Registration is an underwritten offering, and the managing underwriter
advises the Purchasers and the Company in writing that in the underwriter's
opinion the number of shares requested to be included exceeds the number
that can be
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sold in such offering, then the number of shares of Company Stock that the
underwriter believes may be sold shall be allocated for inclusion in the
registration statement in the following order of priority: (A) shares
requested to be included by the Purchasers together with the shares
requested to be included by Lycos to the extent Lycos is entitled to
participate in such offering on a pro rata basis with the Purchasers
pursuant to contractual incidental registration rights, that in the opinion
of such underwriter can be sold prior to the inclusion of any securities of
any other security holder of the Company; provided that, if the managing
underwriter advises the Company in writing that in its opinion the
aggregate number of shares requested for inclusion by the Purchasers,
together with such shares of Lycos, exceeds the number of such shares that
can be sold in such offering, then the Company shall include in the
registration statement only such number of shares, pro rata among the
Purchasers and Lycos, based upon the number of shares requested to be
registered by the Purchasers and Lycos, which in the opinion of such
underwriter can be sold; (B) pro rata among the Purchasers and any other
holders of securities of the Company exercising contractual incidental
registration rights other than any holders whose shares are included
pursuant to clause (A) above; and (C) shares sold for the account of the
Company.
(c) If the Purchasers make a written request to exercise rights to a
Class E Demand Registration under Section 2.1.3. prior to any other holder
of securities making a written request to exercise contractual rights to a
demand registration, then the registration following from such request
shall be a Class E Demand Registration. If any other holder of securities
makes a written request to exercise contractual rights to a demand
registration prior to the Purchasers making a written request to exercise
rights to a Class E Demand Registration under Section 2.1.3., then the
registration following from such request shall not be a Class E Demand
Registration.
2.1.5. FORM S-3 DEMAND REGISTRATION RIGHTS. If at any time the
Purchasers holding in the aggregate greater than twenty-five percent (25%)
of the Registrable Securities held by the Purchasers request that the
Company effect a Form S-3 registration under the Act of all or a portion of
the Registrable Securities, the Company shall, within fifteen (15) days
after the Company has received such written notice, promptly commence and
use its best efforts to consummate the Form S-3 registration of the
Registrable Securities under the Act; provided, however, (A) the aggregate
fair market value of the Registrable Securities requested to be registered
shall be greater than two million dollars ($2,000,000), (B) the Company
shall only be required to file one Form S-3 registration every twelve (12)
months, and (C) the Purchasers who request that the Company effect a Form
S-3 registration shall not be required to participate in such Form S-3
registration.
2.1.6. BENEFIT OF MORE FAVORABLE RIGHTS. If at any time registration
rights are granted with respect to Company Stock or capital stock of any
Affiliate of the Company which are on terms more favorable to the holders
of such securities with respect to any material terms applicable thereto
including, without limitation, the number of times or the circumstances
under which such rights may be exercised, the expenses to be paid by the
Company or any Affiliate of the Company in connection therewith or the
duration of the availability of such rights, the Company agrees that such
more favorable terms will be
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exercisable by the Purchasers automatically and without further action by
the Company. The Company covenants to give written notice to the Purchasers
not less than ten (10) days in advance of the granting of registration
rights with respect to Company Stock or capital stock of any Affiliate of
the Company.
2.1.7. TERMINATION OF REGISTRATION RIGHTS. Upon the date which is
thirty (30) months following a firm commitment underwritten public offering
pursuant to a registration statement under the Act, with gross proceeds of
not less than twenty million dollars ($20,000,000) (a "Qualified
Offering"), then the Purchasers shall not be entitled to exercise any right
provided for in this Section 2.1.
Section 2.2 OBLIGATIONS OF THE COMPANY. Where required under Section 2.1.
to use its best efforts to effect the registration of any of the Registrable
Securities, the Company shall, as expeditiously as reasonably possible,
2.2.1. Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its best efforts to cause
such registration statement to become effective and, upon the request of
Purchasers holding the minimum percentage of Registrable Securities or
Registrable Securities having the minimum aggregate anticipated offering
proceeds necessary to obtain registration under Sections 2.1.3 and 2.1.5
hereof, keep such registration statement effective for up to one hundred
twenty (120) days;
2.2.2. Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be necessary to comply with the provisions of the Act with
respect to the disposition of all securities covered by such registration;
2.2.3. Furnish to the Purchasers such numbers of copies of such
registration statement and prospectus, including any preliminary
prospectus, in conformity with the requirements of the Act, and such other
documents as the Purchasers may reasonably request in order to facilitate
the disposition of the Registrable Securities;
2.2.4. Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or blue
sky laws of such jurisdictions as shall be reasonably appropriate for the
distribution of the securities covered by the registration statement; and
2.2.5. Otherwise comply with all applicable rules and regulations of
the SEC.
Section 2.3 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Section 2 that the
Purchasers shall furnish to the Company such information regarding the
Purchasers, the Registrable Securities held by the Purchasers, and the intended
method of disposition thereof as the Company or its appointed agents shall
reasonably request and as shall be required in connection with the action to be
taken by the Company.
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Section 2.4 REGISTRATION EXPENSES. In the case of any registration effected
pursuant to Section 2, the Company shall bear all registration and qualification
fees and expenses, and all costs and disbursements of counsel for the Company;
provided, however, that (A) each Purchaser shall bear the fees and costs of such
Purchaser's own counsel and all underwriting discounts and commissions with
respect to the Registrable Securities sold by such person and (B) the Company
shall not be required to pay for any expenses of any Class E Demand Registration
begun if the registration request is subsequently withdrawn at the request of a
majority in interest of the Purchasers to be registered (in which case all
participating Purchasers shall bear such expenses); provided that, if the
Purchasers elect to engage counsel other than counsel for the Company in
connection with a Class E Demand Registration, the Company shall bear the fees
and expenses, and all costs and disbursements of one firm to act as such counsel
to all Purchasers up to a maximum aggregate amount of fifteen thousand dollars
($15,000).
Section 2.5 SELECTION OF UNDERWRITERS.
2.5.1. COMPANY SELECTION. If a registration pursuant to Section 2.1.1.
of this Agreement involves an underwritten offering, the Company shall have
the right to select the investment bankers and managers to administer the
offering. The Company shall not be required under Section 2.1.1. to
register the Registrable Securities in such registration unless the
Purchasers accept the terms of the underwriting as agreed upon between the
Company and the underwriter.
2.5.2. PURCHASERS' SELECTION. If a registration pursuant to Section
2.1.3. or 2.1.5. involves an underwritten offering, then the Purchasers
shall have the right to select the investment bankers and managers to
administer the offering; provided, however, that the selection of such
investment bankers and managers shall be subject to the approval of the
Company, such approval not to be unreasonably withheld.
Section 2.6 INDEMNIFICATION. If any Registrable Securities are included in
a registration statement pursuant to this Section 2, then,
2.6.1. To the extent permitted by law, the Company shall indemnify and
hold harmless the Purchasers, agents for the Purchasers, any underwriter
for the Purchasers, and each Person, if any, who controls such Person
within the meaning of the Act, against any losses, claims, damages or
liabilities, joint or several, to which they may become subject under the
Act or otherwise, insofar as such losses, claims, damages, or liabilities
arise out of any untrue statement or alleged untrue statement of material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained in the registration statement, or
any amendments or supplements to the registration statement, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein, or necessary to make the
statements therein not misleading, and will reimburse the Purchasers, the
agents for the Purchasers, such underwriter, or controlling Person for any
legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises
out of or is based upon any untrue statement or omission based upon and in
conformity
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with written information furnished to the Company by an instrument duly
executed by the Purchasers or underwriter and stated to be specifically for
use therein.
