EXHIBIT 10.16
VIP CALLING, INC.
SECOND AMENDED AND RESTATED
SHAREHOLDERS' AGREEMENT
This Second Amended and Restated Shareholders' Agreement (this
"Agreement"), dated as of July 12, 1999, is made by and among:
(i) VIP Calling, Inc., a Delaware corporation (the "COMPANY");
(ii) the undersigned holders of at least sixty percent (60%) of the
aggregate issued and outstanding shares of the Company's Class A Common Stock,
par value $.001 per share (the "CLASS A COMMON STOCK"), and the Company's Class
B Common Stock, par value $.001 per share (the "CLASS B COMMON STOCK" and,
together with the Class A Common Stock, the "COMMON STOCK", with the holders
thereof being referred to herein as the "COMMON SHAREHOLDERS");
(iii) the undersigned holders of at least sixty percent (60%) of the
issued and outstanding shares of the Company's Series A Convertible Preferred
Stock, par value $.001 per share (the "SERIES A PREFERRED STOCK") and the
Company's Series B Convertible Preferred Stock, par value $.001 per share (the
"SERIES B PREFERRED STOCK"); and
(iv) each person or entity that subsequently becomes a party hereto by
executing and delivering to the Company an Instrument of Adherence substantially
in the form attached as EXHIBIT A hereto.
PREAMBLE
WHEREAS, the Company and the holders the Series A Preferred Stock and
the Series B Preferred Stock are parties to a certain First Amended and Restated
Shareholders' Agreement, dated as of October 24, 1997 and amended as of November
11, 1997, August 26, 1998 and May 26, 1999 (the "EXISTING AGREEMENT");
WHEREAS, in connection with the Company's sale and issuance of up to
5,775,000 shares of Series C Convertible Preferred Stock, par value $.001 per
share (the "SERIES C PREFERRED STOCK" and, together with the Series A Preferred
Stock and the Series B Preferred Stock, the "PREFERRED STOCK", with the holders
of the Preferred Stock being referred to herein as the "PREFERRED SHAREHOLDERS"
and who, together with the Common Shareholders are referred to herein as the
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"SHAREHOLDERS"), to certain purchasers thereof (the "SERIES C INVESTORS"), the
parties to the Existing Agreement wish to extend to the Series C Investors,
certain rights and obligations contained in the Existing Agreement; and
WHEREAS, parties to the Existing Agreement wish to amend and restate
the terms of the Existing Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual
promises herein contained, the parties hereto hereby agree that the Existing
Agreement is amended and restated in its entirety as follows:
1. FIRST-REFUSAL AND CO-SALE RIGHTS AS TO STOCK TRANSFERS.
(a) RESTRICTION ON TRANSFERS. No Shareholder may assign, exchange,
encumber, pledge, transfer, or otherwise dispose of (any such action referred to
hereinafter as a "TRANSFER") any shares of Common Stock, Preferred Stock or any
other securities of the Company held by such Shareholder ("SHARES") in whole or
in part except pursuant to the terms of this Agreement. Any Transfer or
attempted Transfer of Shares in violation of the provisions of this Agreement
shall be void, and the Company and its transfer agent shall not recognize such
Transfer, record it on the books and records of the Company, or issue stock
certificates in connection therewith. In addition to any other legal or
equitable remedies which it may have, the Company may enforce its rights by
actions for specific performance (to the extent permitted by law) and may refuse
to recognize any transferee as one of its shareholders for any purpose,
including without limitation for purposes of dividend and voting rights, until
all applicable provisions hereof have been complied with.
(b) TRANSFER NOTICE. At least 30 days prior to any proposed Transfer
(other than a Permitted Transfer, as defined in Section 1(d)) by a Shareholder,
such Shareholder (the "TRANSFERRING SHAREHOLDER") shall give written notice (the
"Transfer Notice"), in accordance with Section 8 hereof, to the Company (which
shall then promptly provide a copy of the Transfer Notice to each other
Shareholder at the most recent address or telecopier number of each such
Shareholder on file with the Company), setting forth (i) the number and class of
equity securities proposed to be sold by the Transferring Shareholder (the
"Offered Securities"), (ii) the anticipated date of the proposed Transfer and
the names and addresses of the proposed transferees, and (iii) the material
terms of the proposed Transfer, including the cash and/or other consideration to
be received in respect of such Transfer.
(c) COMPANY'S AND SHAREHOLDERS' OPTIONS. Upon the giving of any
Transfer Notice, then subject to all of the provisions of this Section 1(c), the
Company and the Shareholders shall have certain rights and options, as follows:
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(i) RIGHTS OF FIRST REFUSAL. The Company and each of the
non-transferring Shareholders shall have the option, but not the obligation, to
purchase all or part of the Offered Securities on the same terms as are
specified in the Transfer Notice, including any deferred payment terms,
PROVIDED, that the Company and each such Shareholder shall have the right to
substitute cash in the amount of the fair market value of any non-cash
consideration proposed to be received from the proposed transferees. Within 30
days after the effective date of the Transfer Notice, the Company and each of
the non-transferring Shareholders shall give written notice to the Transferring
Shareholder stating whether it elects to exercise such option, and if so, as to
how many of the Offered Securities it elects to exercise such option. Failure by
the Company or any non-transferring Shareholder to give such notice within such
time period shall be deemed an election by it not to exercise its option. If the
aggregate number of Offered Securities for which the Company and the
non-transferring Shareholders exercise such options exceeds the total number of
Offered Securities, then the Shareholders exercising such purchase rights shall
be entitled to purchase the Offered Securities PRO RATA in proportion to the
numbers of shares of Class A Common Stock held by each such Shareholders,
determined on an as-converted basis, and the Company shall be entitled to
purchase so much of the remaining Offered Securities, if any, as to which it has
exercised its option. The closing of the purchase and sale of the Offered
Securities shall take place as soon as is reasonably practicable at such date,
time, and place as the Company and the Shareholders exercising their purchase
options hereunder may reasonably determine. As to any Offered Securities that
the Company and the Shareholders do not elect to purchase hereunder, subject to
the provisions of Section 1(c)(ii) hereof, the Transferring Shareholder shall
thereafter be free for a period of 90 days to consummate the Transfer described
in the Transfer Notice to the transferee(s) specified therein, at the price and
on the other terms set forth therein; PROVIDED, that such transferee(s) shall
first execute and deliver to the Company an Instrument of Adherence in the form
of EXHIBIT A annexed hereto, which executed Instrument of Adherence shall become
a part of this Agreement upon acceptance by the Company. However, if such
Transfer is not consummated within such 90-day period, the Transferring
Shareholder shall not Transfer any of the Offered Securities as have not been
purchased within such period without again complying with all of the provisions
of this Section 1.
