STOCKHOLDERS AGREEMENT
Exhibit 10.15
EXECUTION VERSION
THIS STOCKHOLDERS AGREEMENT (this “Agreement”) is made and entered into as of December
5, 2007 (the “Effective Date”), by and among Generations Holding, Inc., a Delaware
corporation (the “Company”), each of the Persons listed on Schedule I attached
hereto (the “Spectrum Group Stockholders”), each of the Persons listed on Schedule
II attached hereto or who otherwise agree to be bound by the provisions hereof as an Other
Stockholder by executing a joinder agreement (each such Person an “Other Stockholder” and
collectively, the “Other Stockholders”), and each of the Persons listed on Schedule
III attached hereto or who otherwise agree to be bound by the provisions hereof as a Management
Stockholder by executing a joinder agreement (each such Person a “Management Stockholder”
and collectively, the “Management Stockholders”) (the Spectrum Group Stockholders, the
Other Stockholders and the Management Stockholders are collectively referred to herein as the
“Stockholders,” and each as a “Stockholder”). Unless otherwise indicated herein,
capitalized terms used herein are defined in Section 12 hereof.
RECITALS
WHEREAS, the parties hereto desire to enter into this Agreement to establish the composition
of the Company’s board of directors (the “Board”), to restrict the sale, assignment,
transfer, encumbrance or other disposition of the Stockholder Shares (as defined below) and to
provide for certain rights and obligations in respect thereto as hereinafter provided.
AGREEMENT
NOW, THEREFORE, the parties hereto agree hereby as follows:
1. Voting Agreement and Proxy.
(a) From and after the Effective Date and until the provisions of this Section 1 cease
to he effective, each Stockholder shall vote all of its Stockholder Shares which are voting shares
and any other voting securities of the Company over which such Stockholder has voting control and
shall take all other necessary or desirable actions within such holder’s control (whether in such
holder’s capacity as a stockholder, director, member of a board committee or officer of the Company
or otherwise, and including, without limitation, attendance at meetings in person or by proxy for
purposes of obtaining a quorum and execution of written consents in lieu of meetings), and the
Company shall take all necessary or desirable actions within its control (including, without
limitation, calling special board and stockholder meetings), so that:
(i) the authorized number of directors on the Board shall be a number established by the
Spectrum Group Stockholders from time to time, which shall initially be four (4) members and shall
in no event be less than four (4) members;
(ii) the following persons shall be elected to the Board:
(A) two (2) representatives shall be designated by the Spectrum Group Stockholders (determined
on the basis of a vote of the holders of the majority of the Stockholder Shares held by the
Spectrum Group Stockholders), who shall initially be Xxxxxx X. Xxxxxx and Xxxxxxxx X. Xxxxx;
(B) the Chief Executive Officer of the Company; provided, that the person serving pursuant to
this clause (B) may be removed from the Board in connection with the cessation of such person’s
employment with the Company; and
(C) one representative shall be an independent director nominated by the Spectrum Group
Stockholders and reasonably acceptable to the Other Stockholders (determined on the basis of a vote
of the holders of the majority of the Stockholder Shares held by the Other Stockholders), which
shall initially be Xxxxx Xxxxxxxxxx; and
(iii) the removal from the Board (with or without cause) of any representative designated
hereunder by any party shall be at such party’s written request, but only upon such written request
and under no other circumstances (in each case, determined by the party entitled to designate any
such representative pursuant to this Section 1(a)).
(b) The rights of the Spectrum Group Stockholders to designate directors pursuant to
paragraphs 1(a)(ii)(A) and (C) above shall terminate at such time as the Spectrum Group
Stockholders collectively hold in the aggregate less than 20% of the Stockholder Shares purchased
by the Spectrum Group Stockholders on the date hereof.
(c) The Company shall reimburse the Board members or their designees reasonable travel
expenses and other reasonable out-of-pocket fees and expenses (including the reasonable fees and
expenses of accountants, attorneys and other advisors retained by the Board members) incurred in
connection with fulfilling their duties as Board members (or members of any committee of the Board)
or otherwise in connection with performing services on or for the benefit of the Company or
otherwise.
(d) Any vacancy on the Board existing on the date hereof or resulting from the increase in the
authorized number of directors comprising the Board shall be filled by the Spectrum Group
Stockholders.
(e) Each Stockholder hereby appoints Spectrum Equity Investors as its true and lawful proxy
and attorney-in-fact, with full power of substitution, to vote all of the capital stock of the
Company owned by it (whether now owned or hereafter acquired) with respect to the election of the
Board of the Company in order to implement the provisions of this Section 1. The proxy and
power of attorney granted herein shall be deemed to be coupled with an interest, shall be
irrevocable, and shall survive the death, disability, incompetency, bankruptcy, insolvency or
dissolution of any such Stockholder and the transfer of all or any portion of Stockholder Shares
held by such Stockholder and shall extend to the heirs, successors, assigns and personal
representatives of such Stockholder. Each such Stockholder will, from time to time as requested by
Spectrum Equity Investors, execute and deliver such further instruments, ancillary agreements or
other documents or take such other actions as may be necessary or
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advisable to give effect to, confirm, evidence or effectuate the purposes of the proxy granted
by this Section 1(d) and each other provision of this Agreement.
(f) The provisions of this Section 1 shall terminate automatically and be of no further force
and effect upon the earlier to occur of (i) the consummation of an Approved Sale and (ii) the
completion of a Public Offering.
2. Restrictions on Transfer of Stockholder Shares.
(a) Transfer of Stockholder Shares. No holder of Stockholder Shares (other than the
Spectrum Group Stockholders) may sell, transfer, assign, pledge, encumber or otherwise directly or
indirectly dispose of (a “Transfer”) any interest in any Stockholder Shares, including to
the Company or any of its Subsidiaries, without the prior written consent of the Spectrum Group
Stockholders holding a majority of the Spectrum Shares (the “Spectrum Holders”), except
Transfers pursuant to and in accordance with paragraphs 2(b), 2(c) or 5
below.
(b) Participation Rights.
(i) At least 30 days prior to any Transfer of shares of any class of Company Stock by any
Spectrum Group Stockholder for value (other than pursuant to a Spectrum Exempt Transfer or an
Approved Sale), the transferring member of the Spectrum Group Stockholders will deliver written
notice (the “Sale Notice”) to the Company and the Investor Stockholders (excluding the
Spectrum Group Stockholders), specifying in reasonable detail the identity of the prospective
transferee(s) (the “Proposed Purchaser”) and the terms and conditions of the Transfer.
