EXECUTION COPY
AGREEMENT
AGREEMENT (this "Agreement"), dated as of August 22, 2002, among
SOFTBANK Capital Partners LP, a Delaware limited partnership ("SBCP"), SOFTBANK
Capital LP, a Delaware limited partnership ("SBC"), SOFTBANK Capital Advisors
Fund LP, a Delaware limited partnership ("SBCAF" and, together with SBCP and
SBC, "Softbank"), Xxxxxx Xxxxxx Jurvetson ePlanet Ventures L.P., a Cayman
Islands limited partnership ("ePlanet Ventures"), Xxxxxx Xxxxxx Jurvetson
ePlanet Partners Fund, LLC, a California limited liability company ("ePlanet
Partners") and Xxxxxx Xxxxxx Jurvetson ePlanet Ventures GmbH & Co. KG, a German
partnership ("ePlanet KG" and, together with ePlanet Ventures and ePlanet
Partners, "DFJE").
WHEREAS, Softbank and DFJE wish to enter into an agreement to share the
increase in value attributable to the portion of the business of OptiMark
Holdings, Inc., a Delaware corporation ("OptiMark"), conducted or to be
conducted otherwise than through OptiMark Innovations Inc., a Delaware
corporation ("OII"), and its subsidiaries;
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which is hereby acknowledged, the parties hereto
agree as follows:
1. Definitions.
(a) "Additional Softbank Advances", as of any time, shall mean all
funds contributed or advanced to OptiMark by Softbank (or a Softbank Entity
after it acquires any Shares) after February 13, 2002, whether as a contribution
to capital, a loan or purchase of a debt obligation of OptiMark or in connection
with the purchase of any shares of Capital Stock of OptiMark minus any portion
thereof (i) repaid to Softbank by OptiMark or any of its Subsidiaries prior to
such time, whether through the repayment or repurchase of any such indebtedness,
redemption of such Capital Stock or otherwise (but excluding payments of
interest on debt obligations or dividends not in excess of 10% per annum on
shares of Capital Stock), or (ii) realized by Softbank on account of a
Triggering Event on or prior to such time.
(b) "Applicable Amount" shall mean the product, rounded to two
decimal places, of the Investor Percentage and the OptiMark Value.
(c) "Applicable Expenses" shall mean, with respect to any
Triggering Event all reasonable and documented out-of-pocket expenses incurred
by Softbank (or by any other Person to the extent Softbank is obligated to pay
such expenses or reimburse any Person with respect thereto) in connection with,
relating to or as a result of such Triggering Event, including, without
limitation, all fees and expenses of accountants, attorneys, financial advisors,
and finders, any obligations for indemnification or contribution payable by
Softbank in connection with a Triggering Event, and any amount
payable in respect of Taxes arising as a result of such Triggering Event to the
extent attributable to the OptiMark Value for such Triggering Event (excluding
any portion of such Taxes attributable to the OII Value); provided, however,
that any inclusion in Applicable Expenses of Taxes in connection with a
Triggering Event shall be offset by any Tax benefit actually received or to be
received by Softbank as a result of the payments made or to be made by Softbank
to DFJE under this Agreement on account of such Triggering Event, taking into
account, in the calculation of such Tax benefit, the time value of money using a
discount rate of 5% per annum.
(d) "Asset Sale" shall have the meaning set forth in Section
1(aa)(i) hereof.
(e) "Business Day" shall mean any day on which banks are not
required or authorized to close in The City of New York.
(f) "Calculations" shall have the meaning set forth in Section
6(a) hereof.
(g) "Capital Stock" of any Person means any and all shares,
interests, participations or other equivalents (however designated) of corporate
stock of such Person.
(h) "Closing Date" shall mean the 5th Business Day after the
Applicable Amount thereof is finally determined in accordance with Section 6 of
this Agreement.
(i) "DFJE" shall have the meaning set forth in the caption to this
Agreement.
(j) "Fair Market Value," as of any time, means when used with
respect to any amount of cash, such amount of cash, and when used with respect
to property or an asset other than cash, the amount of cash for which such
property or asset could be purchased and sold in a transaction at such time
between unrelated willing and informed parties, neither of whom is under any
compulsion to engage in such transaction.
