1
EXHIBIT 10.26
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
THIS AMENDED AND RESTATED SHAREHOLDERS AGREEMENT ("Agreement") is made and
entered into as of the 25th day of November, 1998, by and among (i) HIGH SPEED
ACCESS CORP., a Delaware corporation (the "Company"), (ii) the holders of the
Common Shares of the Company listed on Schedule I attached hereto (such holders
of Common Shares being collectively referred to herein as the "Common
Shareholders"), and (iii) the holders of the Preferred Shares of the Company
listed on Schedule II attached hereto (such holders of Preferred Shares being
collectively referred to herein as the "Investors").
W I T N E S S E T H:
BACKGROUND
A. The Company has 19,000,000 issued and outstanding shares of capital
stock, consisting of (i) 4,000,000 shares of common stock ("Common Shares"), and
(ii) 5,000,000 shares of Series A Convertible Preferred Stock ("Series A
Convertible Preferred Stock"), and 10,000,000 shares of Series B Convertible
Preferred Stock ("Series B Convertible Preferred Stock"), and has 5,000,000
shares of authorized and unissued Series C Convertible Preferred Stock ("Series
C Convertible Preferred Stock") of which 2,500,000 shares have been subscribed
for and 2,500,000 may be purchased, subject to satisfaction by the Company of
certain conditions, in accordance with certain terms in the Series C Convertible
Stock Purchase Agreement as listed on Schedule III attached hereto (the Series A
Convertible Preferred Stock, Series B Convertible Preferred Stock and Series C
Convertible Preferred Stock are collectively referred to as the "Preferred
Shares").
B. To provide for continuity and to promote the mutual interests of the
Company, the Common Shareholders and the Investors, the Company, the Common
Shareholders and the Investors desire to impose certain restrictions on the
"Transfer" (as hereinafter defined) of the shares of capital stock of the
Company now held or hereafter acquired by the Common Shareholders and the
Investors and any warrants, options or other rights to acquire shares of capital
stock of the Company now held or hereafter acquired by the Common Shareholders
and the Investors (collectively, the "Shares"), and to provide for certain other
rights, options and obligations as set forth in this Agreement.
C. The Company, the Common Shareholders, Broadband Solutions, LLC and
Broadband Solutions II, LLC are parties to an Amended and Restated Shareholders
Agreement dated as of September 1, 1998 (the "Shareholders Agreement"). The
parties hereto desire to amend and restate in its entirety the Shareholders
Agreement.
NOW, THEREFORE, in consideration of the premises herein contained and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
2
1. Definitions. For the purposes of this Agreement, the following terms
shall have the following meanings:
A. The term "Securities" shall mean the Common Shares, the Preferred
Shares and any other securities of the Company now or hereafter permitted to be
issued by the Company, and any securities of any other entity into which such
securities of the Company may hereafter be converted or exchanged.
B. The term "Transfer" shall mean and include any sale, exchange,
assignment, gift, devise, pledge, encumbrance, attachment, lien, execution,
transfer by bankruptcy, transfer by judicial order, transfer by operation of law
and all other kinds of transfers or dispositions, with or without consideration,
whether direct or indirect, voluntary or involuntary.
2. Restrictions on Transfer by Common Shareholders. From and after the
date hereof, the Common Shareholders shall not Transfer and the Company shall
not effect the Transfer of any of the Common Shares held by such Common
Shareholders without first complying with the terms and conditions of this
Agreement. A Common Shareholder who desires to Transfer his or its Common Shares
is hereinafter referred to as a "Transferring Common Shareholder". Any attempted
Transfer by a Common Shareholder without compliance with this Agreement shall
be, and is hereby declared, null and void ab initio. A Transferring Common
Shareholder must obtain the written approval of the majority of the Board of
Directors (the "Required Consent") before the Transferring Common Shareholder
may Transfer any Common Shares. The Required Consent is in addition to and not
in lieu of any other rights that the parties may have under this Agreement.
Notwithstanding the foregoing, a Common Shareholder may Transfer his
Common Shares to members of his immediate family or a trust or family limited
partnership for their benefit for estate planning purposes without complying
with the provisions of this Section 2 or Section 3, provided that any such
transferee receiving, holding or owning Common Shares shall receive, hold and
own such Common Shares subject to the terms of this Agreement and such
transferee or transferees shall become a signatory hereto by executing a
conformed counterpart of this Agreement.
3. Rights of First Refusal and Co-Sale Rights with respect to Common
Shareholders.
A. Notice. In addition to obtaining the Required Consent, before a
Transferring Common Shareholder may Transfer any of his or its Common Shares to
a transferee ("Transferee"), the Transferring Common Shareholder shall have
received a bona fide offer from a proposed Transferee to acquire the Common
Shares of the Transferring Common Shareholder, shall notify (the "Notice") the
other Common Shareholders (the "Nonselling Common Shareholders") and the
Investors (collectively, the "Nonselling Shareholders") of his or its desire to
make such a Transfer, and shall comply with the terms and provisions of this
Agreement. The Notice shall provide a copy of the offer from the intended
Transferee (the "Offer") and shall disclose the name(s) and address(es) of the
Transferee(s), the number of Common Shares to be Transferred (the "Option
Shares"), the proposed date of the Transfer, and the consideration to be paid,
if any.