Notwithstanding the restrictions contained in this Section 2, any or all of the Investor
Stockholders (excluding for purposes hereof the Spectrum Group Stockholders) may elect to
participate in the contemplated Transfer by delivering written notice (a “Tag-Along
Notice”) to the transferring Spectrum Group Stockholder within 10 days after delivery of the
Sale Notice. If no Tag-Along Notice is received by such Spectrum Group Stockholder within such 10
day period, then such Investor Stockholders shall have no right to participate in the Transfer, and
such Spectrum Group Stockholder shall have the right for a six-month period to transfer to the
Proposed Purchaser up to the number of shares of Company Stock stated in the Sale Notice, on terms
and conditions no move favorable to the Spectrum Group Stockholder than those stated in the Sale
Notice. If any Investor Stockholders (other than the Spectrum Group Stockholders) have elected to
participate in such Transfer, each of the transferring Spectrum Group Stockholders and such
participating Investor Stockholders will be entitled to sell in the contemplated Transfer, at the
same price and on the same terms, a number of shares of such class of Company Stock equal to the
product of (A) the quotient determined by dividing the number of shares of such class of Company
Stock owned by such person (calculated on a Fully Diluted Basis) by the aggregate number of shares
of such class of Company Stock owned by the transferring Spectrum Group Stockholders and the Other
Stockholders (each calculated on a Fully Diluted Basis) participating in such sale and (B) the
number of shares of such class of Company Stock to be sold in the contemplated Transfer.
Notwithstanding the foregoing, in the event that the transferring Spectrum Group Stockholder(s)
intend to Transfer shares of more than one class of Company Stock, then such Investor Stockholders
participating in such Transfer shall be required to sell in the contemplated Transfer a pro rata
portion of shares of all such classes of Company Stock (to the extent such participating Investor
Stockholders own any shares of such
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other classes of Company Stock), which portion shall be determined in the manner set forth
immediately above.
For example (by way of illustration only), if the Sale
Notice contemplated a sale of 100 shares of Company Stock by the
transferring Spectrum Group Stockholder, and if the transferring
Spectrum Group Stockholder at such time owns 30% of the Company
Stock and if only one Investor Stockholder elects to participate and
owns 20% of the Company Stock, the transferring Spectrum Group
Stockholder would be entitled to sell 60 shares (30% ÷ 50% x 100
shares) and such Investor Stockholder would be entitled to sell 40
shares (20% ÷ 50% x 100 shares).
(ii) The transferring Spectrum Group Stockholder will use reasonable efforts to obtain the
agreement of the prospective transferee(s) to the participation of such participating Investor
Stockholders in any contemplated Transfer, and the transferring Spectrum Group Stockholder will not
transfer any of its Company Stock to the prospective transferee(s) unless (A) simultaneously with
such Transfer, the prospective transferee or transferees purchase from such participating Investor
Stockholders the Company Stock which such participating Investor Stockholders are entitled to sell
to such prospective transferee(s) pursuant to paragraph 2(b)(i) above or (B) simultaneously
with such Transfer, the transferring Spectrum Group Stockholder purchases (on the same terms and
conditions on which such shares were sold to the transferee(s)) the number of shares of such class
of Company Stock from such participating Investor Stockholders which such participating Investor
Stockholders would have been entitled to sell pursuant to paragraph 2(b)(i) above. Each
such participating Investor Stockholder holding then-exercisable rights to acquire shares of a
class of Company Stock will be given a reasonable opportunity to exercise such rights prior to the
consummation of the contemplated Transfer.
(iii) The transferring Spectrum Group Stockholder and such participating Investor Stockholders
will hear their pro-rata share (based upon the number of shares sold by such Person of each class
of Company Stock in relation to the number of shares sold by all Persons in such Transfer of such
class of Company Stock (with each class to bear such expenses based upon the relative distribution
priorities and preferences of each such class in relation to the other)) of the out-of-pocket costs
of any Transfer pursuant to this Section 2(b) which are borne by the Spectrum Group
Stockholders to the extent such costs are incurred for the benefit of all Persons participating in
the Transfer and are not otherwise paid by the Company or the acquiring party. Costs incurred by
such Investor Stockholders participating in the Transfer on their own behalf will not be considered
costs of the Transfer hereunder.
(iv) In connection with the foregoing, such Investor Stockholder electing to participate in
such Transfer hereby appoints Spectrum Equity Investors as its true and lawful proxy and
attorney-in-fact, with full power of substitution, to transfer the Company Stock pursuant to the
terms of such Transfer and to execute any purchase agreement or other documentation required to
consummate such Transfer. Such Investor Stockholder agrees to execute and deliver any other
documentation reasonably required to consummate the Transfer pursuant to this Section 2(b).
Notwithstanding the foregoing, if such Investor Stockholder electing to participate in such
Transfer does not agree to execute and deliver or does not execute
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and deliver any documentation required by this Section 2(b) or otherwise requested by
the Spectrum Group Stockholder or the Proposed Purchaser in connection with the Transfer, such
investor Stockholder shall not be entitled to participate in the proposed transfer. The powers
granted herein shall be deemed to be coupled with an interest, shall be irrevocable and shall
survive death, incompetency or dissolution of any such Investor Stockholder.
(c) Permitted Transfers. The restrictions contained in paragraph 2(a) will not apply
to (i) a Public Sale, (ii) an Approved Sale, (iii) a Transfer of Stockholder Shares by any
Stockholder to an irrevocable living trust solely for the benefit of such Stockholder and such
Stockholder’s spouse and/or descendants or pursuant to the laws of descent and distribution, (iv) a
Transfer of Stockholder Shares by a Management Stockholder to a “Permitted Transferee” as
defined under any executive stock agreement or option agreement to which such Management
Stockholder is a party so long as such Transfer complies with the provisions of such executive
stock agreement or option agreement, (v) a Transfer pursuant to Section 2(b) above or (vi)
a Transfer of Stockholder Shares to any investment vehicle under common control with the holder of
such Stockholder Shares, so long as such investment vehicle remains under common control with the
transferring Stockholder for as long as it continues to own any Stockholder Shares;
provided that the restrictions contained in this Agreement will continue to apply to the
Stockholder Shares after any Transfer pursuant to clauses (iii) or (iv) above and the transferees
of such Stockholder Shares pursuant to such clauses shall agree in writing to be bound by the
provisions of this Agreement. Upon the Transfer of Stockholder Shares pursuant to clauses (iii) or
(iv) of this paragraph 2(c), the transferor will deliver a written notice to the Company
and the other parties to this Agreement, which notice will disclose in reasonable detail the
identity of such transferee.
(d) Termination of Restrictions. The rights and restrictions set forth in this
Section 2 will continue with respect to each Stockholder Share until the earlier of (i) the
date on which such Stockholder Share has been transferred in a Public Sale or (ii) the occurrence
of a Public Offering.
