EXHIBIT 10.5
AMENDED AND RESTATED
INVESTORS AGREEMENT
This Investors Agreement (this "Agreement") dated as of November 17, 1999,
is by and among (i) VStream Incorporated, a Delaware corporation (the
"Company"), and (ii) the holders of the Company's Series B Preferred Stock,
Series C Preferred Stock and Series D Preferred Stock identified on the
signature pages hereto (the "Investors").
The holders of Series D Preferred and the Company are parties to a Series D
Preferred Stock Purchase Agreement of even date herewith (the "Purchase
Agreement"). The Series D Stockholders' obligations under the Purchase
Agreement are conditioned upon the execution and delivery of this Agreement by
all of the Investors and the Company.
Now, Therefore, in consideration of the mutual promises and covenants set
forth herein, the parties agree as follows:
Article I
Certain Definitions
As used in this Agreement, the following terms shall have the following
respective meanings:
"Affiliate" shall mean any person, entity or investment fund controlling,
controlled by or under common control with an Investor and any partner of an
Investor which is a partnership or a member of an Investor which is a limited
liability company.
"Certificate of Amendment" shall mean the Company's Certificate of
Amendment to its Certificate of Incorporation setting forth the rights,
preferences, privileges and restrictions of the Series A Preferred Stock, Series
B Preferred Stock, Series C Preferred Stock and Series D Preferred Stock.
"Commission" shall mean the Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
"Common Stock" shall mean the Company's Common Stock, $.001 par value per
share.
"Independent Third Party" means any person who, immediately prior to the
contemplated transaction, does not own in excess of 5% of the Company's Common
Stock, on a fully-diluted basis (a "5% Owner"), who is not controlling,
controlled by or under common control with any such 5% Owner and who is not the
spouse or descendent (by birth or adoption) of any such 5% Owner or a trust for
the benefit of such 5% Owner and/or such other persons.
"Investor Stock" shall mean (i) shares of Preferred Stock and Common Stock
owned by the Investors or any transferee thereof; (ii) shares of Common Stock
issued or issuable upon the conversion or exercise of any stock (including,
without limitation, the Series B Preferred Stock,
Series C Preferred Stock and Series D Preferred Stock) warrants, options or
other securities of the Company owned by the Investors or any transferee
thereof; and (iii) any shares of Common Stock issued as a dividend or other
distribution with respect to or in exchange for or in replacement of the shares
referenced in (i) and (ii) above.
"Permitted Transferee" shall mean with respect to an Investor, an Affiliate
of the Investor, a member of such Investor's immediate family, a trust
established for the benefit of members of such Investor's immediate family, or a
transferee of such Investor by will or the laws of intestate succession.
"Preferred Stock" shall mean, collectively, (i) the Series A Preferred
Stock; (ii) the Series B Preferred Stock; (iii) the Series C Preferred Stock.
and (iv) the Series D Preferred Stock.
"Public Offering" means any offering by the Company of its equity
securities to the public pursuant to an effective registration statement under
the Securities Act, or any comparable statement under any similar federal
statute then in force; provided that a Public Offering shall not include an
offering made in connection with a business acquisition or combination or an
employee benefit plan.
"Public Sale" means any sale of Investor Stock to the public pursuant to an
offering registered under the Securities Act or to the public through a broker,
dealer or market maker pursuant to the provisions of Rule 144 adopted under the
Securities Act.
"Qualified Public Offering" shall mean an underwritten public offering of
Common Stock resulting in proceeds to the Company of not less than $30 million
(prior to expenses and underwriting commissions) and at an offering price per
share equal to at least $8.00 (as appropriately adjusted for future stock
splits, stock dividends, recapitalizations and similar transactions affecting
the Common Stock).
"Rule 144" shall mean Rule 144 as promulgated by the Commission under the
Securities Act, as such Rule may be amended from time to time, or any similar
successor Rule that may be promulgated by the Commission.
"Sale of the Company" means the sale of the Company to an Independent Third
Party or group of Independent Third Parties pursuant to which such party or
parties acquire (i) capital stock of the Company possessing the voting power
under normal circumstances to elect a majority of the Company's board of
directors (whether by merger, consolidation or sale or transfer of the Company's
capital stock) or (ii) all or substantially all of the Company's assets
determined on a consolidated basis.
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"Securities Act" shall mean the Securities Act of 1933 (or any similar
successor federal statute), as amended, and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
"Series A Preferred Stock" shall mean the Company's Series A Convertible
Preferred Stock, $.01 par value per share.