3
B. Right of First Refusal for Priority Holders and Common Shareholders.
Each holder of shares of Series A Convertible Preferred Stock, Series B
Convertible Preferred Stock and Series C Convertible Preferred Stock (the
"Priority Holders") shall have the right to purchase (the "Priority Holders
Common Share Option") its proportionate share (in relation to all of the
Priority Holders) of the Option Shares for a period of ten (10) days following
receipt of the Notice from the Transferring Common Shareholder (the "Priority
Holders Common Share Option Period"). A Priority Holder shall evidence his or
its exercise of the Priority Holders Common Share Option by delivering to the
Transferring Common Shareholder and the Company notice of his or its election to
do so within the Priority Holders Common Share Option Period. If a Priority
Holder elects not to purchase all of the Priority Holder's proportionate share
of the Option Shares within the Priority Holders Common Share Option Period,
then each other Priority Holder shall have an additional five (5) day period to
elect to purchase his or its proportionate share of the remaining Option Shares.
If the Priority Holders do not purchase all Option Shares, then each
Nonselling Common Shareholder shall have the right to purchase (the "Common
Shareholder Option") its proportionate share of the Option Shares not previously
agreed to be purchased by the Priority Holders for a period of twenty (20) days
following the end of the Priority Holders Common Share Option Period, including
any additional five (5) day period as provided in the immediately preceding
sentence (the "Common Shareholder Option Period"). A Nonselling Common
Shareholder shall evidence his or its exercise of the Common Shareholder Option
by delivering to the Transferring Common Shareholder and the Company notice of
his or its election to do so within the Common Shareholder Option Period. If a
Nonselling Common Shareholder elects not to purchase all of the Nonselling
Common Shareholder's proportionate share within the Common Shareholder Option
Period, then each other Nonselling Common Shareholder shall have an additional
five (5) day period to elect to purchase his or its proportionate share of the
remaining Option Shares not previously agreed to be purchased and such five (5)
day process shall be repeated until all Option Shares remaining are elected to
be purchased or each other Nonselling Common Shareholder has declined to
purchase the same. The purchase price, manner of payment and other terms for the
Option Shares shall be the same as specified in the Offer. For purposes of this
Section 3.B, the "proportionate share" of a Nonselling Shareholder shall be the
number of Option Shares multiplied by a fraction, the numerator of which shall
be the number of Common Shares issued and owned by such Nonselling Shareholder
and the denominator of which shall be the aggregate number of Common Shares
issued and owned by all Nonselling Shareholders, each calculated on an as-if
fully converted basis. For the purposes of this Section 3.B, on an "as-if fully
converted basis" shall mean full conversion of all the Preferred Shares acquired
or owned by the holders of Preferred Stock and, with respect to Vulcan (as
defined below), the Preferred Shares which may be issued to Vulcan pursuant to
the Series C Convertible Preferred Stock Purchase Agreement ("Series C Purchase
Agreement") between the Company and Vulcan Ventures, Incorporated ("Vulcan")
dated as of the date hereof, unless, as of the time of the calculation of the
"proportionate share" under this Section 3.B., Vulcan shall have previously
declined its right to purchase the additional Two Million Five Hundred Thousand
(2,500,000) shares of Series C Convertible Preferred Stock in accordance with
the provisions of Sections 1.2 or 1.3 of the Series C Purchase Agreement, in
which case the shares of Series C Convertible Preferred Stock
4
not so purchased by Vulcan shall not be included in such calculation.
C. Limited Right to Transfer Shares. If the Nonselling Shareholders
fail to purchase all of the Option Shares, then, subject to Section 3.E herein,
the Transferring Common Shareholder may Transfer the Option Shares on the terms
of the Offer, within sixty (60) days following the expiration of the Option, to
the third party making the Offer, provided that (i) the Transferring Common
Shareholder has received the Required Consent, (ii) the third party consents, in
form and substance satisfactory to the Company's counsel, to be bound by the
terms of and to execute this Agreement as a Common Shareholder and (iii) such
Transfer is effected in compliance with an exemption from the registration
requirements of applicable securities laws. If the Transfer ring Common
Shareholder does not Transfer the Option Shares within such sixty (60) day
period, then the Option Shares shall not be Transferred by the Transferring
Common Shareholder without again complying with all of the provisions of this
Agreement.