3. Bring-Along Right.
(a) Bring-Along Sale. If any Spectrum Group Stockholder seeks a Transfer of shares of
any class or series of Company Stock (other than a Transfer that would qualify as a Spectrum Exempt
Transfer or an Approved Sale) to a Proposed Purchaser that is an Independent Third Party or is the
Company, upon the request of such Spectrum Group Stockholder, each holder of Stockholder Shares
will sell to such Proposed Purchaser at the same price and on the same terms as such Spectrum Group
Stockholder, the number of shares of such class or series of Company Stock equal to the
product of (A) the quotient determined by dividing the number of shares of
such class or series of Company Stock that the Spectrum Group Stockholders propose to transfer
by the total number of shares of such class or series of Company Stock held by the
Spectrum. Group Stockholders, multiplied by (B) the number of shares of such class
or series of Company Stock then held by such holder of Stockholder Shares. Notwithstanding the
foregoing, in the event that the transferring Spectrum. Group Stockholder intends to transfer
shares of more than one class of Company Stock, each holder of Stockholder Shares shall be required
to sell in the contemplated transfer a pro rata portion of shares of all such classes of Company
Stock (to the extent such holders of Stockholder Shares own any shares of such other classes of
Company
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Stock), which portion shall be determined in the manner set forth immediately above. Each
holder of Stockholder Shares shall be obligated to join on a pro rata basis (based on the number of
shares of the applicable class or series of Company Stock to be transferred) in any indemnification
or other obligations that the Spectrum Group Stockholder is required to provide in connection with
the such transfer (other than any such obligations that related solely to a particular Stockholder,
such as indemnification with respect to representations and warranties given by a Stockholder
regarding such Stockholder’s title to and ownership of Stockholder Shares, in respect of which only
such Stockholder shall be liable); provided that no holder shall be obligated in connection
with such indemnification or other obligations with respect to any amount in excess of the
consideration received directly or indirectly by such holder in connection with such transfer.
Each holder of Stockholder Shares will take all necessary or desirable actions in connection with
the consummation of such transfer as requested by the Spectrum Group Stockholder.
(b) Bring-Along Notice. At least 20 days prior to making any Bring-Along Sale, the
Spectrum Group Stockholder shall, if it determines that the holders of Stockholder Shares shall
participate in such transfer, deliver each such holder written notice (the “Bring-Along
Notice”), specifying in reasonable detail the identity of the Proposed Purchaser and the terms
and conditions of the transfer.
(c) Costs. Each holder of Stockholder Shares will bear its pro-rata share (based upon
the number of shares sold by such holder of each class of Company Stock in relation to the number
of shares sold by all holders in such Bring-Along Sale (with each class to bear such expenses based
upon the relative distribution priorities and preferences of each such class in relation to the
other)) of the costs of any sale of Stockholder Shares pursuant to this Section 3 borne by
the Spectrum Group Stockholders to the extent such costs are incurred for the benefit of all
holders of Stockholder Shares and are not otherwise paid by the acquiring party. Costs incurred by
holders of Stockholder Shares on their own behalf will not be considered costs of the transaction
hereunder.
(d) Proxy. In connection with a transfer pursuant to this Section 3, each
holder of Stockholder Shares hereby appoints Spectrum Equity Investors as its true and lawful proxy
and attorney-in-fact, with full power of substitution, to transfer such Stockholder Shares pursuant
to the terms of such transfer and to execute any purchase agreement or other documentation required
to consummate such transfer. The proxy and power of attorney granted herein shall be deemed to be
coupled with an interest, shall be irrevocable and shall survive the death, disability,
incompetency, bankruptcy, insolvency or dissolution of any such holder of Stockholder Shares and
the transfer of all or any portion of Stockholder Shares held by such holder and shall extend to
the heirs, successors, assigns and personal representatives of such holder. Each holder of
Stockholder Shares will, from time to time as requested by Spectrum Equity Investors, execute and
deliver such further instruments, ancillary agreements or other documents or take such other
actions as may be necessary or advisable to consummate such transfer.
(e) Termination of Bring-Along Right. If a holder of Stockholder Shares receives its
proportionate share of the purchase price from a Bring-Along Sale, but has failed to deliver
certificates (or other documentation, if applicable) representing its shares as described in
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this Section 3, it shall have no voting rights, shall not be entitled to dividends or
other distributions and shall have no other rights or privileges granted to stockholders under
applicable law or this Agreement with respect to such shares. The provisions of this Section
3 shall terminate upon the occurrence of a Public Offering.
4. Preemptive Rights.
(a) If the Company or any of its Subsidiaries proposes to issue and sell any of its equity
securities or any securities containing options or rights to acquire any equity securities or any
securities convertible into equity securities to any Person, the Company will offer to sell to each
Investor Stockholder a portion of the number or amount of such securities proposed to be sold in
any such transaction or series of related transactions equal to the product of the
percentage each such Investor Stockholder holds of all Company Stock then held by aft of the
Stockholders by the number of securities proposed to be issued and sold by the Company in
any such transaction or series of related transactions, all for the same price and upon
substantially the same terms and conditions (taking into account and in a manner consistent with
the relative size of the investment by each of the Investor Stockholders) as the securities that
are being offered to such Person in such transaction or series of transactions; provided
that if Stockholders entitled to purchase or receive such stock or securities are required to also
purchase other securities of the Company, the Investor Stockholders exercising their rights
pursuant to this Section 4 shall also be required to purchase the same strip of securities
(on the same terms and conditions) that such other stockholders are required to purchase.
(b) Notwithstanding the foregoing, the provisions of this Section 4 shall not be
applicable to the issuance of equity securities (i) upon the conversion of shares of one class of
capital stock into shares of another class, (ii) as a stock dividend or any stock split or other
subdivision or combination of the outstanding equity securities, (iii) in any transaction in
respect of a security that is offered to all Investor Stockholders on a pro rata basis, (iv) as
consideration in connection with a business acquisition or a strategic partnership, (v) pursuant to
a debt financing from a bank, institutional lender or similar financial institution, (vi) pursuant
to a commercial lending transaction with a leasing entity, (vii) in connection with the grant or
exercise of stock or options to employees or directors of the Company or any of its Subsidiaries or
(viii) in a public offering pursuant to a registration statement filed with, and declared effective
by, the Securities and Exchange Commission pursuant to the Securities Act; and further, the
provisions of this Section 4 shall terminate upon completion of a Public Offering.
