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EXHIBIT 10.8
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT
This Amended and Restated Shareholders' Agreement (the "Agreement") is
made this 30th day of July 1999, by and among Fairbanks Systems Group, a
California corporation doing business as @Backup, Inc. (the "Company"), the
holders of shares of the Company's Common Stock listed on Exhibit A hereto (the
"Shareholders," which term includes each Shareholder's heirs, executors,
guardians, successors and assigns), and the investors listed on Exhibit B hereto
(the "Investors").
RECITALS
WHEREAS, each of the Shareholders is the beneficial owner of the number
of shares of the Company's Common Stock listed on Exhibit A hereto (the "Stock,"
which term for purposes of this Agreement also includes any additional shares of
Common Stock of the Company now owned or hereafter acquired by any Shareholder).
WHEREAS, the Company, the Shareholders and certain Investors acknowledge
that they entered into that certain Amended and Restated Shareholders'
Agreement, dated March 12, 1999, (the "Prior Agreement"), as an inducement to
and in consideration of the purchase of shares of the Company's Series B, Series
C and Series D Preferred Stock (the "Existing Investors").
WHEREAS, the Shareholders, the Company and the Existing Investors
acknowledge that they are entering into this Agreement, which amends and
restates the Prior Agreement, as an inducement to and in consideration of the
purchase of shares of the Company's Series E Preferred Stock pursuant to the
Series E Preferred Stock Purchase Agreement, dated as of the date hereof
("Purchase Agreement"), by and among the Company and the investors listed on
Schedule A to the Purchase Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement, the parties hereby agree as follows:
1. Restrictions on Transfer. Except as permitted by the terms of this
Agreement, a Shareholder may not make any sale, exchange, transfer, assignment,
gift, pledge, encumbrance, hypothecation or alienation of any shares of the
Stock, or any interest in such shares, now held by or hereafter acquired by such
Shareholder, whether voluntarily or involuntarily or by operation of law
(hereinafter collectively referred to as a "transfer").
2. Purchase Option.
(a) Company Purchase Option.
(i) The Company is hereby granted the right (the "Unvested
Purchase Option") from each of the Shareholders, exercisable at any time during
the sixty (60) day period following the date such Shareholder ceases to be a
Service Provider to the Company for any
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reason other than: (A) "for cause" (as defined below), or (B) as a result of
"voluntary resignation" (as defined below), to repurchase any or all of the
Stock in which the Shareholder has not acquired a vested interest in accordance
with the vesting provisions of Section 2(f) (such shares to be hereinafter
called the "Unvested Stock"). The purchase price for the Unvested Stock that the
Company repurchases from the Shareholder shall be the portion of the purchase
price originally paid by the Shareholder for such Unvested Stock (the "Unvested
Option Price").
(ii) The Company is hereby granted the right (the "Alternate
Purchase Option", and together with the Unvested Purchase Option, the "Purchase
Option") from each of the Shareholders, exercisable at any time during the sixty
(60) day period following the date such Shareholder ceases to be a Service
Provider (as defined below) "for cause" or through "voluntary resignation" from
the Company, to repurchase any or all of the Stock owned by such Shareholder.
The purchase price for the Unvested Stock that the Company repurchases from the
Shareholder shall be the Unvested Option Price. The purchase price for the
remaining Stock that the Company repurchases from the Shareholder shall be the
fair market value of such remaining Stock as determined in good faith by the
Company's Board of Directors (the "Vested Option Price", and together with the
Unvested Option Price, the "Option Price"). For purposes of this Agreement, the
Shareholder shall be deemed to be a Service Provider to the Company for so long
as the Shareholder renders regular and ongoing services to the Company or one or
more of its parent or subsidiary corporations, whether as an employee, a
non-employee member of the board of directors, or an independent non-employee
consultant.
(b) For purposes of this Agreement, the term "for cause" shall mean:
(i) conviction of a Shareholder by a trial court of competent
jurisdiction of a felony, or a guilty plea of a felony; or
(ii) Shareholder's willful, deliberate, continued and material
failure or refusal to substantially perform his duties as a Service Provider to
the Company which will result in material harm to the Company (other than any
such failure resulting from Shareholder's incapacity due to physical or mental
illness), where such failure is not cured by Shareholder within forty-five (45)
days of written demand for substantial performance is delivered to Shareholder
by the Board of Directors of the Company (the "Board") which specifically
identifies the manner in which the Board believes that Shareholder has not
substantially performed his duties; or
(iii) Shareholder's commission of any fraud against, or
misappropriation of any funds or properties of, the Company in a material amount
not authorized by the Board to be so used or appropriated; or
(iv) Shareholder's unlawful appropriation of a corporate
opportunity involving a business of the Company.
For purposes of this Section (b), no act, or failure to act, on
Shareholder's part shall be considered "willful" unless done, or omitted to be
done, by Shareholder, not in good faith and without reasonable doubt that
Shareholder's action or omission was in the best interest of the Company.
Notwithstanding the foregoing, Shareholder shall not be deemed to have been
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terminated "for cause" for the purposes of this Agreement unless and until there
shall have been delivered to him a copy of a resolution duly adopted by the
affirmative vote of not less than a majority of the entire membership of the
Board at a meeting of the Board called and held for the purpose (after
reasonable notice to Shareholder and an opportunity for Shareholder to be heard
before the Board), finding that in the good faith opinion of the Board,
Shareholder was guilty of conduct set forth in (b)(ii), (iii), or (iv) above and
specifying the particulars thereof in detail.
(c) For purposes of this Agreement, the term "voluntary resignation"
shall mean Shareholder voluntarily leaving his status as a Service Provider
other than as a result of any of the following: (i) the relocation of
Shareholder's responsibilities to the Company, or moving the Company, outside of
San Diego, California, (ii) a change in Shareholder's status, title, position or
responsibilities that, in the Board's reasonable judgment, represent an adverse
change in status, title, position or responsibilities, or (iii) a reduction in
Shareholder's then base salary or other compensation and benefits that apply
only to the Shareholders but not to other comparable Service Providers.
(d) Exercise of Purchase Option. The applicable Purchase Option, if
exercised by the Company, shall be exercised by written notice signed by an
officer of the Company and delivered or mailed to the Shareholder, which notice
shall specify the time, place and date for settlement of such purchase. The
Company may pay for the shares of Stock and/or Unvested Stock, as applicable,
which it has elected to repurchase by (i) delivery to the Shareholder or his or
her executor of a check in the amount of the applicable Option Price, (ii)
cancellation by the Company of indebtedness of the Shareholder to the Company or
(iii) a combination of (i) and (ii) so that the combined payment and
cancellation of indebtedness equals the applicable Option Price.
(e) Investor Purchase Option. In the event the Company for any reason
elects not to exercise the applicable Purchase Option with respect to any
portion of the Stock and/or Unvested Stock, as applicable, the Company shall
notify the Investors of such election not to fully exercise such Purchase Option
before the end of the sixty (60) day period set forth in Section 2(a), and,
whether or not such notice is given, each Investor shall have the right, subject
to the limitations set forth in Section 2(a), at any time within thirty (30)
days following the expiration of the applicable Company Purchase Option to
purchase from the Shareholder up to its Pro Rata Share (as defined in Section
4(g) below) of any or all of the balance of the Stock and/or Unvested Stock, as
applicable, not repurchased by the Company at the applicable Option Price. The
Investors shall exercise the applicable Purchase Option in the same manner and
subject to the same rights and conditions as the Company set forth in Section
2(d). The applicable Purchase Option shall be exercised by written notice signed
by the exercising Investors and delivered or mailed to the Shareholder. The
Company shall, within three (3) days after the end of such thirty (30) day
period, inform each Investor purchasing all the shares available to it (a
"Fully-Exercising Investor") of any other Investor's failure to do likewise.
During the ten (10) day period commencing after receipt of such information,
each Fully-Exercising Investor shall be entitled to purchase that portion of the
shares of Common Stock for which Investors were entitled to subscribe but which
were not subscribed for by the Investors equal to the proportion that the Pro
Rata Share of such Fully-Exercising Investor bears to the Pro Rata Shares of all
of the Fully-Exercising Investors who wish to purchase some of the unsubscribed
shares, or such other proportions as the Investors shall determine. Such
Investors
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shall pay for the shares of Stock and/or Unvested Stock, as applicable, which
they have elected to repurchase by delivery to the Shareholder or his or her
executor of a check in the amount of the applicable Option Price.
(f) Termination of the Purchase Option.
(i) The applicable Purchase Option shall terminate with respect
to any Stock and/or Unvested Stock, as applicable, for which it is not timely
exercised under Sections 2(d) or 2(e). In addition, the Unvested Purchase Option
with respect to the Stock shall terminate, and cease to be exercisable, with
respect to any and all Stock in which the Shareholder vests in accordance with
the schedule below. Accordingly, provided that the Shareholder continues to be a
Service Provider to the Company, the Shareholder shall acquire a vested interest
in, and the Unvested Purchase Option shall lapse with respect to, the Stock in
accordance with the following provision:
Fifty percent (50%) of the Stock shall be vested upon the
execution of this Agreement and shall not be subject to the
Unvested Purchase Option. The remaining fifty percent (50%)
of the Stock shall vest in equal monthly installments at
the end of each month over the forty-eight (48) months
commencing on August 1, 1996, and such vested shares shall
not be subject to the Unvested Purchase Option.