D. Adjustments to Offer. If the consideration, terms or other
conditions offered in the Offer are such that the Nonselling Shareholders may
not reasonably furnish the same consideration, terms or conditions, then the
Nonselling Shareholders may purchase the Option Shares for a reasonable
equivalent in cash and upon such other reasonably equivalent terms and
conditions. If the parties cannot agree within thirty (30) days on a reasonable
equivalent in cash and other terms and conditions (the "Thirty Day Period"), an
independent appraiser reasonably acceptable to the Transferring Common
Shareholder shall be designated by the Company within ten (10) business days
after notice is given by either the Transferring Common Shareholder or the
Nonselling Shareholders to the other that the Thirty Day Period has expired.
Such independent appraiser shall promptly determine the value in cash of such
consideration and other terms and conditions and such appraiser's determination
shall be final and binding. The fees and expenses of such appraiser shall be
borne equally by the Nonselling Shareholder purchasing the Option Shares and the
Transferring Common Shareholder.
E. Co-Sale Rights. In addition to the rights set forth above, whenever
a Transferring Common Shareholder intends to sell his or its Common Shares, each
of the Investors shall have the option to participate in such sale in the manner
hereinafter set forth (the "Co-Sale Option"). To exercise the Co-Sale Option, an
Investor shall give written notice of election to participate in the Transfer to
the Transferring Common Shareholder within twenty (20) business days after the
Investor has declined to purchase the Common Shares.
If an Investor fails to notify the Transferring Common Shareholder
within such twenty (20) business day period, it shall be deemed to have waived
its rights under this provision. If an Investor so notifies the Transferring
Common Shareholder, such Investor shall have the right to sell, at the same
price and on the same terms and conditions as the Transferring Common
Shareholder, an amount of shares of capital stock equal to the shares of capital
stock the third party actually proposes to purchase multiplied by a fraction,
the numerator of which shall be the number of Shares issued and owned by such
Investor and the denominator of which shall be the aggregate number of Common
Shares issued and owned by the Transferring Common Shareholder and the Investors
exercising the Co-Sale Option, each calculated on an as-if fully converted
basis. If an Investor exercises the Co-Sale Option, it shall bear pro-rata with
the
5
Transferring Common Shareholder its portion of the expenses incident to such
sale in proportion to the number of shares being sold by each and the Common
Shares to be sold by the Transferring Common Shareholder shall be
proportionately scaled back.
F. Optional Purchase Upon Death. Upon the death of W. Xxxx Xxxxx, III
("Xxxxx"), each of the Investors shall have the right and option to purchase his
or its proportionate share (as defined below) of the Common Shares then owned by
OPM Services, Inc. ("OPM") and Colorado Limited Partnership ("CLP"), upon the
terms and subject to the conditions set out in this Section 3.F. Upon the death
of Xxxxx Xxxxx ("Xxxxx"), each of the Investors shall have the right and option
to purchase his or its proportionate share of the Common Shares then owned by
Xxxxx Family Limited Partnership ("GFLP"), upon the terms and subject to the
conditions set out in this Section 3.F. Upon the death of Xxxxxx X. Xxxxxxx,
each of the Investors shall have the right and option to purchase his or its
proportionate share of the Common Shares then owned by Xxxxxxx Family Limited
Partnership ("PFLP"), upon the terms and subject to the conditions set out in
this Section 3.F. The right and option of each of the Investors to purchase his
or its proportionate share of the Common Shares of OPM, CLP, GFLP and PFLP
provided for in this Section 3.F is referred to herein as the "Section 3.F
Option". The Section 3.F Option shall be for a period of ninety (90) days after
the date of death of Xxxxx or Xxxxx or Xxxxxxx, as applicable, and each Investor
shall evidence its exercise of the Section 3.F Option by delivering to CLP, OPM,
GFLP or PFLP, as applicable, notice of his or its election to do so within such
ninety (90) day period. If an Investor elects not to purchase his or its
proportionate share under this Section 3.F, then each other Investor shall have
an additional fifteen (15) day period to elect to purchase his or its
proportionate share of the remaining Common Shares subject to the Section 3.F
Option and such fifteen (15) day process shall be repeated until all of such
Common Shares remaining, if any, are elected to be purchased or each other
Investor has declined to purchase the same. The purchase price for any Common
Shares purchased in accordance with the terms of this Section 3.F shall be the
fair market value per Common Share (the "Fair Market Value") multiplied by the
number of Common Shares to be purchased (the "Investor Purchase Price"). The
Fair Market Value shall be equal to the fair market value of the Company, as
deter mined by an independent appraiser experienced in valuation of shares of
companies similar to the Company (the "Qualified Appraiser") acceptable to both
CLP, OPM, GFLP or PFLP, as applicable, on the one hand, and the Investors
electing to purchase the Common Shares under this Section 3.F, on the other
hand, divided by the number of shares of capital stock of the Company
outstanding on an as-if fully converted basis. If Investors, on the one hand,
and CLP, OPM, GFLP or PFLP, as applicable, on the other hand, are unable to
agree upon a Qualified Appraiser, each of them shall separately designate a
Qualified Appraiser. Such Qualified Appraisers shall jointly designate a
definitive Qualified Appraiser, and such definitive Qualified Appraiser's
determination shall be the Fair Market Value and shall be conclusive and binding
upon the parties. The fees and expenses of the definitive Qualified Appraiser
shall be borne equally by the selling Common Shareholder and the Investors
electing to purchase Common Shares. The Investor Purchase Price for any Common
Shares purchased under this Section 3.F shall be paid in cash within ninety (90)
days after written notice of exercise is given by Investors. For purposes of
this Section 3.F, an Investor's "proportionate share" shall mean that portion
of the Common Shares subject to the Section 3.F Option which equals the ratio of
(i) the number of Common Shares owned by such Investor over (ii) the number of
Common Shares owned by all of the Investors electing to purchase such
6
Common Shares, unless the Investors exercising the Section 3.F Option
unanimously agree otherwise.
