EXHIBIT 4.3
AMENDED AND RESTATED
SERIES D AND SERIES E RIGHTS AGREEMENT
This AMENDED AND RESTATED SERIES D AND SERIES E RIGHTS AGREEMENT (this
"Rights Agreement") is made as of February 7, 2000 by and among Netpliance, Inc.
(the "Corporation"), the holders of the Corporation's Series D Convertible
Preferred Stock ("Series D Preferred") and the holders of the Corporation's
Series E Convertible Preferred Stock ("Series E Preferred" and, together with
the Series D Preferred, the "Shares"). The holders of the Shares are listed on
the signature pages hereto and are referred to collectively herein as the
"Holders". This Rights Agreement amends, restates, and supercedes entirely the
Series D Rights Agreement dated January 5, 2000 by and among the Corporation and
the holders of the Corporation's Series D Convertible Preferred Stock.
WHEREAS, the Corporation issued and sold the Series D Preferred to each of
the holders of the Series D Preferred, and the Corporation now wishes to issue
and sell the Series E Preferred to the remaining Holders; and
WHEREAS, in connection with the issuance and sale of the Shares and in
consideration for the Corporation's sale of Shares pursuant to the Series D
Preferred Stock Purchase Agreement and the Series E Preferred Stock Purchase
Agreement relating to such Shares, the Corporation agreed to grant certain
rights to the Holders as set forth in this Rights Agreement.
NOW, THEREFORE, the parties hereby agree as follows:
1. Information Rights.
1.1 Inspection and Observation. The Corporation will permit each Holder,
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so long as such Holder holds at least 100,000 Shares, as adjusted for any stock
splits, stock dividends, recapitalizations or similar events, or any authorized
representative of such Holder to visit and inspect the properties of the
Corporation, including its corporate and financial records, and to discuss its
business and finances with officers of the Corporation, during normal business
hours following reasonable notice, without interference to the conduct of the
Corporation's business and as often as may be reasonably requested.
1.2 Delivery of Financial Statements. The Corporation shall deliver to
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each Holder, so long as such Holder holds at least ninety percent (90%) of the
Shares originally purchased by such Holder:
(a) as soon as practicable after the end of each fiscal year, but
in any event within ninety (90) days thereafter, audited, consolidated balance
sheets and statements of operations and cash flow for such fiscal year, prepared
in accordance with generally accepted accounting principles ("GAAP"), except for
the accompanying notes, and setting forth in each case in comparative form the
figures for the previous fiscal year; and
(b) within forty-five (45) days of the end of each fiscal quarter
of the Corporation, an unaudited statement of operations and balance sheet for
and as of the end of such
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quarter, in reasonable detail and prepared in accordance with GAAP, subject to
year end audit adjustments and the absence of footnotes.
1.3 Termination of Information Rights. The covenants set forth in
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Section 1.2 shall terminate as to each Holder and be of no further force and
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effect upon the consummation of the sale of securities pursuant to a
registration statement filed by the Corporation under the Securities Act of
1933, as amended (the "Securities Act"), in connection with the initial firm
commitment underwritten offering of its securities to the general public with
gross proceeds to the Corporation of at least $25,000,000 (a "Qualifying Public
Offering").
2. Composition of Board of Directors. The holders of the outstanding shares
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of Series D Preferred shall have the right to elect or cause to be elected to
the Corporation's Board of Directors one (1) director (the "Series D Director")
and agree to vote all securities of the Corporation over which such holder has
voting control and to take all other Necessary or desirable actions within its
control (whether as a shareholder, director or officer of the Corporation 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) to elect the designee nominated by US WEST, Inc. The right
under this Section 2 to designate the Series D Director shall expire upon the
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earlier of: (i) such time as less than fifty (50%) of the shares of Series D
Preferred are outstanding and (ii) the consummation of the Corporation's sale of
its Common Stock in a Qualifying Public Offering.
3. Market Standoff. Following the effective date of a registration statement
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of the Corporation filed under the Securities Act, for the duration specified by
and to the extent requested by the Corporation or an underwriter of the
Corporation's securities, but in no event for a period in excess of 180 days,
each Holder covenants and agrees it shall not directly or indirectly sell, offer
to sell, contract to sell (including, without limitation, any short sale), grant
any option to purchase or otherwise transfer or dispose of the Shares or any
other securities of the Corporation acquired by such Holder; and each Holder
agrees to execute an agreement to such effect if and when requested by the
Corporation; provided, that each officer, director and shareholder who owns more
than five percent (5%) of the Corporation's voting power agrees to be similarly
bound. In order to enforce the foregoing covenant, the Corporation may impose
stop-transfer instructions with respect to the securities of a Holder (and the
shares or securities of every other person subject to the foregoing restriction)
until the end of such period.