(c) The Company will cause to be given to the Investor Stockholders a written notice setting
forth in reasonable detail the terms and conditions upon which the Investor Stockholders may
purchase such shares or other securities (the “Preemptive Notice”). After receiving a
Preemptive Notice, any Investor Stockholder wishing to exercise the preemptive rights granted by
this Section 4 must give notice to the Company in writing, within 30 days after the date
that such Preemptive Notice is deemed given pursuant to Section 21, that such Investor
Stockholder irrevocably agrees to purchase the shares or other securities offered pursuant to this
Section 4 on the date of sale to such Person (the “Preemptive Reply”). If any
Investor Stockholder fails to make a Preemptive Reply in accordance with this Section, shares or
other securities offered to such Investor Stockholder in accordance with this Section may
thereafter, for a period not exceeding 90 days following the expiration of such 30-day period, be
issued,
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sold or subjected to rights or options to any Spectrum Group Stockholder or any Person at a
price not less than the price at which they were offered to the Investor Stockholders and on other
terms and conditions no more favorable to the purchasers thereof than those offered to the Investor
Stockholders. Any such shares or other securities not so issued, sold or subjected to rights or
options to any Spectrum Group Stockholder or any Person during such 90 day period will thereafter
again be subject to the preemptive rights provided for in this Section 4. Except as set
forth in this Section 4, the Investor Stockholders shall have no other preemptive rights
with respect to the issuance or sale of equity securities by the Company.
5. Sale of the Company.
(a) If the Spectrum Holders approve (and, in the case of any sale or other fundamental change
which requires the approval of the board of directors of a Delaware corporation pursuant to the
Delaware General Corporation Law, the Board shall have approved such sale) a sale of all or
substantially all of the Company’s assets determined on a consolidated basis or a sale of a
majority of the Company’s outstanding capital stock (whether by merger, recapitalization,
consolidation, reorganization, combination or otherwise) to any Independent Third Party or group of
Independent Third Parties (collectively an “Approved Sale”), the Company shall deliver
written notice to the Stockholders setting forth in reasonable detail the terms and conditions of
the Approved Sale (including, to the extent then determined, the consideration to be paid with
respect to each class of the Company’s capital stock). Each holder of Stockholder Shares will
consent to and raise no objections against such Approved Sale. If the Approved Sale is structured
as (i) a merger or consolidation, each holder of Stockholder Shares will waive any dissenter’s
rights, appraisal rights or similar rights in connection with such merger or consolidation or (ii)
sale of stock (including by recapitalization, consolidation, reorganization, combination or
otherwise), each holder of Stockholder Shares will agree to sell all of its Stockholder Shares and
rights to acquire Stockholder Shares on the terms and conditions approved by the Board and such
Spectrum Holders. Each holder of Stockholder Shares shall he obligated to join, severally and not
jointly, on a pro rata basis (based on the number of shares of the applicable class or series of
Company Stock to be sold) in any indemnification or other obligations that the sellers of
Stockholder Shares are required to provide in connection with the Approved Sale (other than any
such obligations that relate solely to a particular Stockholder, such as indemnification with
respect to representations and warranties given by a Stockholder regarding such Stockholder’s title
to and ownership of Stockholder Shares being sold, in respect of which only such Stockholder shall
be liable); provided that no holder shall be obligated in connection with such
indemnification or other obligations with respect to any amount in excess of the consideration
received directly or indirectly by such holder in connection with such transfer (including a pro
rata portion of any indebtedness of the Company discharged at the closing of such Approved Sale).
Each holder of Stockholder Shares will take all requested or desirable actions in connection with
the consummation of the Approved Sale as requested by the Spectrum Group Stockholders.
(b) The obligations of the holders of Company Stock with respect to an Approved Sale are
subject to the satisfaction of the following conditions: (i) upon the consummation of the Approved
Sale, each holder of Company Stock will receive the same form of consideration and the same portion
of the aggregate consideration that such holders of Company Stock would have received if such
aggregate consideration had been distributed by the
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Company in complete liquidation pursuant to the rights and preferences set forth in the
Company’s Certificate of Incorporation as in effect immediately prior to such Approved Sale; (ii)
if any holders of a class of Company Stock are given an option as to the form and amount of
consideration to be received, each holder of such class of Company Stock will be given the same
option and (iii) each holder of then currently exercisable rights to acquire shares of a class of
Company Stock will be given an opportunity to exercise such rights prior to the consummation of the
Approved Sale and participate in such sale as holders of such class of Company Stock.
(c) If the Company or the holders of the Company’s securities enter into any negotiation or
transaction for which Rule 506 (or any similar rule then in effect) promulgated by the Securities
and Exchange Commission may be available with respect to such negotiation or transaction (including
a merger, consolidation or other reorganization), the holders of Stockholder Shares will, at the
request of the Company, appoint a purchaser representative (as such term is defined in Rule 501
promulgated by the Securities and Exchange Commission) reasonably acceptable to the Company. If
any holder of Stockholder Shares appoints a purchaser representative designated by the Company, the
Company will pay the fees of such purchaser representative, but if any holder of Stockholder Shares
declines to appoint the purchaser representative designated by the Company, such holder will
appoint another purchaser representative, and such holder will be responsible for the fees of the
purchaser representative so appointed.
(d) Each holder of Stockholder Shares will bear its pro-rata share (based upon the number of
shares sold by such holder of each class of Company Stock in relation to the number of shares sold
by all holders in such Approved Sale of such class of Company Stock (with each class to bear such
expenses based upon the relative distribution priorities and preferences of each such class in
relation to the other)) of the out-of-pocket costs of any sale of Stockholder Shares pursuant to an
Approved Sale which are borne by the Spectrum Group Stockholders to the extent such costs are
incurred for the benefit of all holders of Stockholder Shares and are not otherwise paid by the
Company or the acquiring party. Costs incurred by holders of Stockholder Shares on their own
behalf will not be considered costs of the transaction hereunder.
(e) In connection with an Approved Sale, each holder of Stockholder Shares (other than CIT
Lending Services Corporation) hereby appoints Spectrum Equity Investors as its true and lawful
proxy and attorney-in-fact, with full power of substitution, to transfer such Stockholder Shares
pursuant to the terms of such Approved Sale and to execute any purchase agreement or other
documentation required to consummate such Approved Sale. The powers granted herein shall be deemed
to be coupled with an interest, shall be irrevocable and shall survive death, incompetency or
dissolution of any such holder of Stockholder Shares.
(f) The provisions of this Section will terminate upon the earlier to occur of (i) the
consummation of an Approved Sale and (ii) completion of a Public Offering.
6. Public Offering. If the Board and the Spectrum Holders approve a Public Offering,
the holders of Stockholder Shares will take all necessary or desirable actions at the Company’s
expense in connection with the consummation of the Public Offering. If such Public Offering is an
underwritten offering and the managing underwriters advise the Company in
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writing that in their opinion the Company Stock structure will adversely affect the
marketability of the offering, each holder of Stockholder Shares will consent to and vote for a
recapitalization, reorganization and/or exchange of the Company Stock into securities that the
managing underwriters, the Board and the Spectrum Holders find acceptable and will take all
necessary or desirable actions in connection with the consummation of the recapitalization,
reorganization and/or exchange; provided that the resulting securities reflect and are
consistent with the rights and preferences set forth in the Company’s Certificate of Incorporation
as in effect immediately prior to such Public Offering.