G. Agreement by OPM. OPM agrees that if, at any time, Xxxxx shall own,
of record or beneficially, less than eighty-five percent (85%) of the
outstanding capital stock of OPM, then all Securities of the Company then owned
by OPM shall be transferred and assigned to Xxxxx by OPM.
4. Rights of First Refusal With Respect To Investors.
A. Notice. Before an Investor may Transfer (a "Transferring Investor")
any of his or its Securities to a Transferee, the Transferring Investor shall
have received a bona fide offer from a proposed Transferee to acquire the
Transferring Investor's Securities, shall notify (the "Notice") the other
Investors (the "Nonselling Investors") of his or its desire to make such a
Transfer, and shall comply with the terms and provisions of this Agreement. The
Notice shall provide a copy of the offer from the intended Transferee (the
"Offer") and shall disclose the name(s) and address(es) of the Transferee(s),
the number of Securities to be Transferred (the "Investor Option Shares"), the
proposed date of the Transfer, and the consideration to be paid, if any.
B. Right of First Refusal for Nonselling Investors. Each Nonselling
Investor shall have the right to purchase (the "Investor Option") its
"proportionate share" of the Investor Option Shares for a period of ten (10)
days following receipt of the Notice from the Transferring Investor (the
"Investor Option Period"). A Nonselling Investor shall evidence its exercise of
the Investor Option by delivering to the Transferring Investor and the Company
notice of its election to do so within the Investor Option Period. If a
Nonselling Investor elects not to purchase all of the Nonselling Investor's
proportionate share within the Investor Option Period, then each other
Nonselling Investor shall have an additional five (5) day period to elect to
purchase its proportionate share of the remaining Investor Option Shares not
previously agreed to be purchased by such Nonselling Investor and such five (5)
day process shall be repeated until all Investor Option Shares remaining, if
any, are elected to be purchased or each other Nonselling Investor has declined
to purchase the same. The purchase price, manner of payment and other terms for
the Investor Option Shares shall be the same as specified in the Offer. For
purposes of this Section 4, the "proportionate share" of a Nonselling Investor
shall be the number of Investor Option Shares multiplied by a fraction, the
numerator of which shall be the number of Common Shares issued and owned by such
Nonselling Investor and the denominator of which shall be the aggregate number
of Common Shares issued and owned by all Nonselling Investors, each calculated
on an as-if fully converted basis. For the purposes of this Section 4.B, on an
"as-if fully converted basis" shall mean full conversion of all the Preferred
Shares acquired or owned by the holders of Preferred Stock and, with respect to
Vulcan, the Preferred Shares which may be issued to Vulcan pursuant to the
Series C Purchase Agreement unless, as of the time of the calculation the
"proportionate share" under this Section 4.B., Vulcan shall have previously
declined its right to purchase the additional Two Million Five Hundred Thousand
(2,500,000) shares of Series C Convertible Preferred Stock in accordance with
the provisions of Sections 1.2 or 1.3 of the Series C Purchase Agreement, in
which case the shares of Series C Convertible Preferred Stock
7
not so purchased by Vulcan shall not be included in such calculation.
C. Limited Right to Transfer Shares. If the Nonselling Investors fail
to purchase all of the Investor Option Shares, then, subject to Section 4.F
herein, the Transferring Investor may Transfer the Investor Option Shares on the
terms of the Offer, within sixty (60) days following the expiration of the
Investor Option, to the third party making the Offer, provided that (i) the
third party consents, in form and substance satisfactory to the Company's
counsel, to be bound by the terms of and to execute this Agreement as an
Investor and (ii) such Transfer is effected in compliance with an exemption from
the registration requirements of applicable securities laws. If the Transferring
Investor does not Transfer the Investor Option Shares within such sixty (60) day
period, then the Investor Option Shares shall not be Transferred by the
Transferring Investor without again complying with all of the provisions of this
Agreement.