4. Registration Rights. The Corporation covenants and agrees as follows:
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4.1 Definitions. For purposes of this Section 4:
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(a) The terms "register," "registered," and "registration" refer to
a registration effected by preparing and filing a registration statement or
similar document in compliance with the Securities Act, and the declaration or
ordering of effectiveness of such registration statement or document;
(b) The term "Registrable Securities" means the Common Stock, (i)
issuable or issued upon conversion of the Series D Preferred issued pursuant to
the Series D Preferred Stock Purchase Agreement of dated January 5, 2000
("Series D Purchase Agreement"),
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(ii) issuable or issued upon conversion of the Series E Preferred issued
pursuant to the Series E Preferred Stock Purchase Agreement of even date
herewith ("Series E Purchase Agreement") and (iii) any Common Stock of the
Corporation issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as) a dividend or other
distribution with respect to, or in exchange for or in replacement of, such
Series D Preferred or Series E Preferred, excluding in all cases, however, (A)
any Registrable Securities sold by a person in a transaction in which such
person's rights under this Section 4 are not assigned, (B) any Registrable
Securities sold to or through a broker or dealer or underwriter in a public
distribution or a public securities transaction, or (C) any Registrable
Securities that are eligible for resale under Rule 144(k) promulgated by the
Securities and Exchange Commission (the "SEC") under the Securities Act;
(c) The number of shares of "Registrable Securities then
outstanding" shall be determined by the number of shares of Common Stock
outstanding that are, and the number of shares of Common Stock issuable pursuant
to then exercisable or convertible securities that are, Registrable Securities;
and
(d) The term "Holder" means any person owning or having the right
to acquire Registrable Securities or any assignee permitted under Section 4.12
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hereof.
4.2 Request for Registration.
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(a) If the Corporation shall receive, at any time after the earlier
of (i) January 5, 2003 or (ii) six (6) months after the effective date of the
first registration statement for a public offering of securities of the
Corporation to the general public, a written request from the Holders of
nineteen percent (19%) of the Registrable Securities then outstanding (the
"Initiating Holders") that the Corporation file a registration statement (other
than on Form S-3) under the Securities Act covering the registration of at least
nineteen percent (19%) of the Registrable Securities (or any lesser percentage
if the aggregate proposed offering price to the public (before deduction of
underwriting discounts and commissions) would be at least $5,000,000), then the
Corporation shall, within ten (10) days after the receipt of such request, give
written notice of such request to all Holders and shall, subject to the
limitations set forth below, use commercially reasonable efforts to effect as
soon as practicable the registration under the Act of all Registrable Securities
that the Holders request to be registered in a written request to be given
within thirty (30) days of receipt of such notice by the Corporation.
(b) The Corporation is obligated to effect only two (2)
registrations pursuant to Section 4.2 (a).
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(c) After the Corporation has qualified for the use of Form S-3, in
addition to the rights contained in Section 4.2(a), the Holders of at least
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nineteen percent (19%) of the Registrable Securities (provided, in any event,
that the aggregate estimated offering price of the shares included in such
registration must be at least $1,000,000) will have the right at any time and
from time to time to request up to two (2) registrations on Form S-3; provided,
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that the Corporation will not be required to effect a registration on Form S-3
pursuant to this Section 4.2(c) more frequently than once during any period of
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12 consecutive months. Such requests
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must be in writing and must state the number of Registrable Securities proposed
to be disposed of and the intended method of distribution of such Registrable
Securities by such Holders.