(k) "Investment Bank" shall have the meaning set forth in Section
6(b)(i) hereof.
(l) "Investor Percentage" shall mean 33.33%.
(m) "Merger" shall have the meaning set forth in Section 1(aa)(ii)
hereof.
(n) "OII" shall have the meaning set forth in the recitals hereto.
(o) "OII Securities" shall have the meaning set forth in Section
5(d) hereof.
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(p) "OII Value" shall have the meaning set forth in Section 5(d)
hereof.
(q) "OptiMark" shall have the meaning set forth in the recitals
hereto.
(r) "OptiMark Value" shall mean, as of any time in accordance with
Section 5, with respect to a Triggering Event, (i) the Fair Market Value of all
consideration received by Softbank with respect to the Shares as a result of
such Triggering Event determined in accordance with Section 5 minus (ii)
Additional Softbank Advances as of such time.
(s) "Person" means any individual, corporation, partnership,
limited liability company, trust, joint stock company or other entity.
(t) "Shares" shall mean the number, class and series of shares of
Capital Stock of OptiMark owned by Softbank on the date hereof, as set forth on
Schedule A hereto, and any securities issued successively as a dividend on such
shares or in exchange for such shares in a merger, recapitalization or similar
transaction.
(u) "Softbank" shall have the meaning set forth in the caption to
this Agreement.
(v) "Softbank Sale" shall have the meaning set forth in Section
1(aa)(iii) hereof.
(w) "Softbank Entity" shall mean one or more investment funds of
which the general partner of Softbank, or an affiliate of its general partner,
is the general partner or has investment discretion, or any affiliate of
Softbank or any such investment fund.
(x) "Subsidiary" of any Person means (i) a corporation more than
50% of the outstanding Voting Stock of which is owned, directly or indirectly,
by such person or by one or more other Subsidiaries of such Person of by such
Person and one or more Subsidiaries thereof or (ii) any other Person (other than
a corporation) in which such Person, or one or more other Subsidiaries of such
Person or such Person and one or more other Subsidiaries thereof, directly or
indirectly, has at least a majority ownership or power to direct the policies,
management and affairs thereof.
(y) "Substitute Assets" shall have the meaning set forth in
Section 5(d) hereof.
(z) "Tax" (including, with correlative meaning, the term "Taxes")
means all federal, state, local and foreign income, profits, franchise, gross
receipts, environmental, customs, duties, capital stock, severances, stamp,
payroll, sales, employment, unemployment, disability, use, property,
withholding, excise, production, value added, occupancy, license, estimated,
real property, personal property, windfall
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profits or other taxes, duties, fees or assessments of any nature whatsoever,
together with all interest, penalties and additions imposed with respect to such
amounts and any interest in respect of such penalties and additions.
(aa) "Triggering Event" shall mean any one of the following:
(i) the consummation of a sale of all or substantially all
of OptiMark's assets (an "Asset Sale") and the distribution
of proceeds thereof to stockholders of OptiMark; provided,
however, that an Asset Sale shall not include a sale that
would otherwise qualify as such solely as a result of the
sale by OptiMark of its interest in OII or solely as a
result of the sale by OII of its interest in any of its
Subsidiaries;
(ii) the consummation of a merger or consolidation of
OptiMark with or into any other entity (a "Merger"), except
a merger or consolidation in which the holders of more than
50% in value of the Capital Stock of OptiMark immediately
prior to consummation of the transaction continue to own
more than 50% in value of the Capital Stock (or, in the case
of a Person other than a corporation, other equity
interests) of the surviving Person immediately following
consummation of the transaction; or
(iii) the consummation of a sale by Softbank of all or any
portion of the Shares (a "Softbank Sale") to one or more
Persons (excluding any transfer to a Softbank Entity or to
DFJE) which, together with any such sales to Persons other
than Softbank Entities and DFJE not previously taken into
account in a Triggering Event, resulted in the payment of
consideration to Softbank with an aggregate Fair Market
Value (calculated, in respect of each such payment, as of
the date of such payment) in excess of $5.0 million.
