EXHIBIT 10.17
STOCKHOLDERS' AGREEMENT
This Stockholders' Agreement is made as of the 11th day
of January, 2001 by and among m-Wise, Inc., a Delaware
corporation (the "Company"), the investors listed on Schedule A
hereto (each, a "Series A Investor" and collectively, the "Series
A Investors"), the investors listed on Schedule B hereto (or any
subsidiary thereof, any entity into which any such investor shall
merge or any subsidiary of such entity) (each, a "Series B
Investor" and collectively, the "Series B Investors"), Proton
Marketing Associates LLC, Xxxxxxxx.xxx LLC, Chinese Whispers LLC
and Ogen LLC (each, a "Founder" and collectively, the
"Founders"), each of which owns the number of shares set forth
opposite its name on Schedule C hereto, and the stockholders
listed on Schedule D hereto (the "Other Stockholders"). The
Founders, the Other Stockholders, the Series A Investors and the
Series B Investors shall be referred to collectively herein as
the "Stockholders."
WHEREAS, the Series A Investors possess certain first
refusal, co-sale, bring-along and board representation rights
pursuant to a Subscription Agreement dated as of April 12, 2000,
as amended, among the Company and the Series A Investors (the
"Subscription Agreement") and as set forth in the Certificate of
Designation, Preferences and Rights of the Series A Preferred
Stock, par value $0.01 per share (the "Series A Preferred
Stock"), of the Company;
WHEREAS, pursuant to a waiver and termination agreement
dated as of the date hereof (the "Waiver"), the Series A
Investors have agreed, among other things, to terminate such
rights under the Subscription Agreement and as set forth in the
Certificate of Designation, Preferences and Rights of the Series
A Preferred Stock, and to accept the rights created pursuant
hereto in lieu thereof;
WHEREAS, the Series A Investors are the beneficial
owners of the number of shares of Series A Preferred Stock and
warrants to purchase shares of Series A Preferred Stock of the
Company set forth opposite their names on Schedule A attached
hereto;
WHEREAS, the Company and the Series B Investors are
parties to a Purchase Agreement of even date herewith (the
"Purchase Agreement"), pursuant to which the Series B Investors
are purchasing shares of Series B Preferred Stock, par value
$0.01 per share (the "Series B Preferred Stock") of the Company
and warrants to purchase shares of Series B Preferred Stock, in
the amounts and for the aggregate exercise price set forth
opposite their names on Schedule B attached hereto;
WHEREAS, the Founders are the beneficial owners of the
number of shares of Common Stock of the Company set forth
opposite their names on Schedule C attached hereto;
WHEREAS, the Other Stockholders are the beneficial
owners of the number of shares of Common Stock of the Company set
forth opposite their names on Schedule D attached hereto; and
WHEREAS, it is a condition precedent to the
transactions contemplated by the Purchase Agreement that the
Company, the Founders, the Other Stockholders, the Series A
Investors and the Series B Investors enter into this agreement;
NOW, THEREFORE, in consideration of the mutual
covenants set forth herein, the parties agree as follows:
1. Definitions.
(a) "Common Stock" shall mean the Company's Common Stock,
including, without limitation, shares of Common Stock issued or
issuable upon conversion of (i) the Company's Preferred Stock or
(ii) any other security convertible into shares of the Company's
Common Stock.
(b) "Founder Stock" shall mean shares of the Company's Common
Stock now owned or subsequently acquired by the Founders.
(c) "Preferred Stock" shall mean the Company's outstanding
Series A Preferred Stock and Series B Preferred Stock.
(d) "Investor Stock" shall mean shares of the Company's Common
Stock and Preferred Stock now owned or subsequently acquired by
the Series A Investors and the Series B Investors.
(e) "Preferred Stockholder" shall mean the holders of the
Company's Preferred Stock.
2. Restrictions on Transfer. None of the Founders, the Other
Stockholders, the Series A Investors or the Series B Investors
will sell, assign, transfer, pledge, hypothecate or otherwise
encumber or dispose of in any way ("Transfer"), all or any part
of or any interest in the Founder Stock, Common Stock or Investor
Stock, as the case may be, now or hereafter owned or held by any
of them in violation of the terms of this Agreement. Any
Transfer of Founder Stock, Common Stock or Investor Stock not
made in conformance with this Agreement shall be null and void,
shall not be recorded on the books of the Company and shall not
be recognized by the Company.
3. Sales by Founders.
(a) Restrictions. None of the Founders shall Transfer any
shares of Founder Stock prior to January 11, 2005, except as
specifically provided for in Section 8, without the prior written
consent of the holders of at least a majority of the Series B
Preferred Stock; provided, however, that each of the Founders may
Transfer (i) at any time after January 11, 2003 and prior to
January 11, 2005, a number of shares of Founder Stock not in
excess of ten percent (10%) of the number of shares set forth
opposite its name on Schedule C and (ii) at any time after
January 11, 2004 and prior to January 11, 2005, an additional
number of shares of Founder Stock not in excess of the sum of (A)
fifteen percent (15%) of the number of shares set forth opposite
its name on Schedule C and (B) such number of shares of Founder
Stock permitted to be Transferred pursuant to clause (i) above
and not so Transferred. Any Transfers made by the Founders
pursuant to this Section 3(a) shall be subject to the remaining
terms and conditions of this Agreement.
(b) Series B Right of First Refusal.
(i) If a Founder proposes to Transfer any shares of Founder
Stock, whether prior to January 11, 2005 in accordance with
Section 3(a) or thereafter, then such Founder shall offer such
shares first to the Series B Investors, by sending written notice
(the "Notice") to the Series B Investors, with a copy to the
Company and the Series A Investors, which shall state (A) the
number of shares proposed to be Transferred (the "Offered
Stock"), (B) the identity of the proposed transferee ("Third
Party Purchaser"), (C) the proposed purchase price per share
offered by the Third Party Purchaser (the "Offer Price"), and (D)
the material terms and conditions upon which the proposed
Transfer is to be made. Upon delivery of the Notice, such offer
shall be irrevocable unless and until the rights of first offer
provided for herein shall have been waived or shall have expired.