D. Adjustments to Offer. If the consideration, terms or other
conditions offered in the Offer are such that the Nonselling Investors may not
reasonably furnish the same consideration, terms or conditions, then the
Nonselling Investors may purchase the Investor Option Shares for a reasonable
equivalent in cash and upon such other reasonably equivalent terms and
conditions. If the parties cannot agree within thirty (30) days on a reasonable
equivalent in cash and other terms and conditions (the "Thirty Day Period"), an
independent appraiser reasonably acceptable to the Transferring Investor shall
be designated by the Company within ten (10) business days after notice is given
by either the Transferring Investor or the Nonselling Investors to the other
that the Thirty Day Period has expired. Such independent appraiser shall
promptly determine the value in cash of such consideration and other terms and
conditions and such appraiser's determination shall be final and binding. The
fees and expenses of such appraiser shall be borne equally by the Nonselling
Investor(s) purchasing such Investor Option Shares and the Transferring
Investor.
E. Limited Right to Transfer to Affiliates. Notwithstanding the
foregoing provisions of this Section 4, an Investor may transfer its Securities
to any affiliate of such Investor without complying with the provisions of this
Section 4, provided that any such transferee receiving, holding or owning such
Securities shall receive, hold and own such Securities subject to the terms of
this Agreement and such transferee shall become a signatory hereto by executing
a conformed counterpart of this Agreement. For purposes of this Section 4.E,
"affiliate" shall mean [i] with respect to Broadband Solutions, LLC or Broadband
Solutions II, LLC (collectively "Broadband"), any entities or persons
controlling, controlled by or under common control with Broadband or any or all
of its members, each existing as of the date hereof, directly or indirectly,
either individually or as a group, or any member of Broadband, each existing as
of the date hereof, or such person's lineal descendants, ancestors or spouses of
any or them, or a trust or family limited partnership or any estate or tax
planning vehicle established for its or their benefit, and [ii] with respect to
Vulcan, any entities or persons controlled, directly, by Xxxx X. Xxxxx, or any
entities or persons in which Xxxx X. Xxxxx, either individually or through an
entity which he controls, holds an equity investment of not less than
$100,000,000 in value, as determined at the time of any transfer, "Control"
shall mean (i) with respect to any entity, the ability to exercise voting power
with respect to at least 50% of the outstanding voting securities of such
entity, and (ii) with respect to any person, such person's lineal descendants or
ancestors or spouses of any of
8
them, or a trust or family limited partnership established for their benefit.
F. Investor Co-Sale Rights. In addition to the rights set forth above,
whenever a Transferring Investor intends to sell his or its Securities,
Investors shall have the option to participate in such sale in the manner
hereinafter set forth (the "Investor Co-Sale Option"). To exercise the Investor
Co-Sale Option, a Nonselling Investor shall give written notice of election to
participate in the Transfer to the Transferring Investor within twenty (20) days
after the Nonselling Investor has declined to purchase the Securities.
If a Nonselling Investor fails to notify the Transferring Investor
within such twenty (20) day period, it shall be deemed to have waived its rights
under this provision. If a Nonselling Investor so notifies the Transferring
Investor, such Nonselling Investor shall have the right to sell, at the same
price and on the same terms and conditions as the Transferring Investor, an
amount of shares of capital stock equal to the shares of capital stock the third
party actually proposes to purchase multiplied by a fraction, the numerator of
which shall be the number of Common Shares owned by such Investor and the
denominator of which shall be the aggregate number of Common Shares owned by the
Transferring Investor and the Nonselling Investors exercising the Investor
Co-Sale Option, each calculated on an as-if fully converted basis, and the
Securities to be sold by the Transferring Investor shall be proportionately
scaled back. If a Nonselling Investor exercises the Investor Co-Sale Option, it
shall bear pro-rata with the Transferring Investor its portion of the expenses
incident to such sale in proportion to the number of shares being sold by each.
5. Subscription Rights.
A. Subscription Rights. Except as otherwise set forth in Section 5.B,
if at any time and from time to time after the date of this Agreement, the
Company proposes to issue equity securities of any kind (the term "equity
securities" shall include for these purposes any warrants, options or other
rights to acquire equity securities and debt securities convertible into equity
securities) of the Company (other than the issuance of securities (i) upon
conversion of any Preferred Shares pursuant to the Company's Certificate of
Incorporation, as amended, (ii) to the public in a Qualified Public Offering, as
defined in Section 7.C of this Agreement, (iii) pursuant to the acquisition of
another corporation or other business entity by the Company by merger, purchase
of substantially all of the assets or other form of reorganization, (iv)
pursuant to director or employee stock option plans, stock bonus plans, stock
purchase plans, employment agreements or other management equity programs
approved by the Board of Directors of the Company, not to exceed 3,000,000
Common Shares, (v) to Vulcan pursuant to the Series C Purchase Agreement, or
(vi) pursuant to the Stock Purchase Warrants issuable to Vulcan providing for
the purchase of up to 5,000,000 Common Shares), then, as to Investors and Common
Shareholders, the Company shall: (i) give written notice setting forth in
reasonable detail (1) the designation and all of the terms and provisions of the
securities proposed to be issued (the "Proposed Securities"), (2) the price and
other terms of the proposed sale of such securities, (3) the amount of such
securities proposed to be issued and (4) such other information as Investors
and/or Common Shareholders may reasonably request in order to evaluate the
proposed issuance; and (ii) offer to issue to each of Investors and Common
Shareholders a portion of the Proposed Securities equal to a percentage
determined by dividing (x) the number of Common Shares owned by such
9
Investors or Common Shareholders by (y) the total number of Common Shares then
owned by Investors and Common Shareholders, each calculated on an as-if fully
converted basis.