2.6.2. To the extent permitted by law, each Purchaser, severally and
not jointly, shall indemnify and hold harmless the Company, each of its
directors, each of its officers who have signed such registration
statement, and any underwriter for the Company against any losses, claims,
damages or liabilities to which the Company or any such director, officer,
or underwriter may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities arise out of or are based upon
any untrue or alleged untrue statement of any material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained in the registration statement or any amendments or
supplements to the registration statement, or arise out of or are based
upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement therein
not misleading, in each case to the extent, but only to the extent, that
such untrue statement or alleged untrue statement or omission or alleged
omission was made in such registration statement, preliminary prospectus,
or amendments or supplement thereto, in reliance upon and in conformity
with written information furnished by such Purchaser duly executed and
stated to be expressly for use therein, and such Purchaser will reimburse
any legal or other expenses reasonably incurred by the Company or any such
director, officer, controlling Person, or underwriter in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, that such Purchaser's liability under this Section 2.6.2.
shall not exceed the amount of the gross proceeds of the offering of such
Purchaser's Registrable Securities included therein.
2.6.3. Each party entitled to indemnification (the "Indemnified
Party") shall give notice to the party required to provide indemnification
("Indemnifying Party") promptly after such Indemnified Party has knowledge
of any claim as to which indemnity may be sought, and shall permit the
Indemnifying Party (at its expense) to assume the defense of any such claim
or any litigation resulting therefrom; provided, however, that counsel for
the Indemnifying Party, who shall conduct the defense of such claim or
litigation, shall be reasonably satisfactory to the Indemnified Party, and
the Indemnified Party may participate in such defense at such party's
expense; provided, further, that the failure by any Indemnified Party to
give notice as provided herein shall not relieve the Indemnifying Party of
its obligations under this Section 2.6., except to the extent that the
failure results in an omission of actual notice to the Indemnifying Party
and such Indemnifying Party is damaged solely as a result of the failure to
give notice; provided, further, that a refusal to permit the Indemnifying
Party to conduct such defenses by such counsel shall relieve such
Indemnifying Party of its obligations under this Section 2.6. No
Indemnifying Party, in the defense of any such claim or litigation, shall,
except with the consent of each Indemnified Party, consent to the entry of
any judgment or enter into any settlement that does not include as an
unconditional term the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability with respect to such
claim or litigation.
Section 2.7 REPORTS UNDER THE SECURITIES EXCHANGE ACT OF 1934. With a view
toward making available to the Purchasers the benefits of SEC Rule 144
promulgated under the
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Act and any other rule or regulation of the SEC that may at any time permit the
Purchaser to sell its Registrable Securities to the public without registration
or pursuant to a registration on Form S-3, the Company agrees to:
(i) make and keep public information available, as those terms
are understood and defined in SEC Rule 144, at all times after ninety (90)
days after the effective date of the first registration statement filed by
the Company for the offering of its shares to the general public;
(ii) take such action, including the voluntary registration of
its Common Stock under Section 12 of the Securities Exchange Act of 1934,
as is necessary to enable the holders of Registrable Securities to utilize
Form S-3 for the sale of their shares, such action to be taken as soon as
practicable after the end of the fiscal year in which the first
registration statement filed by the Company for the offering of its shares
to the general public is declared effective;
(iii) file with the SEC in a timely manner all reports and other
documents required of the Company under the Act and the Securities Exchange
Act of 1934; and
(iv) furnish to any holder of the Registrable Securities, so long
as the holder of the Registrable Shares owns any shares, forthwith upon
request (i) a written statement by the Company as to its compliance with
the reporting requirements of Rule 144 (at any time after ninety (90) days
after the effective date of the first registration statement filed by the
Company), the Act and the Securities Exchange Act of 1934 (at any time
after it has become subject to such reporting requirements), or as to its
qualification that it qualifies as a registrant whose shares may be resold
pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy of
the most recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (iii) such other
information as may be reasonably requested in availing any holder of
Registrable Securities of any rule or regulation of the SEC which permits
the selling of any such shares without registration or pursuant to such
form.
Section 2.8 LOCK-UP PERIOD. Each Purchaser agrees that it shall not, to the
extent requested by the underwriter of the Company, sell or otherwise transfer
or dispose of any Registrable Securities or any securities of the same or
similar class as securities being registered by the Company during the one
hundred eighty (180) day period following the effective date of a registration
statement filed by the Company; provided, however, that (A) such agreement shall
be applicable only to the first registration statement of the Company that
covers shares of the Company to be sold to the public in an underwritten
offering, (B) the holders of Class B Common Stock and the holders of at least
ninety percent (90%) of Class A Common Stock are subject to identical or
substantially similar time restrictions, (C) all officers and directors of the
Company and all other persons with registration rights enter into similar
agreements, and (D) nothing contained herein shall prohibit any holder of
Company Stock from transferring any Registrable Securities to a trust
established for estate planning purposes. The restrictions contained in this
Section 2.8 shall not prevent a Purchaser from selling shares of Class A Common
Stock purchased by it in the public markets in the initial public offering of
the Company or thereafter provided that such Purchaser is not in a net short
position with respect to
11
publicly tradeable Class A Common Stock or other derivative securities with
respect thereto at any time during such 180 day period. Notwithstanding anything
to the contrary set forth herein, the terms of this Section 2.8 may not be
amended or modified, directly or indirectly, without the express written consent
of each holder of Registrable Securities detrimentally affected by such
amendment or modification and any such amendment or modification made without
such holder's consent shall not be applicable to that holder.
Section 2.9 TRANSFER OF REGISTRATION RIGHTS. The registration rights of the
Purchasers under this Section 2 may be assigned and transferred (i) by any
Purchaser to any Affiliate of such Purchaser to whom any of the shares owned by
the Purchaser are transferred, and (ii) by any Purchaser to any transferee who
acquires at least five thousand (5,000) Registrable Securities (adjusted to
reflect subsequent stock splits, combinations, stock dividends and
recapitalizations); provided, however, that the Company is given written notice
by such Purchaser at the time of such assignment and transfer stating the name
and address of the transferee and identifying the securities with respect to
which the rights under this Section 2 are being assigned and transferred. For
the purposes of this Section 2.9, a change in control of an Affiliate of a
Purchaser holding shares entitling such Affiliate to the registration rights
hereunder, such that such Affiliate is subsequent to such change of control no
longer an Affiliate of such Purchaser, shall be deemed an attempted transfer of
the registration rights hereunder and such former Affiliate of such Purchaser
shall not be entitled to such registration rights.