(ii) The Series B Investors may elect, by written notice to the
Founder and the Company delivered within fifteen (15) days after
the giving of the Notice pursuant to Section 3(b)(i) (the "Series
B Notice Period"), to purchase any or all of the Offered Stock at
a purchase price equal to the Offer Price and upon the terms and
subject to the conditions set forth in the Notice (the "Series B
Option"). Each Series B Investor shall have the right to
purchase that percentage of the Offered Stock determined by
dividing (A) the total number of shares of Investor Stock then
owned by such Series B Investor by (B) the total number of shares
of Investor Stock then owned by all Series B Investors (in each
case, calculated on an as converted to Common Stock basis). The
Company shall, within five (5) days of the expiration of the
Series B Notice Period, provide written notice to the fully
participating Series B Investors indicating the number of shares
of Offered Stock not elected to be purchased by the other Series
B Investors (the "Company B Option Notice"). If any Series B
Investor does not fully subscribe for the number of shares of
Offered Stock such Series B Investor is entitled to purchase,
then each other fully participating Series B Investor may elect
by written notice delivered to the Founder and the Company within
five (5) days of delivery of the Company B Option Notice to
purchase that percentage of the remaining Offered Stock not so
subscribed for determined by dividing (x) the total number of
shares of Investor Stock then owned by such fully participating
Series B Investor by (y) the total number of shares of Investor
Stock then owned by all fully participating Series B Investors
who elected to purchase the remaining Offered Stock (in each
case, calculated on an as converted to Common Stock basis).
(iii) The failure of a Series B Investor to respond within
the Series B Notice Period to the Founder and the Company shall
be deemed to be a waiver of such Series B Investor's rights under
this Section 3(b), provided that each Series B Investor may waive
its rights under this Section 3(b) prior to the expiration of the
Series B Notice Period by giving written notice to the Founder
and the Company.
(c) Series A Right of First Refusal.
(i) The Company shall within five (5) days of the expiration of
the last applicable time period set forth in Section 3(b)(ii)
above provide notice to the Series A Investors of the number of
shares of Offered Stock, if any, that the Series B Investors did
not elect to purchase. The Series A Investors may elect within
fifteen (15) days after delivery of such notice (the "Series A
Notice Period") to purchase any or all of the remaining Offered
Stock at a purchase price equal to the Offer Price and upon the
terms and subject to the conditions set forth in the Notice (the
"Series A Option"). Each such Series A Investor shall have the
right to purchase that percentage of the remaining Offered Stock
determined by dividing (x) the total number of shares of Investor
Stock then owned by such Series A Investor by (y) the total
number of shares of Investor Stock then owned by all Series A
Investors (in each case, calculated on an as converted to Common
Stock basis). The Company shall, within five (5) days of the
expiration of the Series A Notice Period, provide written notice
to the fully participating Series A Investors indicating the
number of shares of Offered Stock not elected to be purchased by
the other Series A Investors (the "Company A Option Notice"). If
any Series A Investor does not fully subscribe for the number of
shares of Offered Stock such Series A Investor is entitled to
purchase, then each other fully participating Series A Investor
may elect by written notice delivered to the Founder and the
Company within five (5) days of delivery of the Company A Option
Notice to purchase that percentage of the remaining Offered Stock
not so subscribed for determined by dividing (I) the total number
of shares of Investor Stock then owned by such fully
participating Series A Investor by (II) the total number of
shares of Investor Stock then owned by all fully participating
Series A Investors who elected to purchase the remaining Offered
Stock (in each case, calculated on an as converted to Common
Stock basis).
(ii) The failure of a Series A Investor to respond within the
Series A Notice Period to the Founder and the Company shall be
deemed to be a waiver of such Series A Investor's rights under
this Section 3(c), provided that each Series A Investor may waive
its rights under this Section 3(c) prior to the expiration of the
Series A Notice Period by giving written notice to the Founder
and the Company.
(d) Settlement.
(i) The Closing of the Offered Stock to be purchased by the
Series B Investors and/or the Series A Investors shall be
completed within thirty (30) days of the expiration of the last
applicable notice period set forth in Sections 3(b) or (c), as
applicable.
(ii) Unless the Series B Investors or the Series A Investors
shall have purchased all of the Offered Stock pursuant to
Sections 3(b) or (c), as applicable, the Founder may, subject to
Section 3(e), sell the Offered Stock to a Third Party Purchaser
on the terms and subject to the conditions set forth in the
Notice; provided, however, that such sale is bona fide and made
pursuant to a contract entered into within sixty (60) days of the
earliest to occur of (A) the waiver by the Series B Investors and
the Series A Investors of their options to purchase the Offered
Stock or (B) the expiration of the Series A Notice Period or
(C) the expiration of the time period set forth in Section
3(d)(i) without the closing of the purchase of the Offered Stock
having taken place due to failure by the Series A Investors
and/or Series B Investors to close (the earliest of such dates
being referred to herein as the "Contract Date"); and provided
further, that such sale shall not be consummated unless and until
all of the following conditions are met:
(a) The Founder shall deliver to the Company a certificate of a
Third Party Purchaser stating that (x) such Third Party Purchaser
is aware of the rights of the Series B Investors and the Series A
Investors contained in this Section 3 and (y) prior to the
purchase by such Third Party Purchaser of any of such Offered
Stock, such Third Party Purchaser shall become a party to this
Agreement and agree to be bound by the terms and conditions
hereof; and
(b) The consummation of such sale to a Third Party Purchaser
shall not be subject to any conditions (other than necessary
filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act),
except that it may be conditioned upon the truth as of the
closing of the proposed purchase of customary representations and
warranties and the delivery of stock certificates and a customary
legal opinion.
(iii) If such sale is not consummated within sixty (60) days
of the Contract Date for any reason, then the restrictions
provided for herein shall again become effective, and no Transfer
of such Offered Stock may be made thereafter by the Founder
without again offering the same to the Series B Investors and the
Series A Investors in accordance with this Section 3.
(e) Co-Sale Right.
(i) If a Founder is Transferring stock to a Third Party
Purchaser pursuant to Section 3(d)(ii), then each Preferred
Stockholder that has not exercised the Series B Option or the
Series A Option, as applicable, shall have the right, exercisable
upon written notice to such Founder within thirty (30) days after
receipt of the Notice, to participate in such sale of Founder
Stock on the same terms and conditions. To the extent one or
more of the Preferred Stockholders exercise such right of
participation in accordance with the terms and conditions set
forth below, the number of shares of Founder Stock that the
Founder may sell in the transaction shall be correspondingly
reduced.
(ii) Each Preferred Stockholder may sell all or any part of that
number of shares of Investor Stock equal to the product obtained
by multiplying (A) the aggregate number of shares of Founder
Stock covered by the Notice by (B) a fraction, the numerator of
which is the number of shares of Investor Stock owned by the
Preferred Stockholder at the time of the Transfer and the
denominator of which is the total number of shares of Investor
Stock owned by all the Preferred Stockholders at the time of the
Transfer (in each case, calculated on an as converted to Common
Stock basis).