(ii) CO-SALE RIGHTS WITH RESPECT TO TRANSFERS BY AFFILIATES.
Upon receipt of a Transfer Notice relating to a proposed Transfer of shares of
capital stock of the Company by an officer or director of the Company or any
Shareholder holding of record greater than 10% of the then outstanding number of
shares of Class A Common Stock (assuming the conversion into shares of Class A
Common Stock of all then outstanding shares of Class B Common Stock and
Preferred Stock), each Preferred Shareholder (other than any Preferred
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Shareholder who has elected to purchase any of the Offered Securities pursuant
to Section 1(c)(i) hereof) may elect to participate in the contemplated Transfer
by delivering written notice to the Transferring Shareholder within 30 days
after the effective date of such Transfer Notice. Each Preferred Shareholder so
electing (the "Electing Shareholder") will be entitled to sell in the
contemplated Transfer, at the same price and on the same terms as specified in
the Transfer Notice (provided, however, that to the extent that the proposed
Transfer consists of shares of Class B Common Stock, the terms of the Transfer
shall be adjusted (if necessary) to reflect the number of shares of Class A
Common Stock and the price per share thereof as would obtain in the event that
the shares of Class B Common Stock subject to the Transfer were converted to
shares of Class A Common Stock), a number of shares of Class A Common Stock (or
a number of shares of capital stock of the Company convertible into such number
of shares of Class A Common Stock) equal to and not less than the product of (i)
the quotient determined by dividing (A) the number of shares of Class A Common
Stock into which the shares of Preferred Stock then held of record by such
Preferred Shareholder are then convertible, by (B) the sum of (I) the aggregate
number of shares of Class A Common Stock into which all of the then outstanding
shares of Preferred Stock held by the Electing Shareholder are then convertible
plus (II) the number of shares of Class A Common Stock then held of record by
the Transferring Shareholder (assuming the conversion into shares of Class A
Common Stock of all shares of Class B Common Stock then held of record by the
Transferring Shareholder), multiplied by (ii) the aggregate number of shares of
Class A Common Stock to be sold in the proposed Transfer (assuming the
conversion into shares of Class A Common Stock of all shares of Class B Common
Stock to be sold in the proposed Transfer). The Transferring Shareholder will be
entitled to sell in the contemplated Transfer the balance of the Offered
Securities. The Transferring Shareholder shall use his or her best efforts to
obtain the agreement of the prospective transferee(s) to the participation of
the Preferred Shareholders in any contemplated Transfer and shall not Transfer
any shares of Common Stock to such prospective transferee(s) unless such
prospective transferee(s) allows the participation of the Preferred Shareholders
on the terms specified herein. Subject to the foregoing and to the provisions of
Section 1(c)(i) above, the Transferring Shareholder may, within 90 days after
the expiration of the 30-day period referred to above, transfer the Offered
Securities (reduced by the number of shares of Common Stock with respect to
which any of the Preferred Shareholders have elected to participate, if any) to
the transferee(s) identified in the Transfer Notice at a price and on terms no
more favorable to the Transferring Shareholder than specified in the Transfer
Notice; PROVIDED, that such transferee(s) shall first execute and deliver to the
Company an Instrument of Adherence in the form of EXHIBIT A attached hereto,
which executed Instrument of Adherence shall become a part of this Agreement
upon acceptance by the Company. However, if such Transfer is not consummated
within such 90-day period, the Transferring Shareholder shall not
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transfer any of the Offered Securities as have not been purchased within such
period without again complying with all of the provisions of this Section 1.
(d) PERMITTED TRANSFERS. This Section 1 shall not bar (i) a Transfer of
Shares by Bain Securities to Xxxx Capital or to any of Xxxx & Company's or Xxxx
Capital's respective employees or affiliates (the "BAIN TRANSFEREES"), (ii) a
transfer of shares by any Shareholder to a member of such Shareholder's
immediate family or to a trust or limited partnership the beneficiaries or
limited partners of which are members of such Shareholder's immediate family, or
(iii) a Transfer by a Shareholder that is a partnership or a limited liability
company to any constituent partner of member of such entity (such Bain
Transferees, trust, family members (including the estate of a Shareholder or any
other person acquiring Shares by reason of a Shareholder's death), partner or
member being referred to herein as "PERMITTED TRANSFEREES"), PROVIDED, however,
that, prior to the effectiveness of any such Transfer, any such Permitted
Transferee must execute an Instrument of Adherence in the form of EXHIBIT A
annexed hereto, which executed Instrument of Adherence shall thereupon become a
part of this Agreement; provided further that each such Permitted Transferee
make appropriate representations to the Company regarding their suitability as
an investor in a private placement of securities.
2. PREEMPTIVE RIGHTS
(a) RIGHT OF FIRST OFFER. Except as otherwise set forth in Section
2(d), the Company will not offer any equity securities, or securities
convertible into, or options, warrants, or other rights to purchase such equity
securities (collectively, the "NEW SECURITIES") to any person without first
providing each holder of any shares of Class B Common Stock or Preferred Stock
who qualifies as an "accredited investor" as defined in Regulation D promulgated
pursuant to the Securities Act of 1933, as amended (the "SECURITIES ACT," and
such a holder being referred to hereinafter as a "QUALIFYING HOLDER"), the right
to subscribe for his, her or its Preemptive Proportionate Percentage (as such
term is defined in Section 2(e) below) of such New Securities for cash at a
price and on such other terms as shall have been specified by the Company in
writing delivered to each Qualifying Holder (the "PREEMPTIVE OFFER"). Any
Preemptive Offer by its terms shall remain open and irrevocable for a period of
fifteen (15) calendar days from the date it is dispatched by the Company to each
Qualifying Holder (the "PREEMPTIVE PERIOD"). The Preemptive Offer shall also
certify that the Company has either (a) received a firm offer from a prospective
purchaser, who shall be identified in such certification, so that the Company in
good faith believes a binding agreement of sale is obtainable for consideration
having a fair market, cash equivalent, or present value set forth in such
certification; or (b) intends to make an offering of its securities at the price
and on the terms set forth in such certification.