ARTICLE III
OTHER COVENANTS
Section 3.1 CLASS E PREFERRED DESIGNATION OF DIRECTOR AND OBSERVER. The
Board of Directors of the Company shall, by way of written consent in lieu of a
meeting or otherwise, (i) resolve to permit the holders of a majority of the
Shares to nominate and to elect a director to the board; provided, however, that
(a) any such director shall be subject to the approval of the Company's Board of
Directors, such approval not to be unreasonably withheld, and (b) such right
shall terminate at such time as the Purchasers cease to hold at least 50% of the
Shares or the shares of Class A Common Stock issuable upon conversion of the
Shares that they shall hold immediately following the closing of the Stock
Purchase Agreement and (ii) resolve to permit U.S. Information Technology
Financing, L.P. and Encompass Group, Inc. (or their Affiliates) to jointly
designate one observer to the board to attend all meetings of its Board of
Directors in a nonvoting observer capacity; provided, however, that (a) such
representative shall agree to hold in confidence and trust and to act in a
fiduciary manner with respect to all Confidential Information concerning the
Company furnished to such representative in connection with any such meeting of
the Board of Directors, and (b) the Company reserves the right to withhold any
information and to exclude such representative from any meeting or portion
thereof if access to such information or attendance at such meeting would
reasonably be expected to adversely affect the attorney-client privilege between
the Company and its counsel or would result in disclosure of trade secrets to
such observer. Subject to the conditions set forth in this section, the
Controlling Stockholder and the Purchasers agree to use their best efforts to
cause the person or persons so named to be nominated for election to the Board
of Directors of the Company at the time and in the manner proper for such
nominations whereupon the Controlling Stockholder and the Purchasers agree to
cast all of the votes they are entitled to cast in such election, subject to
12
the limitations set forth below, whether at the next annual meeting or a special
meeting of the stockholders, by written consent in lieu of a meeting or
otherwise, for the election of such nominees to the Board of Directors of the
Company.
Section 3.2 FINANCIAL STATEMENTS. So long as a Purchaser owns any Shares,
the Company shall use its best efforts to deliver to such Purchaser the
following financial information of the Company within the time period provided:
3.2.1. Within one hundred and twenty (120) days after the end of each
fiscal year of the Company, a statement of operations, a balance sheet of
the Company as of the end of such fiscal year, and statements of
operations, changes in financial position, and changes in shareholder
equity for such fiscal year (including all footnotes to same), which
year-end financial reports shall be audited and certified in accordance
with generally accepted accounting principles by independent certified
public accountants of nationally recognized standing selected by the
Company;
3.2.2. Within thirty (30) days after the end of each calendar month,
an unaudited statement of operations for such calendar month and a balance
sheet as of the end of such calendar month;
3.2.3. Within thirty (30) days after the end of each of the first
three quarters of the fiscal year, an unaudited statement of operations for
such fiscal quarter and a balance sheet as of the end of such fiscal
quarter; and
3.2.4. During the fourth quarter of the preceding year, a budget and
business plan for the next fiscal year.
Section 3.3 INSPECTION. So long as a Purchaser together with all of its
Affiliates owns at least an aggregate of fifty thousand (50,000) Shares
(adjusted to reflect subsequent stock splits, combinations, stock dividends and
recapitalizations), the Company shall permit such Purchaser, at its expense, to
visit and inspect the Company's properties, to examine its books of account and
records, and to discuss the Company's affairs, finances, and accounts with the
Company's officers and independent public accountants, all at such reasonable
times as may be requested by such Purchaser; provided, however, that the Company
shall not be obligated pursuant to this Section 3.3. to provide any information
(A) that the Company is obligated to hold confidential by the terms of any
agreement with a third party, or (B) in the event the Purchaser owns an
equivalent or larger investment in a Competitor of the Company unless such
Purchaser is a passive investor in the Company and in such Competitor (provided
that such Purchaser shall be considered a passive investor only if such
Purchaser would be entitled to report holdings of greater than five percent (5%)
on a Schedule 13G if the Company and such Competitor were publicly traded). A
"Competitor" of the Company for the purposes of this Agreement shall mean any
Person any one of whose primary businesses is providing internet e-mail
services.
Section 3.4 ARMS' LENGTH TRANSACTIONS. The Company shall not enter into any
transaction, agreement, arrangement, sale, purchase, or lease with any holder of
shares of Company Stock, or any other Person, that provides for receipt by the
Company of less than fair
13
and reasonable consideration for the money, property or services provided by the
Company pursuant to such transaction, agreement, arrangement, sale, purchase, or
lease.
Section 3.5 TERMINATION. The Company's obligations and the Purchaser's
rights under Sections 3.2.2., 3.2.4. and 3.3. shall terminate upon the effective
date of the registration statement filed by the Company in connection with a
Qualified Offering of the Company's stock or other securities under the Act as
and to the extent the Company is otherwise subject to the periodic reporting
requirements of the Securities Exchange Act of 1934, as amended.
Section 3.6 TRANSFER OF CLASS B COMMON STOCK.
3.6.1. CLASS B COMMON STOCK EXIT CONDITION. Except as provided in this
Section 3.6.1. unless the Purchasers shall have been provided the
opportunity to sell, transfer or dispose of one hundred percent (100%) of
the Shares or the shares of Class A Common Stock or other Company Stock
into which the Shares may be converted or for which they may be exchanged,
for an amount equal to or greater than each Purchaser's aggregate
investment, as set forth in the Stock Purchase Agreement, multiplied by two
(2), in cash, or in Marketable Securities (as defined below), within twenty
four (24) months from the date of this Agreement, or thirty (30) months
from the date of this Agreement if the Company has completed a registration
under the Act in connection with a Qualified Offering within twenty four
(24) months of the date upon which the Purchasers purchased shares of Class
E Preferred Stock (the "2x Exit Condition"), then the shares of Class B
Common Stock shall not be transferable by the Controlling Stockholder as
shares of Class B Common Stock and any purported transfer thereof shall be
void ab initio, and the Company covenants and agrees that such transfer
shall not be reflected on the stock transfer books of the Company.
"Marketable Securities" means: (i) securities issued or directly and fully
guaranteed and insured by the United States Government or any agency or
instrumentality thereof (provided that the full faith and credit of the
United States is pledged in support thereof) having maturities of less than
six months from the date of acquisition; or (ii) short term debt
instruments with a maturity of less than 90 days from the date of issuance
of an issuer rated at least A by Standard & Poors Rating Services or equity
securities of an issuer with a market capitalization of at least
$150,000,000, which equity securities are traded on a major nationally
recognized exchange (other than the NASDAQ small cap index or the NASDAQ
bulletin board).
3.6.2. CONFIRMATION OF OCCURRENCE. The Company covenants and agrees
that no transfer of Class B Common Stock shall be given effect by the
Company or reflected on the Company's stock transfer ledger unless the
Company shall first have obtained confirmation in writing by a majority in
interest of the Purchasers, such confirmation to be provided by the
Purchasers in good faith, that the 2x Exit Condition has been satisfied.
3.6.3. LEGEND RESTRICTION. The Controlling Stockholder covenants and
agrees to deliver promptly upon the execution of this Agreement all of the
shares of Class B Common Stock to the Company in order that the Company may
include a legend on the certificates representing such shares to the effect
of the foregoing.
Section 3.7 VOTING AGREEMENT. In addition, if at any time the number of
authorized but unissued shares of Class A Common Stock shall not be sufficient
to effect the obligations of
14
the Company to issue shares of Class A Common Stock upon conversion of the Class
E Preferred Stock or otherwise pursuant to the terms of the Class E Preferred
Stock, the Controlling Stockholder agrees to cast all of the votes he is
entitled to cast to approve the same and give effect thereto (whether at the
next annual meeting or a special meeting of stockholders, by written consent in
lieu of a meeting or otherwise).