(iii) If any Preferred Stockholder fails to elect to fully
participate in such Founder's sale pursuant to this Section 3(e),
the Founder shall give notice of such failure to the Preferred
Stockholders who did so elect (the "Participants"). The
Participants shall have five days from the date such notice was
given to agree to sell their pro rata share of the unsold
portion. For purposes of this paragraph, a Participant's pro
rata share shall be the ratio of (x) the number of shares of
Investor Stock held by such Participant to (y) the total number
of shares of Investor Stock held by all the Participants (in each
case, calculated on an as converted to Common Stock basis).
(iv) The exercise or non-exercise of the rights of the
Participants hereunder to participate in one or more sales of
Founder Stock made by the Founder shall not adversely affect
their rights to participate in subsequent sales of Founder Stock
subject to this Section 3.
(v) In the event the Founder has not sold the Founder Stock
subject to the aforementioned provisions within the time period
specified in Section 3(d)(ii), the Founder shall not thereafter
sell any Founder Stock subject to the provisions of this
Agreement without again being subject to the rights of the
Stockholders as here prescribed.
4. Sales by the Other Stockholders.
(a) Series B Right of First Refusal.
(i) If an Other Stockholder proposes to Transfer any shares of
Common Stock, then such Other Stockholder shall offer such shares
first to the Series B Investors, by sending written notice (the
"Notice") to the Series B Investors, with a copy to the Company
and the Series A Investors, which shall state (A) the number of
shares proposed to be Transferred (the "Offered Stock"), (B) the
identity of the proposed transferee ("Third Party Purchaser"),
(C) the proposed purchase price per share offered by the Third
Party Purchaser (the "Offer Price"), and (D) the material terms
and conditions upon which the proposed Transfer is to be made.
Upon delivery of the Notice, such offer shall be irrevocable
unless and until the rights of first offer provided for herein
shall have been waived or shall have expired.
(ii) The Series B Investors may elect, by written notice to the
Other Stockholder and the Company delivered within fifteen (15)
days after the giving of the Notice pursuant to Section 4(a)(i)
(the "Series B Notice Period"), to purchase any or all of the
Offered Stock at a purchase price equal to the Offer Price and
upon the terms and subject to the conditions set forth in the
Notice (the "Series B Option"). Each Series B Investor shall
have the right to purchase that percentage of the Offered Stock
determined by dividing (A) the total number of shares of Investor
Stock then owned by such Series B Investor by (B) the total
number of shares of Investor Stock then owned by all Series B
Investors (in each case, calculated on an as converted to Common
Stock basis). The Company shall, within five (5) days of the
expiration of the Series B Notice Period, provide written notice
to the fully participating Series B Investors indicating the
number of shares of Offered Stock not elected to be purchased by
the other Series B Investors (the "Company B Option Notice"). If
any Series B Investor does not fully subscribe for the number of
shares of Offered Stock such Series B Investor is entitled to
purchase, then each other fully participating Series B Investor
may elect by written notice delivered to the Other Stockholder
and the Company within five (5) days of delivery of the Company B
Option Notice to purchase that percentage of the remaining
Offered Stock not so subscribed for determined by dividing (x)
the total number of shares of Investor Stock then owned by such
fully participating Series B Investor by (y) the total number of
shares of Investor Stock then owned by all fully participating
Series B Investors who elected to purchase the remaining Offered
Stock (in each case, calculated on an as converted to Common
Stock basis).
(iii) The failure of a Series B Investor to respond within
the Series B Notice Period to the Other Stockholder and the
Company shall be deemed to be a waiver of such Series B
Investor's rights under this Section 4(a), provided that each
Series B Investor may waive its rights under this Section 4(a)
prior to the expiration of the Series B Notice Period by giving
written notice to the Other Stockholder and the Company.
(b) Series A Right of First Refusal.
(i) The Company shall within five (5) days of the expiration of
the last applicable time period set forth in Section 4(a)(ii)
above provide notice to the Series A Investors of the number of
shares of Offered Stock, if any, that the Series B Investors did
not elect to purchase. The Series A Investors may elect within
fifteen (15) days after delivery of such notice (the "Series A
Notice Period") to purchase any or all of the remaining Offered
Stock at a purchase price equal to the Offer Price and upon the
terms and subject to the conditions set forth in the Notice (the
"Series A Option"). Each such Series A Investor shall have the
right to purchase that percentage of the remaining Offered Stock
determined by dividing (x) the total number of shares of Investor
Stock then owned by such Series A Investor by (y) the total
number of shares of Investor Stock then owned by all Series A
Investors (in each case, calculated on an as converted to Common
Stock basis). The Company shall, within five (5) days of the
expiration of the Series A Notice Period, provide written notice
to the fully participating Series A Investors indicating the
number of shares of Offered Stock not elected to be purchased by
the other Series A Investors (the "Company A Option Notice"). If
any Series A Investor does not fully subscribe for the number of
shares of Offered Stock such Series A Investor is entitled to
purchase, then each other fully participating Series A Investor
may elect by written notice delivered to the Other Stockholder
and the Company within five (5) days of delivery of the Company A
Option Notice to purchase that percentage of the remaining
Offered Stock not so subscribed for determined by dividing (I)
the total number of shares of Investor Stock then owned by such
fully participating Series A Investor by (II) the total number of
shares of Investor Stock then owned by all fully participating
Series A Investors who elected to purchase the remaining Offered
Stock (in each case, calculated on an as converted to Common
Stock basis).
(ii) The failure of a Series A Investor to respond within the
Series A Notice Period to the Other Stockholder and the Company
shall be deemed to be a waiver of such Series A Investor's rights
under this Section 4(b), provided that each Series A Investor may
waive its rights under this Section 4(b) prior to the expiration
of the Series A Notice Period by giving written notice to the
Other Stockholder and the Company.
(c) Settlement.
(i) The Closing of the Offered Stock to be purchased by the
Series B Investors and/or the Series A Investors shall be
completed within thirty (30) days of the expiration of the last
applicable notice period set forth in Sections 4(a) or (b), as
applicable.