Each Investor and Common Shareholder must exercise his or its purchase
rights hereunder within thirty (30) days after receipt of such notice from the
Company. If all of the Proposed Securities offered to Investors and Common
Shareholders are not fully subscribed by Investors and Common Shareholders, the
remaining Proposed Securities will be reoffered to the Investors and Common
Shareholders purchasing their full allotment in proportion to their interest and
in such manner that if any or all such persons desire to purchase all such
equity securities, they are offered to such persons in a fair and appropriate
way, as determined by the Board of Directors of the Company, so all securities
are sold to such persons. To the extent that the Company offers two or more
securities in units (either of which is an equity security), Investors and
Common Shareholders must purchase such units as a whole and will not be given
the opportunity to purchase only the equity securities making up such unit.
Upon the expiration of the offering periods described in this Section
5, if any equity securities remain unsubscribed for, the Company may sell such
Proposed Securities that the Investors and Common Shareholders have not elected
to purchase during the one hundred eighty (180) days following such expiration
on terms and conditions not more favorable to the purchasers thereof than those
offered to such holders. Any Proposed Securities offered or sold by the Company
after such one hundred eighty (180) day period must be reoffered to the
Investors and Common Shareholders pursuant to the terms of this Section 5.
B. Vulcan Subscription Right. At any time after the Post Closing
Capital Call (as defined in the Series C Purchase Agreement) shall have been
made under the Series C Purchase Agreement, but on or before the second
anniversary of the date hereof, the Company shall offer Vulcan, not more than
six (6) months and not less than five (5) months prior to the Company being in
need of further cash capital, the right to purchase 2,500,000 additional shares
of Series C Preferred Stock ("Additional Series C Shares") at a purchase price
of $5.00 per share or such lesser price as the Board of Directors of the Company
shall determine to be the fair value of such Additional Series C Shares, which
price will also be the price the Company will otherwise sell such securities to
other purchasers (the "Stated Value"). Vulcan shall have sixty (60) days after
having received notice of such right from the Company to exercise its right to
purchase all of the Additional C Shares by delivering written notice of its
intention to purchase such Shares to the Company. If all of the Additional
Series C Shares are not fully subscribed by Vulcan within such sixty (60) day
period, the Additional Series C Shares may be offered for sale by the Company to
the Investors and Common Shareholders in accordance with the subscription rights
set forth in Section 5.A. The purchase of any Additional Series C Preferred
Shares by Vulcan shall be consummated in accordance with the terms and
conditions of the Series C Purchase Agreement.
C. Additional Subscription Right. Notwithstanding the foregoing
provisions of this Section 5, if Vulcan declines to purchase the Additional
Series C Shares and the Company thereafter offers to sell the Additional Series
C Shares in accordance with Section 5.A within the next succeeding six (6) month
period at a purchase price less than the Stated Value, Vulcan shall have ten
(10) days from the date of receiving delivery of the written notice required
under Section
10
5.A. to purchase all such Additional Series C Shares at such lower purchase
price. Vulcan shall exercise its purchase of such Additional Series C Shares
pursuant to the immediately preceding sentence by delivering a written notice to
the Company. If all of the Additional Series C Shares are not fully subscribed
by Vulcan within such ten (10) day period, the Additional Series C Shares may be
offered for sale by the Company in accordance with the subscription rights set
forth in Section 5.A. At any time after the date hereof, Vulcan shall have the
right, at its election, to purchase any number of Additional Series C Shares
which have not, as of such date, been issued at a purchase price of $5.00 per
share. Vulcan may elect to exercise its right to purchase such Additional Series
C Shares by delivering a written notice to Company, and the purchase of the
Additional Series C Shares shall be consummated within ten (10) days after
delivery thereof.
6. Calculation of Shares Owned by Investors. In the case of Investors, the
number of Common Shares owned by an Investor for all purposes of this Agreement,
except as provided in Sections 3.B and 4.B of this Agreement, shall be
determined on an "as-if fully converted" basis which means full conversion into
Common Shares of all Preferred Shares purchased and held by Investors.