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(b) ACCEPTANCE OF NEW SECURITIES. Notice of each Qualifying Holder's
intention to accept, in whole or in part, a Preemptive Offer shall be evidenced
by a writing signed by such Qualifying Holder and delivered to the Company prior
to the end of the fifteen (15) calendar day period of such Preemptive Offer (the
"NOTICE OF ACCEPTANCE"), setting forth such portion of the New Securities as
such Qualifying Holder elects to purchase and such other matters as the Company
may reasonably request for purposes of determining whether any person is a
Qualifying Holder. For the purpose of avoiding fractions as to New Securities,
the President of the Company (or in his or her absence any other officer of the
Company) may adjust upward or downward by not more than one full share the
number of New Securities which any Qualifying Holder would otherwise be entitled
to purchase.
(c) RIGHT OF COMPANY TO SELL REFUSED SECURITIES. In the event that the
Qualifying Holders elect not to purchase all of the New Securities, the Company
shall have 120 days from the expiration of the Preemptive Period to sell all or
any part of the New Securities, if any, not accepted by any of the Qualifying
Holders (the "REFUSED SECURITIES") to the parties (or their affiliates)
identified in the Preemptive Offer, but only upon terms and conditions in all
material respects, including, without limitation, price per share, time or
method of payment, and interest rate (if payment is to be made over time), which
are no more favorable, in the aggregate, to such other party or parties or less
favorable to the Company than those set forth in the Preemptive Offer.
Simultaneously with the closing of the sale of Refused Securities to such other
parties, the Qualifying Holders shall purchase from the Company and the Company
shall sell to each such Qualifying Holders the New Securities in respect of
which a Notice of Acceptance was delivered to the Company, upon the terms
specified in the Preemptive Offer. The Company may withdraw the Preemptive Offer
at any time prior to such closing.
(d) EXCEPTIONS TO RIGHT OF FIRST OFFER. Notwithstanding anything to the
contrary stated above, the rights of the Qualifying Holders under this Section 2
shall not apply to (a) the issuance of shares of the Company's capital stock in
an underwritten public offering (a "QUALIFIED PUBLIC OFFERING") pursuant to an
effective registration statement under the Securities Act covering the offer and
sale of capital stock of the Company to the public resulting in not less than
$7,500,000 of net proceeds to the Company or (b) the issuance of any shares of
Common Stock to employees, directors, consultants or advisers of the Company, or
to persons who were to become employees, directors, consultants or advisers of
the Company pursuant to stock option, stock incentive, stock appreciation, stock
bonus or compensation rights plans or any other employee benefit plans presently
in effect or which may hereafter be adopted by the Company, or pursuant to stock
option, employment, consulting, restricted stock or other
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agreements or arrangements of any kind, provided that in no event shall the
number of such shares of Common Stock referred to in this clause (b) exceed
4,500,000 shares, or (c) the issuance by the Company of Preferred Stock to TLP
Leasing Programs, Inc. ("TLP") pursuant to those certain warrants issued by the
Company to TLP as of September 10, 1997 and June 8, 1998, or (d) any shares of
Common Stock issued or issuable upon conversion of Preferred Stock, or (e)
equity securities issued in connection with the acquisition of at least fifty
percent (50%) of the voting securities of another corporation, controlling
interest in another business entity, or all or substantially all of the assets
of another corporation or business entity, or (f) equity securities issued for
no consideration as dividends or pursuant to stock splits, or (g) equity
securities issued in connection with a joint venture in which the Company is a
participant, or to customers, distributors, licensees or other commercial
partners of the Company pursuant to a license, marketing or distribution
agreement to which the Company is party, if such issuance does not exceed fifty
percent (50%) of the aggregate amount of equity securities of the Company then
outstanding (on fully diluted, common stock equivalent basis).
(e) PREEMPTIVE PROPORTIONATE PERCENTAGE. The term "PREEMPTIVE
PROPORTIONATE PERCENTAGE" shall mean, as to a Qualifying Holder, that percentage
figure which expresses the ratio which (a) the number of shares of outstanding
Class A Common Stock then held of record by such Qualifying Holder (assuming the
conversion into shares of Class A Common Stock of all shares of Class B Common
Stock and Preferred Stock then held of record by such Qualifying Holder) bears
to (b) the aggregate number of shares of Class A Common Stock which are then
held by Qualifying Holders exercising their rights under this Section 2
(assuming the conversion into shares of Class A Common Stock of all then
outstanding shares of Class B Common Stock and Preferred Stock).
3. VOTING.
(a) NUMBER AND ELECTION OF DIRECTORS. In connection with the submission
to the shareholders of the Company of any proposal to fix the number of
directors that shall serve on the Company's Board of Directors or to elect
directors, whether such proposal is submitted at an annual or special meeting of
shareholders of the Company or by written consent of shareholders in lieu of a
meeting, each Shareholder shall vote all of its, her or his Shares to elect as a
director of the Company any Nominee or Nominees designated pursuant to, and in
accordance with, the provisions of Section 3(b) below. In addition, so long as
Xxxx Capital is the record owner of at least one (1) share of Preferred Stock,
it shall be entitled to appoint one (1) representative who shall receive notice
of and may attend all meetings of the Board of Directors or any committee
thereof
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as an observer, and shall be provided copies of all materials provided to, and
any written consents of, the Board of Directors.