(bb) "Voting Stock" of any Person means Capital Stock of such
Person which ordinarily has voting power for the election of directors (or
persons performing similar functions) of such Person, whether at all times or
only so long as no senior class of securities has such voting power by reason of
any contingency.
2. DFJE Payment. On the date hereof, DFJE shall pay an aggregate of
$10,000 to SBC in accordance with the allocation of such amount as set forth on
Schedule B hereto. Such payment by DFJE will be made by wire transfer of
immediately available funds to an account designated by SBC.
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3. Softbank Representations and Warranties. Each of SBCP, SBC and
SBCAF, severally and not jointly, represents and warrants to DFJE, and DFJE
represents and warrants to SBCP, SBC and SBCAF as follows:
(a) This Agreement has been duly authorized, executed and
delivered by such Person and constitutes the legal, valid and binding obligation
of such Person, enforceable against such Person in accordance with the terms
hereof subject to bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and other similar laws of general applicability relating to or
affecting creditors' rights and to general equity principles; and
(b) The execution and delivery of this Agreement by such Person
does not, and the performance by it of its obligations under this Agreement will
not, violate, conflict with or constitute a breach of, or a default under, the
certificate of incorporation, bylaws, partnership agreement or similar
organizational documents of such Person or any material agreement, indenture or
instrument to which such Person is a party or which is binding on such Person,
or any law, regulation or order applicable to such Person, and will not result
in the creation of any lien on, or security interest in, any of the assets of
such Person.
4. Payment of Applicable Amount.
(a) Following each occurrence of a Triggering Event, Softbank
shall pay the Applicable Amount with respect to such Triggering Event to DFJE as
provided in Section 4(d) hereof. Unless otherwise agreed in writing by Softbank
and DFJE, (i) any payment of the Applicable Amount to the extent payable in cash
shall be paid by wire transfer of immediately available funds to such bank
account of each DFJE entity as has been designated in writing by DFJE no later
than the close of business on the second Business Day preceding the Closing Date
and (ii) any payment of the Applicable Amount to the extent payable otherwise
than in cash shall be paid by delivery to the address of DFJE for notices as
provided pursuant to Section 10 hereof.
(b) For the purpose of the calculation of the Applicable Amount,
the OptiMark Value shall be calculated in accordance with Sections 5 and 6
hereof as of the date the transaction constituting the applicable Triggering
Event is consummated.
(c) At Softbank's sole discretion, the Applicable Amount shall be
paid to DFJE either: (i) in cash, or (ii) in the event the consideration
received by Softbank as a result of the Triggering Event is comprised, in whole
or in part, of consideration other than cash, payment made proportionately
(based on the relative Fair Market Value of each form of consideration received
by Softbank) in each such form of consideration.
(d) Notwithstanding anything to the contrary herein, Softbank
shall have no obligation to make any payment to DFJE on account of any
Triggering Event unless and until Additional Softbank Advances, determined as of
the date and time such payment would be made, is zero.