7. Termination Provisions. This Agreement shall terminate upon the
occurrence of any of the following events:
A. The written agreement by the holders of a majority of each of the
Series A Convertible Preferred Stock, the Series B Convertible Preferred Stock
and the Series C Convertible Preferred Stock (with each share entitled to one
vote) to terminate this Agreement. Thereafter, any Common Shareholder or
Investor may tender the certificate representing its or his shares to the
Secretary of the Company who shall issue to such C Shares not yet purchased
Common Shareholder or Investor a new certificate without the endorsement set
forth in Section 8.B. of this Agreement; or
B. Completion of an underwritten public offering of common stock of the
Company, initiated by resolution of the Company's Board of Directors, of not
less than $50 million in aggregate gross proceeds to the Company and a minimum
initial price per share of $7.50 (as proportionately and appropriately adjusted
to reflect any subdivision, reverse split or recapitalization of Common Shares
after the date hereof) which has been made pursuant to a registration statement
filed with the Securities and Exchange Commission under the Securities Act of
1933, as amended (a "Qualified Public Offering").
8. Restrictive Legend on Certificate.
A. All certificates for the shares of the capital stock of the Company,
including all certificates issued after the date hereof, shall be endorsed with
the following legend:
The securities represented by this certificate have not been registered
under the Securities Act of 1933, as amended, or the securities laws of
any state (the "Securities Laws"). These securities may not be offered,
sold, transferred, pledged or hypothecated in the absence of registration
under applicable Securities Laws, or
11
the availability of an exemption therefrom. This certificate will not be
transferred on the books of the Company or any transfer agent acting on
behalf of the Company except upon the receipt of an opinion of counsel,
satisfactory to the Company, that the proposed transfer is exempt from
the registration requirements of all applicable Securities Laws, or the
receipt of evidence, satisfactory to the Company, that the proposed
transfer is the subject of an effective registration statement under all
applicable Securities Laws.
B. In addition to the legend stated above, all certificates for the
Shares held by the Common Shareholders shall also be endorsed with the following
legend:
The shares represented by this certificate are subject to and may be
transferred only in compliance with the terms of a certain Amended and
Restated Shareholders Agreement, dated as of November 25, 1998 as such
Agreement may be from time to time amended, made by and among certain
holders of securities of the Company. Copies of that Agreement are
available for inspection at the principal or registered office of the
Company.
9. Notices. All notices, requests, consents and other communications
under this Agreement shall be in writing and shall be mailed by first class
registered or certified mail, postage prepaid, or sent via overnight courier
service, or sent by facsimile transmission addressed to the Company at its
principal office and to the Investors or Common Shareholders at their respective
addresses as set forth on Schedule I, Schedule II and Schedule III to this
Agreement, respectively, or to such other address of which the addressee shall
have notified the sender in writing. Notices mailed in accordance with this
Section 9. shall be deemed given when mailed, and notices sent by overnight
courier service shall be deemed given when placed in the hands of a
representative of such service.
10. Entire Agreement; Modification; Governing Law. This Agreement sets
forth the entire agreement among the parties regarding its subject matter and
supersedes and shall govern in the event of any conflicts with, all prior
written or contemporaneous oral agreements and under standings related to its
subject matter, including without limitation, the Shareholders Agreement. This
Agreement may be modified or amended only by a written instrument duly executed
by all the parties hereto. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, without giving effect to the
conflicts of laws principles thereof. In the case of any conflict between the
provisions of this Agreement and the Certificate of Incorporation or the Bylaws
of the Company, each party hereto agrees to take all such action, as may be
required under the Delaware General Corporation Law or otherwise, to amend the
Certificate of Incorporation or the Bylaws, as the case may be, to resolve such
conflict so that the provisions of this Agreement shall, to the maximum extent
permitted by law, at all times prevail.
11. Specific Performance. The parties agree that it is impossible to
measure in money the damages which will accrue to a person having rights under
this Agreement by reason of a failure of another to perform any obligation under
this Agreement. Accordingly, if any party
12
attempts to enforce the provisions of this Agreement by specific performance,
the party against whom such action or proceeding is brought waives the claim or
defense that the other party has an adequate remedy at law.
12. Headings. The Section headings contained in this Agreement are
inserted solely as a matter of convenience and will not affect in any way the
construction or interpretation of the terms of this Agreement.
13. Binding Effect. This Agreement and all of the terms and provisions
hereof shall be binding upon and shall inure to the benefit of each party a
signatory hereto and its or his successors, assigns, executors and heirs. The
provisions of this Agreement shall be deemed to apply equally to all the
Securities or other securities distributed in respect of such Securities.
14. Severability. If any provision of this Agreement, or the
application of such provision to any person or circumstance, shall be held
invalid, the remaining provisions of this Agreement, and the application of such
provisions to persons or circumstances other than those to which it is held
invalid, shall not be affected.
15. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same instrument.
16. Construction. Whenever the singular number is used in this
Agreement and when required by the context, the same shall include the plural
and vice versa, and the masculine gender shall include the feminine and neuter
genders and vice versa.
17. Waivers. The failure of any party to seek redress for violation of
or to insist upon the strict performance of any covenant or condition of this
Agreement shall not prevent a subsequent act, that would have originally
constituted a violation, from having the effect of an original violation.