7. Information Rights. The Company shall deliver to any Stockholder who owns shares
of Common Stock representing at least 5.0% of the Company’s Common Stock on a Fully Diluted Basis
copies of the quarterly and annual financial reports of the Company in such form as such reports
are required to be delivered to the Company’s senior lenders pursuant to that certain Credit and
Guaranty Agreement, dated as of December 5, 2007 (as amended from time to time, the “Credit
Agreement”), by and among the Company, as borrower, the Guarantors from time to time party
thereto, the Lenders from time to time party thereto, CIT Lending Services Corporation, as
Administrative Agent, and the other parties listed on the signature pages thereto, as soon as
available but in any event within 30 days after the date upon which such reports must be delivered
to the Company’s senior lenders in accordance with the Credit Agreement. Following any termination
of the Credit Agreement, the Company shall continue to deliver to any Stockholder who owns shares
of Common Stock representing at least 5.0% of the Company’s Common Stock on a Fully Diluted Basis
copies of quarterly and annual financial reports of the Company in form and substance substantially
similar to those that were delivered pursuant to the Credit Agreement.
8. Legend. Each certificate evidencing Stockholder Shares and each certificate issued
in exchange for or upon the Transfer of any Stockholder Shares (if such shares remain Stockholder
Shares as defined herein after such Transfer) will be stamped or otherwise imprinted with a legend
in substantially the following form:
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN TRANSFER RESTRICTIONS PURSUANT TO A STOCKHOLDERS AGREEMENT
DATED AS OF DECEMBER 5, 2007, BY AND AMONG THE ISSUER OF SUCH
SECURITIES (THE “COMPANY”) AND CERTAIN OF THE COMPANY’S
STOCKHOLDERS. A COPY OF SUCH STOCKHOLDERS AGREEMENT WILL BE
FURNISHED WITHOUT CHARGE BY THE COMPANY TO THE HOLDER HEREOF UPON
WRITTEN REQUEST.”
The Company will imprint such legend on certificates evidencing Stockholder Shares. The legend set
forth above will be removed from the certificates evidencing any shares which cease to be
Stockholder Shares in accordance with Section 12 hereof.
(b) Upon the request of any Stockholder, the Company will promptly supply to such Stockholder
or its prospective transferees all information regarding the Company
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required to be delivered in connection with a Transfer pursuant to Rule 144A of the Securities
and Exchange Commission.
(c) If any Stockholder Shares become eligible for sale pursuant to Rule 144(k) of the
Securities and Exchange Commission or no longer constitute “restricted securities” (as defined
under Rule 144(a) of the Securities and Exchange Commission), the Company shall, upon the request
of the holder of such Stockholder Shares, remove the legend set forth in Section 8(a) above
from the certificates for such securities.
9. Transfer. Prior to Transferring any Stockholder Shares (other than in a Public
Sale, a Transfer by a participating Investor Stockholder pursuant to Section 2(b) or in an
Approved Sale) to any Person, the transferring Stockholder will cause the prospective transferee to
execute and deliver to the Company and the other Stockholders a counterpart of this Agreement. The
provisions of this Section 9 shall terminate upon the earlier to occur of (i) the
consummation of an Approved Sale and (ii) completion of a Public Offering.
10. Executives. The Company shall require any executive employee of the Company or
any of its Subsidiaries who acquires securities of the Company or any Subsidiary to execute a
counterpart to this Agreement or otherwise agree to be bound by the terms of this Agreement.
11. Limitation on Duties.
(a) Subject to Section 11(b) below, in the event that any of Investor Stockholders or
any of their respective Affiliates, partners, members, officers, employees, directors or agents
acquires knowledge of a potential transaction or other matter that may be a corporate opportunity
for the Company or any of its Subsidiaries, such person shall have no duty (contractual or
otherwise) to communicate or present such corporate opportunity to the Company or its subsidiaries
and, notwithstanding any provision of this Agreement to the contrary, shall not be liable to the
Company, its Subsidiaries or any of its Affiliates for breach of any duty (contractual or
otherwise) by reason of the fact that such person directly or indirectly pursues or acquires such
opportunity for itself, directs such opportunity to another person, or does not present such
opportunity to the Company, its Subsidiaries or any of its Affiliates.
(b) The Investor Stockholders and their respective Affiliates shall have the right to, and
shall have no duty (contractual or otherwise) not to, directly or indirectly, (i) engage in the
same or similar business activities or lines of business as the Company or its Subsidiaries, and
(ii) do business with any client or customer of the Company or its Subsidiaries; provided,
however, that so long as any Stockholder (other than CIT Lending Services Corporation,
Hercules Technology Growth Capital, Inc. or Xxxxxxxx Media, Inc. or any of their respective
Affiliates) continues to own Company Stock, such Stockholder and its Affiliates shall not, directly
or indirectly, hold an investment in, own, manage or control any business or entity that is a
Competitor to the Company or its Subsidiaries without the prior written consent of the Spectrum
Group Stockholders (determined on the basis of a vote of the holders of the majority of the
Stockholder Shares held by the Spectrum Group Stockholders). For the avoidance of doubt, if a
business or entity that is a Competitor to the Company or its Subsidiaries that was previously
approved by the Spectrum Group Stockholders (in terms of it being owned, managed or
11
controlled by an Investor Stockholder or its Affiliates) proposes to engage in an acquisition
of, investment in or other relationship granting it management or control, or engage in a joint
venture or partnership arrangement with, a business or entity that is also a Competitor to the
Company or its Subsidiaries, a separate approval from the Spectrum Group Stockholders shall be
required for such acquisition, joint venture or partnership arrangement.
12. Definitions.
“Affiliate” of a Stockholder means any other Person controlling, controlled by or
under common control with the Stockholder and, in the case of a Stockholder which is a partnership
or a limited liability company, any partner or member, respectively, of the Stockholder. For
purposes of this definition, control of a Person shall mean the ownership of greater than 10% of
the equity securities of such Person on a fully-diluted basis.
“Certificate of Incorporation” means the Company’s certificate of incorporation in
effect at the time as of which any determination is being made.
“Common Stock” means the Company’s Common Stock, par value $0.01 per share.
“Company Stock” means, collectively, the Common Stock and any other class or series of
shares of capital stock hereafter created by the Company.
“Competitor” means any Person a significant portion of whose business is, in the good
faith judgment of the Board, directly or indirectly competitive with a material portion of the
business of the Company.
“Fully Diluted Basis” means without duplication, all shares of Company Stock issued or
issuable directly or indirectly upon the exercise or exchange of all outstanding options, warrants
or similar rights, excluding outstanding options that are Out of the Money or not then exercisable
or fully vested.