Notwithstanding the foregoing, the Unvested Purchase Option and the
Alternate Purchase Option shall terminate upon the earlier of (i) five (5) years
following the consummation of the sale of securities pursuant to a registration
statement filed by the Company under the Securities Act of 1933, as amended, in
which the gross proceeds to the Company (net of underwriting discounts and
commissions) are not less than $15,000,000 or (ii) the written consent of the
Investors holding fifty percent (50%) or more of the then outstanding Series B,
Series C, Series D and Series E Preferred Stock.
All Stock as to which the Unvested Purchase Option lapses shall,
however, continue to be subject to all the terms of this Agreement, including
the right of first offer contained in Section 4, the co-sale rights contained in
Section 5 and the market stand-off provisions of Section 8.
(g) Fractional Shares. No fractional shares shall be repurchased by
the Company. Accordingly, should the applicable Purchase Option extend to a
fractional share (in accordance with the vesting computation provisions of
Section 2(f)) at the time the Shareholder ceases to be a Service Provider, then
such fractional share shall be added to any fractional share in which the
Shareholder is at such time vested in order to make one whole vested share no
longer subject to the applicable Purchase Option.
(h) No Employment or Service Contract. Nothing in this Section 2
shall confer upon any Shareholder any right to continue in the service of the
Company (or any parent or subsidiary of the Company) for any period of specific
duration or interfere with or otherwise restrict in any way the rights of the
Company (or any parent or subsidiary of the Company) or
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any Shareholder, which rights are hereby expressly reserved, to terminate
employment at any time for any reason whatsoever, with or without cause.
3. Escrow.
(a) Deposit. The certificates for Stock issued to Shareholders shall
be deposited in escrow with the Company to be held in accordance with the
provisions of this Section 3. Each deposited certificate shall be accompanied by
a duly executed Assignment Separate from Certificate in the form of Exhibit C
attached hereto. The deposited certificates, together with any other assets or
securities from time to time deposited with the Company pursuant to the
requirements of this Agreement, shall remain in escrow until such time or times
as the certificates (or other assets and securities) are to be released or
otherwise surrendered for cancellation in accordance with Section 3(c) below.
Upon delivery of the certificates (or other assets and securities) to the
Company, the Shareholders shall be issued an instrument of deposit acknowledging
the number of shares of Stock (or other assets and securities) delivered in
escrow to the Company.
(b) Recapitalization. All regular cash dividends on the Stock (or
other securities at the time held in escrow) shall be paid directly to the
Shareholder and shall not be held in escrow. However, in the event of any stock
dividend, stock split, recapitalization or other change affecting the Company's
outstanding Common Stock as a class effected without receipt of consideration or
in the event of a Corporate Transaction (as defined in Section 9 below), any
new, substituted or additional securities or other property which is by reason
of such Corporate Transaction distributed with respect to the Stock shall be
immediately delivered to the Company to be held in escrow under this Section 3,
but only to the extent the shares of Stock are at the time subject to the escrow
requirements of Section 3(a).
(c) Release/Surrender. The Stock, together with any other assets or
securities held in escrow hereunder, shall be subject to the following terms and
conditions relating to their release from escrow or their surrender to the
Company for repurchase and cancellation:
(i) Should the Company or the Investors elect to exercise the
applicable Purchase Option under Section 2 with respect to any Stock, then the
escrowed certificates for such Stock (together with any other assets or
securities issued with respect thereto) shall be delivered to the Company for
cancellation, concurrently with the payment to the Shareholder, in cash or cash
equivalent (including, solely in the case of the exercise of the applicable
Purchase Option by the Company, the cancellation of any purchase-money
indebtedness), of an amount equal to the applicable Option Price, and the
Shareholder shall cease to have any further rights or claims with respect to
such Stock (or other assets or securities).
(ii) Upon the termination of the applicable Purchase Option in
accordance with Section 2, any Stock (or other assets or securities) not
purchased by the Company or the Investors shall be promptly released from escrow
to the Shareholders.
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4. Right of First Offer.
(a) Notice to the Company and the Investors.
(i) In the event any Shareholder (the "Transferring Shareholder")
desires to transfer any Stock other than as specifically provided in Section 6
below, such Shareholder must deliver a notice in writing by certified mail
("Notice") to the Company stating (A) his bona fide intention to sell or
transfer such shares, (B) the number of such shares to be sold or transferred,
(C) the price, if any, for which he proposes to sell or transfer such shares,
and (D) the name of the proposed purchaser or transferee.
(ii) In the event the proposed transfer is partially or
completely in exchange for assets other than cash, then such assets shall be
deemed to have a cash value in the amount determined by the Company's Board of
Directors in its sole good faith opinion, in which case such cash value
ascertained by the Board, when added to any cash to be exchanged and then
divided by the number of shares of Stock to be transferred, shall be deemed the
price per share set forth in the Notice. In the event of a gift, property
settlement or other transfer in which the proposed purchaser or transferee is
not paying the full price for the Stock, which transfer is not otherwise
exempted from the terms of Section 4 and 5 hereof, the price shall be deemed to
be the fair market value of the Stock as determined in good faith by the Board
of Directors.
(b) Company Right of First Offer. The Company shall have an
exclusive, irrevocable option (the "Company Option"), at any time within thirty
(30) days of receipt of the Notice, to purchase some or all of the Stock to
which the Notice refers at the price per share specified in the Notice (as
determined in Section 2(a)). The Company shall exercise the Company Option by
written notice signed by an officer of the Company and delivered or mailed to
the Transferring Shareholder (the "Company Settlement Notice"), which notice
shall specify the time, place and date for settlement of such purchase.
(c) Company Settlement. Within ten (10) days of receipt of the
Company Settlement Notice, the Transferring Shareholder must deliver to the
Company all certificates for the Stock being acquired by the Company which are
not already in the Company's custody, together with proper assignments in blank
of the Stock with signatures properly guaranteed and with such other documents
as may be required by the Company to provide reasonable assurance that each
necessary endorsement is genuine and effective, and the Company must thereupon
deliver to the Transferring Shareholder full cash payment for the Stock being
acquired, provided that if the terms of payment set forth in the Notice were
other than cash against delivery, the Company shall pay for said shares in
accordance with Section 4(a)(ii).
(d) Investor Right of First Offer. In the event that the Company does
not exercise the Company Option as to all the shares to be sold or transferred
in accordance with Section 4 hereof, the Company shall not later than thirty
(30) days from the date of receipt of the Notice hereof give written notice to
the Investors of the Company's non-exercise (or partial exercise) of the Company
Option, which notice shall enclose the Notice and the details of the Company's
partial exercises (if any), and shall specify the procedures by which each
Investor may exercise the option to purchase not more than its Pro Rata Share
(as defined in Section 4(g) below) of the remaining shares of Stock (the
"Investor Option"). For thirty (30) calendar days
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following the expiration of the Company Option, each Investor may exercise its
Investor Option at the same price and upon the same terms as set forth in the
Notice. Any Investor desiring to exercise its Investor Option shall deliver to
the Company and to the Transferring Shareholder a written notice of election to
purchase the shares with respect to which the Investor option is to be
exercised. The Company shall, within three (3) days after the end of such thirty
(30) day period, inform each Fully-Exercising Investor of any other Investor's
failure to do likewise. During the ten (10) day period commencing after receipt
of such information, each Fully-Exercising Investor shall be entitled to give
written notice to the Company and the Transferring Shareholder of its election
(the "Investor Over-Allotment Option") to purchase that portion of the shares
for which Investors were entitled to subscribe but which were not subscribed for
by the Investors equal to the proportion that the Pro Rata Share of such
Fully-Exercising Investor bears to the Pro Rata Shares of all of the
Fully-Exercising Investors who wish to purchase some of the unsubscribed shares,
or such other proportions as the Investors shall determine.
(e) Assignment of Investor Option. Each Investor may assign its
rights under this Section 4 to (i) any of its limited partners or shareholders,
(ii) any entity related to or affiliated with such Investor or (iii) another
Investor.
(f) Investor Settlement. Promptly upon expiration of the Investor
Option and the Investor Over-Allotment Option, the Company shall deliver a
notice in writing to the Transferring Shareholder and each Investor and/or
assignee who elected to acquire a portion of the Stock subject to the Investor
Option (the "Investor Settlement Notice") setting forth the number of shares of
Stock to be sold to each Investor and/or assignee and the price thereof. Within
ten (10) days of receipt of the Investor Settlement Notice, the Transferring
Shareholder must deliver to the Company any certificates for the Stock being
acquired by the Investors and/or assignees which are not already in the
Company's custody, together with proper assignments in blank of the Stock with
signatures properly guaranteed and with such other documents as may be required
by the Company to provide reasonable assurance that each necessary endorsement
is genuine and effective. Within ten (10) days of receipt of the Investor
Settlement Notice, each Investor and/or assignee acquiring a portion of the
Stock must deliver to the Company (a) full cash payment for the portion of the
subject Stock being so acquired, provided that if the terms of payment set forth
in the Notice were other than cash against delivery, the Investors electing to
acquire a portion of the subject Stock and/or their assignees shall pay for said
shares in accordance with Section 4(a)(ii); and, if applicable, (b) evidence
satisfactory to the Company that such assignee has become a party to this
Agreement. The Company shall thereafter promptly remit full payment for the
Stock acquired hereby to the Transferring Shareholder and deliver the new or
assigned certificates to the Investors and/or assignees, as appropriate.
