ONEWAVE CONFIDENTIAL
SHAREHOLDER AGREEMENT
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This Shareholder Agreement (this "Agreement") is made as of May 7, 1997 by and
between OneWave, Inc. (the "Company") and Avix Ventures, L.P. ("Avix").
WHEREAS, pursuant to a Stock Purchase Agreement among Avix and Xxxxxxx Trust,
J&S Limited Partnership, Legacy Investment Partnership and Xxxxxx Xxxxxxxxxxx
(the "Sellers") dated as of April 22, 1997 (the "Agreement"), Avix has agreed to
purchase from the Sellers 7,748,871 shares (the "Shares") of Common Stock, $
.001 par value per share ("Stock"), of the Company.
WHEREAS, payment for the Shares is to be made, in part, via certain Promissory
Notes (the "Notes"), and 4,843,044 shares of Stock are to be pledged in favor of
the Sellers as security for payment of the Notes, pursuant to a certain Stock
Pledge Agreement to be made between Avix and the Sellers (the "Pledge
Agreement").
NOW, THEREFORE, in consideration of the premises and the mutual covenants and
agreements contained herein, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Right of First Offer.
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a) If Avix voluntarily or pursuant to a default under the Note(s) expects to
relinquish, assign or otherwise transfer the Shares or any portion thereof
to the Sellers or to any affiliate of the Sellers in full or partial
satisfaction of Avix's obligations under either or both of the Note(s),
pursuant to the Pledge Agreement or otherwise, then the Company shall have
the right, but not the obligation, to purchase all or any portion of such
Shares from Avix for $1.03 per share.
b) Avix shall notify the Company in writing if Avix expects or intends to
transfer any Shares to the Sellers or any affiliate of the Sellers as
provided under (P)1(a) above, at least thirty (30) days prior to the date
on which such transfer is to occur. Such notice shall state the number of
Shares to be transferred, and the proposed date of transfer. The Company
shall have thirty (30) days from its receipt of such notice within which
to exercise its right under (P)1(a) above. Upon payment of the price
specified, such Shares as the Company has elected to purchase shall
immediately be owned by and vested in the Company or its designee(s).
c) The Company's rights under this Section 1 shall apply only if the Shares
are valued at $1.03 or less on the date that the transfer of Shares is to
occur according to the notice given by Avix under (P)1(b) above, defined
as the average of the closing prices as reported by Nasdaq for the ten
trading days prior to the date of such transaction.
2. Agreements.
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a) Avix hereby covenants and agrees that, for a period of three (3) years
from the date of the Agreement, it will not, directly or indirectly, cause
or seek to cause any proposal to be made to shareholders of the Company
calling for a waiver of any of the provisions of the Delaware business
combination statute (Section 203 of Delaware General Corporation Law),
either by causing such a proposal to be made to the Company's Board of
Directors, or by causing such a proposal to be made directly to the
Company's shareholders.
b) Avix hereby agrees to obtain from the Sellers a proxy to vote the Shares,
and to attend the Company's annual meeting of shareholders to be held on
May 7, 1997 for purposes of determining the presence of a quorum thereat,
to vote the Shares in favor of the election of Xx. Xxxx Xxxxxxxxxx as a
Class I Director at such annual meeting of shareholders, and any
postponement or adjournment thereof, and to not raise any other matters
for consideration at such meeting.
3. Cooperation and Enforcement.
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a) Avix agrees to provide the Company true and complete copies of the Notes
and the Pledge Agreement promptly upon full execution thereof. Avix
further agrees to promptly provide the Company with true and complete
copies of any amendments, replacement or additions thereto, and to inform
the Company immediately in writing upon the alteration of any payment
amount or due date under either Note.
b) Avix agrees to execute such documents, give such notice(s) and to take
such other actions, as the Company may reasonably request in order to
enable the Company to realize the full benefits and rights granted to the
Company hereunder.
c) In giving notice, making payment or taking any other action hereunder, the
Company may act directly on its own behalf or in its own name, or through
a designee (or designees) chosen in the Company's sole discretion. Without
limiting the foregoing, Avix agrees to cause any Shares which may be
acquired by the Company to be transferred to such designee(s) as the
Company may instruct.
d) In the event that the Company exercises any of its rights hereunder and
wishes to become the holder of any of the Shares, Avix shall obtain the
release of such Shares, and deliver such Shares to the Company or its
designee(s). Subject to (e) below, Avix shall use its best efforts to
obtain full and prompt performance of the Sellers under the Pledge
Agreement, and otherwise to obtain the cooperation of the Sellers with the
transactions contemplated herein.
e) Each party agrees that the existence and terms of this Agreement are to be
kept confidential, and are not to be disclosed to any party for any reason
without the other party's written consent, except as necessary in order to
comply with accounting, legal and disclosure requirements under applicable
securities laws.
f) All notices to be given under this Agreement shall be in writing and shall
be transmitted via facsimile, receipted overnight delivery or U.S. Mail
(certified, return receipt requested), and shall be deemed to have been
given the next business day following transmission via facsimile with
tangible confirmation of transmission, on the second business day
following dispatch via overnight delivery, or on the fifth business day
following the date postmarked if sent via U.S. Mail. Notice shall be given
as follows:
IF TO THE COMPANY: IF TO AVIX:
OneWave, Inc. Avix Ventures, L.P.
One Arsenal Marketplace 000 Xxxx 00xx Xxxxxx, Xxxxx 00X
Xxxxxxxxx, XX 00000 Xxx Xxxx, XX 00000
Att: General Counsel Att: President
Fax: (000) 000-0000 Fax: (000) 000-0000
IN WITNESS WHEREOF, the undersigned have each caused this Shareholder
Agreement to be executed as a document under seal as by its duly authorized
representative of the date first indicated above.
ONEWAVE, INC. AVIX VENTURES, L.P.
By: AVIX ASSOCIATES, L.P.,
By: General Partner
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Xxxxx X. Xxxxxx, Chairman & CEO
Date: By:
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Name:
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Title:
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Date:
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