(b) DESIGNATION OF NOMINEES. The Company and the Shareholders shall
cause the Company to have such number of directors as may be determined, from
time to time, by the Company's Board of Directors. The following persons (each a
"DESIGNATING PARTY") shall have the right to designate the following numbers of
nominees for election as directors of the Company (collectively, the "NOMINEES"
and each individually a "NOMINEE"): Xxxx Xxxxxx - one (1) Nominee (which Nominee
initially shall be himself); Xxxxxx XxxxxxXxxx - one (1) Nominee (which Nominee
initially shall be himself); Seruus Telecom Fund, L.P. - one (1) Nominee (which
Nominee initially shall be Xxxxxxx X. Xxxxxx); Xxxxxxx Xxxxxxxx - one (1)
Nominee (which Nominee initially shall be himself); Bain Securities - one (1)
Nominee (which Nominee initially shall be Xxxxxx Xxxxxx); Xxxxxxx River
Ventures, as a Series B Investor - one (1) Nominee (which Nominee shall
originally be Xxxxx Xxxxxx); and Menlo Ventures, as a Series B Investor - one
(1) Nominee (which Nominee shall originally be Xxxx Xxxxx). In the absence of
any designation by a Designating Party, the person or persons previously
designated by such Designating Party and then serving as a director or directors
of the Company shall be deemed to be such Designating Party's Nominee or
Nominees, as the case may be.
(c) REMOVAL; VACANCIES.
(i) At the request of any Designating Party (for any reason
whatsoever), each Shareholder shall vote all of its Shares, whether at a meeting
of shareholders or by written consent of the shareholders in lieu of a meeting,
to effect the removal of such Designating Party's Nominee or Nominees.
(ii) In the event that any person shall cease to serve as a
director of the Company for any reason whatsoever, such person's Designating
Party shall be entitled to designate a successor. Each Shareholder hereby agrees
to use its best efforts, including, without limitation the voting all of such
Shareholder's Shares (whether at a meeting of shareholders or by written consent
of shareholders in lieu of a meeting), to cause such successor Nominee to be
elected to the Board of Directors of the Company.
(d) BEST EFFORTS. Each Shareholder hereby agrees to use its best
efforts to cause compliance with all of the provisions of this Section 3,
including, without limitation, by the Company, its officers, employees, and
agents.
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4. COVENANTS OF THE COMPANY.
(a). AFFIRMATIVE COVENANTS.
(i) FINANCIAL STATEMENTS AND OTHER INFORMATION. The
Company shall furnish to each Preferred Shareholder:
(A) as soon as available and in any event
within 45 days after the end of the first, second and third quarterly accounting
periods in each fiscal year of the Company, an unaudited balance sheet of the
Company as at the end of such period and the related unaudited statements of
operations, stockholders' equity and changes in cash flow of the Company for
such period and (in the case of the second and third quarterly periods) for the
period from the beginning of the current fiscal year to the end of such
quarterly period;
(B) as soon as available and in any event
within 90 days after the end of each fiscal year of the Company, an audited
balance sheet of the Company as at the end of such fiscal year and the related
audited statement of operations, stockholder's equity and changes in cash flow
of the Company for such fiscal year, accompanied by the report thereon of a firm
of independent public accountants of recognized national standing selected by
the Company, which report (I) shall state that the examination by such
accountants in connection with such financial statements has been made in
accordance with generally accepted auditing standards and (II) shall include the
opinion of such accountants that such financial statements have been prepared in
accordance with generally accepted accounting principles, except as otherwise
specified in such opinion;
(C) as soon as available and in any event
within 30 days after the end of each month, an unaudited balance sheet of the
Company as at the end of such month and the related unaudited statements of
operations, stockholders' equity and changes in cash flows of the Company for
such month and for the current fiscal year to the end of such month;
(D) as soon as available, but in any event
within 30 days after commencement of each new fiscal year, a business plan and
annual budget for such fiscal year; and
(E) with reasonable promptness, such other
notices, information and data with respect to the Company as the Company
delivers to the holders of its Common Stock, and such other information and data
as any Preferred Shareholder may from time to time reasonably request,
including, without limitation the following: (i) monthly billed minutes of use
(received every three months) (ii) monthly revenue per minute billed (received
every three months) and (iii) aged accounts receivable on a quarterly basis.
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(ii) BOOKS AND RECORDS; INSPECTION. The Company shall maintain
proper books of record and account which present fairly in all material respects
its financial condition and results of operations and make provision on its
financial statements for all such proper reserves as in each case are required
in accordance with GAAP, consistently applied. From and after the date of this
Agreement, the Company will permit any authorized representative of any
Preferred Shareholder to visit and inspect any of the properties of the Company,
to examine its and their books, reports, records and papers (and make copies
thereof and take extracts therefrom) and to discuss its and their affairs,
finances and accounts with, and to be advised as to the same by, its and their
officers, all at such reasonable times as such Preferred Shareholder may
reasonably request during normal business hours and following reasonable notice
to the Company.
(iii) USE OF PROCEEDS. The Company will use the proceeds of
the offering of shares of Series C Preferred Stock for working capital and other
general corporate purposes.
(iv) PAYMENT OF TAXES. The Company will pay and discharge
promptly, or cause to be paid and discharged promptly, when due and payable, all
taxes, assessments and governmental charges or levies imposed upon it or upon
its income or upon any of its property, real, personal and mixed, or upon any
part thereof, as well as all claims of any kind (including claims for labor,
materials and supplies), which, if unpaid, might by law become a lien or charge
upon its property; PROVIDED, however, that the Company shall not be required to
pay any tax, assessment, charge, levy or claim if the amount, applicability or
validity thereof shall currently be contested in good faith by appropriate
proceedings and if the Company shall have set aside on its books reserves deemed
by it adequate with respect thereto.
(v) CORPORATE EXISTENCE. The Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence, and material rights and franchisees, PROVIDED, however,
that nothing in this section shall (A) prevent the abandonment or termination of
the Company's authorization to do business in any foreign state or jurisdiction
if, in the opinion of the Company's Board of Directors, such abandonment or
termination is in the interest of the Company or (B) require compliance with any
law so long as the validity or applicability thereof shall be disputed or
contested in good faith.