18. Rights and Remedies Cumulative. The rights and remedies provided by
this Agreement are cumulative and the use of any one right or remedy by any
party shall not preclude or waive the right to use any or all other remedies.
Such rights and remedies are given in addition to any other rights the parties
may have by law, statute, ordinance, or otherwise.
19. Further Assurances. Each party hereto agrees to execute such
additional documents and take such other actions as the other party or parties
may reasonably request to consummate the transactions contemplated by this
Agreement and otherwise as may be necessary to effectively carry out the terms
and provisions of this Agreement.
[END OF TEXT]
13
IN WITNESS WHEREOF, the parties have executed the foregoing Agreement
as of the date first above written.
HIGH SPEED ACCESS CORP.
By: /s/ Xxxx Xxxxx
------------------------------------
Title: CEO
---------------------------------
"COMMON SHAREHOLDERS"
OPM SERVICES, INC.
By: /s/ Xxxx Xxxxx
------------------------------------
Title: President
---------------------------------
XXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ Xxxxx Xxxxx
------------------------------------
Title: G.P.
---------------------------------
COLORADO LIMITED PARTNERSHIP
By: /s/ Xxxx Xxxxx
------------------------------------
Title: G.P.
---------------------------------
XXXXXXX FAMILY LIMITED PARTNERSHIP
By: /s/ XXX XXXXXXX
------------------------------------
Title: G.P.
---------------------------------
14
/s/ XXXXXX X. XXXX, III
------------------------------------------
XXXXXX X. XXXX, III
/s/ XXXXXX X. XXXX
------------------------------------------
XXXXXX X. XXXX
/s/ XXXXXXXX XXXXXXX
------------------------------------------
XXXXXXXX XXXXXXX
/s/ XXXX XXXXXX
------------------------------------------
XXXX XXXXXX
/s/ XXXXXXXX X. XXXXXX
------------------------------------------
XXXXXXXX X. XXXXXX
15
"INVESTORS"
BROADBAND SOLUTIONS, LLC
By: /s/ XXXXXX XXXXXXXX
--------------------------------------
Title: Member
-----------------------------------
BROADBAND SOLUTIONS II, LLC
By: /s/ XXXXXX XXXXXXXX
--------------------------------------
Title: Member
-----------------------------------
VULCAN VENTURES, INCORPORATED
By: /s/ XXXXXXX XXXXX
--------------------------------------
Title: Vice President
-----------------------------------
16
SCHEDULE I
OPM Services, Inc. Xxxx Xxxxxx
c/o W. Xxxx Xxxxx, III c/o Xxxxxxxx X. Xxxxxx
Suite 210 Xxxxxxxx, Kluger & Xxxxx, P.C.
0000 Xxxx Xxxxxx Xxxxxx Xxxxx 000
Xxxxxxxxxx, XX 00000-0000 Mellon Bank Center
0 Xxxx Xxxxxx Xxxxxx
Xxxxxxxx Limited Partnership Xxxxxx-Xxxxx, XX 00000-0000
x/x X. Xxxx Xxxxx, XXX
Xxxxx 000 Xxxxxxxx X. Xxxxxx
0000 Xxxx Xxxxxx Xxxxxx Xxxxxxxx, Xxxxxx & Xxxxx, P.C.
Xxxxxxxxxx, XX 00000-0000 Suite 700
Mellon Bank Center
Xxxxx Family Limited Partnership 0 Xxxx Xxxxxx Xxxxxx
c/o Xxxxx X. Xxxxx Xxxxxx-Xxxxx, XX 00000-0000
Suite 210
0000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Xxxxxx X. Xxxx, III
c/o Xxxxxxxx X. Xxxxxx
Xxxxxxxx, Xxxxxx & Xxxxx, X.X.
Xxxxx 000
Xxxxxx Xxxx Center
0 Xxxx Xxxxxx Xxxxxx
Xxxxxx-Xxxxx, XX 00000-0000
Xxxxxx X. Xxxx
c/o Xxxxxxxx X. Xxxxxx
Xxxxxxxx, Xxxxxx & Xxxxx, X.X.
Xxxxx 000
Xxxxxx Xxxx Center
0 Xxxx Xxxxxx Xxxxxx
Xxxxxx-Xxxxx, XX 00000-0000
Xxxxxxxx Xxxxxxx
c/o Xxxxxxxx X. Xxxxxx
Xxxxxxxx, Xxxxxx & Xxxxx, X.X.
Xxxxx 000
Xxxxxx Xxxx Center
0 Xxxx Xxxxxx Xxxxxx
Xxxxxx-Xxxxx, XX 00000-0000
17
SCHEDULE II
Broadband Solutions, LLC
1850 National City Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Broadband Solutions II, LLC
1850 National City Tower
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Vulcan Ventures, Incorporated
000 000xx Xxxxxx, XX
Xxxxxxxx, XX 00000
18
SCHEDULE III
Vulcan Ventures, Incorporated
000 000xx Xxxxxx, XX
Xxxxxxxx, XX 00000