Section 3.8 APPROVAL BY HOLDERS OF SHARES OF CLASS E PREFERRED STOCK. The
holders of Class E Preferred Stock party hereto do approve in all respects the
issuance of securities in accordance with the contracts and commitments set
forth on Schedule 3.3 to the Stock Purchase Agreement in connection with a bona
fide commercial business arrangement with each such entity, and do also approve
the issuance of up to a maximum aggregate 70,000 shares of Class A Preferred
Stock to InfoSpace, Inc. Also in connection with the issuance of any of the
aforementioned securities, the holders of Class E Preferred Stock agree that,
for the purposes of article V, section 3(e)(iv) ("Conversion Price
Adjustments"), of the Company's Amended and Restated Certificate of
Incorporation, as amended, the fair market value of the consideration per share
received in consideration of any such security at the time it was issued shall
be deemed to be equal to or greater than the Class E Conversion Price (as such
term is defined in the Company's Amended and Restated Certificate of
Incorporation, as amended) in effect immediately prior to the issuance of such
stock.
Section 3.9 CONFIDENTIALITY. Any information obtained from the Company,
whether included in financial statements distributed pursuant to Section 3.2,
obtained in the course of the exercise of rights of inspection arising under
Section 3.3, or otherwise, shall be maintained confidential and not disclosed to
any third party and used only for purposes of monitoring and administering the
Purchasers' investment in the Company; provided, each Purchaser's obligation
under this Agreement to hold all information received from the Company from
reports, inspections or otherwise in confidence shall not prohibit such
Purchaser from disclosing such information (i) if such information is public,
(ii) to its board of directors, investment advisers, attorneys, accountants,
consultants and other professionals to the extent necessary to obtain their
services in connection with such Purchaser's investment in the Company, provided
that such persons agree to hold such information confidential, (iii) to any
prospective purchaser of any shares of the Company owned by such Purchaser as
long as such prospective purchaser agrees in writing to be bound by the
confidentiality provisions of this Agreement and so long as such prospective
purchaser is not a Competitor of the Company and does not hold shares of a
Competitor of the Company (except that such prospective purchaser may hold
shares of a Competitor of the Company if it is a passive investor with respect
thereto (determined in the same manner as in Section 3.3)), (iv) to any of such
Purchaser's affiliates, provided that such affiliates agree to hold such
information confidential as provided herein, or (v) upon request, to a
regulatory body, stock exchange or court having jurisdiction over the Purchaser
or by court or administrative order or as otherwise required by applicable law
or regulation or listing or trading agreement concerning such Purchaser or the
Company, subject in each case to allowing the Company to seek a protective order
with respect to disclosure of any such information.
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ARTICLE IV
PREEMPTIVE RIGHTS
Section 4.1 RIGHTS OF INCLUSION.
4.1.1. GENERAL. Except as provided in Section 4.1.6., if, at any time,
the Controlling Stockholder proposes to transfer shares of Company Stock to
a third party (a "Proposed Purchaser"), the Controlling Stockholder shall
(i) first, afford each Purchaser any right of first refusal to purchase
such shares arising under Section 4.4, then (ii) second, afford each
Purchaser the opportunity to participate in such transfer in accordance
with this Section 4.1.
4.1.2. RIGHT TO PARTICIPATE. Each Purchaser, with respect to the
proposed transfers set forth in Section 4.1.1., whether pursuant to clause
(i) or (ii) of Section 4.1.1. (the "Tag-Along Purchaser"), shall have the
right to transfer, at the same price and upon identical terms and
conditions as such proposed transfer, the number of shares of Company Stock
owned by the Purchaser equal to (A) the total number of shares of Company
Stock proposed to be transferred by the Controlling Stockholder multiplied
by (B) a fraction, the numerator of which is the total number of shares of
Class A Common Stock then owned by such Tag-Along Purchaser plus the
aggregate number of shares of Class A Common Stock issuable upon
conversion, exchange or exercise of all convertible securities, options or
warrants then owned by such Tag-Along Purchaser as of the close of business
on the second day preceding the mailing date of the Transfer Notice (as
defined below) and the denominator of which is the total number of shares
of Class A Common Stock then owned by (1) all of the Purchasers, (2) the
Controlling Stockholder, and (3) all other stockholders of the Company
having tag-along or similar rights to participate in the proposed transfer
(the "Transfer Allotment") plus the number of shares of Class A Common
Stock issuable upon conversion, exchange or exercise of all convertible
securities, options or warrants then owned by any Person referenced in (1),
(2) or (3) above is then convertible. At the time any transfer to a
Proposed Purchaser is proposed, the Controlling Stockholder shall give
notice to the Purchasers of their right to sell shares of Company Stock
hereunder (the "Transfer Notice"), which notice shall identify the Proposed
Purchaser and state the number of shares of Company Stock proposed to be
transferred, the proposed offering price, the proposed date of any such
transfer (the "Transfer Date") and any other material terms and conditions
of the proposed transfer. The Transfer Notice shall also contain a complete
and correct copy of any offer to the Controlling Stockholder by the
Proposed Purchaser to purchase such shares of Company Stock.
4.1.3. NOTICE. Each Tag-Along Purchaser that wishes to participate in
the transfer shall provide written notice (the "Tag-Along Notice") to the
Controlling Stockholder within thirty (30) days of the Transfer Notice. The
Tag-Along Notice shall set forth the number of shares of Company Stock that
the Purchaser elects to include in the transfer, which shall not exceed
such Purchaser's Transfer Allotment. The Tag-Along Notice shall also
specify the aggregate number of additional shares of Company Stock owned of
record by such Tag-Along Purchaser as of the date of the Tag-Along Notice,
if
16
any, which such Tag-Along Purchaser desires also to include in the transfer
(the "Additional Shares") in the event there is any under-subscription for
the entire amount of all Tag-Along Purchasers' Transfer Allotments. In the
event there is an under-subscription by a Tag-Along Purchaser for the
entire amount of the Tag-Along Purchaser's Transfer Allotments, the
Controlling Stockholder shall apportion the unsubscribed Tag-Along
Purchaser's Transfer Allotments to Tag-Along Purchasers whose Tag-Along
Notices specified an amount of Additional Shares, which apportionment shall
be on a pro rata basis among such Tag-Along Purchasers in accordance with
the number of Additional Shares specified by all such Tag-Along Purchasers
in their Tag-Along Notices. The Tag-Along Notice given by each Purchaser
shall constitute its binding agreements to sell such shares of Company
Stock as against such Purchaser on the terms and conditions applicable to
the transfer.
4.1.4. NON PARTICIPATION. If a Tag-Along Notice is not received by the
Controlling Stockholder prior to the expiration of the thirty (30) day
period specified in Section 4.1.3. above, the Controlling Stockholder shall
have the right to sell or otherwise transfer the number of shares of
Company Stock specified in the Transfer Notice to the Proposed Purchaser
without any participation by such Purchaser, but only on terms and
conditions with respect to the consideration paid by the Proposed Purchaser
and other material terms a reasonable investor would consider in making its
decision to invest which are no more favorable in any material respect to
the Controlling Stockholder than as stated in the Transfer Notice to the
Purchaser, and only if such Transfer occurs on a date within sixty (60)
days of the Transfer Date.
4.1.5. REPRESENTATIONS. The Purchaser shall be obligated to make
representations as to (A) good title and the absence of a Security Interest
against the Shares and, (B) the validity and binding effect of any
agreements entered into by the Purchaser in connection with such transfer;
provided, however, that each Purchaser shall make such representations and
warranties severally and not jointly.
4.1.6. EXCEPTIONS. The provisions of this Section 4.1. shall not apply
to any transfer by the Controlling Stockholder (A) to the spouse or family
members of the Controlling Stockholder, (B) to a Proposed Purchaser of
Company Stock in one or a series of related transactions having an
aggregate fair market value of one million dollars ($1,000,000) or less,
(C) pursuant to a Qualified Offering or any Rule 144 transaction, or (D) of
shares sold in connection with customary trading activities at any time
following a Qualified Offering.