(vi) NOTICE OF DEFAULT. The Company shall give written notice
to the Preferred Shareholders of the occurrence of (i) any default or event of
default under any material agreement of the Company (potentially involving in
excess of $20,000) promptly upon the occurrence thereof or (ii) of any event or
condition
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which would have a material adverse effect on the Company's financial condition
or operations.
(vii) NOTICE OF LITIGATION. The Company shall give notice, in
writing, to the Preferred Shareholders of (i) any actions, suits or proceedings
wherein the amount at issue is in excess of $25,000 instituted by any person,
entity or agency against the Company or affecting any of the assets of the
Company and (ii) any dispute, not resolved within 60 days of the commencement
thereof, between the Company on the one hand and any governmental regulatory
body on the other hand, which dispute might materially interfere with the normal
operations of the Company.
(viii) COMPENSATION. Compensation of the Company's executive
officers (including stock option and stock grants) shall be approved by the
Board of Directors.
(ix) QUALIFIED SMALL BUSINESS STOCK. The Company shall, for so
long as any shares of Series C Preferred Stock are held by the initial purchaser
thereof (or a transferee of such purchaser in whose hands such shares are
eligible to qualify as qualified small business stock ("QUALIFIED SMALL BUSINESS
STOCK") as defined in Section 1202(c) of the Internal Revenue Code of 1986, as
amended (the "CODE")), (a) use its reasonable best efforts to cause such shares
to qualify as Qualified Small Business Stock (provided, however, that the
Company does not covenant that it will at any time or from time to time use, or
use its reasonable best efforts to cause to be used, at least 80% (by value) of
the assets of the Company in the active conduct of one or more qualified trades
or businesses, as specified by Section 1202(e) of the Code), (b) submit to the
Shareholders and the Internal Revenue Service any reports that may be required
under Section 1202(d)(1)(C) of the Code and any related regulations of the
United States Treasury Department promulgated thereunder, (c) deliver to any
Shareholder who has first delivered to the Company a written request therefor a
certificate advising such Shareholder as to whether such Shareholder's shares of
capital stock of the Company then constitute Qualified Small Business Stock.
(b) NEGATIVE COVENANTS.
(i) TRANSACTIONS WITH AFFILIATES. The Company shall not enter
into any transaction with any director, officer, employee or holder of more than
5% of the outstanding capital stock of any class or series of capital stock of
the Company, member of the family of such person, or any corporation,
partnership, trust or other entity in which any such person, or member of the
family of such person, is a director, officer, trustee, partner or holder of
more than 5% of the outstanding capital stock thereof, EXCEPT for (A)
transactions approved by a
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majority of the disinterested members of the Board of Directors and (B)
transactions approved by the Board of Directors (including, but not limited to,
the purchase and sale of securities of the Company) in which such person's
participation is substantially identical to that of other persons not bearing
such relationship to the Company.
(ii) MERGER, CONSOLIDATION, OR SALE OF ASSETS. The Company
shall not enter into any agreement for the merger or consolidation of the
Company with or into another entity (except one in which the holders of capital
stock of the Company immediately prior to such merger or consolidation continue
to hold at least a majority of the voting power of the surviving entity) or the
sale of all or substantially all of the assets of the Company without the
written consent of the holders of record of at least 60% of the outstanding
shares of Preferred Stock (voting as a single class).
(iii) DIVIDENDS; REDEMPTIONS; ETC. The Company shall not
declare or pay any dividend of any kind (other than stock dividends payable to
all holders of any class of capital stock), in cash or in property, on any class
of the capital stock of the Company, or purchase, redeem, retire or otherwise
acquire for value any shares of such stock, nor make any distribution of any
kind in cash or property in respect thereof, nor make any return of capital of
shareholders, nor make any payments in cash or property in respect of any stock
options, stock bonus or similar plan without the written consent of holders of
record of at least 60% of the outstanding shares of Preferred Stock (voting as a
single class).
(iv) ISSUANCE OF DEBT. The Company shall not issue or incur
debt (except commercial financing in the ordinary course of business) without
the written consent of holders of record of at least 60% of the outstanding
shares of Preferred Stock (voting as a single class).
5. LEGEND ON CERTIFICATE.
In order to effectuate the terms of this Agreement, each certificate of
stock issued to each of the Shareholders evidencing ownership of Shares shall
bear upon its face a legend substantially as follows:
"The shares of stock evidenced by this certificate are subject
to certain restrictions on their transfer contained in a certain Second
Amended and Restated Shareholders' Agreement, dated as of July ___,
1999, to which the Corporation is a party. The Corporation will furnish
a copy of such agreement to the holder of this certificate upon written
request and without charge."
6. [deleted]
-13-
7. LOCK-UP AGREEMENTS.
Each of the Shareholders hereby agree that, at the written request of
the Company or any managing underwriter of the initial public offering of
securities of the Company, such Shareholder shall not, without the prior written
consent of the Company or such managing underwriter, sell, make any short sale
of, loan, grant any option for the purchase of, pledge, encumber, or otherwise
dispose, or exercise any registration rights with respect to any Common Stock
during the 180-day period commencing on the effective date of the registration
statement relating to such initial public offering of the Company's securities;
PROVIDED, that each officer or director of the Company and each holder of at
least 1% of its Common Stock (for this purpose, calculated on a fully diluted
basis assuming full exercise of all outstanding options, warrants, and other
rights to acquire shares of Common Stock and full conversion or exchange of all
securities that are convertible into or exchangeable for shares of Common Stock)
shall have entered into a similar agreement; FURTHER, PROVIDED, that such
agreements shall provide that any discretionary waiver or termination of the
restrictions imposed thereby shall apply to all persons subject thereto on a pro
rata basis (determined according to the number of shares of Common Stock,
assuming the conversion of all outstanding shares of Preferred Stock, subject to
such agreements); and FURTHER, PROVIDED, that the foregoing agreement shall not
apply to any shares acquired by any Shareholder (i) in such initial public
offering or (ii) in any non-issuer transaction after the effective date of such
offering.