(d) Notwithstanding the foregoing, if the Corporation shall furnish
to the Initiating Holders, or the Holders requesting a registration on Form S-3,
requesting a registration pursuant to this Section 4.2 within thirty (30) days
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of receiving such request: (i) a certificate signed by the President of the
Corporation stating that in the good faith judgment of the Board of Directors of
the Corporation it would be seriously detrimental to the Corporation and its
shareholders for such registration statement to be filed and it is therefore
essential to defer the filing of such registration statement, or (ii) a
certificate signed by the President of the Corporation stating that the
Corporation intends within ninety (90) days after the date of such certificate
to file a registration statement for a public offering of securities of the
Corporation to the general public, the Corporation shall not be obligated to
effect the registration requested pursuant to this Section 4.2; provided,
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however, that the Corporation shall promptly notify the Initiating Holders, or
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the Holders requesting a registration on Form S-3, requesting a registration
pursuant to this Section 4.2 of any decision by the Corporation to abandon or
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indefinitely delay such public offering. The Corporation shall have the right
to defer such filing for up to two (2) periods of not more than ninety (90) days
each after receipt of the request of the Initiating Holders or the Holders
requesting a registration on Form S-3; provided, however, that the Corporation
may not use this right more than once (for a total of up to one hundred eighty
(180) days) in any twelve (12)-month period.
4.3 Corporation Registration. If (but without any obligation to do so),
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at any time after the effective date of the Corporation's initial public
offering, the Corporation proposes to register any of its stock or other
securities under the Securities Act in connection with the public offering of
such securities solely for cash (other than a registration relating solely to
the sale of securities to participants in a Corporation stock plan, or a
registration on any form that does not include substantially the same
information as would be required to be included in a registration statement
covering the sale of the Registrable Securities), the Corporation shall, at such
time, promptly give each Holder written notice of such registration. Upon the
written request of a Holder given within twenty (20) days after mailing of
written notice by the Corporation, the Corporation shall, subject to the
provisions of Section 4.7, use commercially reasonable efforts to cause to be
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registered under the Securities Act all of the Registrable Securities that such
Holder has requested to be registered.
4.4 Obligations of the Corporation. Whenever the Corporation registers
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under the Securities Act any Registrable Securities in accordance with this
Section 4, the Corporation shall, as expeditiously as reasonably possible:
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(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use its commercially reasonable
efforts to cause such registration statement to become effective, and, upon the
request of a Holder, keep such registration statement effective until the
earlier of ninety (90) days after the effective date and the day the
distribution described in the registration statement has been completed.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement as
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may be necessary to comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such registration
statement.
(c) Furnish to Holders such numbers of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as it may reasonably request in order
to facilitate the disposition of Registrable Securities owned by it.
(d) Use its best efforts to register and qualify the securities
covered by such registration statement under such other securities or blue sky
laws of such jurisdictions as shall be reasonably requested by a Holder,
provided that the Corporation shall not be required in connection therewith or
as a condition thereto to qualify to do business or to file a general consent to
service of process in any such states or jurisdictions, excluding any consent to
service of process required by such securities or blue sky laws.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter of such offering. Any Holder, if
participating in such underwriting, shall also enter into and perform its
obligations under such an agreement.
(f) Notify Holders if covered by such registration statement at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act of the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing.
4.5 Furnish Information. It shall be a condition precedent to the
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obligations of the Corporation to take any action pursuant to this Section 4
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with respect to the Registrable Securities of a Holder that such Holder shall
furnish to the Corporation such information regarding itself, the Registrable
Securities held by it, and the intended method of disposition of such securities
as shall be required to effect the registration of such Holder's Registrable
Securities.
4.6 Expenses of Corporation Registration. The Corporation shall bear and
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pay all expenses incurred in connection with any registration, filing or
qualification of Registrable Securities with respect to the registrations
pursuant to Section 4 for Holders, including (without limitation) all
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registration, filing, and qualification fees, printers and accounting fees
relating or apportionable thereto, and the reasonable fees and disbursements of
one counsel for the Holders collectively (not to exceed $10,000 in the
aggregate), but excluding underwriting discounts and commissions relating to
Registrable Securities.