"Series B Preferred Stock" shall mean the Company's Series B Convertible
Preferred Stock, $.01 par value per share.
"Series C Preferred Stock" shall mean the Company's Series C Convertible
Preferred Stock, $.01 par value per share.
"Series D Preferred Stock" shall mean the Company's Series D Convertible
Preferred Stock, $.01 par value per share.
Article II
Restrictions on Transfers of Investor Stock
2.1 Transfer of Investor Stock. No Investor shall sell, transfer, assign,
pledge or otherwise dispose of (a "Transfer") any interest in any Investor Stock
except pursuant to (i) a Public Sale, a Sale of the Company or any conversion
provisions of the Certificate of Amendment ("Exempt Transfers") or (ii) the
provisions of this Article II. Each Investor agrees not to consummate any
Transfer (other than an Exempt Transfer) until 30 days after the delivery to the
Company and the other Investors of such Investor's Offer Notice, unless the
parties to the Transfer have been finally determined pursuant to this Article II
prior to the expiration of such 30-day period (the "Election Period").
2.2 First Offer Right. At least 30 days prior to making any Transfer of any
Investor Stock (other than an Exempt Transfer) the transferring Investor (the
"Transferring Investor") shall deliver a written notice (the "Offer Notice") to
the Company and the other Investors (the "Other Investors"). The Offer Notice
shall disclose in reasonable detail the proposed terms and conditions of the
Transfer. First, the Company may elect to purchase all (but not less than all)
of the Investor Stock specified in the Offer Notice at the price and on the
terms specified therein by delivering written notice of such election to the
Transferring Investor and the Other Investors as soon as practical but in any
event within ten days after the delivery of the Offer Notice. If the Company has
not elected to purchase all of the Investor Stock within such ten-day period,
each Other Investor (or any Affiliate thereof) may elect to purchase all (but
not less than all) of its Pro Rata Share (as defined below) of the Investor
Stock specified in the Offer Notice at the price and on the terms specified
therein by delivering written notice of such election to the Transferring
Investor as soon as practical but in any event within 20 days after delivery of
the Offer Notice. Any Investor Stock not elected to be purchased by the end of
such 20-day period shall be
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reoffered for the ten-day period prior to the expiration of the Election Period
by the Transferring Investor on a pro rata basis to the Other Investors (or any
Affiliate thereof) who have elected to purchase their Pro Rata Share. If the
Company or any Other Investors have elected to purchase Investor Stock from the
Transferring Investor, the transfer of such shares shall be consummated as soon
as practical after the delivery of the election notices, but in any event within
15 days after the expiration of the Election Period. To the extent that the
Company and the Other Investors have not elected to purchase all of the Investor
Stock being offered, the Transferring Investor may, within 90 days after the
expiration of the Election Period, transfer such Investor Stock which has not
been purchased by the Company and the Other Investors (or any Affiliate thereof)
to one or more third parties at a price no less than the price per share
specified in the Offer Notice and on other terms no more favorable to the
transferees than offered to the Company and the Other Investors in the Offer
Notice. The purchase price specified in any Offer Notice shall be payable solely
in cash at the closing of the transaction or in installments over time. If the
Transferring Investor does not dispose of its Investor Stock within the 90-day
period after the expiration of the Election Period, it shall not subsequently
dispose of its Investor Stock except in accordance with the provisions of this
Article II. Each Investor's "Pro Rata Share" shall be based upon such Investor's
proportionate ownership of all Investor Stock held by all Investors (exclusive
of the Investor Stock held by the Transferring Investor) on a fully-diluted
basis.
2.3 Permitted Transfers. The restrictions contained in this Article II
shall not apply with respect to any Transfer of Investor Stock by any Investor
to its Permitted Transferees; provided that the restrictions contained in this
Article II shall continue to be applicable to the Investor Stock after any such
Transfer to a Permitted Transferee and provided further that, as a condition to
completing the transfer, the Permitted Transferees of such Investor Stock shall
agree in writing to be bound by the provisions of this Agreement affecting the
Investor Stock so transferred. In addition, the restrictions contained in this
Article II shall not apply with respect to any Transfer of Investor Stock by
Intel Corporation.