8. MISCELLANEOUS.
(a) NOTICES. All notices, requests, consents, and other communications
hereunder shall be in writing and shall be deemed effectively given and received
upon delivery in person, or one business day after delivery by national
overnight courier service or by telecopier transmission with acknowledgment of
transmission receipt, or three business days after deposit via certified or
registered mail, return receipt requested, in each case addressed as follows:
(i) if to the Company, to:
VIP Calling, Inc.
00 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxx Xxxxxx
President
-14-
with a copy to:
Xxxxxxx Xxxx LLP
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Fax: 000-000-0000
Attention: Xxxxx X. Xxxxx, Esq.
(ii) if to a Shareholder, to the address or addresses of such
Shareholder set forth on the Instrument of Adherence to this Agreement executed
and delivered to the Company by such Shareholder;
or, in any such case, at such other address or addresses as shall have been
furnished in writing by such party to the other.
(b) TERMINATION. This Agreement, except for Sections 4(a)(ix) and 7,
shall terminate on the occurrence of any of the following events:
(i) bankruptcy, receivership or dissolution of the Company or sale
of all or substantially all of the capital stock or assets of
the Company, or merger by the Company with another Company in
which the Company is not the surviving entity;
(ii) the closing of a Qualified Public Offering;
(iii) as to any individual Shareholder, when he or her and his or
her executors and administrators no longer own any Shares; or
(iv) the execution of a written agreement of (i) the Company; (ii)
Shareholders holding of record at least sixty percent (60%) of
the shares of Common Stock then outstanding and (iii)
Shareholders holding of record at least sixty percent (60%) of
the shares of Preferred Stock then outstanding.
(c) BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of the parties hereto, their heirs, legal representatives,
successors and assigns.
(d) ENTIRE AGREEMENT. This Agreement amends and restates and supersedes
in its entirety the Existing Agreement. This Agreement constitutes the sole and
entire agreement of the parties with respect to the subject matter hereof.
(e) ENFORCEABILITY. If any of the terms, provisions or conditions of
this Agreement or the application thereof in any circumstances shall, to any
extent,
-15-
be invalid or unenforceable, the remainder of this Agreement and the application
of such term, provision or condition to circumstances other than those to which
it is held invalid or unenforceable shall not be affected thereby, and each of
the terms, provisions and conditions of this Agreement shall be valid and
enforceable to the fullest extent permitted by law.
(f) GOVERNING LAW. This Agreement shall be governed by and construed
and interpreted in accordance with the internal substantive laws of the
Commonwealth of Massachusetts, without regard to conflicts or choice of law
provisions.
(g) NO WAIVER. No assent, express or implied, by the Company or any
Shareholder to any breach in or default of any agreement or condition herein
contained on the party of any other Shareholder shall constitute a waiver of or
assent to any succeeding breach in or default of the same or any other agreement
or condition hereof.
(h) INTERPRETATION. In this Agreement, the use of any of the three
genders shall be deemed to include the other two. Furthermore, any notices,
consents, offers, or other actions required by a Shareholder that is not a
natural person, shall be deemed to apply and refer to the trustee or other then
authorized individual of such Shareholder at the time of such notice, consent,
offer or other action.
(i) AMENDMENT. No amendment or modification of this Agreement shall be
valid unless the same is in writing and signed by (i) the Company, (ii)
Shareholders holding of record at least sixty percent (60%) of the shares of
Common Stock then outstanding, and (iii) Shareholders holding of record at least
sixty percent (60%) of the shares of Preferred Stock then outstanding; PROVIDED,
HOWEVER, that any amendment to Section 1(c)(ii) or Section 3 shall not require
the consent of Common Shareholders specified in clause (ii) of this Section
8(i).
(j) HEADINGS. The headings in this Agreement are for convenience of
identification only, do not constitute a part hereof, and shall not affect the
meaning or construction hereof.
(k) SEVERABILITY. If any provision of this Agreement shall be declared
void or unenforceable by a judicial or administrative authority, the validity of
any other provision and of the entire Agreement shall not be affected thereby.
(m) COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which when executed shall be deemed an original and all of
which, taken together, shall constitute one and the same agreement. In
-16-
making proof of this Agreement it shall not be necessary to produce or account
for more than one such counterpart.
[SIGNATURE PAGE TO FOLLOW]
-17-
IN WITNESS WHEREOF, this Second Amended and Restated Shareholders'
Agreement has been executed under seal by the parties hereto as of the day and
year first above written.
VIP CALLING, INC. XXXXXXX RIVER VIII-A LLC
By: Xxxxxxx River Friends VII, Inc.,
Manager
By: /s/ Xxxx Xxxxxx By: /s/ Xxxxx Xxxxxx
--------------------------- --------------------------------
Xxxx Xxxxxx, President Name:
Title:
/s/ Xxxx Xxxxxx MENLO VENTURES VII, L.P.
------------------------------ By: MV Management VII, L.L.C.,
Xxxx Xxxxxx its General Partner
/s/ Xxxxxx X. XxxxxxXxxx By: /s/ Xxxx Xxxxxx
------------------------------ -----------------------------------
Xxxxxx X. XxxxxxXxxx Name: Xxxx Xxxxxx
Title: Managing Member
XXXXXXX RIVER LIMITED MENLO ENTREPRENEURS
PARTNERSHIP VIII, A FUND VII, L.P.
Limited Partnership By: MV Management VII, L.L.C.,
By: Xxxxxxx River VIII GP its General Partner
Limited Partnership, General Partner
By: /s/ Xxxxx Xxxxxx By: /s/ Xxxx Xxxxxx
------------------------------ -----------------------------------
Name: Name: Xxxx Xxxxxx
Title: Title: Managing Member
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
6,404 shares (the " Shares") of Series C Convertible Preferred
Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
INTEGRAL CAPITAL PARTNERS IV
MS SIDE FUND, L.P.