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(e) As promptly as reasonably practicable after the occurrence of
a Triggering Event (but in any event within twenty-one days thereof (such period
to be extended upon the written consent of DFJE, which consent shall not be
unreasonably withheld)), Softbank shall provide to DFJE in writing its
calculations of Taxes attributable to such Triggering Event. Such calculations
shall provide reasonably adequate detail of the methodology and basis for such
calculations and of the amount of Taxes attributable to each of the OptiMark
Value and the OII Value. During the ten (10) Business Days following the date of
delivery of such calculations, Softbank shall: (i) cause any employee or advisor
of Softbank involved in the preparation of such calculations to discuss such
calculations with employees and advisors of DFJE, and (ii) provide to DFJE any
additional information related to the methodology and basis of such calculations
reasonably requested by DFJE. Not later than the Business Day following the
foregoing ten (10) Business Day period, DFJE shall notify Softbank whether, in
its reasonable belief, such calculations contain any error in the calculation of
such Taxes or in the application of relevant tax regulations related to such
calculation or whether such calculations do not accurately reflect the Taxes
attributable to the relative values of OptiMark and OII. In the event of any
such notice to Softbank by DFJE, Softbank shall consider in good faith DFJE's
position and whether such position should result in the revision to the
calculation of such Taxes. In the event that Softbank believes that any such
revisions should be made, Softbank shall apply such revisions in connection with
the determination of the amount of Applicable Expenses for such Triggering
Event, which, subject to the last three sentences of this section, shall be
final and conclusive. In the event Softbank does not believe that any such
revisions should be made, Softbank shall promptly notify DFJE of such fact and
Softbank and DFJE shall promptly meet to discuss such proposed revisions and
agree upon a mutually acceptable resolution. If Softbank and DFJE are not able
to agree upon a resolution within ten (10) Business Days of Softbank's rejection
of DFJE's proposed revisions to the calculation of such Taxes, the matter shall
be escalated to Xxxxxx Xxxxxx, on behalf of Softbank, and Xxxxxxxx Xxxxxxx, on
behalf of DFJE, or their respective designees, who shall promptly meet (either
in person or telephonically) to resolve the issue. Following the conclusion of
Softbank's taxable year in which such Triggering Event has occurred, Softbank
shall inform DFJE of the amount of actually incurred Taxes attributable to such
Triggering Event. In the event of any difference (the "Tax Difference") between
the Taxes actually incurred by Softbank attributable to such Triggering Event
and the Taxes used for the purpose of calculating the Applicable Expenses,
Softbank and DFJE agree that they shall reconcile the Tax Difference by paying
to the other an amount that eliminates the Tax Difference; provided, that the
amount of any Tax Difference to be paid to Softbank by DFJE shall be paid from
(and shall be limited to) the Remaining Amount (as defined below). The payment
related to the Tax Difference made in accordance with the foregoing shall be
treated as an adjustment to the Applicable Amount.
(f) In the event the Applicable Expenses with respect to a
Triggering Event have been finally and conclusively determined as of the Closing
Date for such Triggering Event, Softbank shall pay the Applicable Amount with
respect to such Triggering Event, after deducting the aggregate amount of
unreimbursed Applicable Expenses, if any, incurred in connection with all prior
Triggering Events to the extent such amount exceeds the aggregate Remaining
Amount (as hereinafter defined) not theretofore
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applied to the reimbursement of the Applicable Expenses with respect to such
prior Triggering Events, to DFJE on or prior to the Business Day next following
the Closing Date for such Triggering Event. In the event the Applicable Expenses
with respect to a Triggering Event have not been finally and conclusively
determined as of the Closing Date for such Triggering Event, Softbank shall pay
to DFJE (i) 90% of the Applicable Amount with respect to such Triggering Event
(the "Initial Amount"), calculated based on Applicable Expenses determined as of
such Closing Date and on the aggregate amount of unreimbursed Applicable
Expenses, if any, incurred in connection with all prior Triggering Events to the
extent such amount exceeds the aggregate Remaining Amount (as hereinafter
defined) not theretofore applied to the reimbursement of the Applicable Expenses
with respect to such prior Triggering Events, on or prior to the Business Day
next following such Closing Date, and (ii) the remaining 10% of such Applicable
Amount (the "Remaining Amount") shall be withheld pending the final and
conclusive determination of such Applicable Expenses. In such event, upon final
and conclusive determination of such Applicable Expenses, the Applicable Amount
with respect to such Triggering Event shall be recalculated and any portion of
the Remaining Amount payable to DFJE (after taking into account the Initial
Amount paid to DFJE with respect to such Triggering Event and after deducting
the aggregate amount of unreimbursed Applicable Expenses, if any, incurred in
connection with all prior Triggering Events to the extent such amount exceeds
the aggregate Remaining Amount not theretofore applied to the reimbursement of
the Applicable Expenses with respect to such prior Triggering Events) shall be
paid to DFJE no later than the fifth Business Day after the date the amount of
such Applicable Expenses are finally and conclusively determined.