Section 4.2 RIGHTS TO COMPEL.
4.2.1. GENERAL. Except as provided in Section 3.6. and subject to
Section 4.4., if, at any time the Controlling Stockholder proposes to
transfer all or any portion of his shares of Company Stock to a Proposed
Purchaser in a bona fide arms' length transaction, and, in connection
therewith, the Controlling Stockholder obtains an opinion of a
nationally-recognized investment banking firm to the effect that the
transfer to the Proposed Purchaser is fair to the Controlling Stockholder
and the Purchasers from a financial point of view, then the Controlling
Stockholder may require the Purchasers to
17
transfer all or a portion of the Shares or shares of Class A Common Stock
issued or issuable upon conversion of the Shares (the "Designated Shares")
to the Proposed Purchaser in accordance with this Section 4.2.; provided,
however, that (i) the Purchasers may, by consent of a majority in interest
thereof, waive the right to obtain such fairness opinion in any proposed
transfer by the Controlling Stockholder, and (ii) the rights afforded the
Controlling Stockholder by this Section 4.2 shall be conditioned upon the
purchase price per share of the Designated Shares on an as converted basis
being greater than or equal to one hundred fifty percent (150%) of the then
applicable conversion price of the Shares or, if the Shares have been
previously been converted, the conversion price of the Shares immediately
prior to conversion (adjusted to reflect subsequent stock splits,
combinations, stock dividends and recapitalizations).
4.2.2. REQUIREMENT TO PARTICIPATE. The Purchasers, with respect to the
proposed transfers set forth in Section 4.2.1., shall be required to
transfer the Designated Shares to the Proposed Purchaser at the same price
per share of Company Stock and upon no less favorable terms and conditions
as such proposed transfer upon which the Controlling Stockholder is selling
his shares of Company Stock. The Designated Shares shall be determined by
multiplying the shares of Company Stock owned by the Purchasers by a
fraction, the numerator of which shall be the number of shares of Company
Stock to be sold by the Controlling Stockholder and the denominator of
which is the total shares of Company Stock owned by the Controlling
Stockholder.
4.2.3. NOTICE. The Controlling Stockholder shall send reasonable
written notice (the "Drag-Along Notice") of the exercise of such rights
pursuant to this Section 4.2. to the Purchasers, setting forth the
consideration per share of Company Stock to be paid by the Proposed
Purchaser and the other terms and conditions of such transaction. The
Purchasers shall only be obligated to make representations as to (A) good
title and the absence of a Security Interest against their Designated
Shares, (B) the validity and binding effect of any agreements entered into
by the Purchasers in connection with such transfer, and each such Purchaser
shall make such representations and warranties severally and not jointly.
4.2.4. NONPARTICIPATION. In the event that a Purchaser fails to
deliver certificates representing the Designated Shares to the Proposed
Purchaser on the consummation of the sale of the Controlling Shareholder's
shares of Company Stock to such Proposed Purchaser, the Company shall cause
the Books and Records of the Company to show that such shares of Company
Stock are bound by the provisions of this Section 4.2.
4.2.5. FAILURE TO CLOSE. If, within ninety (90) days after the
Controlling Stockholder gives the Drag-Along Notice, the sale of all of
Controlling Stockholder's shares of stock in accordance herewith has not
been completed, the Purchaser shall not be obligated to transfer any
Designated Shares to the Proposed Purchaser, and all the restrictions on
sale or other disposition contained in the Agreement with respect to the
shares of Company Stock shall again be in effect.
4.2.6. REMITTANCE OF SALE PROCEEDS. Simultaneously with the
consummation of the sale of the Controlling Stockholder's shares of Company
Stock, and the Purchaser's
18
shares of Company Stock, the Controlling Stockholder shall notify the
Purchaser of the consummation of the sale, and shall cause the Proposed
Purchaser to remit directly to the Purchaser that has delivered its shares
of Company Stock, the total sales price of the Purchaser's shares of
Company Stock sold or otherwise disposed of pursuant thereto and shall
furnish such other evidence of the completion and time of completion of
such sale or other disposition and the terms thereof as may be reasonably
requested by the Purchaser.
Section 4.3 RIGHT OF FIRST OFFER OF COMPANY STOCK.
4.3.1. GENERAL. Subject to the terms and conditions specified in this
Section 4.3., the Company grants each Purchaser a right of first offer with
respect to future sales by the Company of Company Stock or other securities
exercisable or convertible into Company Stock. Each time the Company
proposes to offer (i) additional shares of capital stock of any or all
classes or series thereof, (ii) rights, options or warrants to purchase
shares of its capital stock, or (iii) securities convertible into such
capital stock (the "New Offering"), the Company shall first make an offer
to each Purchaser to participate in the New Offering in an amount
proportional to the number of shares of Class A Common Stock then owned by
such Purchaser plus the aggregate number of shares of Class A Common Stock
issuable upon conversion, exchange or exercise of all convertible
securities, options or warrants then owned by such Purchaser at the time of
the New Offering in accordance with the following provisions. The rights
set forth in this Section 4.3 shall not apply to the sale of additional
shares of Class E Preferred Stock pursuant to the Stock Purchase Agreement
to the extent consummated in accordance with the provisions of Section 2.4
of the Stock Purchase Agreement.
4.3.2. NOTICE. The Company shall provide a written notice (the
"Offering Notice") of the New Offering to the Purchasers stating (i) the
Company's bona fide intention to offer such shares, rights, options,
warrants or other securities (ii) the number of such shares, rights,
options, warrants or other securities to be offered, and (iii) the price
and terms upon which it proposes to offer such shares, rights, options,
warrants or other securities.
4.3.3. ELECTION TO PURCHASE. Within twenty (20) business days
following the date of the Offering Notice (the "Election Period"), each
Purchaser may elect to purchase or obtain, at the price and on the terms
specified in the Offering Notice, up to that portion of each class and type
of such shares, rights, options, warrants or other securities which equals
one hundred percent (100%), multiplied by a fraction the numerator of which
is the number of shares of Class A Common Stock then owned by such
Purchaser plus the aggregate number of shares of Class A Common Stock
issuable upon conversion, exchange or exercise of all convertible
securities, options or warrants then owned by such Purchaser is then
convertible and the denominator of which is the total number of shares of
Class A Common Stock then outstanding plus the aggregate number of shares
of Class A Common Stock issuable upon conversion, exchange or exercise of
all convertible securities, options or warrants then outstanding ("Fully
Diluted Shares Outstanding")(such Purchaser's "Offering Allotment"). In the
event a Purchaser desires to participate in the New Offering, the Purchaser
shall provide the Company with written
19
notice of his intention to participate in the New Offering (the "Election
Notice"), and shall specify in the Election Notice that amount of such
shares, rights, options, warrants or other securities which the Purchaser
desires to purchase (such Purchaser's "Elected Shares"). The Election
Notice shall also specify the aggregate number of additional shares,
rights, options, warrants or other securities, if any, which such Purchaser
desires to purchase (such Purchaser's "Additional Elected Shares") in the
event there is any under-subscription for the entire amount of all
Purchasers' Offering Allotments. In the event there is an
under-subscription by a Purchaser for the entire amount of such Purchaser's
Offering Allotment, the Company shall apportion the unsubscribed portion of
such Purchaser's Offering Allotments to Purchasers whose Offering Notices
specified an amount of Additional Elected Shares, which apportionment shall
be on a pro rata basis among such Purchasers in accordance with the number
of Additional Elected Shares specified by all such Purchasers in their
Election Notices.