2.4 Termination of Restrictions. The restrictions set forth in this
paragraph 2 shall continue with respect to each share of Investor Stock until
the earlier of (i) the date on which such Investor Stock has been transferred in
a Public Sale, (ii) the date on which such Investor Stock has been transferred
pursuant to this Article II (other than Section 2.3), (iii) the consummation of
a Qualified Public Offering or (iv) the consummation of a Sale of the Company.
2.5 Legend. Each certificate evidencing Investor Stock and each certificate
issued in exchange for or upon the transfer of any Investor Stock (if such
shares remain Investor Stock after such transfer) shall be stamped or otherwise
imprinted with a legend in substantially the following form:
"The securities represented by this certificate are subject to an
Investors Agreement dated as of November 17, 1999, among the issuer of
such securities (the "Company") and certain of the
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Company's stockholders. A copy of such Investors Agreement will be
furnished without charge by the Company to the holder hereof upon
written request."
The Company shall imprint such legend on certificates evidencing Investor Stock
outstanding prior to the date hereof. The legend set forth above shall be
removed from the certificates evidencing any shares which cease to be Investor
Stock in accordance with Article II hereof.
2.6 Transfers in Violation of Agreement. Any Transfer or attempted Transfer
of any Investor Stock in violation of any provision of this Agreement shall be
void, and the Company shall not record such Transfer on its books or treat any
purported transferee of such Investor Stock as the owner of such shares for any
purpose.
Article III
Miscellaneous
3.1 Amendment and Waiver. Except as otherwise provided herein, no
modification, amendment or waiver of any provision of this Agreement shall be
effective against the Company or the Investors unless such modification,
amendment or waiver is approved in writing by the Company and the holders of at
least 66 2/3% of the shares of Investor Stock, respectively; provided that any
provision which requires a higher vote of holders of Investor Stock may not be
amended, waived or modified without the higher vote of holders of Investor
Stock; provided, further, that no modification, amendment or waiver which
adversely affects the interests of one Investor without a similar and
proportionate effect on the interests of all Investors may be made without the
consent of the Investor whose interests are so adversely affected. The failure
of any party to enforce any of the provisions of this Agreement shall in no way
be construed as a waiver of such provisions and shall not affect the right of
such party thereafter to enforce each and every provision of this Agreement in
accordance with its terms. In calculating the number of shares of Investor
Stock, any Investor Stock represented by the Preferred Stock shall equal the
number of shares of Common Stock issuable upon conversion of the Preferred
Stock.
3.2 Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality, or unenforceability shall not affect
any other provision or any other jurisdiction, but this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision had never been contained herein.
3.3 Entire Agreement. Except as otherwise expressly set forth herein, this
document embodies the complete agreement and understanding among the parties
hereto with respect to the subject matter hereof and supersedes and preempts any
prior understandings, agreements or
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representations by or among the parties, written or oral, which may have related
to the subject matter hereof in any way, including that certain Investor
Agreement dated as of May 28, 1998, as amended by and between the Company and
certain of the Investors.
3.4 Successors and Assigns. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Investors and any subsequent
holders of Investor Stock and the respective successors and assigns of each of
them, so long as they hold Investor Stock.
3.5 Counterparts. This Agreement may be executed in separate counterparts
each of which shall be an original and all of which taken together shall
constitute one and the same agreement.
3.6 Remedies. The Company and the Investors shall be entitled to enforce
their rights under this Agreement specifically to recover damages by reason of
any breach of any provision of this Agreement and to exercise all other rights
existing in their favor. The parties hereto agree and acknowledge that money
damages may not be an adequate remedy for any breach of the provisions of this
Agreement and that the Company and any Investor may in its sole discretion apply
to any court of law or equity of competent jurisdiction for specific performance
and/or injunctive relief (without posting a bond or other security) in order to
enforce or prevent any violation of the provisions of this Agreement.
3.7 Notices, Etc. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given:
(i) upon personal delivery to the party to be notified, (ii) when sent by
confirmed telex or facsimile if sent during normal business hours of the
recipient, if not, then on the next business day, (iii) five (5) days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (iv) one (1) day after deposit with a nationally recognized
overnight courier, special next day delivery, with verification of receipt. All
communications shall be sent to the Company at 0000 Xxxxxxx Xxxxxx, Xxxxx 000,
Xxxxxxx, Xxxxxxxx 00000 and to an Investor at the address reflected in the
Company's stock ledger or at such other address as such Investor shall have
furnished to the Company in writing.