(ii) Unless the Series B Investors or the Series A Investors
shall have purchased all of the Offered Stock pursuant to
Sections 4(a) or (b), as applicable, the Other Stockholder may
sell the Offered Stock to a Third Party Purchaser on the terms
and subject to the conditions set forth in the Notice; provided,
however, that such sale is bona fide and made pursuant to a
contract entered into within sixty (60) days of the earliest to
occur of (A) the waiver by the Series B Investors and the Series
A Investors of their options to purchase the Offered Stock or (B)
the expiration of the Series A Notice Period or (C) the
expiration of the time period set forth in Section 4(c)(i)
without the closing of the purchase of the Offered Stock having
taken place due to failure by the Series B Investors and/or the
Series A Investors to close (the earliest of such dates being
referred to herein as the "Contract Date"); and provided further,
that such sale shall not be consummated unless and until all of
the following conditions are met:
(a) The Other Stockholder shall deliver to the Company a
certificate of a Third Party Purchaser stating that (x) such
Third Party Purchaser is aware of the rights of the Series B
Investors and the Series A Investors contained in this Section 4
and (y) prior to the purchase by such Third Party Purchaser of
any of such Offered Stock, such Third Party Purchaser shall
become a party to this Agreement and agree to be bound by the
terms and conditions hereof; and
(b) The consummation of such sale to a Third Party Purchaser
shall not be subject to any conditions (other than necessary
filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act),
except that it may be conditioned upon the truth as of the
closing of the proposed purchase of customary representations and
warranties and the delivery of stock certificates and a customary
legal opinion.
(iii) If such sale is not consummated within sixty (60) days
of the Contract Date for any reason, then the restrictions
provided for herein shall again become effective, and no Transfer
of such Offered Stock may be made thereafter by the Other
Stockholder without again offering the same to the Series B
Investors and the Series A Investors in accordance with this
Section 4.
5. Sales by Series A Investors.
(a) Series B Right of First Refusal.
(i) If a Series A Investor proposes to Transfer any shares of
Preferred Stock, other than pursuant to Section 3(e) or 5(d),
then such Series A Investor shall offer such shares first to the
Series B Investors, by sending written notice (the "Notice") to
the Series B Investors, with a copy to the Company and the other
Series A Investors, which shall state (A) the number of shares
proposed to be Transferred (the "Offered Stock"), (B) the
identity of the proposed transferee ("Third Party Purchaser"),
(C) the proposed purchase price per share offered by the Third
Party Purchaser (the "Offer Price"), and (D) the material terms
and conditions upon which the proposed Transfer is to be made.
Upon delivery of the Notice, such offer shall be irrevocable
unless and until the rights of first offer provided for herein
shall have been waived or shall have expired.
(ii) The Series B Investors may elect, by written notice to the
Series A Investor and the Company delivered within fifteen (15)
days after the giving of the Notice pursuant to Section 5(a)(i)
(the "Series B Notice Period"), to purchase any or all of the
Offered Stock at a purchase price equal to the Offer Price and
upon the terms and subject to the conditions set forth in the
Notice (the "Series B Option"). Each Series B Investor shall
have the right to purchase that percentage of the Offered Stock
determined by dividing (A) the total number of shares of Investor
Stock then owned by such Series B Investor by (B) the total
number of shares of Investor Stock then owned by all Series B
Investors (in each case, calculated on an as converted to Common
Stock basis). The Company shall, within five (5) days of the
expiration of the Series B Notice Period, provide written notice
to the fully participating Series B Investors indicating the
number of shares of Offered Stock not elected to be purchased by
the other Series B Investors (the "Company B Option Notice"). If
any Series B Investor does not fully subscribe for the number of
shares of Offered Stock such Series B Investor is entitled to
purchase, then each other fully participating Series B Investor
may elect by written notice delivered to the Preferred
Stockholder and the Company within five (5) days of delivery of
the Company B Option Notice to purchase that percentage of the
remaining Offered Stock not so subscribed for determined by
dividing (x) the total number of shares of Investor Stock then
owned by such fully participating Series B Investor by (y) the
total number of shares of Investor Stock then owned by all fully
participating Series B Investors who elected to purchase the
remaining Offered Stock (in each case, on an as converted to
Common Stock basis).
(iii) The failure of a Series B Investor to respond within
the Series B Notice Period to the Series A Investor and the
Company shall be deemed to be a waiver of such Series B
Investor's rights under this Section 5(a), provided that each
Series B Investor may waive its rights under this Section 5(a)
prior to the expiration of the Series B Notice Period by giving
written notice to the Series A Investor and the Company.
(b) Series A Right of First Refusal.
(i) The Company shall within five (5) days of the expiration of
the last applicable time period set forth in Section 5(a)(ii)
above provide notice to the other Series A Investors of the
number of shares of Offered Stock, if any, that the Series B
Investors did not elect to purchase. The other Series A
Investors may elect within fifteen (15) days after delivery of
such notice (the "Series A Notice Period") to purchase any or all
of the remaining Offered Stock at a purchase price equal to the
Offer Price and upon the terms and subject to the conditions set
forth in the Notice (the "Series A Option"). Each such Series A
Investor shall have the right to purchase that percentage of the
remaining Offered Stock determined by dividing (x) the total
number of shares of Investor Stock then owned by such Series A
Investor by (y) the total number of shares of Investor Stock then
owned by all Series A Investors (in each case, calculated on an
as converted to Common Stock basis). The Company shall, within
five (5) days of the expiration of the Series A Notice Period,
provide written notice to the fully participating Series A
Investors indicating the number of shares of Offered Stock not
elected to be purchased by the other Series A Investors (the
"Company A Option Notice"). If any Series A Investor does not
fully subscribe for the number of shares of Offered Stock such
Series A Investor is entitled to purchase, then each other fully
participating Series A Investor may elect by written notice
delivered to the transferring Series A Investor and the Company
within five (5) days of delivery of the Company A Option Notice
to purchase that percentage of the remaining Offered Stock not so
subscribed for determined by dividing (I) the total number of
shares of Investor Stock then owned by such fully participating
Series A Investor by (II) the total number of shares of Investor
Stock then owned by all fully participating Series A Investors
who elected to purchase the remaining Offered Stock (in each
case, calculated on an as converted to Common Stock basis).
(ii) The failure of a Series A Investor to respond within the
Series A Notice Period to the transferring Series A Investor and
the Company shall be deemed to be a waiver of such Series A
Investor's rights under this Section 5(b), provided that each
Series A Investor may waive its rights under this Section 5(b)
prior to the expiration of the Series A Notice Period by giving
written notice to the transferring Series A Investor and the
Company.
(c) Settlement.
(i) The Closing of the Offered Stock to be purchased by the
Series B Investors and/or the non-transferring Series A Investors
shall be completed within thirty (30) days of the expiration of
the last applicable notice period set forth in Sections 5(a) or
(b), as applicable.