(g) Determination of Pro Rata Share. For purposes of Section 2 above
and this Section 4, each Investor's "Pro Rata Share" is the ratio of (i) the
total number of shares of Common Stock, Series B, Series C, Series D and Series
E Preferred Stock of the Company held by such Investor as of the date of the
Notice (on an as-converted to Common Stock basis) to (ii) the total aggregate
shares of Common Stock, Series B, Series C, Series D and Series E Preferred
Stock of the Company held by all Investors as of such date (on an as-converted
to Common Stock basis) that have elected to exercise the applicable Purchase
Option or the Investor Option, as the case may be, that is exercisable at the
time such "Pro Rata Share" is determined.
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5. Co-Sale Rights in Sales by a Shareholder.
(a) Co-Sale Notice. In the event that less than all of the shares of
Stock proposed to be transferred by a Transferring Shareholder are acquired by
the Company and/or Investors (or assignees) pursuant to the Company Option and
Investor Option set forth in Section 4 (collectively, the "Options"), the
Company shall deliver, promptly upon expiration of the Options, a notice in
writing to each Investor (the "Co-Sale Notice") reiterating the names of the
prospective transferee or transferees, the number of shares of Stock proposed to
be transferred and not acquired pursuant to the Options, and the price per share
at which such shares are proposed to be transferred.
(b) Grant of Co-Sale Rights. Each Investor shall have the right,
exercisable upon written notice to such Transferring Shareholder within fifteen
(15) business days after receipt of the Transferring Shareholder's Co-Sale
Notice, to participate in the sale of the shares on the same terms and
conditions as those set forth in the Co-Sale Notice. To the extent one or more
of the Investors exercise such right of participation, the number of shares that
the Transferring Shareholder may sell in the transaction shall be
correspondingly reduced. The right of participation of each of the Investors
shall be subject to the terms and conditions set forth in this Section:
(i) Each Investor shall be deemed to own the number of shares of
Common Stock which such Investor actually holds plus the number of shares of
Common Stock which are issuable upon conversion of any shares of Series B,
Series C, Series D and Series E Preferred Stock then held by such Investor.
(ii) Each Investor may sell all or any part of a number of shares
equal to the product obtained by multiplying (A) the aggregate number of shares
of Common Stock covered by the Co-Sale Notice by (B) a fraction the numerator of
which is the number of shares of Common Stock, Series B, Series C, Series D and
Series E Preferred Stock of the Company at the time owned by the Investor and
the denominator of which is the combined number of shares of Common Stock,
Series B, Series C, Series D and Series E Preferred Stock of the Company at the
time owned by the Transferring Shareholder and Investors.
(iii) To the extent an Investor elects not to sell the full
number of shares it is entitled to sell pursuant to Section 5(b)(ii) above, the
other Investors' rights to participate in the sale shall be increased pro rata
by a corresponding number of shares.
(iv) Each Investor may effect its participation in the sale by
delivering to the Transferring Shareholder for transfer to the purchase offeror
one or more certificates, properly endorsed for transfer, which represent:
(A) the number of shares of Common Stock which the party
elects to sell pursuant to this Section 5(b); or
(B) that number of shares of Series B, Series C, Series D or
Series E Preferred Stock which is at such time convertible into the number of
shares of Common Stock which the party has elected to sell pursuant to this
Section 5(b); provided, however, that if the purchase offeror objects to the
delivery of Series B, Series C, Series D or Series E Preferred
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Stock in lieu of Common Stock, the party may convert and deliver Common Stock as
provided in Section 5(b)(i) above.
(c) Payment of Proceeds. The stock certificates which the Investors
deliver to such Transferring Shareholder pursuant to Section 5(b) shall be
transferred by the Transferring Shareholder to the purchase offeror in
consummation of the sale of the Stock pursuant to the terms and conditions
specified in the Co-Sale Notice, and such Transferring Shareholder shall
promptly thereafter remit to each Investor that portion of the sale proceeds to
which the Investor is entitled by reason of its participation in such sale. To
the extent that the purchase offeror refuses to purchase shares from an Investor
exercising its right of co-sale hereunder, the Transferring Shareholder shall
not sell to such purchase offeror unless or until, simultaneous with such sale,
the Transferring Shareholder shall purchase such shares from Investor on the
same terms and conditions specified in the Co-Sale Notice.
(d) Non-exercise. The exercise or non-exercise of the rights of the
Investors hereunder to participate in one or more sales of Stock made by the
Shareholders shall not adversely affect their rights to participate in
subsequent Stock sales by the Shareholders.
(e) Transfer of Common Shares Upon Failure to Exercise Right of
Co-Sale. If none of the Investors elects to participate in the sale of the Stock
subject to the Co-Sale Notice, the Transferring Shareholder may, not later than
sixty (60) days following the Investors' receipt of the Co-Sale Notice, conclude
a transfer of not less than all of the Stock covered by the Co-Sale Notice on
terms and conditions not more favorable to the transferor than those described
in the Co-Sale Notice. Any proposed transfer on terms and conditions more
favorable than those described in the Co-Sale Notice, as well as any subsequent
proposed transfer of any Stock by the Transferring Shareholder, shall again be
subject to, and require compliance with, the provisions of Sections 4 and 5
hereof.
6. Exempt Transfers.
(a) Permitted Transactions. Notwithstanding the foregoing, the rights
of first offer and co-sale rights of the Company and the Investors shall not
apply to any transfer by gift to the ancestors, descendants, siblings or spouse
of a Shareholder or to trusts for the benefit of such persons or to any or all
of the partners of a Shareholder that is a general or limited partnership;
provided that the transferee shall furnish the Company and the Investors with a
written agreement to be bound by and comply with all provisions of this
Agreement. Such transferred Stock shall remain "Stock" hereunder, and such
transferee shall be treated as a "Shareholder" for the purposes of this
Agreement.
(b) Company Repurchase. The provisions of Sections 4 and 5 of this
Agreement shall not apply to the sale of any Stock to the Company pursuant to
the applicable Purchase Option.
7. Prohibited Transfers.
(a) Grant. In the event a Shareholder should sell any Stock of the
Company in contravention of the participation rights of the Investors under this
Agreement as described in Section 5 above (a "Prohibited Transfer"), the
Investors shall have, in addition to such other
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remedies as may be available at law, in equity or hereunder, the put option
provided in Section 7(b).
(b) Put Option. In the event of a Prohibited Transfer by a
Shareholder, each Investor shall have the option to sell to such Shareholder a
number of shares of Common Stock of the Company (either directly or through
delivery of Preferred Stock) equal to the number of shares which such Investor
would have been entitled to sell had such Prohibited Transfer been effected in
accordance with Section 5 hereof, on the following terms and conditions:
(i) The price per share at which the shares are to be sold to the
Shareholder shall be equal to the price per share paid to the Shareholder by the
third-party purchaser or purchasers of the Shareholder's Stock in the Prohibited
Transfer. The Shareholder shall also reimburse each Investor for any and all
reasonable fees and expenses, including legal fees and expenses, incurred
pursuant to the exercise or the attempted exercise of the Investor's rights
under Section 5(b) hereof.
(ii) The Investors shall deliver to the Shareholder, within
ninety (90) days after the later of the dates on which the Investors received
notice from the Shareholder or otherwise become aware of the Prohibited
Transfer, the certificate or certificates representing shares to be sold, each
certificate to be properly endorsed for transfer.
(iii) The Shareholder shall, upon receipt of the certificates for
the repurchased shares, pay the aggregate Section 7(b) purchase price therefor,
by certified check or bank draft made payable to the order of the Investors
exercising such option, and shall reimburse such parties for any additional
expenses, including legal fees and expenses, incurred in effecting such purchase
and resale.
(c) Notwithstanding the foregoing, any attempt by a Shareholder to
transfer Stock in violation of Sections 4 or 5 hereof, whether voluntary or
involuntary, shall be void and the Company agrees it will not effect such a
transfer nor will it treat any alleged transferee as the Shareholder of such
shares without the written consent of the holders of a majority of the shares
held by the Investors.
8. Special Provisions.
(a) Shareholder Rights. Until such time as the Company actually
exercises the applicable Purchase Option or the Company Option and/or the
Investors actually exercise their rights under Section 2(a) or the Investor
Option or the Investor Over-Allotment Option under this Agreement, each
Shareholder (or any successors in interest) shall have all the rights of a
shareholder (including voting and dividend rights) with respect to the Stock
subject, however, to the transfer restrictions of Section 1.