Notwithstanding the foregoing, if the Applicable Expenses have not been finally
and conclusively determined as of the later of: (i) the one year anniversary of
the Closing Date for a Triggering Event and (ii) either April 15 of the year
following such Triggering Event if the fiscal year of any of SBCP, SBC or SBCAF
ends on December 31 in the year of such Triggering Event or July 15 of the year
following such Triggering Event if the fiscal year of any of SBCP, SBC or SBCAF
ends on March 31 in the year of such Triggering Event, then the Remaining Amount
shall be paid to DFJE (after deducting any Applicable Expenses not taken into
account in connection with the payment of the Initial Amount, if any) no later
than 5 Business Days following such later date; provided, however, in the event
that a Person has given notice of a claim for indemnification or contribution
against Softbank with respect to a Triggering Event, DFJE shall not be paid any
portion of the Remaining Amount, if at all, until the fifth Business Day
following the final and conclusive determination of the Applicable Expenses.
Notwithstanding anything to the contrary herein, after Softbank distributes the
Initial Amount with respect to a Triggering Event to DFJE pursuant to the terms
hereof, the aggregate amount of DFJE's liability to Softbank at any time for all
remaining Applicable Expenses with respect to such Triggering Event (including
the amount of any Tax Difference pursuant to Section 4(e)) shall be limited to
the sum of the Remaining Amount calculated with respect to such Triggering
Event; provided, that if there is a subsequent Triggering Event, any
unreimbursed Applicable Expenses incurred with respect to any prior Triggering
Event shall be included in the Applicable Expenses calculated when determining
the Initial Amount applicable to the current Triggering Event.
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(g) In the event that Softbank or a Softbank Entity, as the case
may be, is repaid by OptiMark or any of its Subsidiaries any portion of
Additional Softbank Advances, whether through the repayment or repurchase of
indebtedness evidencing such Additional Softbank Advances, redemption of Capital
Stock or otherwise (but excluding payments of interest on debt obligations or
dividends not in excess of 10% per annum on shares of Capital Stock), then
Softbank shall pay to DFJE an amount equal to the product of (i) the aggregate
amount of such Softbank Advances so repaid that were deducted in the calculation
of OptiMark Value with respect to a Triggering Event at or prior to the time of
such repayment (but only to the extent, if any, not previously included in the
calculation of the amount required to be paid to DFJE pursuant to this Section
4(g)) and (ii) the Investor Percentage.
(h) Softbank agrees that, in connection with any proposal to or by
Softbank pursuant to which Softbank may acquire additional shares of capital
stock or other debt or equity securities of OptiMark that have liquidation
rights senior to the liquidation rights of the Shares upon the occurrence of a
Triggering Event, Softbank shall not acquire such securities unless DFJE shall
previously have been, or is currently, offered the opportunity to purchase not
less than 33.33% of such securities on the same terms and conditions.
5. OptiMark Value and OII Value.
(a) In the case of a Triggering Event that is an Asset Sale,
OptiMark Value shall equal (i) the net Fair Market Value of consideration,
received by OptiMark and distributed to Softbank as a result of such Asset Sale,
determined as of the date of such distribution; minus (ii) any portion thereof
attributable to the OII Value minus (iii) Applicable Expenses.
(b) In the case of a Triggering Event that is a Merger, OptiMark
Value shall equal (i) the net Fair Market Value of consideration received by
Softbank as a result of such Merger; minus (ii) any portion thereof attributable
to the OII Value minus (iii) Applicable Expenses.
(c) In the case of a Triggering Event that is a Softbank Sale
pursuant to which Softbank actually receives cash or consideration other than
cash as payment for any Shares, OptiMark Value shall equal: (i) the net Fair
Market Value of consideration received by Softbank as a result of such Softbank
Sale minus (ii) any portion thereof attributable to the OII Value minus (iii)
Applicable Expenses.