(ii) Unless the Series B Investors or the Series A Investors
shall have purchased all of the Offered Stock pursuant to
Sections 5(a) or (b), as applicable, the transferring Series A
Investor may, subject to Section 5(d), sell the Offered Stock to
a Third Party Purchaser on the terms and subject to the
conditions set forth in the Notice; provided, however, that such
sale is bona fide and made pursuant to a contract entered into
within sixty (60) days of the earliest to occur of (A) the waiver
by the Series B Investors and the Series A Investors of their
options to purchase the Offered Stock or (B) the expiration of
the Series A Notice Period or (C) the expiration of the time
period set forth in Section 5(c)(i) without the closing of the
purchase of the Offered Stock having taken place due to failure
by the Series B Investors and/or Series A Investors to close (the
earliest of such dates being referred to herein as the "Contract
Date"); and provided further, that such sale shall not be
consummated unless and until all of the following conditions are
met:
(a) The transferring Series A Investor shall deliver to the
Company a certificate of a Third Party Purchaser stating that (x)
such Third Party Purchaser is aware of the rights of the Series B
Investors and the Series A Investors contained in this Section 5
and (y) prior to the purchase by such Third Party Purchaser of
any of such Offered Stock, such Third Party Purchaser shall
become a party to this Agreement and agree to be bound by the
terms and conditions hereof; and
(b) The consummation of such sale to a Third Party Purchaser
shall not be subject to any conditions (other than necessary
filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act),
except that it may be conditioned upon the truth as of the
closing of the proposed purchase of customary representations and
warranties and the delivery of stock certificates and a customary
legal opinion.
(iii) If such sale is not consummated within sixty (60) days
of the Contract Date for any reason, then the restrictions
provided for herein shall again become effective, and no Transfer
of such Offered Stock may be made thereafter by the transferring
Series A Investor without again offering the same to Series B
Investors and the other Series A Investors in accordance with
this Section 5.
(d) Co-Sale Right.
(i) If a Series A Investor is Transferring stock to a Third
Party Purchaser pursuant to Section 5(c)(ii), then each Series A
Investor that has not exercised the Series A Option (other than
the transferring Series A Investor) shall have the right,
exercisable upon written notice to such transferring Series A
Investor within thirty (30) days after receipt of the Notice, to
participate in such sale of Investor Stock on the same terms and
conditions. To the extent one or more of the Series A Investors
exercise such right of participation in accordance with the terms
and conditions set forth below, the number of shares of Investor
Stock that the transferring Series A Investor may sell in the
transaction shall be correspondingly reduced.
(ii) Each non-transferring Series A Investor may sell all or any
part of that number of shares of Investor Stock equal to the
product obtained by multiplying (A) the aggregate number of
shares of Investor Stock covered by the Notice by (B) a fraction,
the numerator of which is the number of shares of Investor Stock
owned by the non-transferring Series A Investor at the time of
the Transfer and the denominator of which is the total number of
shares of Investor Stock owned by all the Series A Investors
(other than the transferring Series A Investor) at the time of
the Transfer (in each case, calculated on an as converted to
Common Stock basis).
(iii) If any Series A Investor fails to elect to fully
participate in such transferring Series A Investor's sale
pursuant to this Section 5(d), the transferring Series A Investor
shall give notice of such failure to the Series A Investors who
did so elect (the "Participants"). The Participants shall have
five days from the date such notice was given to agree to sell
their pro rata share of the unsold portion. For purposes of this
paragraph, a Participant's pro rata share shall be the ratio of
(x) the number of shares of Investor Stock held by such
Participant to (y) the total number of shares of Investor Stock
held by all the Participants (in each case, calculated on an as
converted to Common Stock basis).
(iv) The exercise or non-exercise of the rights of the
Participants hereunder to participate in one or more sales of
Investor Stock made by the transferring Series A Investor shall
not adversely affect their rights to participate in subsequent
sales of Investor Stock subject to this Section 5.
(v) In the event the transferring Series A Investor has not sold
the Investor Stock subject to the aforementioned provisions
within the time period specified in Section 5(c)(i), the
transferring Series A Investor shall not thereafter sell any
Investor Stock subject to the provisions of this agreement
without again being subject to the rights of the Preferred
Stockholders as here prescribed.
6. Sales by Series B Investors.
(a) Series B Right of First Refusal.
(i) If a Series B Investor proposes to Transfer any shares of
Preferred Stock, other than pursuant to Section 3(e), 5(d) or
6(c), then such Series B Investor shall offer such shares first
to the other Series B Investors, by sending written notice (the
"Notice") to the other Series B Investors, with a copy to the
Company, which shall state (A) the number of shares proposed to
be Transferred (the "Offered Stock"), (B) the identity of the
proposed transferee ("Third Party Purchaser"), (C) the proposed
purchase price per share offered by the Third Party Purchaser
(the "Offer Price"), and (D) the material terms and conditions
upon which the proposed Transfer is to be made. Upon delivery of
the Notice, such offer shall be irrevocable unless and until the
rights of first offer provided for herein shall have been waived
or shall have expired.
(ii) The other Series B Investors may elect, by written notice to
the transferring Series B Investor and the Company delivered
within fifteen (15) days after the giving of the Notice pursuant
to Section 6(a)(i) (the "Series B Notice Period"), to purchase
any or all of the Offered Stock at a purchase price equal to the
Offer Price and upon the terms and subject to the conditions set
forth in the Notice (the "Series B Option"). Each non-
transferring Series B Investor shall have the right to purchase
that percentage of the Offered Stock determined by dividing (A)
the total number of shares of Investor Stock then owned by such
Series B Investor by (B) the total number of shares of Investor
Stock then owned by all Series B Investors (in each case,
calculated on an as converted to Common Stock basis). The
Company shall, within five (5) days of the expiration of the
Series B Notice Period, provide written notice to the fully
participating Series B Investors indicating the number of shares
of Offered Stock not elected to be purchased by the other Series
B Investors (the "Company B Option Notice"). If any Series B
Investor does not fully subscribe for the number of shares of
Offered Stock such Series B Investor is entitled to purchase,
then each other fully participating Series B Investor may elect
by written notice delivered to the transferring Series B Investor
and the Company within five (5) days of delivery of the Company B
Option Notice to purchase that percentage of the remaining
Offered Stock not so subscribed for determined by dividing (x)
the total number of shares of Investor Stock then owned by such
fully participating Series B Investor by (y) the total number of
shares of Investor Stock then owned by all fully participating
Series B Investors who elected to purchase the remaining Offered
Stock (in each case, on an as converted to Common Stock basis).