“Independent Third Party” means any Person who (together with its Affiliates),
immediately prior to the contemplated transaction, does not own in excess of 10% of the Company
Stock on a fully-diluted basis (a “10% Owner”), who is not an Affiliate of any such 10%
Owner and who is not the spouse or descendant (by birth or adoption), parent or dependent of any
such 10% Owner or a trust for the benefit of such 10% Owner and/or such other Persons.
“Investor Stockholders” means the Spectrum Group Stockholders and the Other
Stockholders.
“Merger Agreement” means that certain Agreement and Plan of Merger, dated as of
October 10, 2007, by and among the Company, Xxxxx Acquisition Corporation, The Generations Network,
Inc. and Xxxxx X. Xxxx.
“Other Stockholder Shares” means (i) any Company Stock received by the Other
Stockholders pursuant to the Merger Agreement or otherwise acquired by any of the Other
Stockholders, and (ii) any equity securities issued or issuable directly or indirectly with respect
12
to the Company Stock referred to in clause (i) by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation or other
reorganization.
“Out of the Money” means, in the case of an option, that the fair market value per
share of the shares of Company Stock which the holder thereof is entitled to purchase or subscribe
for is less than the exercise price per share of such option.
“Person” means an individual, a partnership, a corporation, an association, a joint
stock company, a trust, a joint venture, a limited liability company, an entity, an investment
fund, an unincorporated organization and a governmental entity or any department, agency or
political subdivision thereof.
“Public Offering” means an initial public offering by the Company of its capital stock
to the public effected pursuant to an effective registration statement under the Securities Act, or
any comparable statement under any similar United States federal statute then in effect.
“Public Sale” means any sale of Stockholder Shares to the public pursuant to an
offering registered under the Securities Act, to the public through a broker, dealer or market
maker pursuant to the provisions of Rule 144 adopted under the Securities Act or pursuant to the
provisions of Rule 144(k) adopted under the Securities Act.
“Securities Act” means the Securities Act of 1933, as amended from time to time.
“Securities and Exchange Commission” includes any governmental body or agency
succeeding to the functions thereof
“Spectrum Equity Investors” means Spectrum Equity Investors V, L.P., a Delaware
limited partnership.
“Spectrum Exempt Transfer” means (i) a Transfer among the Spectrum Group Stockholders
or their Affiliates or to an employee of the Company or any of its Subsidiaries or any member of
the Board, (ii) a Transfer to any stockholder, member or partner of any Spectrum Group Stockholder
(and any subsequent transfers by such stockholders, member, or partners to the extent the
transferee is a stockholder, member or partner of any Spectrum Group Stockholder), (iii) a sale of
Company Stock by a Spectrum Group Stockholder in a Public Sale, or (iv) one or more Transfers
within the first year following the Effective Date to Persons of any class or series of Company
Stock representing, in the aggregate with all other Transfers effected pursuant to this clause
(iv), not more than 20% of the shares of such class or series of Company Stock held by the Spectrum
Group Stockholder; provided, however, that the restrictions contained in this
Agreement will continue to apply to the Spectrum Shares after any Transfer pursuant to clauses (i)
or (ii) above and the transferees of such Spectrum Shares pursuant to such clauses shall agree in
writing to be bound by provisions of this Agreement as a Spectrum Group Stockholder if such
transferee is an Affiliate of the transferring Spectrum Group Stockholder or as an Other
Stockholder if such transferee is not an Affiliate of such Spectrum Group Stockholder.
13
“Spectrum Shares” means (i) any Company Stock received by the Spectrum Group
Stockholders pursuant to the Merger Agreement (ii) any equity securities otherwise acquired by the
Spectrum Group Stockholders and (iii) any equity securities issued or issuable directly or
indirectly with respect to the Company Stock referred to in clauses (i) or (ii) by way of stock
dividend or stock split or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization.
“Stockholder Shares” means the Spectrum Shares, the Other Stockholder Shares and any
Company Stock owned directly or indirectly by the Management Stockholders. As to any particular
shares constituting Stockholder Shares, such shares will cease to be Stockholder Shares when they
have been (x) effectively registered under the Securities Act and disposed of in accordance with
the registration statement covering them, or (y) sold to the public through a broker, dealer or
market maker pursuant to Rule 144 (or by similar provision then in force) under the Securities Act.
“Subsidiary” means with respect to any Person, any corporation, partnership, limited
liability company, association or other business entity of which (i) if a corporation, a majority
of the total voting power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination
thereof, or (ii) if a partnership, limited liability company, association or other business entity,
a majority of the partnership, membership or other similar ownership interest thereof is at the
time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of
that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to
have a majority ownership interest in a partnership, limited liability company, association or
other business entity if such Person or Persons shall be allocated a majority of partnership,
limited liability company, association or other business entity gains or losses or shall be or
control the managing director or general partner of such partnership, limited liability company,
association or business entity.
13. Transfers in Violation of Agreement. Any Transfer or attempted Transfer of any
Stockholder Shares in violation of any provision of this Agreement will be void, and the Company
will not record such Transfer on its books or treat any purported transferee of such Stockholder
Shares as the owner of such shares for any purpose.
14. Amendment and Waiver. Except as otherwise provided herein, no modification,
amendment or waiver of any provision of this Agreement (including the schedules hereto) will be
effective against the Company or the Stockholders unless such modification, amendment or waiver is
approved in writing by the Company and the Spectrum Group Stockholders; provided that if
such amendment or waiver would adversely affect a holder or group of holders of Stockholder Shares
in a manner different than any other holders of Stockholder Shares, then such amendment or waiver
will require the consent of such holder of Stockholder Shares or a majority of the Stockholder
Shares held by such group of holders adversely affected; provided, further, that
the addition of any Person as a party hereto (as a member of the Spectrum Group Stockholders or
otherwise) pursuant to the execution of a joinder to all or any portion of this Agreement shall not
constitute a modification, amendment or waiver of this Agreement. The failure of any party to
enforce any of the provisions of this Agreement
14
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. The Company will give prompt written notice to the Stockholders of any amendments,
modifications, or waivers of the provisions of this Agreement. The failure of any party to enforce
any of the provisions of this Agreement will in no way be construed as a waiver of such provisions
and will not affect the right of such party thereafter to enforce each and every provision of this
Agreement in accordance with its terms.
15. Severability. Whenever possible, each provision of this Agreement will 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 will
not affect any other provision or the effectiveness or validity of any provision in any other
jurisdiction, and this Agreement will be reformed, construed and enforced in such jurisdiction as
if such invalid, illegal or unenforceable provision had never been contained herein.
16. Additional Parties; Joinder. The Company may permit any Person who acquires
Company Stock or rights to acquire Company Stock after the date hereof (the “Acquired
Shares”) to become a party to this Agreement and to succeed to all of the rights and
obligations of a “holder of Stockholder Shares” under this Agreement by obtaining an executed
joinder to this Agreement from such Person in a form acceptable to the Company. Upon the execution
and delivery of the joinder by such Person, such Person’s Acquired Shares shall be Stockholder
Shares hereunder, and such Person shall be a “holder of Stockholder Shares” under this Agreement
with respect to the Acquired Shares.