(d) "OII Value" shall mean the portion of the OptiMark Value
attributable to OptiMark's direct and indirect ownership interests in OII and
its successors (including OII's and its subsidiaries' interest in any direct and
indirect subsidiaries and their successors) determined in accordance with
Section 6 hereof. In the event that any or all of the equity securities of OII
held by OptiMark as of the date hereof (the "OII Securities") are sold,
transferred or exchanged for cash, securities, other property or a mixture
thereof (the "Substitute Assets") in one or more transactions after the date
hereof and on or prior to the
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date of determination of OptiMark Value, OII Value shall be calculated as the
sum, determined as of such date of determination, of (i) the value of the OII
Securities held by OptiMark as of such date of determination plus (ii) the Fair
Market Value of the Substitute Assets held by OII as of such date of
determination. For purposes of the foregoing, any OII Securities or Substitute
Assets transferred to holders of equity interests in OptiMark as a dividend or
other distribution without consideration shall be deemed to continue to be held
by OptiMark notwithstanding such transfer.
6. Procedure for Calculation of OptiMark Value and OII Value.
(a) During the period commencing on the day a Triggering Event
occurs and concluding on the 30th day thereafter, Softbank and DFJE shall
endeavor in good faith to agree on the calculations of OptiMark Value, OII Value
and the Applicable Amount (the "Calculations") for purposes of determining the
obligations, if any, of Softbank to DFJE on account of such Triggering Event.
(b) If Softbank and DFJE are unable to so agree within such 30-day
period, Softbank and DFJE shall select an investment bank or valuation firm (an
"Investment Bank") mutually acceptable to them to perform the Calculations. If
Softbank and DFJE are unable to agree on the choice of an Investment Bank within
10 days after such 30-day period, each of Softbank and DFJE shall retain
promptly an Investment Bank to make the Calculations. Each Investment Bank shall
agree to comply with the terms and conditions of this Agreement related to it.
Softbank and DFJE, respectively, shall: (i) cause the Investment Bank, or the
Investment Bank retained by it, as applicable, to perform the Calculations as
soon as is reasonably practicable and in no event more than 30 days after its
retention, (ii) cooperate with the Investment Bank, or the Investment Banks, as
applicable, and provide such Investment Bank or Investment Banks with all
information that is reasonably necessary or available to perform the
Calculations, and (iii) keep each other apprised of any material developments
related to the Calculations.
(A) If a single, mutually acceptable Investment Bank performs
the Calculations, such Calculations shall be binding and conclusive.
(B) If the Calculations are performed by two Investment Banks
as contemplated by Section 6(b)(i), upon completion by both Investment Banks of
the Calculations, Softbank and DFJE shall share the results of the Calculations
with each other and shall have the opportunity to question the Investment Banks
regarding such results. If the greater of the results of the calculation of the
Applicable Amount is not more than 20% greater than the other result of the
calculation of the Applicable Amount, the average of the two results shall be
calculated and shall be conclusively used for the purpose of making the final
determination of the Applicable Amount. If the greater of the results of the
calculation of the Applicable Amount is more than 20% greater than the other
result, the two Investment Banks shall select a third Investment Bank for the
purpose of performing the Calculations under the same terms and conditions as
set forth in clause (a) of this Section 6. Upon completion by the third
Investment Bank of the Calculations, each of Softbank and DFJE shall have the
opportunity to question the third Investment Bank
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regarding such Calculations. Provided that the calculation of the Applicable
Amount by the third Investment Bank is between the calculation of the Applicable
Amount by the first two Investment Banks, the calculation by the third
Investment Bank shall be conclusive and used for the purpose of making the final
determination of the Applicable Amount. If the calculation of the Applicable
Amount by the third Investment Bank is not between the calculation of the
Applicable Amount by the first two Investment Banks, then the calculation of the
Applicable Amount by the first two Investment Banks which is nearest in amount
to the calculation of the Applicable Amount by the third Investment Bank shall
be conclusive and used for the purpose of making the final determination of the
Applicable Amount.
(c) In connection with the Calculations, in no event shall any
adjustment be made for a control premium or apply any discount for a lack of
marketability.