(b) Market Stand-Off Agreement. Each Shareholder hereby agrees that,
during the period of duration specified by the Company and an underwriter of
common stock or other securities of the Company, following the effective date of
a registration statement of the Company filed under the Securities Act of 1933,
as amended (the "Securities Act"), it shall not, to the extent requested by the
Company and such underwriter, directly or indirectly sell, offer to sell,
contract to sell (including, without limitation, any short sale), grant any
option to purchase
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or otherwise transfer or dispose of (other than to donees who agree to be
similarly bound) any securities of the Company held by it at any time during
such period except common stock included in such registration; provided,
however, that:
(i) such agreement shall not exceed 180 days for the first such
registration statement of the Company which covers common stock (or other
securities) to be sold on its behalf to the public in an underwritten offering;
and
(ii) such agreement shall not exceed 90 days for any subsequent
registration statement of the Company which covers common stock (or other
securities) to be sold on its behalf to the public in an underwritten offering.
In order to enforce the foregoing covenant, the Company may impose
stop-transfer instructions with respect to the Stock of each Shareholder (and
the shares or securities of every other person subject to the foregoing
restriction) until the end of such period.
9. Termination. Subject to Section 7(c), the right of first offer and
the co-sale rights of an Investor under Sections 4 and 5 of this Agreement and
the correlative obligations of each Shareholder to such Investor with respect to
its Stock shall terminate at such time as such Investor shall no longer be the
owner of any shares of capital stock of the Company. Unless sooner terminated in
accordance with the preceding sentence, the rights and obligations under
Sections 4 and 5 of this Agreement shall terminate upon the occurrence of any
one of the following events (each, a "Corporate Transaction"):
(a) the liquidation, dissolution or indefinite cessation of the
business operations of the Company;
(b) the execution by the Company of a general assignment for the
benefit of creditors or the appointment of a receiver or trustee to take
possession of the property and assets of the Company;
(c) immediately prior to the closing of a bona fide firm commitment
underwritten public offering of the Company's Common Stock registered under the
Securities Act of 1933 on Form S-1 (or any successor form designated by the
Securities and Exchange Commission).
10. Miscellaneous Provisions.
(a) Notice. Unless otherwise provided, any notice required or
permitted under this Agreement shall be given to the party so notified in
writing and shall be deemed effectively given upon personal delivery to the
party to be notified, upon delivery by confirmed facsimile or electronic
transmission (with duplicate original sent by United States mail, or three (3)
days after deposit with the United States Post Office, by registered or
certified mail, postage prepaid and addressed to the party to be notified at the
address indicated for such party on the signature page hereof, or at such other
address as such party may designate by ten (10) days' advance written notice to
the other parties.
11
12
(b) Severability. In the event one or more of the provisions of this
Agreement should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed and interpreted in such manner as to be effective and valid
under applicable law.
(c) Waiver or Modification. Any amendment or modification of this
Agreement shall be effective only if evidenced by a written instrument executed
by (i) Shareholders holding a majority of the Stock subject to this Agreement,
(ii) the Company and (iii) Investors, or their assignees, holding not less than
a majority of the Common Stock issued or issuable upon conversion of the Series
B, Series C, Series D and Series E Preferred Stock then held by the Investors.
(d) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of California as applied in contracts
among California residents entered into and performed entirely within
California.
(e) Attorneys' Fees. In the event of any dispute involving the terms
hereof, the prevailing parties shall be entitled to collect legal fees and
expenses from the other party to the dispute.
(f) Further Assurances. Each party agrees to act in accordance
herewith and not to take any action which is designed to avoid the intention
hereof.
(g) Ownership. Each Shareholder represents and warrants that he or
she is the sole legal and beneficial owner of the shares of Common Stock subject
to this Agreement and that no other person has any interest (other than a
community property interest) in such shares.
(h) Successors and Assigns. This Agreement and the rights and
obligations of the parties hereunder shall inure to the benefit of, and be
binding upon, their respective successors, assigns and legal representatives.
(i) Aggregation of Stock. For the purposes of determining the
availability of any rights under this Agreement, the holdings of transferees and
assignees of an individual or a partnership who are spouses, ancestors, lineal
descendants or siblings of such individual or partners or retired partners of
such partnership (including spouses and ancestors, lineal descendants and
siblings of such partners or spouses who acquire Common Stock by gift, will or
intestate succession) shall be aggregated together with the individual or
partnership, as the case may be, for the purpose of exercising any rights or
taking any action under this Agreement.
(j) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(k) Separate Counsel. Each Shareholder acknowledges and agrees that
such Shareholders have been provided the opportunity and encouraged to consult
with counsel of such Shareholders' own choosing with respect to this Agreement
and that Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP solely represents the interests of the
Company.
12
13
(l) Legend. Each certificate representing shares of Stock now or
hereafter owned by each Shareholder shall be endorsed with the following legend:
THE SALE OR TRANSFER OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE IS SUBJECT TO THE TERMS AND CONDITIONS OF A
CERTAIN AGREEMENT AMONG THE SHAREHOLDER, THE CORPORATION
AND CERTAIN HOLDERS OF STOCK OF THE CORPORATION. COPIES OF
SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST TO THE
SECRETARY OF THE CORPORATION.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
13
14
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
COMPANY:
FAIRBANKS SYSTEMS GROUP,
a California Corporation doing
business as @Backup, Inc.
By: /s/ XXXX XXXXXX
-------------------------------------------
Xxxx Xxxxxx,
Chief Executive Officer
Address: 0000 Xxxxxxx Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
SHAREHOLDERS:
THE XXXXXXX FAMILY TRUST DATED
MAY 6, 1996
/s/ Xxxx XxXxxxx, Trustee
-----------------------------------------------
Xxxx XxXxxxx, Trustee
/s/ Xxxxxxx X. XxXxxxx, Trustee
-----------------------------------------------
Xxxxxxx X. XxXxxxx, Trustee
Address: 3550 General Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
/s/ Xxxxxx Xxxx
-----------------------------------------------
Xxxxxx Xxxx
Address: 3550 General Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
THE XXXXXX FAMILY TRUST DATED
JUNE 6, 1995
By: /s/ XXXX XXXXXX
-------------------------------------------
Xxxx Xxxxxx, Trustee
By: /s/ XXXXX XXXXXX
-------------------------------------------
Xxxxx Xxxxxx, Trustee
Address: 0000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
[SIGNATURE PAGE TO AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT]
15
INVESTORS:
CENDANT CORPORATION,
a Delaware corporation
By: /s/ XXXX X. XXXX
-------------------------------------------
Xxxx X. Xxxx,
Vice President - Legal
Address: 0 Xxxx 00xx Xx., 00xx Xxx.
Xxx Xxxx, XX 00000
WINDWARD VENTURES, L.P.
By: Windward Ventures Management, L.P.
By: /s/ Xxxx Xxxxx
--------------------------------------
Xxxx Xxxxx, General Partner
Address: 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
ENTERPRISE PARTNERS III, L.P.
By: Enterprise Management Partners III, L.P.
Its: General Partner
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Xxxxxx Xxxxxx, General Partner
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
ENTERPRISE PARTNERS III ASSOCIATES, L.P.
By: Enterprise Management Partners III, L.P.
Its: General Partner
By: /s/ Xxxxxx Xxxxxx
---------------------------------------
Xxxxxx Xxxxxx, General Partner
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT]
16
ALTA CALIFORNIA PARTNERS, L.P.,
a Delaware limited partnership
By: Alta California Management Partners, L.P.
Its: General Partner
By: /s/ MARINO POLESTRA
--------------------------------------
Marino Polestra, General Partner
Address: Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
ALTA EMBARCADERO PARTNERS, L.L.C.,
a California limited liability company
By: /s/ XXXX XXXXXXX
-------------------------------------------
Xxxx Xxxxxxx, Member
Address: Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
SECURITY PACIFIC FINANCE, LTD.
By: /s/ Ian Xxxxxx Xxxxxx
-------------------------------------------
Print Name: Ian Xxxxxx Xxxxxx
-----------------------------------
Title: Director
----------------------------------------
Address: X.X. Xxx 00
Xxxxxx Xxxxx
Xx. Xxxxx Port
Guernsey, Channel Islands GY13BQ
XXXXXX INVESTMENT HOLDINGS, LTD.