4.7 Underwriting Requirements.
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(a) The Holders under Section 4.2 must distribute the Registrable
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Securities covered by their request by means of a public offering underwritten
by a reputable national or regional underwriter. The right of any Holder to
include its Registrable Securities in such registration under Section 4.2 shall
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be conditioned upon such Holder's participation in such
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underwriting and the inclusion of such Holder's Registrable Securities in the
underwriting to the extent provided herein. All Holders proposing to distribute
their Registrable Securities through such underwriting shall (together with the
Corporation as provided in Section 4.4(e)) enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting by a majority in interest of the Holders and reasonably acceptable
to the Corporation. Notwithstanding any other provisions of Section 4.2, if the
underwriter advises the Holders in writing that marketing factors require a
limitation of the number of shares to be underwritten, then the Initiating
Holders shall so advise all Holders of Registrable Securities which would
otherwise have been underwritten pursuant to Section 4.2, and the number of
shares of Registrable Securities that may be included in the registration shall
be apportioned first pro rata among the selling Holders, including the
Initiating Holders, according to the total amount of Registrable Securities held
by such Holders at the time of registration, then to the Corporation and then
pro rata among any other selling shareholders according to the total amount of
securities otherwise entitled to be included therein owned by each such selling
shareholder, or in such other proportions as shall mutually be agreed to by such
selling shareholders.
(b) In connection with any offering involving an underwriting of
shares being issued by the Corporation, the Corporation shall not be required
under Section 4.3 to include any of the Holders' securities in such underwriting
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unless such Holder accepts the terms of the underwriting as agreed upon between
the Corporation and the underwriters selected by it (or by other persons
entitled to select the underwriters), and then only in such quantity as will
not, in the opinion of the underwriters, jeopardize the success of the offering
by the Corporation. If the underwriters advise the Corporation that marketing
factors require a limitation of the number of shares to be underwritten, then
the number of shares that may be included in the underwriting shall be allocated
first to the Corporation, which shall have priority as to registration,
placement, allocation and otherwise in such event, and then pro rata among the
selling Holders according to the total amount of Registrable Securities held by
such Holders at the time of such registration, and then among all other holders
of shares to be underwritten. For purposes of apportionment, Holders and any
selling shareholder that is a partnership or corporation, the partners, retired
partners and shareholders of such Holder, or the estates and family members of
any such partners and retired partners and any trusts for the benefit of any of
the foregoing persons shall be deemed to be a single "selling shareholder," and
any pro rata reduction with respect to such "selling shareholder" shall be based
upon the aggregate amount of shares carrying registration rights owned by all
entities and individuals included in such "selling shareholder," as defined in
this sentence. In no event will shares of any other selling shareholders be
included in any registration which would reduce the number of shares which may
be included by the Holders without the written consent of the Holders of at
least a majority of the Registrable Securities included in such registration.
4.8 Delay of Registration. Holders shall not have any right to obtain or
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seek an injunction restraining or otherwise delaying any such registration as
the result of any controversy that might arise with respect to the
interpretation or implementation of this Section 4.
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4.9 Indemnification. In the event any Registrable Securities are included
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in a registration statement under this Section 4:
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(a) To the extent permitted by law, the Corporation will indemnify
and hold harmless each Holder, any underwriter (as defined in the Securities
Act) for such Holder and each person, if any, who controls a Holder or
underwriter within the meaning of the Securities Act or the Securities Exchange
Act of 1934, amended (the "1934 Act"), against any losses, claims, damages, or
liabilities (joint or several) to which they may become subject under the
Securities Act, the 1934 Act or other federal, state or provincial law, insofar
as such losses, claims, damages, or liabilities (or actions in respect thereof)
arise out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in such registration statement,
including any preliminary prospectus or final prospectus contained therein or
any amendments or supplements thereto, (ii) the omission or alleged omission to
state therein a material fact required to be stated therein, or necessary to
make the statements therein not misleading, or (iii) any violation or alleged
violation by the Corporation of the Securities Act, the 1934 Act, any state
securities law or any rule or regulation promulgated under the Securities Act,
the 1934 Act or any state or provincial securities law; and the Corporation will
pay to a Holder, underwriter or controlling person, as incurred, any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability, or action; provided, however,
that the indemnity agreement contained in this Section 4.9(a) shall not apply to
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amounts paid in settlement of any such loss, claim, damage, liability, or action
if such settlement is effected without the consent of the Corporation, which
consent shall not be unreasonably withheld, conditioned or delayed.