3.8 Governing Law. The corporate law of Delaware shall govern all issues
concerning the relative rights of the Company and its stockholders. All other
questions concerning the construction, validity and interpretation of this
Agreement shall be governed by the internal law, and not the law of conflicts,
of Colorado. The parties hereto waive all right to trial by jury in any action
or proceeding to enforce or defend any rights under this Agreement.
3.9 Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience only and do not constitute a part of this Agreement.
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In Witness Whereof, the parties hereto have executed this Investors
Agreement effective as of the day and year first above written.
COMPANY:
VStream Incorporated
By: /s/
_________________________________
Title:______________________________
PURCHASERS
Centennial Fund V, L.P.
By: Centennial Holdings V, L.P.,
Its General Partner
By: /s/
_________________________________
a General Partner
Centennial Fund VI, L.P.
By: Centennial Holdings VI, LLC
Its General Partner
By: /s/
________________________________
Managing Principal
[Signature Page to Investors Agreement]
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Centennial Entrepreneurs Fund VI, L.P.
By: Centennial Holdings VI, LLC.
Its General Partner
By: /s/
___________________________________
Managing Principal
Centennial Holdings I, LLC
By: /s/
___________________________________
Its __________________________________
By: /s/
___________________________________
Title:________________________________
Softbank Technology Ventures IV, L.P.
By: STV IV LLC
By: /s/
___________________________________
Managing Director
Softbank Technology Advisors Fund, L.P.
By: STV IV LLC
By: /s/
___________________________________
Managing Director
Matsushita Electric Industrial Co., LTD
By: /s/
___________________________________
Title:________________________________
[Signature Page to Investors Agreement]
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Highland Capital Partners III Limited
Partnership
By: Highland Management Partners III Limited
Partnership
Its General Partner
By: /s/
___________________________________
Title:________________________________
Highland Entrepreneurs' Fund III Limited
Partnership
By: HEF III, LLC
Its General Partner
By: /s/
___________________________________
Title:________________________________
Intel Corporation
By: /s/
___________________________________
Title:________________________________
Excite, Inc.
By: /s/
___________________________________
Title:________________________________
Nexus Capital Partners, II, L.P.
By: /s/
___________________________________
Title:________________________________
[Signature Page to Investors Agreement]
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Porcelain Partners, L.P.
By: /s/
___________________________________
Its General Partner
By: /s/
___________________________________
Title:________________________________
GE Capital Equity Investments, Inc.
By: /s/
___________________________________
Title:________________________________
Asdale, Ltd.
By: /s/
___________________________________
Title:________________________________
Millennial Holdings, LLC
By: /s/
___________________________________
Title:________________________________
Whitko & Company
By: /s/
___________________________________
Title:________________________________
Pequot Private Equity Fund II, L.P.
By: Pequot Capital Management, Inc.
Its Investment Manager
By: /s/ Xxxxx Xxxxx
___________________________________
Xxxxx Xxxxx, Chief Financial Officer
[Signature Page to Investors Agreement]
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Vivendi
By: /s/
___________________________________
Title:________________________________
XXX Xxxxxxxxxxx
By: /s/
___________________________________
Title:________________________________
[Signature Page to Investors Agreement]
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XXXXXXXXX FAMILY TRUST
/s/ Xxxxxxx Xxxxxxxxx
_____________________________________
By: Xxxxxxx Xxxxxxxxx, Trustee
/s/ Xxxx X. Xxxxxxxxxx
_____________________________________
Xxxx X. Xxxxxxxxxx
/s/ Xxxxxxx Xxxx
_____________________________________
Xxxxxxx Xxxx
/s/ Xxxxxxx X. Xxxx
_____________________________________
Xxxxxxx X. Xxxx
/s/ Xxxx X. Xxxxx
_____________________________________
Xxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxxx
_____________________________________
Xxxxxxx X. Xxxxxxx
/s/ Xxxx X. Xxxxx, Xx.
_____________________________________
Xxxx X. Xxxxx, Xx.
[Signature Page to Investors Agreement]
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XXXXXXX, XXXXXXX & XXXXXXXX, LLP
_______________________________
By: /s/
_______________________________
Its: _______________________________
/s/ Xxxxx X. Xxxxxxxxxxx
____________________________________
Xxxxx X. Xxxxxxxxxxx
/s/ Xxxxxx X. Xxxxxxxxxxx
____________________________________
Xxxxxx X. Xxxxxxxxxxx
/s/ Xxx Xxxxxx
____________________________________
Xxx Xxxxxx
[Signature Page to Investors Agreement]
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