(iii) The failure of a Series B Investor to respond within
the Series B Notice Period to the transferring Series B Investor
and the Company shall be deemed to be a waiver of such Series B
Investor's rights under this Section 6(a), provided that each
Series B Investor may waive its rights under this Section 6(a)
prior to the expiration of the Series B Notice Period by giving
written notice to the transferring Series B Investor and the
Company.
(b) Settlement.
(i) The Closing of the Offered Stock to be purchased by the non-
transferring Series B Investors shall be completed within thirty
(30) days of the expiration of the last applicable notice period
set forth in Sections 6(a).
(ii) Unless the non-transferring Series B Investors shall have
purchased all of the Offered Stock pursuant to Sections 6(a), the
transferring Series B Investor may, subject to Section 6(c), sell
the Offered Stock to a Third Party Purchaser on the terms and
subject to the conditions set forth in the Notice; provided,
however, that such sale is bona fide and made pursuant to a
contract entered into within sixty (60) days of the earliest to
occur of (A) the waiver by the non-transferring Series B
Investors of their options to purchase the Offered Stock or (B)
the expiration of the Series B Notice Period or (C) the
expiration of the time period set forth in Section 6(b)(i)
without the closing of the purchase of the Offered Stock having
taken place due to failure by the Series B Investors to close
(the earliest of such dates being referred to herein as the
"Contract Date"); and provided further, that such sale shall not
be consummated unless and until all of the following conditions
are met:
(a) The transferring Series B Investor shall deliver to the
Company a certificate of a Third Party Purchaser stating that (x)
such Third Party Purchaser is aware of the rights of the Series B
Investors contained in this Section 6 and (y) prior to the
purchase by such Third Party Purchaser of any of such Offered
Stock, such Third Party Purchaser shall become a party to this
Agreement and agree to be bound by the terms and conditions
hereof; and
(b) The consummation of such sale to a Third Party Purchaser
shall not be subject to any conditions (other than necessary
filings under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act),
except that it may be conditioned upon the truth as of the
closing of the proposed purchase of customary representations and
warranties and the delivery of stock certificates and a customary
legal opinion.
(iii) If such sale is not consummated within sixty (60) days
of the Contract Date for any reason, then the restrictions
provided for herein shall again become effective, and no Transfer
of such Offered Stock may be made thereafter by the transferring
Series B Investor without again offering the same to the other
Series B Investors in accordance with this Section 6.
(c) Co-Sale Right.
(i) If a Series B Investor is Transferring stock to a Third
Party Purchaser pursuant to Section 6(b)(ii), then each Series B
Investor that has not exercised the Series B Option (other than
the transferring Series B Investor) shall have the right,
exercisable upon written notice to such transferring Series B
Investor within thirty (30) days after receipt of the Notice, to
participate in such sale of Investor Stock on the same terms and
conditions. To the extent one or more of the Series B Investors
exercise such right of participation in accordance with the terms
and conditions set forth below, the number of shares of Investor
Stock that the transferring Series B Investor may sell in the
transaction shall be correspondingly reduced.
(ii) Each non-transferring Series B Investor may sell all or any
part of that number of shares of Investor Stock equal to the
product obtained by multiplying (A) the aggregate number of
shares of Investor Stock covered by the Notice by (B) a fraction,
the numerator of which is the number of shares of Investor Stock
owned by the non-transferring Series B Investor at the time of
the Transfer and the denominator of which is the total number of
shares of Investor Stock owned by all the Series B Investors
(other than the transferring Series B Investor) at the time of
the Transfer (in each case, calculated on an as converted to
Common Stock basis).
(iii) If any Series B Investor fails to elect to fully
participate in such transferring Series B Investor's sale
pursuant to this Section 6(c), the transferring Series B Investor
shall give notice of such failure to the Series B Investors who
did so elect (the "Participants"). The Participants shall have
five days from the date such notice was given to agree to sell
their pro rata share of the unsold portion. For purposes of this
paragraph, a Participant's pro rata share shall be the ratio of
(x) the number of shares of Investor Stock held by such
Participant to (y) the total number of shares of Investor Stock
held by all the Participants (in each case, calculated on an as
converted to Common Stock basis).
(iv) The exercise or non-exercise of the rights of the
Participants hereunder to participate in one or more sales of
Investor Stock made by the transferring Series B Investor shall
not adversely affect their rights to participate in subsequent
sales of Investor Stock subject to this Section 6.
(v) In the event the transferring Series B Investor has not sold
the Investor Stock subject to the aforementioned provisions
within the time period specified in Section 6(b)(i), the
transferring Series B Investor shall not thereafter sell any
Investor Stock subject to the provisions of this agreement
without again being subject to the rights of the Series B
Investors as here prescribed.
7. Non-Cash Purchase Price. Notwithstanding anything in
Sections 3(b), 3(c), 4(a), 4(b), 5(a), 5(b) or 6(a) to the
contrary, should the purchase price specified in the applicable
Notice be payable in property other than cash or evidences of
indebtedness, the Series B Investors and/or the Series A
Investors, as the case may be, shall have the right to pay the
purchase price in the form of cash equal in amount to the fair
market value of such property. If the transferring Stockholder
and the Stockholders exercising a right of first refusal
hereunder cannot agree on such fair market value within five (5)
days after the non-transferring Stockholder's receipt of the
Notice, the valuation shall be made by an appraiser of recognized
standing selected by the transferring Stockholder and the
Stockholders exercising a right of first refusal hereunder or, if
they cannot agree on an appraiser within ten (10) days after such
receipt of the Notice, each shall select an appraiser of
recognized standing and the two appraisers shall designate a
third appraiser of recognized standing, whose appraisal shall be
determinative of such value. The cost of such appraisal shall be
shared equally by the transferring Stockholder and the exercising
Stockholders, with the half of the cost borne by exercising
Stockholders borne pro rata by each based on the number of shares
such parties were interested in purchasing pursuant to the
applicable right of first refusal. If the time for the closing
of the exercising Stockholders' purchase has expired but for the
determination of the value of the purchase price offered by the
prospective transferee(s), then such closing shall be held on or
prior to the fifth (5th) business day after such valuation shall
have been made pursuant to this subsection.