(d) If the Applicable Amount is determined in accordance with
Section 6(a) through mutual agreement of Softbank and DFJE, then each of
Softbank and DFJE shall bear its own expenses incurred as a result of the
calculation of the Applicable Amount. If the Applicable Amount is determined by
one Investment Bank mutually agreeable to Softbank and DFJE, then each of
Softbank and DFJE shall bear their own expenses and, in addition, each shall
bear one half of the fees and disbursements of such Investment Bank. If the
Applicable Amount is determined by two Investment Banks, then each of Softbank
and DFJE shall be responsible for the payment of all fees and expenses of the
Investment Bank retained by it. If the determination of the Applicable Amount
requires the retention of a third Investment Bank as contemplated by Section
6(b) and the difference between such amount and the Applicable Amount calculated
by the Investment Bank chosen by Softbank pursuant to the second sentence of
Section 6(b) is less than the difference between such amount and the Applicable
Amount calculated by the Investment Bank chosen by DFJE pursuant to the second
sentence of Section 6(b), then DFJE shall be responsible for the payment of all
fees and expenses of each Investment Bank. If the Applicable Amount requires the
retention of a third Investment Bank as contemplated by Section 6(b) and the
difference between such amount and the Applicable Amount calculated by the
Investment Bank chosen by DFJE pursuant to the second sentence of Section 6(b)
is less than the difference between such amount and the Applicable Amount
calculated by the Investment Bank chosen by Softbank pursuant to the second
sentence of Section 6(b), then Softbank shall be responsible for the payment of
all fees and expenses of each Investment Bank.
7. Permitted Transfers. Notwithstanding anything set forth herein to
the contrary, Softbank may transfer all or any of the Shares to one or more
Softbank Entity and no such transfer shall constitute a Triggering Event;
provided, however, that any such Softbank Entity that is a transferee of any or
all Shares shall, prior to such transfer, assume Softbank's obligations to DFJE
in this Agreement with respect to the Shares so transferred.
8. Currency Exchange. If, as a result of a Triggering Event, Softbank
receives cash in a currency other than United States dollars, Softbank shall
have the right (but not the obligation) to convert such currency into United
States dollars at the rate of
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exchange prevailing at the close of business on the Business Day immediately
preceding the Closing Date and to pay the Applicable Amount in United States
dollars.
The term "rate of exchange" means the spot rate at which Softbank is
able on the relevant date to purchase United States dollars with the currency
received as a result of the Triggering Event, after deducting any premium and
costs of exchange payable.
9. Entire Agreement; Amendment; Waiver. This Agreement (including the
exhibits hereto) supersedes all prior agreements, written or oral, among the
parties hereto with respect to the subject matter hereof and contains the entire
agreement among the parties with respect to the subject matter hereof. This
Agreement may not be amended, supplemented or modified, and no provisions hereof
may be modified or waived, except by an instrument in writing signed by all the
parties hereto. No waiver of any provisions hereof by any party shall be deemed
a waiver of any other provisions hereof by any such party, nor shall any such
waiver be deemed a continuing waiver of any provision hereof by such party.
10. Notices. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
telecopy or like transmission and on the next Business Day when sent by Federal
Express, Express Mail or other reputable overnight courier service to the
parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
If to SBCP, SBC or SBCAF:
SOFTBANK Capital Partners LP
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Administrative Member
Facsimile: (000) 000-0000
With a copy, which shall not constitute notice, to:
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx
Facsimile: (000) 000-0000
If to DFJE:
Xxxxxx Xxxxxx Jurvetson ePlanet Ventures, L.P.
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxx, XX 00000
Attention: Xxxx Xxxxx
Facsimile: (000) 000-0000
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Telephone: (000) 000-0000
With a copy, which shall not constitute notice, to:
Xxxxxxx Xxxxxxx & Xxxxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
or to such other persons at addresses as may be designated in writing by the
party to receive such notice as provided above.
11. Miscellaneous.
(a) GOVERNING LAW. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN,
AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO THE
CONFLICTS OF LAWS PRINCIPLES THAT WOULD OTHERWISE APPLY THEREUNDER.