4.3.4. TRANSFER TO PROPOSED PURCHASER. At any time after the Offering
Notice is given, the Company may offer for sale the New Offering, less the
amount reserved for the Purchasers in accordance with Section 4.3.3. and,
if the shares, rights, options, warrants or other securities referred to in
the Offering Notice are not elected to be purchased as provided in Section
4.3.3., the Company may, during the ninety (90) day period following the
expiration of the Election Period, offer for sale the remaining
unsubscribed portion of the New Offering to any Person at a price not less
than, and upon terms no more favorable to the offeree than those specified
in the Offering Notice. If the Company does not consummate the sale of the
New Offering within such period, the right provided hereunder shall be
deemed to be revived and such shares, rights, options, warrants or other
securities shall not be offered unless first reoffered to the Purchasers in
accordance with this section.
4.3.5. EXCEPTIONS. The right of first offer in this Section 4.3. shall
not be applicable (A) to a Qualified Offering, (B) to the issuance of
securities pursuant to the conversion or exercise of convertible or
exercisable securities outstanding as of the date hereof, (C) to the
issuance of securities in connection with an acquisition, a bona fide
commercial strategic partnership or a bona fide commercial business
arrangement by the Company, whether by merger, consolidation, sale of
assets, sale or exchange of stock or otherwise (including but not limited
to CNET, Inc., NBC Multimedia, Inc., SNAP! LLC and SuperNews described on
Schedule 3.3 to the Stock Purchase Agreement), (D) to the issuance of
options to employees, consultants or directors of the Company in accordance
with a stock option plan approved by the Board of Directors and the
Compensation Committee thereof, (E) to the sale of additional shares of
Class E Preferred Stock pursuant to the Stock Purchase Agreement to the
extent consummated in accordance with the provisions of Section 2.4 of the
Stock Purchase Agreement (it being understood that the offer of certain of
such shares to certain holders of Class A Preferred Stock, Class C
Preferred Stock and Class A Common Stock is in satisfaction of the right of
first offer granted to such holders pursuant to agreements between such
holders and the Company) and (F) to the issuance of up to a maximum
aggregate 70,000 shares of Class A Preferred Stock to InfoSpace, Inc.
20
4.3.6. TERMINATION. The rights provided in this Section 4.3. shall
terminate upon the Company's sale of its Class A Common Stock in a
Qualified Offering.
Section 4.4 PURCHASERS' RIGHT OF FIRST REFUSAL OF CONTROLLING STOCKHOLDER'S
STOCK.
4.4.1. GENERAL. Subject to the terms and conditions specified in this
Section 4.4., the Controlling Stockholder grants the Purchasers a right of
first refusal with respect to future sales by the Controlling Stockholder
of any of his Company Stock. Each time the Controlling Stockholder receives
a written offer to purchase any of his Company Stock from a third party
which the Controlling Stockholder intends to accept (the "Resale
Offering"), the Controlling Stockholder shall first provide each Purchaser
the opportunity to purchase that number of shares of Company Stock which
the Controlling Stockholder desires to sell in the Resale Offering which
results from multiplying the total number of shares the Controlling
Stockholder desires to sell in the Resale Offering by a fraction the
numerator of which is the number of shares of Class A Common Stock then
owned by such Purchaser plus the aggregate number of shares of Class A
Common Stock issuable upon conversion, exchange or exercise of all
convertible securities, options or warrants then owned by such Purchaser
and the denominator of which is the number of Fully Diluted Shares
Outstanding in accordance with the following provisions.
4.4.2. NOTICE. The Controlling Stockholder shall immediately provide a
written notice (the "Resale Notice") of the Resale Offering to the
Purchasers stating (i) the identity of the third party, (ii) the number of
such shares proposed to be purchased by such third party, and (iii) the
price and terms upon which the third party proposes to purchase such shares
and including any documents with respect thereto.
4.4.3. ELECTION TO PURCHASE. Each Purchaser may elect to purchase or
obtain, at the price and on the terms specified in the Resale Notice, up to
that portion of such shares which equals one hundred percent (100%),
multiplied by a fraction, the numerator of which is the number of shares of
Class A Common Stock held by such Purchaser as of the date of the Resale
Notice plus the aggregate number of shares of Class A Common Stock issuable
upon conversion, exchange or exercise of all convertible securities,
options or warrants then held by such Purchaser and the denominator of
which is the number of Fully Diluted Shares Outstanding (such Purchaser's
"Resale Offering Allotment"). In the event a Purchaser desires to
participate in the Resale Offering, within twenty (20) days following the
date of delivery of the Resale Notice the Purchaser shall provide the
Company and the Controlling Stockholder with written notice of his
intention to participate in the Resale Offering (the "Resale Election
Notice"), and shall specify in the Resale Election Notice that amount of
such shares which the Purchaser desires to purchase (such Purchaser's
"Resale Elected Shares"). The Resale Election Notice shall also specify the
aggregate number of additional shares of the Controlling Stockholder's
Company Stock, if any, which such Purchaser desires to purchase (such
Purchaser's "Additional Resale Shares") in the event there is any
under-subscription for the entire amount of all Purchasers' Resale Offering
Allotments. In the event there is an under-subscription by a Purchaser for
the entire amount of such Purchaser's Resale Offering Allotment, the
Company shall apportion the unsubscribed portion of such Purchaser's
21
Resale Offering Allotment to Purchasers whose Resale Election Notices
specified an amount of Additional Resale Shares, which apportionment shall
be on a pro rata basis among such Purchasers in accordance with the number
of Additional Resale Shares specified by all such Purchasers in their
Resale Election Notices.
4.4.4. TRANSFER TO PROPOSED PURCHASERS. If the Purchasers fail to
purchase any portion of the shares specified in and in accordance with the
Resale Notice within thirty (30) days of the delivery of the Resale
Election Notice, the Controlling Stockholder shall thereupon have the
right, within the ninety (90) day period thereafter, to sell his Company
Stock, reduced by the amount purchased by the Purchasers, to the proposed
third party purchaser at a price not less than, and upon terms no more
favorable to the proposed third party purchaser than those specified in the
Resale Notice. If the Controlling Stockholder does not consummate the sale
of the Resale Offering within the above-mentioned ninety (90) day period,
the rights provided hereunder to the Purchasers shall be deemed to be
revived and such shares shall not be offered unless first reoffered to the
Purchasers in accordance with this section.
4.4.5. EXCEPTIONS. The right of first refusal of the Controlling
Stockholder's Company Stock in this Section 4.4. shall not be applicable
(A) to or after a Qualified Offering, (B) in the event that the Controlling
Stockholder transfers, sells or disposes of greater than fifty one percent
(51%) of his Company Stock in one transaction, (C) in the event that the
Controlling Stockholder transfers, sells or disposes of his Company Stock
in connection with an acquisition, a bona fide commercial strategic
partnership or a bonafide commercial business arrangement by the Company,
whether by merger, consolidation, sale of assets, sale or exchange of stock
or otherwise with a business entity or investor not generally considered a
financial investor and, (D) to the sale by the Controlling Stockholder of
not more than 100,000 shares, in the aggregate, of Class B Common Stock in
any one or a series of transactions.