8. Exempt Transfers. Notwithstanding the foregoing, the rights
of the Preferred Stockholders and the Company shall not apply to
any Transfer (i) to the Company, (ii) by a Series B Investor to
another Series B Investor or an investor in such Series B
Investor, (iii) by a Founder, an Other Stockholder or a Preferred
Stockholder to the ancestors, descendants or spouse or to trusts
for the benefit of such persons or such Founder, Other
Stockholder or Preferred Stockholder or a charitable remainder
trust or (iv) by a Preferred Stockholder to an affiliate of such
Preferred Stockholder; provided in each case that (x) the
transferring Founder, Other Stockholder or Preferred Stockholder
shall inform all the Preferred Stockholders and the Company of
the Transfer prior to effecting it and (y) the Transferee shall
furnish the parties hereto with a written agreement to be bound
by and comply with all provisions of this Agreement
(collectively, the "Permitted Transferees"). Such transferred
Founder Stock, Common Stock or Investor Stock shall remain
"Founder Stock," "Common Stock" or "Investor Stock" hereunder, as
applicable, and such Permitted Transferee shall be treated as a
"Founder," "Other Stockholder" or "Preferred Stockholder," as
applicable, for purposes of this Agreement.
9. Legend.
(a) Each certificate representing shares of Founder Stock,
Common Stock or Investor Stock now or hereafter owned by a
Founder, Other Stockholder or Preferred Stockholder or issued to
any person in connection with a transfer pursuant to Section 8
hereof shall be endorsed with the following legend:
"THE SALE, PLEDGE, HYPOTHECATION OR
TRANSFER OF THE SECURITIES REPRESENTED BY
THIS CERTIFICATE IS SUBJECT TO THE TERMS AND
CONDITIONS OF A CERTAIN STOCKHOLDERS'
AGREEMENT BY AND AMONG THE CORPORATION AND
THE STOCKHOLDERS OF THE CORPORATION. COPIES
OF SUCH AGREEMENT MAY BE OBTAINED UPON
WRITTEN REQUEST TO THE SECRETARY OF THE
CORPORATION."
(b) Each of the Founders, the Other Stockholders and the
Preferred Stockholders agrees that the Company may instruct its
transfer agent to impose transfer restrictions on the shares
represented by certificates bearing the legend referred to in
Section 9(a) above to enforce the provisions of this Agreement
and the Company agrees to promptly do so. The legend shall be
removed upon termination of this Agreement.
10. Bring-Along Right. In the event that Stockholders (the
"Proposing Stockholders") holding stock comprising at least
seventy-five percent (75%) of the Company's voting securities
(the "Threshold Percent") propose to Transfer their stock to a
third party (the "Offeror") pursuant to a merger, consolidation,
reorganization or sale of shares, the remaining Stockholders will
be required to sell their stock to such Offeror at the same price
and upon the same terms and conditions as in the offer made to
the Proposing Stockholders or vote in favor of the transaction,
in the case of a merger, consolidation or reorganization;
provided, however, that the Series B Investors shall not be
required to sell their shares or vote in favor of the
transaction, as applicable, unless such transaction reflects a
pre-money valuation of at least $80,000,000.
11. Board of Directors.
(a) The Board of Directors of the Company shall be comprised of
five directors.
(b) For so long as the Founder Stock constitutes at least seven
percent (7%) of the outstanding capital stock of the Company and
each of Shay Xxx Xxxxxx and Xxxx Xxxxxx remains an employee of
the Company, the holders of a majority of the Founder Stock then
outstanding, voting as a class, shall have the right to designate
two (2) directors (the "Founder Directors") and, in any election
of directors of the Company, each of the Founders shall vote at
any regular or special meeting of stockholders (or by written
consent) such number of shares of Founder Stock then owned by
such Founder (or as to which such Founder then has voting power)
as may be necessary to elect two (2) directors designated by the
Founders. Initially, the directors designated by the Founders
shall be Shay Xxx Xxxxxx and Xxxxxxxx Xxxxx. If the holders of a
majority of the Founder Stock then outstanding no longer have the
right to designate Founder Directors pursuant to this Section
11(b), the two (2) directors previously designated by the
Founders shall be nominated and elected by the holders of a
majority of the Common Stock (including shares of Common Stock
issued or issuable upon conversion of the Preferred Stock, on an
as converted basis).
(c) For so long as the Series A Investors shall be permitted to
designate board seats pursuant to the Restated Articles, in any
election of directors of the Company, each of the Series A
Investors shall vote at any regular or special meeting of
stockholders (or by written consent) such number of shares of
Series A Preferred Stock then owned by such Series A Investor (or
as to which such Series A Investor then has voting power) as may
be necessary to elect one (1) director designated by the Series A
Investors. Initially, the director designated by the Series A
Investors shall be Xx. Xxxxxxx Xxxxxx.
(d) For so long as the Series B Investors shall be permitted to
designate board seats pursuant to the Restated Articles, in any
election of directors of the Company, each of the e-street
international ag or any affiliate thereof ("e-street") and D.E.P.
Technology Holdings Ltd. or any affiliate thereof ("DEP") shall
vote at any regular or special meeting of stockholders (or by
written consent) such number of shares of Series B Preferred
Stock then owned by such Series B Investor (or as to which such
Series B Investor then has voting power) as may be necessary to
elect two (2) directors, one (1) designated by e-street and one
(1) designated by DEP. Initially, the director designated by DEP
shall be Xxxx Xxxxxx and the director designated by e-street
shall be Xxxxxx Xxxxxxxx.
(e) Any director of the Company may be removed from the Board of
Directors in the manner allowed by law and the Company's Amended
and Restated Certificate of Incorporation and By-laws, and with
respect to a director designated pursuant to Section 11(a), only
upon the vote or written consent of the parties entitled to
designate such director.
12. Miscellaneous.
(a) Governing Law. This Agreement and all acts and transactions
pursuant hereto shall be governed, construed and interpreted in
accordance with the laws of the State of New York, without giving
effect to principles of conflicts of laws.
(b) Amendment. Any term of this Agreement may be amended or
waived only by the written consent of (i) as to the Company, only
by the Company, (ii) as to the Preferred Stockholders, by holders
of more than fifty percent (50%) in interest of the Series A
Preferred Stock, e-street and DEP, provided that any Preferred
Stockholder may waive any of his rights hereunder without
obtaining the consent of any other Preferred Stockholder and
provided, further, that in the case of any provision pertaining
only to the Series A Investors, such provision may be waived by
the written consent of holders of more than fifty percent (50%)
in interest of the Series A Preferred Stock and in the case of
any provision pertaining only to the Series B Investors, such
provision may be waived by the written consent of each of e-
street and DEP, (iii) as to the Founders, by holders of more than
ninety-five percent (95%) in interest of the Founder Stock and
(iv) as to the Other Stockholders, by holders of more than fifty
percent (50%) in interest of the Common Stock (excluding the
Founder Stock). Any amendment or waiver effected in accordance
with clauses (i), (ii), (iii) and (iv) of this paragraph shall be
binding upon each Preferred Stockholder, the Company, the Other
Stockholders and the Founders and their respective successors and
assigns.