(b) Severability. In the event that any provision of the Agreement
is held to be illegal, invalid or unenforceable in a final, unappealable order
or judgment (each such provision, an "invalid provision"), then such provision
shall be severed from this Agreement and shall be inoperative and the parties
promptly shall negotiate in good faith a lawful, valid and enforceable provision
that is as similar to the invalid provision as may be possible and that
preserves the original intentions and economic positions of the parties as set
forth herein to the maximum extent feasible, while the remaining provisions of
this Agreement shall remain binding on the parties hereto. Without limiting the
generality of the foregoing sentence, in the event a change in any applicable
law, rule or regulation makes it unlawful for a party to comply with any of its
obligations hereunder, the parties shall negotiate in good faith a modification
to such obligation to the extent necessary to comply with such law, rule or
regulation that is as similar in terms to the original obligation as may be
possible while preserving the original intentions and economic positions of the
parties as set forth herein to the maximum extent feasible.
(c) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same instrument.
(d) Termination. This Agreement, except for the following two
sentences, shall terminate upon the earlier to occur of (i) the date of
termination or dissolution of either SBCP or SBC and (ii) the date on which
neither Softbank nor any Softbank Entity owns any Shares. Following such
termination, the provisions of this
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Agreement shall continue in effect only for such limited period, and only to the
extent, necessary to implement the procedures described in this section. In the
event that a Triggering Event has not occurred on or prior to such date of
termination of this Agreement, then a Triggering Event shall be deemed to occur
on such date, and the Applicable Amount shall be payable in Shares, with the
number of Shares payable calculated based on the Fair Market Value thereof
determined using the procedures set forth in Section 6 hereof. In no event shall
the number of Shares so payable exceed the product of the Investor Percentage
and the number of Shares (adjusted for any stock splits and reverse splits and
stock dividends).
(e) Further Assurances. Each party hereto shall execute and
deliver such additional instruments and other documents and shall take such
further actions as may be necessary or desirable to effectuate, carry out and
comply with all of the terms of this Agreement and the transactions contemplated
hereby.
(f) Headings; Recitals. All Section headings and the recitals
herein are for convenience of reference only and are not part of this Agreement,
and no construction or reference shall be derived therefrom.
(g) Third Party Beneficiaries. Nothing in this Agreement, express
or implied, is intended to confer upon any third party any rights or remedies of
any nature whatsoever under or by reason of this Agreement.
(h) Assignment by DFJE. Each of ePlanet Ventures, ePlanet Partners
and ePlanet KG may assign their rights and benefits under this Agreement to one
of more of their respective affiliates; provided, that such assignee shall,
prior to such assignment, assume the assignor's obligations to Softbank in this
Agreement with respect to the rights so transferred.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first written above.
SOFTBANK CAPITAL PARTNERS LP
By: SOFTBANK CAPITAL PARTNERS LLC
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Member
SOFTBANK CAPITAL LP
By: SOFTBANK CAPITAL PARTNERS LLC
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Member
SOFTBANK CAPITAL ADVISORS FUND LP
By: SOFTBANK CAPITAL PARTNERS LLC
its General Partner
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Member
XXXXXX XXXXXX JURVETSON ePLANET VENTURES L.P.
By: Xxxxxx Xxxxxx Jurvetson ePlanet Partners, Ltd.
its General Partner
By: /s/ Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
XXXXXX XXXXXX JURVETSON ePLANET VENTURES GmbH & Co. KG.
By: Xxxxxx Xxxxxx Jurvetson ePlanet Verwaltungs GmbH.
its General Partner
By: /s/ Xxxx Xxxxx
-------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
XXXXXX XXXXXX JURVETSON ePLANET PARTNERS FUND, LLC
By: /s/ Xxxx Xxxxxx
-------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
(SCHEDULE A)
THE SHARES
NAME NUMBER OF SHARES
---- ----------------
SOFTBANK Capital Partners LP 4,101,264 of Series C Preferred Stock
486,647 of Series E Preferred Stock
SOFTBANK Capital LP 4,030,761 of Series C Preferred Stock
478,286 of Series E Preferred Stock
SOFTBANK Capital Advisors Fund LP 117,975 of Series C Preferred Stock
8,400 of Series E Preferred Stock
(SCHEDULE B)
PAYMENT SCHEDULE
AMOUNT
ePlanet Ventures $9,630
ePlanet Partners $200
ePlanet KG $170