By: Integral Capital partners NBT, LLC,
Its Manager
By: /s/ Xxxxxx Xxxxxxx
-------------------------------
A Manager
Address: 0000 Xxxx Xxxx Xxxx
----------------------------------
Xxxxx Xxxx, Xx 00000
----------------------------------
Fax No.: 000-000-0000
----------------------------------
Date: July 12, 1999
----------------------------------
Accepted:
VIP CALLING, INC.
By:
----------------------------
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
1,137,761 shares (the " Shares") of Series C Convertible
Preferred Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
INTEGRAL CAPITAL PARTNERS IV, L.P.
By: Integral Capital Management IV, LLC,
Its General Partner
By: /s/ Xxxxxx Xxxxxxx
------------------------------
A Manager
------------------------------
Address: 0000 Xxxx Xxxx Xxxx
---------------------------------
Xxxxx Xxxx, Xx 00000
---------------------------------
Fax No.: 000-000-0000
---------------------------------
Date: July 12, 1999
------------------------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
2,288 shares (the " Shares") of Series C Convertible Preferred
Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
Name of Shareholder: Xxxxx X. Xxxxxxx
----------------------
Signature: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Address: 00 Xxxxxx Xxxxxx
--------------------------------
Xxxxxx, Xx 00000
--------------------------------
Fax No.: (000) 000-0000
----------------------------------
Date: July 16, 1999
-------------------------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------------
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
51,487 shares (the " Shares") of Series C Convertible
Preferred Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
Name of Shareholder: Porky Partners II, LLC
--------------------------
Signature: /s/ Xxx X. Xxxxxxx,
------------------------------------
Manager and Authorized Agent
------------------------------------
Address: 000 Xxxxxx Xxxx, Xxxxx 000
------------------------------------
Xxxxxxxxxx, XX 00000
------------------------------------
Fax No.: (000) 000-0000
------------------------------------
Date: 7-16-99
------------------------------------
Accepted:
VIP CALLING, INC.
By:
------------------------------------
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
4,805 shares (the " Shares") of Series C Convertible Preferred
Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
Name of Shareholder: Xxxxx X. Xxxx
------------------------
Signature: /s/ Xxxxx X. Xxxx
----------------------------------
Address: 0000 Xxxxxx Xxxxx
----------------------------------
Xxxxx, XX 00000
----------------------------------
----------------------------------
Fax No.: (000) 000-0000
----------------------------------
Date: 7/16/99
----------------------------------
Accepted:
VIP CALLING, INC.
By:
----------------------------
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
___________ shares (the " Shares") of Series C Convertible
Preferred Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
Name of Shareholder: Dirigo Partners, LLC
-----------------------
Signature: /S/ Xxxxx Xxxx
---------------------------------
Address: 000 Xxxxx Xxxx Xx
-----------------------------------
Xxxxxxxx XX 00000
-----------------------------------
-----------------------------------
Fax No.: 000-000-0000
-----------------------------------
Date:
-----------------------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
13,730 shares (the " Shares") of Series C Convertible
Preferred Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
Name of Shareholder: Xxxx Xxxxxxxxxx
-----------------------
Signature:/s/ Xxxx Xxxxxxxxxx
---------------------------------
Address: 0000 Xxxx Xxxx
-----------------------------------
Xxxx Xxxx, XX 00000
-----------------------------------
-----------------------------------
Fax No.: 000-000-0000
-----------------------------------
Date: July 13, 1999
--------------------------------------
Accepted:
VIP CALLING, INC.
By:
----------------------------
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
9,153 shares (the " Shares") of Series C Convertible Preferred
Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
Name of Shareholder: Xxxxxxx Xxxxxxx
---------------------
Signature: /s/ Xxxxxxx Xxxxxxx
--------------------------------
Address: 0 Xxxxx Xxx.
--------------------------------
Peakhurst
--------------------------------
NSW Australia
--------------------------------
Fax No.: 00-0-0000-0000
---------------------------------
Date: 6th July 1999
------------------------------------
Accepted:
VIP CALLING, INC.
By:
-----------------------------
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
1,144 shares (the " Shares") of Series C Convertible Preferred
Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
Name of Shareholder: Xxxxxxxxx X. Xxxxx
-------------------------
Signature: /S/ Xxxxxxxxx X. Pawel
-----------------------------------
Address: (Home) 00 Xxxxxxx Xx., Xxxxxx XX
-------------------------------------
(Work) 000 Xxxx Xxx., 00xx Xxxxx
-------------------------------------
X.X., XX 00000
-------------------------------------
Fax No.: 000-000-0000
-------------------------------------
Date: June 29, 1999
----------------------------------------
Accepted:
VIP CALLING, INC.
By:
------------------------
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
1,144 shares (the " Shares") of Series C Convertible Preferred
Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
Name of Shareholder: Xxxxxx X. Case III
-----------------------
Signature: /s/ Xxxxxx X. Case III
---------------------------------
Address: x/x Xxxxxxxxx & Xxxxx
-----------------------------------
One Xxxx Street, 18th Floor
-----------------------------------
Xxx Xxxxxxxxx, XX 00000
-----------------------------------
Fax No.: 000-000-0000
-----------------------------------
Date:
--------------------------------------
Accepted:
VIP CALLING, INC.
By:
------------------------------
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
1,144 shares (the " Shares") of Series C Convertible Preferred
Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
Name of Shareholder: Xxxx X. Xxxxxx
---------------------
Signature: /s/ Xxxx X. Xxxxxx
-------------------------------
Address: 0000 Xxxx Xx.
---------------------------------
Xxx Xxxxxxxxx, XX 00000
---------------------------------
---------------------------------
Fax No.: 915/000-0000
---------------------------------
Date: 6/29/99
------------------------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
1,144 shares (the " Shares") of Series C Convertible Preferred
Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
Name of Shareholder: Xxxxxxx X. Xxxxxxxx
------------------------
Signature: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Address: 00 Xxxxx Xxxx
------------------------------------
Xxxx, XX 00000
------------------------------------
------------------------------------
Fax No.: 000-000-0000
------------------------------------
Date: 6/29/99
---------------------------------------
Accepted:
VIP CALLING, INC.