By:
-------------------------------------------
Print Name:
-----------------------------------
Title:
----------------------------------------
Address: X.X. Xxx 000
Bordage House, Le Bordage
Xx. Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx Xxxxxxx XX00XX
[SIGNATURE PAGE TO AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT]
17
CG&H INVESTMENTS
By: /s/ XXXX X. XXXXXXX
-------------------------------------------
Xxxx X. Xxxxxxx, Executive Partner
Address: c/o Xxx Xxxxxxx
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
AMERICAN EXPRESS TRAVEL RELATED
SERVICES COMPANY, INC.,
a New York corporation
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------------
Print Name: Xxxxxx Xxxxxxx
-----------------------------------
Title: Vice President
----------------------------------------
Address: American Express Tower
3 World Financial Center
Xxx Xxxx, XX 00000
XXXXXXXXX AND XXXXXXXXX XXXXXXXX
FAMILY TRUST, UTD
DATED: AUGUST 28, 1995
By: /s/ Xxxxxxxxx Xxxxxxxx
-------------------------------------------
Xxxxxxxxx Xxxxxxxx, Trustee
Address: 0000 Xxxxxxxxx Xxxxx
Xx Xxxxx, XX 00000
THE RIBLE LIVING TRUST DATED JANUARY 15, 1988
By: /s/ Xxx X. Xxxxx, Trustee
-------------------------------------------
Address: 0000 Xx Xxxxxxxx
Xxxxxx Xxxxx Xx, XX 00000
/s/ Xxxxxx Xxxxx
-----------------------------------------------
Xxxxxx Xxxxx
Address: 000 Xxxxxxx Xxxxx
Xxx Xxx, XX 00000
[SIGNATURE PAGE TO AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT]
18
/s/ Xxxxx Xxxxxx
-----------------------------------------------
Xxxxx Xxxxxx
Address: 0000 Xxxxxxx xx xx Xxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
-----------------------------------------------
Xxxxx Xxxxxxxxx
-----------------------------------------------
Xxxxxxx X. Xxxxxxxxx
Address: 000 Xxxxxxxxx Xxxxxx
Xxx Xxx, XX 00000
-----------------------------------------------
Xxxxxxx X. Xxxxxxx
Address: 0000 Xx Xxxxxxxx
Xxxxxx Xxxxx Xx, XX 00000
XXXXXX X. XXXXXX TTEE
UTA DTA DATED 10/20/86
By: /s/ Xxxxxx X. Xxxxxx, Trustee
------------------------------------------
Xxxxxx X. Xxxxxx, Trustee
Address: 0000 Xxxxxxx Xxxx Xxxxx
Xx Xxxxx, XX 00000
XXXXXXX X. XXXXX AND XXXXXXXXX XXXXX-XXXXXX,
TRUSTEES UNDER TRUST AGREEMENT DATED 12/4/1984
-----------------------------------------------
Xxxxxxx Xxxxx, Trustee
Address: 000 Xxxxxx Xxxxx Xxxx
Xxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT]
19
XXXXXX X. XXXXX, DDS,
A PROFESSIONAL CORPORATION
By: /s/ XXXXXX X. XXXXX
-------------------------------------------
Address: 0000 Xxxxxxxxx Xxxxx Xxx
Xx Xxxxx, XX 00000
FBO XXXXX XXXXXXXXX XXX
A/C #000-00000-00
By: Delaware Charter Guarantee & Trust Co. TTEE
Its: Trustee
By:
-------------------------------------------
Print Name:
-----------------------------------
Title:
----------------------------------------
Address: X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
ADVANCED DIGITAL INFORMATION CORPORATION,
a Washington corporation
By: /s/ Xxxxx xxx Xxxxx
-------------------------------------------
Address: X.X. Xxx 00000
00000 Xxxxxxx Xxxx, X.X.
Xxxxxxx, XX 00000-0000
[SIGNATURE PAGE TO AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT]
00
XXXXX XXXXXXXXXXXXX PARTNERS L.P.
By: Crest Communications Holding L.L.C.
Its: Authorized Representative
By: /s/ XXXXX X. XXXXXXXXXXX
-------------------------------------------
Print Name: Xxxxx X. Xxxxxxxxxxx
-----------------------------------
Title: Managing Director
----------------------------------------
Address: 0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT]
21
EXHIBIT A
Shareholders
Number of Common
Shareholder Name Shares Owned
---------------- ----------------
The XxXxxxx Family Trust dated May 6, 1996 ............ 1,671,893
Xxxxxx Xxxx ........................................... 771,000
The Xxxxxx Family Trust dated June 5, 1995 ............ 807,107
---------
TOTAL: ........................................ 3,250,000
=========
Exhibit A-1
22
EXHIBIT B
List of Investors
Cendant Corporation
Windward Ventures
American Express Travel Related Services Company, Inc.
Enterprise Partners III, L.P.
Enterprise Partners III Associates, L.P.
Alta California Partners, L.P.
Alta Embarcadero Partners, LLC
Security Pacific Finance
Xxxxxx Investment
GC&H Investments
Xxxxxxxxx and Xxxxxxxxx Xxxxxxxx
Family Trust
The Rible Living Trust
Xxxxxx Xxxxx
Xxxxx Xxxxxx
Xxxxx and Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx
Xxx Xxxxxx
Xxxx X. Xxxxxxxx Family Trust
Margalaur LLC
Xxx Xxxxx
Xxxxxx Xxxxx
FBO Xxxxx Xxxxxxxxx XXX
Advanced Digital Information Corporation
Exhibit B-1
23
EXHIBIT C
ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, I, __________________________, hereby sell, assign
and transfer unto _____________________________ (_________) shares of the Common
Stock of Fairbanks Systems Group standing in my name on the books of said
corporation represented by Certificate No. ___________ herewith and do hereby
irrevocably constitute and appoint _________________ attorney to transfer said
stock on the books of the within-named corporation with full power of
substitution in the premises.
Dated: _________________, 19__
Signature:
---------------------------------
Print Name:
--------------------------------
This Assignment Separate from Certificate was executed in conjunction
with the terms of that certain Amended and Restated Shareholders' Agreement
between the above assignor and Fairbanks Systems Group doing business as
@Backup, Inc. dated February 5, 1998.
Exhibit C-1
24
EXHIBIT D
CONSENT OF SPOUSE
I, _______________________, the spouse of ______________
_____________________, one of the shareholders referred to as a "Shareholder" in
the foregoing Amended and Restated Shareholders' Agreement ("Agreement"), dated
March 6, 1998, of Fairbanks Systems Group, a California corporation doing
business as @Backup, Inc. (the "Company"), acknowledge that I have reviewed the
Agreement. I hereby appoint my spouse as my attorney-in-fact with respect to the
exercise of any rights under the Agreement and agree to be bound by the
provisions of the Agreement insofar as I may have any rights in the Agreement or
any shares of the Company under the community property laws of the state of our
residence or similar laws relating to marital property in effect in the state of
our residence as of the date of the signing of the Agreement or thereafter.
Effective: March __, 1998
Signature:
---------------------------------
Print Name:
--------------------------------
Exhibit X-0
00
XXXXXXXXX XX. 0 TO THE
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT
This Amendment No. 1 to the Amended and Restated Shareholders' Agreement
(the "Amendment") is made this 23rd day of August 1999, by and among Fairbanks
Systems Group, a California corporation doing business as @Backup, Inc. (the
"Company"), the holders of shares of the Company's Common Stock listed on
Exhibit A hereto (the "Shareholders," which term includes each Shareholder's
heirs, executors, guardians, successors and assigns), and the investors listed
on Exhibit B hereto (the "Investors"). Capitalized terms used herein which are
not defined herein shall have the definition ascribed to them in the Amended and
Restated Shareholders' Agreement, dated July 30, 1999 (the "Agreement").
RECITALS
WHEREAS, the Company, the Shareholders and certain of the Investors are
parties to the Agreement;
WHEREAS, the Company desires to complete the second sale of its Series E
Preferred Stock to certain of the Investors (the "New Series E Investors"), and
these New Series E Investors desire to purchase the Series E Preferred Stock
from the Company; and
WHEREAS, the Company, the Shareholders and the Investors acknowledge
that they entered into this Amendment as an inducement to and in consideration
of the New Series E Investors' purchase of the Company's Series E Preferred
Stock.
WHEREAS, Section 10(c) of the Agreement provides that the Agreement may
be amended by the written consent of the Company and the holders of a majority
(on an as-converted to Common Stock basis) of the Series A, Series B, Series C,
Series D and Series E Preferred Stock.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Amendment and the Agreement, the parties hereby agree as follows:
1. Amendment to Exhibit B of the Agreement. Exhibit B to the Agreement
is amended and replaced in its entirety by Exhibit B attached hereto.
2. Amendment to Section 10(i) of the Agreement. Section 10(i) of the
Agreement is amended and replaced in its entirety by the following:
"For the purposes of determining the availability of any rights under
this Agreement, the holdings of transferees and assignees of an individual,
partnership or other entity who are spouses, ancestors, lineal descendants or
siblings of such individual or partners, retired partners of such partnership
(including spouses and ancestors, lineal descendants and siblings of such
partners or spouses who acquire Common Stock by gift, will or intestate
succession) or affiliates
26
of the partnership or other entity shall be aggregated together with the
individual, partnership or other entity, as the case may be, for the purpose of
exercising any rights or taking any action under this Agreement."
3. Effect of Amendment. Except as expressly modified by this Amendment,
the Agreement shall remain unmodified and in full force and effect.
4. Miscellaneous Provisions.
(a) Severability. In the event one or more of the provisions of
this Amendment should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Amendment or the Agreement, and
this Amendment and the Agreement shall be construed and interpreted in such
manner as to be effective and valid under applicable law.
(b) Waiver or Modification. Any amendment or modification of
this Amendment shall be effective only if evidenced by a written instrument
executed by (i) Shareholders holding a majority of the Stock subject to this
Amendment, (ii) the Company and (iii) Investors, or their assignees, holding not
less than a majority of the Common Stock issued or issuable upon conversion of
the Series B, Series C, Series D and Series E Preferred Stock then held by the
Investors.