4.4.6. TERMINATION. The rights provided in this Section 4.4. shall
terminate upon the Company's sale of its Class A Common Stock in a
Qualified Offering.
ARTICLE V
MISCELLANEOUS
Section 5.1 SUCCESSORS AND ASSIGNS. Except as otherwise provided herein,
the terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the Parties (including
permitted transferees of any shares of Registrable Securities). Without limiting
any other rights of transfer herein, each Purchaser may transfer, assign and
convey its shares of capital stock of the Company and its rights and obligations
thereunder to an Affiliate of such Purchaser or to a shareholder, partner or
member of such Purchaser; provided, however, that in the case of each such
shareholder, partner or member of such Purchaser, each transferee acquires more
than 10,000 shares of capital stock and there shall be no more than ten (10)
such transferees by any one Purchaser, and such Affiliate or shareholder,
partner or member of such Purchaser shall be deemed to be a "Purchaser" for
purposes of construction of this Agreement. Nothing in this Agreement is
intended to confer
22
upon any party other than the parties hereto or their respective successors and
assigns any rights, remedies, obligations or liability under or by reason of
this Agreement, except as expressly provided in this Agreement.
Section 5.2 NOTICES. All notices hereunder shall be in writing and be given
by registered or certified mail, postage and registration fees prepaid, or by
overnight delivery, and shall be deemed given when so mailed as follows: -------
If to the Company, to it at:
Xxxx Xxxxxx, President
Xxxx.xxx, Inc.
00 Xxxxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
With a copy to:
Xxxxx X. Xxxxxx, Esq.
Law Offices of Xxxxx X. Xxxxxx
000 Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
and to:
Xxxxx Xxxxxxxx, Esq.
Winthrop, Stimson, Xxxxxx & Xxxxxxx
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
If to the Purchasers,
to them at the addresses
set forth in Schedule A
With a copy to:
Xxxx Xxxx, Esq.
Xxxxxx, Xxxxx & Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
and to:
Xxxxx Xxxxxxx, Esq.
Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
and to:
Xxxxxx Xxxxxxxxxxx, Esq.
23
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
The foregoing addresses may be changed by notices given in the manner set forth
in this section.
Section 5.3 GOVERNING LAW; FORUM AND CONSENT TO JURISDICTION.
(a) GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with, and governed by, the laws of the State of New York without
giving effect to those laws requiring the application of any laws other
than the laws of the State of New York.
(b) FORUM AND CONSENT TO JURISDICTION. Each party hereto submits to
the nonexclusive jurisdiction of the courts of the State of New York and
the federal courts of the United States of America located in such state
solely in respect of the interpretation and enforcement of the provisions
of this Agreement, and the other instruments, agreements and documents to
be delivered pursuant hereto, and hereby waives, and agrees not to assert,
as a defense in any action, suit or proceeding for the interpretation or
enforcement of this Agreement or any of such instruments, agreements and
documents, that it is not subject thereto or that such action, suit or
proceeding may not be brought or is not maintainable in said courts or that
this Agreement or any of such other instruments, agreements and documents
may not be enforced in or by said courts or that its property is exempt or
immune from execution, that the suit, action or proceeding is brought in an
inconvenient forum, or that the venue of the suit, action or proceeding is
improper. Each party (other than those residing in New York, in which case
service of process may be made to such parties at their respective
addresses as set forth in Section 5.2) hereto agrees that service of
process may be made upon it by service upon Corporation Services Company,
Inc. ("CSC") at its office in New York City in any such action, suit or
proceeding against such party with respect to this Agreement or any other
agreements relating hereto, and hereby irrevocably designates and appoints
CSC as its authorized agent upon which process may be served in any such
action, suit or proceeding, it being understood that such appointment and
designation shall become effective without any further action on the part
of any party. Service of process upon such authorized agent shall be
deemed, in every respect, effective service of process upon the applicable
party. If CSC ceases to maintain an office in New York City, then each
party shall appoint another agent for service of process in the State of
New York acceptable to the others. A copy of any complaint or other item
served pursuant to this Section shall also be sent at the same time to the
party or parties designated for notice at the addresses and in the manner
specified in Section 5.2. Each party hereto agrees that final judgment
(with all right of appeal having expired or been waived) against it in any
such action, suit or proceeding shall be conclusive and that each party is
entitled to enforce such judgment in any other jurisdiction by suit on the
judgment, a certified or exemplified copy of which shall be conclusive
evidence of the fact and amount of indebtedness arising from such judgment.
24
Section 5.4 WAIVERS; AMENDMENTS. The waiver by the undersigned of any of
the provisions of this Agreement or the Stock Purchase Agreement shall not
operate or be construed as a waiver of any subsequent breach. This Agreement or
the Stock Purchase Agreement may be amended, and any provision of this Agreement
may be waived, only by a written amendment executed by (i) the Company, (ii) the
Controlling Stockholder and (iii) in the case of any amendment affecting or that
may affect the rights or obligations of the Purchasers, the holders of a
majority of the outstanding shares of Class E Preferred Stock purchased by the
Purchasers or stock issuable on conversion of such shares. Notwithstanding the
foregoing, the Company will provide each Purchaser with written notice and
sufficient information, sufficiently far in advance of a date a decision is
required, to enable such Person to make an informed and considered decision with
respect to any proposed amendment, waiver or consent in respect of any of the
provisions hereof. The Company will not, directly or indirectly, pay or cause to
be paid any remuneration, whether by way of supplemental or additional interest,
fee or otherwise, to any holder of capital stock of the Company as consideration
for or as an inducement to the entering into by any such holder of any waiver or
amendment to any of the terms and provisions of this Agreement, unless prior to
the payment of any remuneration to any holder of capital stock of the Company,
the holders of Class E Preferred Stock shall, ratably, have been offered the
opportunity to provide any such waiver or amendment upon the same financial
terms and conditions (including but not limited to the time specified by which a
consent to such waiver or amendment must be given) as any holder of capital
stock who has consented to the waiver or amendment of any of the terms of this
Agreement. No waiver or amendment of the provisions in the preceding sentence
shall be effective with respect to any Purchaser unless consented to in writing
by such Purchaser. No amendment shall adversely affect the Purchasers unless it
shall either be approved by the Purchasers so adversely affected or shall apply
to all Purchasers uniformly.
Section 5.5 HEADINGS. The section headings contained in this Agreement are
for reference purposes only and shall not affect the construction and
interpretation of this Agreement
Section 5.6 SEVERABILITY. The invalidity of all or any part of any section
of this Agreement shall not render invalid the remainder of such section. If any
provision of this Agreement is so broad as to be unenforceable, such provision
shall be interpreted to be only so broad as is enforceable.
Section 5.7 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which shall
constitute one and the same instrument. This Agreement may contain more than one
counterpart of the signature page and may be executed by the affixing of the
signatures of each of the Parties to one of these counterpart signature pages.
All of the counterpart signature pages shall be read as though one, and they
shall have the same force and effect as though all of the signers had signed a
single signature page.
Section 5.8 AGGREGATION OF STOCK. All shares of Registrable Securities held
or acquired by affiliated entities or persons shall be aggregated together for
the purpose of determining the availability of any rights under this Agreement.
25
Section 5.9 CONSTRUCTION. The Parties have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the Parties and no presumption or burden of proof shall
arise favoring or disfavoring any Party by virtue of the authorship of any of
the provisions of this Agreement.
Section 5.10 ENTIRE AGREEMENT. This Agreement and the Stock Purchase
Agreement contain the entire agreement of the Parties. The Parties are not bound
by any oral statements that are made outside of this Agreement.