17. Entire Agreement. Except as otherwise expressly set forth herein, this Agreement,
that certain Contribution Agreement dated as of the date hereof between the Company and the
purchasers party thereto (the “Contribution Agreement”) and that certain Registration
Rights Agreement dated as of the date hereof between the Company and certain of its stockholders
(the “Registration Rights Agreement”) embody the complete agreement and understanding among
the parties hereto with respect to the subject matter hereof and supersede and preempt any prior
understandings, agreements or representations by or among the parties, written or oral, which may
have related to the subject matter hereof in any way.
18. Prior Agreements. The parties hereto hereby agree and acknowledge that this
Agreement replaces, preempts and supersedes any similar agreements among the stockholders of the
Company or any of its Subsidiaries entered into prior to the date hereof, including, without
limitation, that certain Amended and Restated Consolidated Stockholder Rights Agreement, dated as
of January 7, 2005, by and among The Generations Network, Inc. f/k/a XxXxxxxx.xxx, Inc., an
indirect, wholly owned subsidiary of the Company, and its stockholders.
19. Successors and Assigns. Except as otherwise provided herein, this Agreement will
bind and inure to the benefit of and be enforceable by the Company and its successors and assigns
and the Stockholders and any subsequent holders of Stockholder Shares and the respective successors
and assigns of each of them, so long as they hold Stockholder Shares.
15
20. Counterparts. This Agreement may be executed in separate counterparts each of
which will be an original and all of which taken together will constitute one and the same
agreement.
21. Remedies. 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 each
Stockholder will have the right to seek injunctive relief, in addition to all of its rights and
remedies at law or in equity, to enforce the provisions of this Agreement. Nothing contained in
this Agreement will be construed to confer upon any Person who is not a signatory hereto or any
successor or permitted assign of a signatory hereto any rights or benefits, as a third party
beneficiary or otherwise.
22. Notices. Any notice provided for in this Agreement will be in writing and will be
either personally delivered, or delivered by certified mail, return receipt requested, or sent by
reputable overnight courier service (charges prepaid) to the address set forth below or at any
address listed in the Company’s records, or at such address or to the attention of such other
person as the recipient party has specified by prior written notice to the sending party. Notices
will be deemed to have been given hereunder when delivered personally, three days after deposit in
the U.S. mail and one day after deposit with a reputable overnight courier service.
To the Company:
Generations Holding, Inc.
c/o Spectrum Equity Investors
000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
c/o Spectrum Equity Investors
000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
With a copy to:
Spectrum Equity Investors
000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
And to:
Xxxxxxxx & Xxxxx LLP
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Breach, Esq.
Facsimile: (000) 000-0000
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Breach, Esq.
Facsimile: (000) 000-0000
16
If to any member of the Spectrum Group Stockholders:
Spectrum Equity Investors
000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxxx & Xxxxx LLP
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Breach, Esq.
Facsimile: (000) 000-0000
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Breach, Esq.
Facsimile: (000) 000-0000
If to any member of the Other Stockholders:
At the address listed on Schedule II
If to any member of the Management Stockholders:
At the address listed on Schedule III.
23. Governing Law. The corporate law of the State of Delaware shall govern all issues
and questions concerning the relative rights and obligations of the Company and its stockholders.
All other issues concerning the enforceability, validity and binding effect of this Agreement will
be governed by and construed in accordance with the laws of the State of Delaware, without giving
effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware
or any other jurisdiction) that would cause the application of the law of any jurisdiction other
than the State of Delaware,
24. Descriptive Headings. The descriptive headings of this Agreement are inserted for
convenience only and do not constitute a part of this Agreement.
*****
17
IN WITNESS WHEREOF, the parties hereto have executed this Stockholders Agreement on the day
and year first written above.
| GENERATIONS HOLDING, INC. |
||||
| By: | /s/ Xxxxxx X. Xxxxxx | |||
| Xxxxxx X. Xxxxxx | ||||
| Chief Executive Officer and President | ||||
| SPECTRUM GROUP STOCKHOLDERS: | ||||||
| SPECTRUM EQUITY INVESTORS V, L.P. | ||||||
| By: | Spectrum Equity Associates V, L.P. | |||||
| Its: | General Partner | |||||
| By: | SEA V Management, LLC | |||||
| Its: | General Partner | |||||
| By: | /s/ Xxxxxx X. Xxxxxx
|
|||||
| Xxxxxx X. Xxxxxx | ||||||
| Managing Director | ||||||
| SPECTRUM V INVESTMENT MANAGERS’ FUND, L.P. | ||||||
| By: | SEA V Management, LLC | |||||
| Its: | General Partner | |||||
| By: | /s/ Xxxxxx X. Xxxxxx
|
|||||
| Xxxxxx X. Xxxxxx Managing Director |
||||||
| SPECTRUM ONLINE PARTNERS, LLC | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx
|
|||||
| Xxxxxx X. Xxxxxx | ||||||
| Authorized Signatory | ||||||
| OTHER STOCKHOLDERS: | ||||||
| CSFB STRATEGIC PARTNERS III VC HOLDINGS, L.P. | ||||||
| By: | DLJ MB Advisors, Inc. | |||||
| Its: | Indirect General Partner | |||||
| By: | /s/ Xxxxx Xxxx
|
|||||
| Xxxxx Xxxx Vice President |
||||||
| INDUSTRY VENTURES FUND IV, L.P. | ||||||
| By: | Industry Ventures Management IV, L.L.C. | |||||
| Its: | General Partner | |||||
| By: | /s/ Xxxx X. Swildens
|
|||||
| Xxxx X. Swildens | ||||||
| Managing Member | ||||||
| INDUSTRY VENTURES ACQUISITION FUND, L.P. | ||||
| By: | Industry Ventures Management IV, L.L.C. | |||
| Its: | General Partner | |||
| By: | /s/ Xxxx X. Swildens | |||
| Xxxx X. Swildens | ||||
| Managing Member | ||||
| INDUSTRY VENTURES DIGITAL, L.L.C. | ||||
| By: | Industry Ventures Management IV, L.L.C. | |||
| By: | Industry Ventures Fund IV, L.P. | |||
| By: | Industry Ventures Acquisition Fund, L.P. | |||
| By: | /s/ Xxxx X. Swildens | |||
| Xxxx X. Swildens | ||||
| Managing Member | ||||
(Stockholders
Agreement)
| W CAPITAL PARTNERS II, L.P. | ||||||
| By: | WCP XX XX, L.P., its General Partner | |||||
| By: | WCP XX XX, L.L.C., its General Partner | |||||
| By: | /s/ Xxxxx Xxxxxxx
|
|||||
| Xxxxx Xxxxxxx | ||||||
| Managing Member | ||||||
(Stockholders
Agreement)
| AMBERBROOK IV LLC | ||||||
| By: | Willowridge IV LLC | |||||
| Its: | Managing Member | |||||
| By: | /s/ Xxxxxxx Xxxxxx
|
|||||
| Xxxxxxx Xxxxxx | ||||||
| Manager | ||||||
(Stockholders
Agreement)
| CROSSLINK VENTURES IV, L.P. | ||||||
| By: | Crosslink Ventures IV Holdings, L.L.C. | |||||
| Its: | General Partner | |||||
| By: | /s/ Xxxxx X. Xxxxxxxxx
|
|||||
| Name: | Xxxxx X. Xxxxxxxxx | |||||
| Title: | Member | |||||
(Stockholders
Agreement)
| CROSSLINK CROSSOVER FUND IV, L.P. | ||||||
| By: | Crossover Fund IV Management, L.L.C. | |||||
| Its: | General Partner | |||||
| By: | /s/ Xxxxx X. Xxxxxxxxx
|
|||||
| Name: | Xxxxx X. Xxxxxxxxx | |||||
| Title: | Member | |||||
(Stockholders
Agreement)
| OFFSHORE CROSSLINK OMEGA VENTURES IV (a Cayman Islands Unit Trust) |
||||||
| By: | Crosslink Ventures IV Holdings, L.L.C. | |||||
| Its: | Investment Manager | |||||
| By: | /s/ Xxxxx X. Xxxxxxxxx
|
|||||
| Name: | Xxxxx X. Xxxxxxxxx | |||||
| Title: | Member | |||||
(Stockholders
Agreement)
| OMEGA BAYVIEW IV, L.L.C. | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxxx
|
|||||
| Name: | Xxxxx X. Xxxxxxxxx | |||||
| Title: | Member | |||||
(Stockholders
Agreement)
| CROSSLINK OMEGA VENTURES IV GMBH & CO. KG | ||||||
| By: | Crosslink Verwaltungs GmbH | |||||
| Its: | General Partner | |||||
| By: | /s/ Xxxxx X. Xxxxxxxxx
|
|||||
| Name: | Xxxxx X. Xxxxxxxxx | |||||
| Title: | Member | |||||
(Stockholders
Agreement)
| AG 91 TRUST U/A/D 12/18/91 | ||||||
| By: | /s/ Xxxxx Xxxx
|
|||||
| Name: | Xxxxx Xxxx | |||||
| Title: | Trustees | |||||
(Stockholders
Agreement)
| [XXXXXXXX MEDIA, INC.] | ||||||
| By: | /s/ Xxx Xxxxxxxx
|
|||||
| Name: | Xxx Xxxxxxxx | |||||
| Title: | CEO | |||||
(Stockholders
Agreement)
| CIT LENDING SERVICES CORPORATION | ||||||
| By: | /s/ Xxxxx Xxxx | |||||
| Name: | Xxxxx Xxxx | |||||
| Title: | Vice President | |||||
(Stockholders
Agreement)
| HERCULES TECHNOLOGY GROWTH CAPITAL, INC. | ||||
| By: | /s/ X. Xxxxxxxx Martitsch | |||
| Name: | X. Xxxxxxxx Martitsch | |||
| Title: | Associate General Counsel | |||
(Stockholders
Agreement)
| ZION’S SBIC | ||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Managing Director | |||
(Stockholders
Agreement)
| WASATCH VENTURE CORPORATION | ||||
| By: | /s/ Xxxx Xxxxxx | |||
| Name: | Xxxx Xxxxxx | |||
| Title: | Managing Director | |||
(Stockholders
Agreement)
| JABE, L.L.C. | ||||||
| By: | /s/ Xxxxxxx X. Xxxxxx 12/3/07
|
|||||
| Name: | Xxxxxxx X. Xxxxxx | |||||
| Title: | Managing Director | |||||
(Stockholders
Agreement)
| XXXXX STREET 2006 DIRECT FUND, L.P. | ||||||
| By: | ASP 2006 Direct Management, LLC | |||||
| Its: | General Partner | |||||
| By: | Xxxxx Street Partners, LLC | |||||
| Its: | Managing Member | |||||
| By: | /s/ Xxxx Xxxxx
|
|||||
| Xxxx Xxxxx | ||||||
| Partner | ||||||
| XXXXX STREET 2007 DIRECT FUND, L.P. | ||||||
| By: | ASP 2007 Direct Management, LLC | |||||
| Its: | General Partner | |||||
| By: | Xxxxx Street Partners, LLC | |||||
| Its: | Managing Member | |||||
| By: | /s/ Xxxx Xxxxx
|
|||||
| Xxxx Xxxxx | ||||||
| Partner | ||||||
(Stockholders
Agreement)
| /s/ Xxxxxxx Xxxxxxxx
|
||||||
| Xxxxxxx Xxxxxxxx |
(Stockholders
Agreement)
| /s/ Xxxxx Xxxxxx
|
||||||
| Xxxxx Xxxxxx |
(Stockholders
Agreement)
| /s/ Xxxxx Xxxxx
|
||||||
| Xxxxx Xxxxx |
(Stockholders
Agreement)
| /s/ Xxxxx X. Xxxxxxxxx
|
(Stockholders
Agreement)
| /s/ Xxx Xxxxxxxxx
|
||||||
| Xxx Xxxxxxxxx |
(Stockholders
Agreement)
| /s/ Xxxx Xxxxxxx
|
||||||
| Xxxx Xxxxxxx |
(Stockholders
Agreement)
| /s/ Xxxxxxx Xxxxxxxx
|
||||||
| Xxxxxxx Xxxxxxxx |
(Stockholders
Agreement)
| /s/ Xxxxx X. Xxxxxxxxx
|
||||||
| Xxxxx X. Xxxxxxxxx |
(Stockholders
Agreement)
| XXXXXX & XXXXXXXXX XXXXXXX GIFT TRUST dtd 5/17/1995 |
||||||
| By: | /s/ Xxxxxx X. Xxxxx
|
|||||
| Name: | Xxxxxx X. Xxxxx | |||||
| Title: | Trustee | |||||
(Stockholders
Agreement)
| XXXXXXXXX X. XXXXXXX IRREVOCABLE GIFT TRUST dtd 11/20/1992 |
||||||
| By: | /s/ Xxxxxx X. Xxxxxxx
|
|||||
| Name: | Xxxxxx X. Xxxxxxx | |||||
| Title: | Trustee | |||||
| By: | /s/ Xxxxxx X. Xxxxxxx | |||||
| Name: | Xxxxxx X. Xxxxxxx | |||||
| Title: | Trustee | |||||
(Stockholders
Agreement)