(b) To the extent permitted by law, each Holder, severally and not
jointly, will indemnify and hold harmless the Corporation, each of its
directors, each of its officers who has signed the registration statement, each
person, if any, who controls the Corporation within the meaning of the
Securities Act, any underwriter, any other shareholder selling securities in
such registration statement and any controlling person of any such underwriter
or other shareholder, against any losses, claims, damages, or liabilities (joint
or several) to which any of the foregoing persons may become subject, under the
Securities Act, the 1934 Act or other federal, state or provincial law, insofar
as such losses, claims, damages, or liabilities (or actions in respect thereto)
arise out of or are based upon any Violation, in each case to the extent that
such Violation occurs in reliance upon and in conformity with written
information furnished by such Holder expressly for use in such registration
statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto; and such Holder will pay, as
incurred, any legal or other expenses reasonably incurred by any person intended
to be indemnified pursuant to this Section 4.9(b), in connection with
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investigating or defending any such loss, claim, damage, liability, or action;
provided, however, that the indemnity agreement contained in this Section 4.9(b)
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shall not apply to amounts paid in settlement of any such loss, claim, damage,
liability or action if such settlement is effected without the consent of such
Holder, which consent shall not be unreasonably withheld, conditioned or
delayed; and further provided, that, in no event shall any indemnity under this
Section 4.9(b) exceed the net proceeds from the offering received by such
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Holder.
(c) Promptly after receipt by an indemnified party under this
Section 4.9 of notice of the commencement of any action (including any
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governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 4.9, deliver to
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the indemnifying party a written notice of the commencement
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thereof and the indemnifying party shall have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof if (a) the
indemnifying party acknowledges its obligation to indemnify the indemnified
party for any losses, damages or liabilities resulting from such claim and
provide reasonable evidence to the indemnified party of its financial ability to
satisfy such obligation; (b) the claim does not seek to impose any liability or
obligation on the indemnified party other than for money damages; and (c) the
claim does not relate to the indemnified party's relationship with its customers
or employees. If such conditions are satisfied and the indemnifying party elects
to assume and control the defense of a claim, then (i) the indemnified party
will not be liable for any settlement of such claim effected without the consent
of the indemnified party, which consent will not be unreasonably withheld,
conditioned or delayed; and (ii) the indemnifying party may settle such claim
without the consent of the indemnified party; provided, however, that an
indemnified party shall have the right to retain its own counsel, with the fees
and expenses to be paid by the indemnifying party, if representation of such
indemnified party by the counsel retained by the indemnifying party would, in
the opinion of such counsel, be inappropriate due to actual or potential
differing interests between such indemnified party and any other party
represented by such counsel in such proceeding. The failure to deliver written
notice to the indemnifying party within a reasonable time of the commencement of
any such action, if prejudicial to its ability to defend such action, shall
relieve such indemnifying party of any liability to the indemnified party under
this Section 4.9, but the omission so to deliver written notice to the
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indemnifying party will not relieve it of any liability that it may have to any
indemnified party otherwise than under this Section 4.9.
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(d) If the indemnification provided for in this Section 4.9 is held
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by a court of competent jurisdiction to be unavailable to an indemnified party
with respect to any loss, liability, claim, damage or expense referred to
therein, then the indemnifying party, in lieu of indemnifying such indemnified
party hereunder, shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on the other in
connection with the statements or omissions that resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations; provided, that, in no event shall any contribution by a Holder
under this Section 4.9(d) exceed the net proceeds from the offering received by
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a Holder, except in the case of willful fraud by a Holder. The relative fault of
the indemnifying party and of the indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission to state a material fact relates to
information was supplied by the indemnifying party or by the indemnified party
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in the underwriting
agreement entered into in connection with the underwritten public offering are
in conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control. Notwithstanding the foregoing, no Holder shall be
required to participate in a registration pursuant to Section 4.3 which would
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require it to execute an underwriting agreement in connection with a
registration that imposes indemnification or contribution obligations on such
Holder more onerous than those imposed
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hereunder; provided, however, that the Corporation shall not be deemed to breach
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the provisions of Section 4.3 if a Holder is not permitted to participate in a
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registration on account of such Holder's refusal to execute an underwriting
agreement on the basis of this Section 4.9(e).
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(f) The obligations of the Corporation and Holders under this
Section 4.9 shall survive the completion of any offering of Registrable
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Securities in a registration statement under this Section 4 and otherwise.