(c) Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of California as applied in
contracts among California residents entered into and performed entirely within
California.
(d) Entire Agreement. This Amendment together with the Agreement
and all documents referred to herein and therein constitute the full and entire
understanding and agreement between the parties with regard to the subjects
hereof and thereof.
(e) Successors and Assigns. This Agreement and the rights and
obligations of the parties hereunder shall inure to the benefit of, and be
binding upon, their respective successors, assigns and legal representatives.
(f) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(g) Separate Counsel. Each Shareholder and each Investor
acknowledges and agrees that such Shareholder or Investor has been provided the
opportunity and encouraged to consult with counsel of such Shareholder's or
Investor's own choosing with respect to this Amendment and that Xxxxxxx, Xxxxxxx
& Xxxxxxxx LLP solely represents the interests of the Company.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
2
27
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
COMPANY:
FAIRBANKS SYSTEMS GROUP, a
California Corporation doing
business as @Backup, Inc.
By: /s/ Xxxx Xxxxxx
---------------------------------
Xxxx Xxxxxx, Chief Executive
Officer
Address: 0000 Xxxxxxx Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
SHAREHOLDERS:
THE XXXXXXX FAMILY TRUST DATED
MAY 6, 1996
/s/ Xxxx XxXxxxx, Trustee
------------------------------------
Xxxx XxXxxxx, Trustee
/s/ Xxxxxxx X. XxXxxxx, Trustee
------------------------------------
Xxxxxxx X. XxXxxxx, Trustee
Address: 3550 General Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
------------------------------------
Xxxxxx Xxxx
Address: 0000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
THE XXXXXX FAMILY TRUST DATED
JUNE 6, 1995
By: /s/ Xxxx Xxxxxx
---------------------------------
Xxxx Xxxxxx, Trustee
By: /s/ Xxxxx Xxxxxx
---------------------------------
Xxxxx Xxxxxx, Trustee
Address: 0000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
[SIGNATURE PAGE TO AMENDMENT NO. 1 TO THE AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT]
28
INVESTORS:
CENDANT CORPORATION, a Delaware corporation
By: /s/ Xxxxx Xxxxxxx
---------------------------------
Xxxxx Xxxxxxx, Senior Vice President
Strategic Development
Address: 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
WINDWARD VENTURES, L.P.
By: Windward Ventures Management, L.P.
By: /s/ Xxxx Xxxxx
----------------------------
Xxxx Xxxxx, General Partner
Address: 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
ENTERPRISE PARTNERS III, L.P.
By: Enterprise Management Partners III, L.P.
Its: General Partner
By: /s/ Xxxxx Xxxxxxxx
----------------------------
Xxxxx Xxxxxxxx, General Partner
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
ENTERPRISE PARTNERS III ASSOCIATES, L.P.
By: Enterprise Management Partners III, L.P.
Its: General Partner
By: /s/ Xxxxx Xxxxxxxx
----------------------------
Xxxxx Xxxxxxxx, General Partner
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT]
29
ALTA CALIFORNIA PARTNERS, L.P., a Delaware
limited partnership
By: Alta California Management Partners, L.P.
Its: General Partner
By: /s/ Xxxxxxx Xxxxxxx
---------------------------------
Xxxxxxx Xxxxxxx, General Partner
Address: Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
ALTA EMBARCADERO PARTNERS, L.L.C., a California
limited liability company
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------------
Xxxxxxx Xxxxxxx, Member
Address: Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
SECURITY PACIFIC FINANCE, LTD.
By:
--------------------------------------------
Print Name:
------------------------------------
Title:
-----------------------------------------
Address: X.X. Xxx 00
Xxxxxx Xxxxx
Xx. Xxxxx Port
Guernsey, Channel Islands GY13BQ
XXXXXX INVESTMENT HOLDINGS, LTD.
By: /s/ X. Xxxx /s/ X. Xxxxxx
--------------------------------------------
Print Name: X. Xxxx X. Xxxxxx
------------------------------------
Title: Authorized Signatories
-----------------------------------------
Address: X.X. Xxx 000
Bordage House, Le Bordage
Xx. Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx Xxxxxxx XX00XX
[SIGNATURE PAGE TO AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT]
30
CG&H INVESTMENTS
By: /s/ Xxxx X. Xxxxxxx
----------------------------------------
Xxxx X. Xxxxxxx, Executive Partner
Address: c/o Xxx Xxxxxxx
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY,
INC., a New York corporation
By: /s/ Xxxxxxxx Xxxxxxxx
--------------------------------------------
Print Name: Xxxxxxxx Xxxxxxxx
------------------------------------
Title: Senior Vice President
-----------------------------------------
Address: American Express Tower
3 World Financial Center
Xxx Xxxx, XX 00000
XXXXXXXXX AND XXXXXXXXX XXXXXXXX FAMILY TRUST,
UTD DATED: AUGUST 28, 1995
By: /s/ Xxxxxxxxx Xxxxxxxx
----------------------------------------
Xxxxxxxxx Xxxxxxxx, Trustee
Address: 0000 Xxxxxxxxx Xxxxx
Xx Xxxxx, XX 00000
THE RIBLE LIVING TRUST DATED JANUARY 15, 1988
By:
----------------------------------------
Address: 0000 Xx Xxxxxxxx
Xxxxxx Xxxxx Xx, XX 00000
-----------------------------------------------
Xxxxxx Xxxxx
Address: 000 Xxxxxxx Xxxxx
Xxx Xxx, XX 00000
[SIGNATURE PAGE TO AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT]
31
XXXXXX X. XXXXX, DDS, A PROFESSIONAL CORPORATION
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Address: 0000 Xxxxxxxxx Xxxxx Xxx
Xx Xxxxx, XX 00000
FBO XXXXX XXXXXXXXX XXX
A/C #000-00000-00
By: Delaware Charter Guarantee & Trust Co. TTEE
Its: Trustee
By:
--------------------------------------------
Print Name:
------------------------------------
Title:
-----------------------------------------
Address: X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
ADVANCED DIGITAL INFORMATION CORPORATION, a
Washington corporation
By: /s/ Xxxxx xxx Xxxxx
----------------------------------------
Address: X.X. Xxx 00000
00000 Xxxxxxx Xxxx, X.X.
Xxxxxxx, XX 00000-0000
XXXXXXX XXXXX KECALP L.P. 1999
By: KECALP, Inc.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx, Vice President
Address: World Financial Center South Tower
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
[SIGNATURE PAGE TO AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT]
32
KECALP INC., AS NOMINEE FOR XXXXXXX XXXXX KECALP
INTERNATIONAL L.P. 1999
Address: World Financial Center South Tower
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------------
Xxxxxx X. Xxxxxxx, Vice President
CREST COMMUNICATION PARTNERS L.P.
By: Crest Communications Holding L.L.C.
Its: Authorized Representative
By: /s/ Xxxxx X. Xxxxxxxxxxx
--------------------------------------------
Print Name: Xxxxx X. Xxxxxxxxxxx
------------------------------------
Title: Managing Director
-----------------------------------------
Address: 0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT]
33
EXHIBIT A
Shareholders
Number of Common
Shareholder Name Shares Owned
---------------- ------------
The XxXxxxx Family Trust dated May 6, 1996.............. 1,671,893
Xxxxxx Xxxx............................................. 771,000
The Xxxxxx Family Trust dated June 5, 1995.............. 807,107
---------
TOTAL: 3,250,000
=========
Exhibit A-1
34
EXHIBIT B
List of Investors
Cendant Corporation
Windward Ventures
American Express Travel Related Services Company, Inc.
Enterprise Partners III, L.P.
Enterprise Partners III Associates, L.P.
Alta California Partners, L.P.
Alta Embarcadero Partners, LLC
Security Pacific Finance
Xxxxxx Investment
GC&H Investments
Xxxxxxxxx and Xxxxxxxxx Xxxxxxxx
Family Trust
The Rible Living Trust
Xxxxxx Xxxxx
Xxxxx Xxxxxx
Xxxxx and Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx
Xxx Xxxxxx
Xxxx X. Xxxxxxxx Family Trust
Margalaur LLC
Xxx Xxxxx
Xxxxxx Xxxxx
FBO Xxxxx Xxxxxxxxx XXX
Advanced Digital Information Corporation
Xxxxxxx Xxxxx KECALP L.P. 1999
Xxxxxxx Xxxxx KECALP International L.P. 1999
Crest Communications Partners L.P.
Exhibit X-0
00
XXXXXXXXX XX. 0 TO THE
AMENDED AND RESTATED SHAREHOLDERS' AGREEMENT
This Amendment No. 2 to the Amended and Restated Shareholders' Agreement
("Amendment No. 2") is made this 17th day of September 1999, by and among
Fairbanks Systems Group, a California corporation doing business as @Backup,
Inc. (the "Company"), the holders of shares of the Company's Common Stock listed
on Exhibit A hereto (the "Shareholders," which term includes each Shareholder's
heirs, executors, guardians, successors and assigns), and the investors listed
on Exhibit B hereto (the "Investors"). Capitalized terms used herein which are
not defined herein shall have the definitions ascribed to them in the Amended
and Restated Shareholders' Agreement, dated July 30, 1999 (the "Agreement"), as
amended by Amendment No. 1 to the Amended and Restated Shareholders' Agreement,
dated August 23, 1999 ("Amendment No. 1"), by and among the Company, the
Shareholders, and certain of the Investors (the "Existing Investors").