(c) Assignment of Rights. Except as otherwise provided in this
Agreement, the terms and conditions of this Agreement shall inure
to the benefit of and be binding upon the respective successors
(including successors by merger) and permitted assigns of the
parties (including transferees of any of the Founder Stock,
Common Stock, Series A Preferred Stock, Series B Preferred Stock
or warrants to purchase shares of Series B Preferred Stock or any
Series B Preferred Stock or Common Stock issued upon conversion
or exercise thereof). Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the
parties hereto or their respective successors and assigns any
rights, remedies, obligations, or liabilities under or by reason
of this Agreement, except as expressly provided in this
Agreement.
(d) Term. This Agreement shall terminate upon the closing of a
firm commitment underwritten public offering by the Company of
shares of its Common Stock pursuant to a registration statement
filed in the United States under the Securities Act of 1933, as
amended, or a public offering effected on the London Stock
Exchange, the Frankfurt Stock Exchange or the Paris Stock
Exchange under applicable securities laws which results in
aggregate cash proceeds to the Company of an amount equal to or
greater than $20,000,000, net of underwriting discounts and
commissions and a reflecting a pre-offering valuation of the
Company of at least $60,000,000.
(e) Notices. All notices required or permitted hereunder shall
be in writing and shall be deemed effectively given: (a) upon
personal delivery to the party to be notified; (b) when sent by
confirmed telex or facsimile if sent during normal business hours
of the recipient, if not, then on the next business day; (c) five
(5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid; or (d) one (1) day
after deposit with a nationally recognized overnight courier,
specifying next day delivery, with written verification of
receipt. All communications shall be sent to the address as set
forth on the signature pages hereto or at such other address as
such party may designate by ten (10) days advance written notice
to the other parties hereto.
(f) Effect of Change in Company's Capital Structure.
Appropriate adjustments shall be made in the number and class of
shares subject to any provisions of this Agreement in the event
of a stock dividend, stock split, reverse stock split,
combination, reclassification or like change in the capital
structure of the Company.
(g) Severability. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, the parties
agree to renegotiate such provision in good faith. In the event
that the parties cannot reach a mutually agreeable and
enforceable replacement for such provision, then (a) such
provision shall be excluded from this Agreement, (b) the balance
of the Agreement shall be interpreted as if such provision were
so excluded and (c) the balance of the Agreement shall be
enforceable in accordance with its terms.
(h) Attorney Fees. In the event that any dispute among the
parties to this Agreement should result in litigation, the
prevailing party in such dispute shall be entitled to recover
from the losing party all fees, costs and expenses of enforcing
any right of such prevailing party under or with respect to this
Agreement, including without limitation, such reasonable fees and
expenses of attorneys and accountants, which shall include,
without limitation, all fees, costs and expenses of appeals.
(i) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
(j) Titles and Subtitles. The titles and subtitles used in this
Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement.
(k) Aggregation of Stock. All shares of the Series A Preferred
Stock or Series B Preferred Stock or Founder Stock held or
acquired by (i) affiliated entities or persons or (ii) persons or
entities under common investment management, shall be aggregated
together for the purpose of determining the availability of any
rights under this Agreement.
(l) Specific Enforcement. It is agreed and understood that
monetary damages would not adequately compensate an injured party
for the breach of this Agreement by any party, that this
Agreement shall be specifically enforceable, and that any breach
or threatened breach of this Agreement shall be the proper
subject of a temporary or permanent injunction or restraining
order. Further, each party hereto waives any claim or defense
that there is an adequate remedy at law for such breach or
threatened breach.
(m) Entire Agreement; Superseding Effect. This Agreement and
the Waiver constitute the entire agreement between and among the
parties hereto pertaining to the subject matter hereof and any
other written or oral agreements between and among the parties
hereto pertaining thereto are expressly cancelled.
IN WITNESS WHEREOF, the parties have executed this
Agreement as of the date first above written.
M-WISE, INC.
By: /s/ Xxxx Xxx-Xxxxxx
-----------------------
Name: Xxxx Xxx-Xxxxxx
Title: Director
FOUNDERS:
PROTON MARKETING ASSOCIATES LLC
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title:
Address:
XXXXXXXX.XXX LLC
By: Xxxx Xxx-Xxxxxx
Name: Shay Xxx Xxxxxx
Title:
Address:
CHINESE WHISPERS LLC
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title:
Address:
OGEN LLC
By: Xxx Xxxxxxxx
Name: Xxx Xxxxxxxx
Title:
Address:
By: /s/ Barak Galili
Name: Barak Galili
Title:
Address:
STOCKHOLDERS:
CAP VENTURES LTD.
By:__/s/ Xx. Xxxxxxx Xxxxxx
Name: Xx. Xxxxxxx Xxxxxx
Title:
Address:
E-STREET INTERNATIONAL AG
By:__/s/ Xxxxxx Xxxxxxxx
Name: Xxxxxx Xxxxxxxx
Title: Director
D.E.P. TECHNOLOGY HOLDINGS LTD.
By:__/s/ Xxxxxx Xxxxx
Name: Xxxxxx Xxxxx
Title: Director
/s/ Xxxxx Xxxxx
Xxxxx Xxxxx
/s/ Xxxx Xxxxx
Xxxx Xxxxx
/s/ Xxxxx Xxxx
Xxxxx Xxxx
SCHEDULE A
SERIES A INVESTORS
Shares of Warrants for
Name and Address Series A Preferred Series A Preferred
Stock Stock
Cap Ventures Ltd. 268,382 56,180
SCHEDULE B
SERIES B INVESTORS
Name Shares of Series Series B Warrant
B Preferred Aggregate
Preferred Stock Stock Exercise
Aggregate Price
Purchase
Price
e-street international ag 244,728 $2,000,161.94 $1,000,000
ag
D.E.P. Technology 244,728 $2,000,161.94 $1,000,000
Holdings Ltd.
SCHEDULE C
FOUNDERS
Name Shares of Common Stock
--------------- -----------------------
Proton Marketing Associates, 332,640
LLC
Xxxxxxxx.xxx, LLC 258,720
Chinese Whispers, LLC 100,800
Ogen, LLC 147,840
SCHEDULE D
OTHER STOCKHOLDERS
Name Shares of Common Stock
----------------- -----------------------
Xxxxx Xxxxx 10,695
Xxxx Xxxxx 10,695
Xxxxx Xxxx 15,348