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4.10 Reports Under Securities Exchange Act of 1934. With a view to making
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available to the Holders the benefits of Rule 144 promulgated under the
Securities Act and any other rule or regulation of the SEC that may at any time
permit Holders to sell securities of the Corporation to the public without
registration, the Corporation agrees to use its best efforts to:
(a) make and keep public information available, as those terms are
understood and defined in SEC Rule 144, at all times after the effective date of
the first registration statement filed by the Corporation for the offering of
its securities to the general public;
(b) file with the SEC in a timely manner all reports and other
documents required of the Corporation under the Securities Act and the 1934 Act;
and
(c) furnish to each Holder, so long as such Holder owns any
Registrable Securities, forthwith upon request (i) a written statement by the
Corporation that it has complied with the reporting requirements of SEC Rule 144
(at any time after ninety (90) days after the effective date of the first
registration statement filed by the Corporation), the Securities Act and the
1934 Act (at any time after it has become subject to such reporting
requirements), or that it qualifies as a registrant whose securities may be
resold pursuant to Form S-3 (at any time after it so qualifies), (ii) a copy of
the most recent annual or quarterly report of the Corporation and such other
reports and documents so filed by the Corporation, and (iii) such other
information as may be reasonably requested in availing a Holder of any rule or
regulation of the SEC which permits the selling of any such securities without
registration or pursuant to such form.
4.11 Termination of Registration Rights. Holders shall not be entitled to
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exercise any right provided for in this Section 4 when such Holder can sell all
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of such Holder's Registrable Securities in a ninety (90) day period pursuant to
Rule 144 promulgated under the Securities Act.
4.12 Assignment of Rights. The right to cause the Corporation to register
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Registrable Securities pursuant to this Section 4 may be assigned (but only with
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all related obligations) by a Holder to a transferee of at least 100,000 shares
of Registrable Securities, provided the Corporation is, within a reasonable time
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after such transfer, furnished with written notice of the name and address of
such transferee or assignee and the securities with respect to which such
registration rights are being assigned; provided, further, that such assignment
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shall be effective only if (i) the transferee agrees to be bound by the terms
hereof and (ii) immediately following such transfer the further disposition of
such securities by the transferee or assignee is restricted under the Securities
Act.
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5. Miscellaneous Provisions.
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5.1 Waivers and Amendments. Any term of this Agreement may be amended and
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the observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively), only with
the written consent of the Corporation and each Holder. Any amendment or waiver
effected in accordance with this Section 5.1 shall be binding upon Holders and
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the Corporation.
5.2 Notices. All notices and other communications required or permitted
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hereunder shall be in writing and, except as otherwise noted herein, shall be
deemed effectively given upon personal delivery, delivery by nationally
recognized courier or upon deposit with the United States Post Office or Canada
Post, (by first class mail, postage prepaid) addressed as follows:
(a) if to the Corporation, to:
Netpliance, Inc.
0000X X. Xxxxxxx xx Xxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attention: Xxx Xxxxxx, Vice President and General Counsel
Fax: (000) 000-0000
with a copy to:
Xxxxxx & Xxxx, L.L.P.
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: R. Xxxxxxx Xxxxxxx
Fax: (000) 000-0000
(b) if to any Holder, at the address shown on Schedule A
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attached hereto, marked for attention as there indicated, to:
or to such other address as the party to whom notice is to be given may have
furnished to the other in writing in accordance with the provisions of this
Section 5.2. Any such notice or communication shall be deemed to have been
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received: (i) in the case of telecopy or personal delivery, on the date of such
delivery; (ii) in the case of nationally-recognized overnight courier, on the
next business day after the date sent; and (iii) if by registered or certified
mail, on the third business day following the date postmarked.
5.3 Descriptive Headings. The descriptive headings herein have been
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inserted for convenience only and shall not be deemed to limit or otherwise
affect the construction of any provisions hereof.
5.4 Governing Law. This Agreement shall be governed by and
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interpreted under the laws of the State of Texas as applied to agreements among
Texas residents, made and to be performed entirely within the State of Texas.
10
5.5 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall for all purposes be deemed to be an original
and all of which shall constitute the same instrument, but only one of which
need be produced.
5.6 Expenses. If any action at law or in equity is necessary to enforce
--------
or interpret the terms of this Agreement, the prevailing party shall be entitled
to reasonable attorney's fees, costs and necessary disbursements in addition to
any other relief to which such party may be entitled.
5.7 Successors and Assigns. Except as otherwise expressly provided in
----------------------
this Agreement, this Agreement shall benefit and bind the successors, assigns,
heirs, executors and administrators of the parties to this Agreement.
5.8 Entire Agreement. This Agreement constitutes the full and entire
----------------
understanding and agreement between the parties with regard to the subject
matter of this Agreement.