RECITALS
WHEREAS, the Company, the Shareholders and the Existing Investors are
parties to the Agreement and Amendment No. 1;
WHEREAS, the Company desires to complete the third sale of its Series E
Preferred Stock to certain of the Investors (the "New Investors"), and these New
Investors desire to purchase the Series E Preferred Stock from the Company;
WHEREAS, the Company, the Shareholders and the Existing Investors
acknowledge that they are entering into this Amendment No. 2 as an inducement to
and in consideration of the New Investors' purchase of the Company's Series E
Preferred Stock; and
WHEREAS, Section 10(c) of the Agreement provides that the Agreement may
be amended by the written consent of the Company and the holders of a majority
(on an as-converted to Common Stock basis) of the Series A, Series B, Series C,
Series D and Series E Preferred Stock.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions contained herein and in
the Agreement and in Amendment No. 1, and for other good and valuable
consideration the receipt and sufficiency of which is hereby acknowledged, the
parties hereby agree as follows:
1. Additional Party to the Agreement and Amendment No. 1. By
executing this Amendment No. 2, each New Investor becomes a party to and agrees
to be bound by the terms and conditions of the Agreement and Amendment No. 1.
2. Amendment to Exhibit B of the Agreement. Exhibit B to the
Agreement, as amended by Amendment No. 1, is amended and restated in its
entirety by Exhibit B attached hereto.
36
3. Waiver and Consent. The Company, the Shareholders and the
Existing Investors hereby (a) consent to adding the New Investors as parties to
the Agreement and Amendment No. 1 and (b) consent to the amendments to the
Agreement and Amendment No. 1 set forth in this Amendment No. 2.
4. Effect of Amendment. Except as expressly modified by this
Amendment No. 2, the Agreement and Amendment No. 1 shall remain unmodified and
in full force and effect.
5. Miscellaneous Provisions.
(a) Severability. In the event one or more of the
provisions of this Amendment No. 2 should, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions of this Amendment No. 2,
or the Agreement or Amendment No. 1, and this Amendment No. 2 and the Agreement
and Amendment No. 1 shall be construed and interpreted in such manner as to be
effective and valid under applicable law.
(b) Waiver or Modification. Any amendment or
modification of this Amendment No. 2 shall be effective only if evidenced by a
written instrument executed by (i) Shareholders holding a majority of the Stock
subject to this Amendment, (ii) the Company and (iii) Investors, or their
assignees, holding not less than a majority of the Common Stock issued or
issuable upon conversion of the Series B, Series C, Series D and Series E
Preferred Stock then held by the Investors.
(c) Governing Law. This Amendment No. 2 shall be
governed by and construed in accordance with the laws of the State of California
as applied in contracts among California residents entered into and performed
entirely within California.
(d) Entire Agreement. This Amendment No. 2 together with
the Agreement and Amendment No. 1 and all documents referred to herein and
therein constitute the full and entire understanding and agreement between the
parties with regard to the subjects hereof and thereof.
(e) Successors and Assigns. This Amendment No. 2 and the
rights and obligations of the parties hereunder shall inure to the benefit of,
and be binding upon, their respective successors, assigns and legal
representatives.
(f) Counterparts. This Amendment No. 2 may be executed
in two or more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
(g) Separate Counsel. Each Shareholder and each Investor
acknowledges and agrees that such Shareholder or Investor has been provided the
opportunity and encouraged to consult with counsel of such Shareholder's or
Investor's own choosing with respect to this Amendment No. 2, and that Xxxxxxx,
Xxxxxxx & Xxxxxxxx LLP solely represents the interests of the Company.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
2
37
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No.
2 as of the day and year first above written.
COMPANY:
FAIRBANKS SYSTEMS GROUP, a
California Corporation doing
business as @Backup, Inc.
By: /s/ Xxxx Xxxxxx
------------------------------------
Xxxx Xxxxxx, Chief Executive Officer
Address: 0000 Xxxxxxx Xxxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
SHAREHOLDERS:
THE XXXXXXX FAMILY TRUST DATED MAY 6, 1996
/s/ Xxxx XxXxxxx, Trustee
-------------------------------------------
Xxxx XxXxxxx, Trustee
/s/ Xxxxxxx X. XxXxxxx, Trustee
-------------------------------------------
Xxxxxxx X. XxXxxxx, Trustee
Address: 3550 General Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
-------------------------------------------
Xxxxxx Xxxx
Address: 0000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
THE XXXXXX FAMILY TRUST DATED JUNE 6, 1995
By: /s/ Xxxx Xxxxxx
------------------------------------
Xxxx Xxxxxx, Trustee
By: /s/ Xxxxx Xxxxxx
------------------------------------
Xxxxx Xxxxxx, Trustee
Address: 0000 Xxxxxxx Xxxxxx Xxxxx
Xxx Xxxxx, XX 00000-0000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT]
38
EXISTING INVESTORS:
CENDANT CORPORATION,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxx
--------------------------------------
Xxxxx Xxxxxxx, Senior Vice President
Strategic Development
Address: 0 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
WINDWARD VENTURES, L.P.
By: Windward Ventures Management, L.P.
By: /s/ Xxxx Xxxxx
-----------------------------
Xxxx Xxxxx, General Partner
Address: 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
ENTERPRISE PARTNERS III, L.P.
By: Enterprise Management Partners III, L.P.
Its: General Partner
By: /s/ Xxxxx Xxxxxxxx
-----------------------------
Xxxxx Xxxxxxxx, General Partner
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
ENTERPRISE PARTNERS III ASSOCIATES, L.P.
By: Enterprise Management Partners III, L.P.
Its: General Partner
By: /s/ Xxxxx Xxxxxxxx
-----------------------------
Xxxxx Xxxxxxxx, General Partner
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT]
39
ALTA CALIFORNIA PARTNERS, L.P., a Delaware
limited partnership
By: Alta California Management Partners, L.P.
Its: General Partner
By: /s/ Illegible
-----------------------------
General Partner
Address: Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
ALTA EMBARCADERO PARTNERS, L.L.C., a California
limited liability company
By: /s/ Illegible
------------------------------------
Member
Address: Xxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
SECURITY PACIFIC FINANCE, LTD.
By:
------------------------------------
Print Name:
--------------------------------
Title:
-------------------------------------
Address: X.X. Xxx 00
Xxxxxx Xxxxx
Xx. Xxxxx Port
Guernsey, Channel Islands GY13BQ
XXXXXX INVESTMENT HOLDINGS, LTD.
By: /s/ Xxxxxx Xxxxxx /s/ Xxxxx Xxxxxxx
------------------------------------
Print Name: Xxxxxx Xxxxxx & Xxxxx Xxxxxxx
--------------------------------
Title: Authorized Signataries
-------------------------------------
Address: X.X. Xxx 000
Bordage House, Le Bordage
Xx. Xxxxx Xxxx
Xxxxxxxx, Xxxxxxx Xxxxxxx XX00XX
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT]
40
CG&H INVESTMENTS
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Xxxx X. Xxxxxxx, Executive Partner
Address: c/o Xxx Xxxxxxx
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY,
INC., a New York corporation
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Print Name: Xxxxxx Xxxxxxx
--------------------------------
Title: Vice President
------------------------------------
Address: American Express Tower
3 World Financial Center
Xxx Xxxx, XX 00000
XXXXXXXXX AND XXXXXXXXX XXXXXXXX FAMILY TRUST,
UTD DATED: AUGUST 28, 1995
By: /s/ Xxxxxxxxx Xxxxxxxx
------------------------------------
Xxxxxxxxx Xxxxxxxx, Trustee
Address: 0000 Xxxxxxxxx Xxxxx
Xx Xxxxx, XX 00000
THE RIBLE LIVING TRUST DATED JANUARY 15, 1988
By:
------------------------------------
Address: 0000 Xx Xxxxxxxx
Xxxxxx Xxxxx Xx, XX 00000
/s/ Xxxxxx Xxxxx
-------------------------------------------
Xxxxxx Xxxxx
Address: 000 Xxxxxxx Xxxxx
Xxx Xxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT]
41
/s/ Xxxxx Xxxxxx
-------------------------------------------
Xxxxx Xxxxxx
Address: 0000 Xxxxxxx xx xx Xxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
/s/ Xxxxx Xxxxxxxxx
-------------------------------------------
Xxxxx Xxxxxxxxx
/s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxxxx
Address: 000 Xxxxxxxxx Xxxxxx
Xxx Xxx, XX 00000
/s/ Xxxxxxx Xxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxx
Address: 0000 Xx Xxxxxxxx
Xxxxxx Xxxxx Xx, XX 00000
XXXXXX X. XXXXXX TTEE
UTA DTA DATED 10/20/86
By: /s/ Xxxxxx X. Xxxxxx, Trustee
------------------------------------
Xxxxxx X. Xxxxxx, Trustee
Address: 0000 Xxxxxxx Xxxx Xxxxx
Xx Xxxxx, XX 00000
XXXXXXX X. XXXXX AND XXXXXXXXX XXXXX-XXXXXX,
TRUSTEES UNDER TRUST AGREEMENT DATED 12/4/1984
-------------------------------------------
Xxxxxxx Xxxxx, Trustee
Address: 000 Xxxxxx Xxxxx Xxxx
Xxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT]
42
XXXXXX X. XXXXX, DDS, A PROFESSIONAL CORPORATION
By: /s/ Xxxxxx X. Xxxxx
------------------------------------
Address: 0000 Xxxxxxxxx Xxxxx Xxx
Xx Xxxxx, XX 00000
FBO XXXXX XXXXXXXXX XXX
A/C #000-00000-00
By: Delaware Charter Guarantee & Trust Co. TTEE
Its: Trustee
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------------
Print Name: Xxxxx Xxxxxxxxx
---------------------------------
Title:
--------------------------------------
Address: X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
ADVANCED DIGITAL INFORMATION CORPORATION, a
Washington corporation
By: /s/ Signature Illegible
------------------------------------
Address: X.X. Xxx 00000
00000 Xxxxxxx Xxxx, X.X.
Xxxxxxx, XX 00000-0000
XXXXXXX XXXXX KECALP L.P. 1999
By: KECALP, Inc.