Section 5.11 BENEFIT OF MORE FAVORABLE RIGHTS. If, within sixty (60) days
following the initial closing under the Stock Purchase Agreement, the Company
grants to a third party investor rights which are more beneficial than the
preferences afforded to the Purchasers pursuant to this Agreement, with respect
to Company Stock or capital stock of any Affiliate of the Company, which are on
terms more favorable to the holders of such securities with respect to any of
the material terms applicable thereto, including, without limitation, the number
of times or the circumstances under which such rights may be exercised, the
expenses to be paid by the Company or any Affiliate of the Company in connection
therewith or the duration of the availability of such rights, the Parties agree
that such more favorable terms will be exercisable by the Purchasers
automatically and without further action by the Company or any of the other
Parties.
Section 5.12 ADDITIONAL PURCHASERS. It is contemplated that the Company may
issue additional shares of Class E Preferred Stock under the Stock Purchase
Agreement in accordance with the provisions of section 2.4 thereof following the
initial closing under the Stock Purchase Agreement on the terms and conditions
set forth therein. Each purchaser of such additional shares shall become party
to this agreement and be deemed a Purchaser hereunder, shall agree to assume all
of the obligations of a Purchaser hereunder and shall be entitled to all of the
rights of a Purchaser hereunder.
26
WHEREAS, the Parties have executed this Agreement as of the date first above
written:
XXXX.XXX, INC., as Company
/s/ Xxxx Xxxxxx
------------------------------------
Name: Xxxx Xxxxxx
Title: President
PURCHASERS
ALERION ASSOCIATES LLC
By: Alerion Management LLC, Manager
/s/ Xxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Manager
AMERICAN FARM INVESTMENT CORPORATION
/s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: Director
/s/ Xxxx Xxxx
------------------------------------
Name: Xxxx Xxxx
Title: Director
APOLLO NOMINEES INCORPORATED
/s/ E. Xxxxxx Xxxxx
------------------------------------
Name: E. Xxxxxx Xxxxx
Title:
CG ASIAN-AMERICAN FUND, L.P.
/s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Treasurer
CITI GROWTH FUND II OFFSHORE, L.P.
/s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Treasurer
ENCOMPASS GROUP, INC.
/s/ Xxxxx Xxxxx
------------------------------------
Name: Xxxxx Xxxxx
Title: Director
FABRICANT & FABRICANT, INC.
/s/ Xxxxxxx Xxxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: President
OFFSHORE ONLINE INVESTORS II, INC.
/s/ Hussain X. Xxxxxxx
------------------------------------
By: Hussain X. Xxxxxxx
Title:
PRIMUS VENTURES
/s/ Xxxxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
PRINCETON GLOBAL FUND, L.P.
/s/ Xxxxx Xxx
------------------------------------
Name: Xxxxx Xxx
Title: Director
ROPART INVESTMENTS, LLC
/s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Manager
XXXXXXXX COMMUNICATIONS AND
INFORMATION FUND, INC.
By: J & W Xxxxxxxx & Co.,Inc.
/s/ Xxxxxxx Xxxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Director of Investments
XXXXXXX.XXX, Inc.
/s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: President and C.E.O.
U.S. INFORMATION TECHNOLOGY
FINANCING L.P.
/s/ Shozu Okuda
------------------------------------
Name: Shozu Okuda
Title: Managing Director
THE XXXXXXX CHILDREN IRREVOCABLE
TRUST
/s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Attorney-in-Fact
BOCNY LLC
/s/ Xxxxx X. Xxx
------------------------------------
Name: Xxxxx X. Xxx
Title: President
EXCELSIOR PARTNERS I, L.P.
By: Exeter Capital Management Corp.,
its general manager
/s/ Xxxxx X. Xxx
------------------------------------
Name: Xxxxx X.Xxx
Title: President
EXETER CAPITAL PARTNERS IV, L.P.
By: Exeter IV Advisors, L.P.,
its general partner
By: Exeter IV Advisors, Inc.,
its general partner
/s/ Xxxxx X. Xxx
------------------------------------
Name: Xxxxx X.Xxx
Title: President
/s/ Xxxxxxx Xxxxxxxx
------------------------------------
Xxxxxxx Xxxxxxxx
/s/ Xxxxx X. Xxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxxxx
------------------------------------
Xxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxx
------------------------------------
For: Xxxxxxx X. Xxxxx
By: Attorney-in-Fact
/s/ Xxxxx Xxxxxxxx
------------------------------------
Xxxxx Xxxxxxxx
/s/ Riza Dekidjiev, Jr.
------------------------------------
Riza Dekidjiev, Jr.
/s/ Xxx Xxxxxx
------------------------------------
Xxx Xxxxxx
/s/ Xxxxx Xxxxxxx
------------------------------------
Xxxxx Xxxxxxx
/s/ Xxxxx Xxxxxx
------------------------------------
Xxxxx Xxxxxx
/s/ Xxxxx X. Xxxxxx, Xx.
------------------------------------
Xxxxx X. Xxxxxx, Xx.
/s/ Xxxx X. Xxxxxxx
------------------------------------
For: Xxxxx X. Xxxxx
By: Xxxx X. Xxxxxxx
Attorney-in-Fact
/s/ Xxxxxx Xxxxxx
------------------------------------
Xxxxxx Xxxxxx
/s/ Xxxxxx X. Xxxxx
------------------------------------
Xxxxxx X. Xxxxx
/s/ Xxxxx Xxxxxxxx
-------------------------------
Xxxxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxxx
-------------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxx Xxx
-------------------------------
Xxxx Xxx
/s/ Xxxxx Xxxxxxx
-------------------------------
Xxxxx Xxxxxxx
/s/ Xxx Xxxxxxx
-------------------------------
Xxxx Xxxxxxx
/s/ Xxxxx X. XxXxxxxxx
-------------------------------
Xxxxx X. XxXxxxxxx
/s/ Xxxxxx X. Xxxxxxx, Xx.
-------------------------------
Xxxxxx X. Xxxxxxx, Xx.
/s/ Xxx Xxxxxxx
-------------------------------
Xxx Xxxxxxx
/s/ Xxxx Xxxxxxx
-------------------------------
Xxxx Xxxxxxx
/s/ Xxxxxx Xxxxxxxxxx
-------------------------------
Xxxxxx Xxxxxxxxxx
/s/ Xxxxxx Xxxxxxxxxx
-------------------------------
Xxxxxx Xxxxxxxxxx
/s/ Xxxxx Xxx
-------------------------------
For: Xxxxx Xxx
By: Xxxx X. Xxxxxxx
Attorney-in-Fact
/s/ Xxxx X. Xxxxx
-------------------------------
Xxxx X. Xxxxx
/s/ Xxxxxxx Xxxxxxx
-------------------------------
Xxxxxxx Xxxxxxx
/s/ Xxxxx X. Xxxxxx
-------------------------------
Xxxxx X. Xxxxxx
/s/ Kilin To
-------------------------------
For: Kilin To
By: Xxxx X. Xxxxxxx
Attorney-in-Fact
/s/ Xxxx X. Xxxxxxx
-------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxxxx
-------------------------------
Xxxx X. Xxxxxxx
/s/ Xxxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxxx X. Xxxxxxx
/s/ Xxxxx Xxxxxx
-------------------------------
Xxxxx Xxxxxx
/s/ Xxxxx X. Sim
-------------------------------
Xxxxx X. Sim