5.9 Separability; Severability. Unless expressly provided in this
--------------------------
Agreement, the rights of each Holder under this Agreement are several rights,
not rights jointly held with any other Holders. Any invalidity, illegality or
limitation on the enforceability of this Agreement with respect to any Holder
shall not affect the validity, legality or enforceability of this Agreement with
respect to the other Holders. If any provision of this Agreement is judicially
determined to be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not be affected or impaired.
5.10 Stock Splits. All references to numbers of shares in this Agreement
------------
shall be appropriately adjusted to reflect any stock dividend, split,
combination or other recapitalization of shares by the Corporation occurring
after the date of this Agreement.
[SIGNATURE PAGES FOLLOW]
11
IN WITNESS WHEREOF, the parties have executed this Rights Agreement on the
day and year first set forth above.
NETPLIANCE, INC.
By:
---------------------------------------------
Xxxx X. Xxxxxx,
President and Chief Executive Officer
HOLDERS:
US WEST INTERNET VENTURES, INC.
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
CATALYST INVESTMENTS, L.L.C.
By: The Xxxx Disney Company,
its sole member
By:
-----------------------------------------
Xxxxx X. Xxxxxx,
Senior Executive Vice President and
Chief Strategic Officer
SSBC II - NP LLC
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
------------------------------------------------
XXXX XXXX
DLJ FUND INVESTMENT PARTNERS II, L.P.
By: DLJ LBO Plans Management Corporation
By:
-----------------------------------------
Xxx Xxxxx,
Vice President
DLJ PRIVATE EQUITY EMPLOYEES FUND, L.P.
By: DLJ LBO Plans Management Corporation
By:
-----------------------------------------
Xxx Xxxxx,
Vice President
DLJ PRIVATE EQUITY PARTNERS FUND, L.P.
By: WSW Capital, Inc.
By:
-----------------------------------------
Xxx Xxxxx,
Vice President
DLJ CAPITAL CORPORATION
By:
---------------------------------------------
Xxx Xxxxx,
Vice President
THOMSON CONSUMER ELECTRONICS, INC.
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
862686 ALBERTA LTD.
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
XXXXXX COMMUNICATIONS INC.
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
WATERSHED CAPITAL I, L.P.
By: Watershed Capital G.P. I, L.P.
Its General Partner
By: Watershed Capital G.P. I, L.L.C.,
Its General Partner
By:
------------------------------------
Xxxxx X. Xxxxxxx,
Managing Member
SCHEDULE A TO SERIES D RIGHTS AGREEMENT
Names and Addresses of Holders
------------------------------
1. US WEST Internet Ventures, Inc.
0000 Xxxxxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Vice President, Business Development
Facsimile: (000) 000-0000
With copy to:
US WEST, Inc.
0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxxxxx 00000
Attn: Strategic Transactions Group,
Law Department
Facsimile: (000) 000-0000
2. Catalyst Investments, L.L.C.
000 Xxxxx Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Strategic Officer
Phone: (000) 000-0000
Facsimile: (000) 000-0000
With copy to:
The Xxxx Disney Company
000 Xxxxx Xxxxx Xxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Corporate Legal
Phone: (000) 000-0000
Facsimile: (000) 000-0000
3. SSBC II - NP LLC
c/x Xxxxx Interests, Inc.
000 Xxxx 00xx Xxxxxx, Xxxxx 00X
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
4. Xxxx Xxxx
0000 Xxxxx Xxxxxx Xxxx., Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
5. DLJ Capital Corporation
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
6. DLJ Fund Investment Partners II, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
7. DLJ Private Equity Employees Fund, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
8. DLJ Private Equity Partners Fund, L.P.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Phone: (000) 000-0000
Facsimile: (000) 000-0000
9. 000000 Xxxxxxx Ltd.
x/x Xxxx Xxxxxxxxxxxxxx Xxx.
Xxxxx 000, 630 - 3rd Avenue S.W.
Calgary, Alberta, Canada
T2P 4L4
Attn: President
Facsimile: (000) 000-0000
With copy to:
Attn: General Counsel & Secretary
Facsimile: (000) 000-0000
-2-
10. Xxxxxx Communications Inc.
000 Xxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx, Xxxxxx
Attn: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
11. Thomson Consumer Electronics, Inc.
00000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxxxx, VP and General Counsel
Facsimile: (000) 000-0000
12. Watershed Capital I, L.P.
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
-3-