Its: General Partner
By:
------------------------------------
Xxxxxx X. Xxxxxxx, Vice President
Address: World Financial Center South Tower
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT]
43
XXXXXXX XXXXX KECALP L.P. 1999
By: KECALP, Inc.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx, Vice President
Address: World Financial Center South Tower
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
KECALP INC., AS NOMINEE FOR XXXXXXX XXXXX KECALP
INTERNATIONAL L.P. 1999
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Xxxxxx X. Xxxxxxx, Vice President
Address: World Financial Center South Tower
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000-0000
CREST COMMUNICATION PARTNERS L.P.
By: Crest Communications Holding L.L.C.
Its: Authorized Representative
By: /s/ Xxxxx X. Xxxxxxxxxxx
------------------------------------
Print Name: Xxxxx X. Xxxxxxxxxxx
--------------------------------
Title: Managing Director
------------------------------------
Address: 0000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT]
44
NEW INVESTORS:
XXXXXX XXXXX, individually
By: /s/ Xxxxxx Xxxxx
------------------------------------
Xxxxxx Xxxxx
Address: 000 Xxxxxxx Xxxxx
Xxx Xxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT]
45
XXXXXX X. XXXXX, DDS, A PROFESSIONAL
CORPORATION
By:
------------------------------------
Xxxxxx X. Xxxxx, President
Address: 0000 Xxxxxxxxx Xxxxx Xxx
Xx Xxxxx, XX 00000
XXXXXXXXX AND XXXXXXXXX XXXXXXXX
FAMILY TRUST, UTD DATED: AUGUST 28,
1995
By:
------------------------------------
Xxxxxxxxx Xxxxxxxx, Trustee
NEW INVESTORS:
XXXXXX XXXXX, individually
By:
------------------------------------
Xxxxxx Xxxxx
Address: 000 Xxxxxxx Xxxxx
Xxx Xxx, XX 00000
XXX XXXXXXXXXXX
By: /s/ Xxxxxxx X. Xxxx
------------------------------------
Print Name: Xxxxxxx X. Xxxx
--------------------------------
Title: Vice President New Business Development
------------------------------------
Address: 00 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT]
46
WINDWARD VENTURES, L.P.
By: Windward Ventures Management, L.P.
By: /s/ Xxxx Xxxxx
------------------------------------
Xxxx Xxxxx, General Partner
Address: 00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
SENVEST INTERNATIONAL LLC
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Print Name: Xxxxxx Xxxxxxx
--------------------------------
Title: President
------------------------------------
Address: 000 Xxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX XXXXXXX, individually
/s/ Xxxxxx Xxxxxxx
-------------------------------------------
Xxxxxx Xxxxxxx
Address: 0000 Xxxxxxxxx Xx., Xxxxx 000
Xxx Xxxxx, XX 00000
XXX XXXXXX, individually
/s/ Xxx Xxxxxx
-------------------------------------------
Xxx Xxxxxx
Address: 00 Xxxxx Xxxxxx
00000 Xxx Xxxx,
Xxxxxx
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT]
47
XXXX X. XXXXXX, individually
/s/ Xxxx X. Xxxxxx
-------------------------------------------
Xxxx X. Xxxxxx
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
XXXXX X. XXXXXX III, individually
/s/ Xxxxx X. Xxxxxx III
-------------------------------------------
Xxxxx X. Xxxxxx III
Address: 0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT]
48
XXXXX XXXXXX
/s/ Xxxxx Xxxxxx
-------------------------------------------
Xxxxx Xxxxxx
Address: 000 Xxxxxxx xx xx Xxxxx, Xxxxx 000
Xx Xxxxx, XX 00000
XXXXXXX X. XXXXXXX, an individual
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxx
Address: 0000 Xx Xxxxxxxx
Xxxxxx Xxxxx Xx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT]
49
XXXXXX X. XXXXXX TTEE UTA DTA Dated 10/20/86
By: /s/ Xxxxxx X. Xxxxxx, Trustee
------------------------------------
Xxxxxx X. Xxxxxx, Trustee
Address: 0000 Xxxxxxx Xxxx Xxxxx
Xx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT]
50
XXXXXXX X. XXXXX AND XXXXXXXXX XXXXX-XXXXXX,
TRUSTEES UNDER TRUST AGREEMENT DATED 12/4/1984
/s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Xxxxxxx Xxxxx, Trustee
Address: 0000 Xx Xxxx Xxxx
Xx Xxxxx, XX 00000
FBO XXXXX XXXXXXXXX XXX A/C #000-00000-00
By: Delaware Charter Guarantee & Trust Co.
Its: Trustee
By:
------------------------------------
Print Name:
------------------------------------
Title:
------------------------------------
Address: X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
VBW RAPTOR FUND, LLC
By: /s/ Xxxxx X. Dival
------------------------------------
Print Name: Xxxxx X. Dival
--------------------------------
Title: Member of Management Committee
------------------------------------
Address: 0 Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT]
51
XXXXXXX, PHLEGER &
XXXXXXXX LLP
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Xxxxx X. Xxxxxxx, Partner
Address: 000 X. X Xxxxxx, Xxx. 0000
Xxx Xxxxx, XX 00000
XXXXXX X. XXXXXXX, an Individual
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxxx
Address: 000 X. X Xxxxxx, Xxx. 0000
Xxx Xxxxx, XX 00000
XXXXXXX X. XXXXXXX, an Individual
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxxx X. Xxxxxxx
Address: 000 X. X Xxxxxx, Xxx. 0000
Xxx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT]
52
XXXXX XXXX TRUST
By: /s/ Xxxxx X. Xxxx
------------------------------------
Its: Trustee
Address: c/o Xxxxx Xxxx
0000 Xxxxxxxx Xxxxxxx
Xx Xxxxx, XX 00000
XXXXX XXXX, an Individual
/s/ Xxxxx Xxxx
-------------------------------------------
Xxxxx Xxxx
Address: 0000 Xxxxxxxx Xxxxxxx
Xx Xxxxx, XX 00000
[SIGNATURE PAGE TO AMENDMENT NO. 2 TO THE AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT]
53
EXHIBIT A
Shareholders
Number of Common
Shareholder Name Shares Owned
---------------- ------------
The XxXxxxx Family Trust dated May 6, 1996.............. 1,671,893
Xxxxxx Xxxx............................................. 771,000
The Xxxxxx Family Trust dated June 5, 1995.............. 807,107
---------
TOTAL: 3,250,000
Exhibit A-1
54
EXHIBIT B
List of Investors
Cendant Corporation
Windward Ventures
American Express Travel Related Services Company, Inc.Enterprise
Partners III, L.P.
Enterprise Partners III Associates, L.P.
Alta California Partners, L.P.
Alta Embarcadero Partners, LLC
Security Pacific Finance
Xxxxxx Investment
GC&H Investments
Xxxxxxxxx and Xxxxxxxxx Xxxxxxxx
Family Trust
The Rible Living Trust
Xxxxxx Xxxxx
Xxxxx Xxxxxx
Xxxxx and Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx
Xxx Xxxxxx
Xxxx X. Xxxxxxxx Family Trust
Margalaur LLC
Xxx Xxxxx
Xxxxxx Xxxxx
FBO Xxxxx Xxxxxxxxx XXX
Advanced Digital Information Corporation
Xxxxxxx Xxxxx KECALP L.P. 1999
Xxxxxxx Xxxxx KECALP International L.P. 1999
Crest Communications Partners L.P.
XXX Xxxxxxxxxxx
Senvest International LLC
Xxxxxx Xxxxxxx
Xxx Xxxxxx
Xxxx X. Xxxxxx
Xxxxx X. Xxxxxx III
VBW Raptor Fund, LLC
Xxxxxxx, Phleger & Xxxxxxxx LLP
Xxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxx Xxxx Trust
Xxxxx Xxxx
Exhibit B-1