By:
--------------------------
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
9,153 shares (the " Shares") of Series C Convertible Preferred
Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
XXXXXXXXX & XXXXX EMPLOYEE VENTURE
FUND, X.X. XX
By: H&Q VENTURE MANAGEMENT, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Tax Director, Attorney-in-Fact
Address: Xxx Xxxx Xx.
--------------------------------------
XX, XX 00000
--------------------------------------
Fax No.: (000) 000-0000
--------------------------------------
Date: 6/29/99
-----------------------------------------
Accepted:
VIP CALLING, INC.
By:
------------------------------
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
9,153 shares (the " Shares") of Series C Convertible Preferred
Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
Name of Shareholder: XXXXXXXXX & XXXXX CALIFORNIA
-----------------------------
Signature: /s/ Xxxxxx X. Xxxxxx
---------------------------------------
Tax Director, Attorney-in-Fact
Address: Xxx Xxxx Xx.
-----------------------------------------
XX XX 00000
-----------------------------------------
Fax No.: (000) 000-0000
-----------------------------------------
Date: 6/29/99
--------------------------------------------
Accepted:
VIP CALLING, INC.
By:
----------------------------
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
___________ shares (the " Shares") of Series C Convertible
Preferred Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
Name of Shareholder: Bayview Investors, LTD.
------------------------
Signature: /s/ Xxxx Xxxxx
----------------------------------
Address: 000 Xxxxxxxxxx Xx., Xxxxx 0000
------------------------------------
Xxx Xxxxxxxxx, XX 00000
------------------------------------
Attn: Xxxxxxxx Xxxxxxxx
------------------------------------
Fax No.: 000-000-0000
------------------------------------
Date: 6/29/99
---------------------------------------
Accepted:
VIP CALLING, INC.
By:
------------------------------
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
517,784 shares (the " Shares") of Series C Convertible
Preferred Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
Name of Shareholder: New Media Investors III,
-------------------------
LLC
-----
Signature: /s/ Xxxx Xxxxxxxxx
-----------------------------------
Address: c/o Bain & Company, Inc.
-------------------------------------
Xxxxxx, XX 00000
-------------------------------------
Fax No.: 000-000-0000
-------------------------------------
Date: June 29, 1999
----------------------------------------
Accepted:
VIP CALLING, INC.
By:
-----------------------------
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
___________ shares (the " Shares") of Series C Convertible
Preferred Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
Name of Shareholder: Xxxxx X. Xxxxx
----------------------
Signature: /s/ Xxxxx X. Xxxxx
--------------------------------
Address: c/o Xxxxxxx Xxxx LLP
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000 Xxxxxxx Xxxxxx
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Xxxxxx, XX 00000
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Fax No.: 000-000-0000
----------------------------------
Date: 6/28/99
-------------------------------------
Accepted:
VIP CALLING, INC.
By:
---------------------------
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
___________ shares (the " Shares") of Series C Convertible
Preferred Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
Name of Shareholder: Xxxxx X. Xxxxxxx
----------------------
Signature: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Address: 000 Xxxxxxx Xx.
----------------------------------
Xxxxxx, XX 00000
----------------------------------
----------------------------------
Fax No.: 000-000-0000
----------------------------------
Date:
-------------------------------------
Accepted:
VIP CALLING, INC.
By:
-------------------------------
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
71,034 shares (the " Shares") of Series C Convertible
Preferred Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
TCV III, L.P.,
a Delaware Limited Partnership
By: Technology Crossover Management III,
L.L.C.,
Its General Partner
By: /s/ R Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address: Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Date:
-------------------------------------
Accepted:
VIP CALLING, INC.
By:
------------------------------
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
14,955 shares (the " Shares") of Series C Convertible
Preferred Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
TCV III (GP),
a Delaware General Partnership
By: Technology Crossover Management III,
L.L.C.,
Its General Partner
By: /s/ R Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address: Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Date:
---------------------------------------
Accepted:
VIP CALLING, INC.
By:
------------------------------
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
1,888,010 shares (the " Shares") of Series C Convertible
Preferred Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
TCV III (Q), L.P.,
a Delaware Limited Partnership
By: Technology Crossover Management III,
L.L.C.,
Its General Partner
By: /s/ R Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address: Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Date:
--------------------------------------
Accepted:
VIP CALLING, INC.
By:
-------------------------------
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
85,498 shares (the " Shares") of Series C Convertible
Preferred Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
TCV III Strategic Partners, L.P.,
a Delaware Limited Partnership
By: Technology Crossover Management III,
L.L.C.,
Its General Partner
By: /s/ R Xxxxxx
-----------------------------------
Xxxxxx X. Xxxxxx
Chief Financial Officer
Address: Technology Crossover Ventures
00 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Technology Crossover Ventures
000 Xxxx Xxxxxx, Xxxxx 000
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
Date:
-------------------------------------
Accepted:
VIP CALLING, INC.
By:
------------------------------
EXHIBIT A
INSTRUMENT OF ADHERENCE
Reference is made to that certain Second Amended and Restated
Shareholders' Agreement dated as of July 12, 1999 (the "Agreement"), a copy of
which is attached hereto, among VIP Calling, Inc., a Delaware corporation (the
"Company"), and the Shareholders described therein (collectively, the
"Shareholders").
The undersigned, in order to become the owner or holder of:
______ shares (the "Shares") of Series C Convertible
Preferred Stock, par value $.001 per share, of the Company
hereby agrees that, by the undersigned's execution hereof, all of the Shares and
all other shares of capital stock of the Company that may from time to time be
owned or held by the undersigned, constitute shares subject to all the
applicable restrictions and conditions set forth in the Agreement. This
Instrument of Adherence shall take effect and shall become a part of the
Agreement immediately upon execution.
Executed as of the date set forth below under the laws of the
Commonwealth of Massachusetts.
Name of Shareholder: Xxxxxx X. Xxxxxxx
------------------
Signature: /s/ XXXXXX X. XXXXXXX
----------------------------
Address: 0000 Xxxxxx Xxx
-----------------------------
Xxxxx, XX 00000
-----------------------------
-----------------------------
Fax No.: 000-000-0000
-----------------------------
Date:
-------------------------------------
Accepted:
VIP CALLING, INC.
By:
------------------------------
