Exhibit 10.9
THIRD AMENDED AND RESTATED
STOCKHOLDERS' AGREEMENT
THIRD AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT made this 30th day
of December, 1999, by and among (i) Xxxxxxxxx.xxx, Inc., a Delaware corporation
(the "Company"), (ii) Xxxxxx Xxxxxxxxxx and Xxxxx Xxxx (the "Founders"), (iii)
each person who shall, after the date hereof, acquire or receive the right to
acquire or hold shares of Class B Common Stock (as defined below) and join in
and become a party to this Agreement by executing and delivering to the Company
an Instrument of Accession in the form of SCHEDULE II hereto (the "Non-Founder
Stockholders") (the Founders and the Non-Founder Stockholders are referred to as
the "Holders"), and (iv) those persons whose names are set forth under the
heading "Investors" on SCHEDULE I hereto, as amended from time to time (the
"Investors"); PROVIDED HOWEVER, that notwithstanding the foregoing, Xxxxxxx
Xxxxxx shall be considered (i) a "Non-Founder Stockholder" for purposes of
defining rights and restrictions described herein in connection with any shares
of the Company's Class B Common Stock, $.01 par value per share (the "Class B
Common Stock") other than Conversion Shares (as defined below), held by him or
his permitted transferees and (ii) a "Series A Investor" (as defined below) for
purposes of defining rights and restrictions described herein in connection with
any shares of the Company's Series A Preferred Stock, $.01 par value per share
(the "Series A Preferred Stock"), or the Company's Class A Common Stock, $.01
par value per share (the "Class A Common Stock") or the Conversion Shares, held
by him or his permitted transferees.
WHEREAS, the Holders currently hold collectively 6,043,974 shares of
the Class B Common Stock;
WHEREAS, certain Investors (the "Series A Investors") currently hold an
aggregate of 3,009,600 shares of the Series A Preferred Stock and an aggregate
of 3,040,000 shares of the Class A Common Stock;
WHEREAS, certain Investors (the "Series B Investors") currently hold an
aggregate of 7,042,254 shares of the Company's Series B Preferred Stock, par
value $.01 per share (the "Series B Preferred Stock");
WHEREAS, certain Investors (the "Series C Investors") currently hold an
aggregate of 4,727,786 shares of the Company's Series C Preferred Stock, par
value $.01 per share (the "Series B Preferred Stock");
WHEREAS, the Founders, Non-Founder Stockholders, Series A Investors,
the Series B Investors, the Series C Investors and the Company are parties to a
Second Amended and Restated Stockholders' Agreement dated June 23, 1999 (the
"Original Agreement; and
WHEREAS, certain Investors (the "Series D Investors") are acquiring
simultaneously herewith up to an aggregate of 3,200,000 shares of the Company's
Series D Preferred Stock, par value $.01 per share (the "Series D Preferred
Stock"), pursuant to a Series D Convertible Preferred Stock Purchase Agreement,
dated as of the date hereof (the "Purchase Agreement"), by and among the Company
and the Series D Investors;
WHEREAS, the term "Investor Shares", as used herein, shall mean shares
of (i) the Series A Preferred Stock, (ii) the Series B Preferred Stock, (iii)
the Series C Preferred Stock, (iv) the Series D Preferred Stock, (v) the Class A
Common Stock, and (vi) the Class B Common Stock issued or issuable upon
conversion of the Class A Common Stock, upon conversion of the Series B
Preferred Stock, upon conversion of the Series C Preferred Stock and upon
conversion of the Series D Preferred Stock, in each case whether now or
hereafter acquired; and
WHEREAS, the term "Conversion Shares", as used herein, shall mean the
Class B Common Stock issued or issuable upon conversion of the Class A Common
Stock, upon conversion of the Series B Preferred Stock, upon conversion of the
Series C Preferred Stock and upon conversion of the Series D Preferred Stock, in
each case whether now or hereafter acquired.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Company, the Holders and the Investors
agree that the Original Agreement be, and hereby is, amended and restated in its
entirety as follows:
1. PROHIBITED TRANSFERS. The Holders shall not sell, assign, transfer,
pledge, hypothecate, mortgage or dispose of, by gift or otherwise, or in any way
encumber, all or any part of the Shares (as hereinafter defined) owned by them
except in compliance with the terms of this Agreement. For purposes of this
Agreement, the term "Shares" shall mean and include all shares of equity
securities of the Company owned by the Holders, whether presently held or
hereafter acquired.
2. RIGHT OF REFUSAL ON DISPOSITIONS BY THE FOUNDERS.
(a) If at any time any Founder wishes to sell, assign, transfer or
otherwise dispose of any or all Shares owned by such Founder pursuant
to the terms of a bona fide offer received from a third party, such
Founder shall submit a written offer to sell such Shares to the Company
on terms and conditions, including price, not less favorable to the
Company than those on which such Founder proposes to sell such Shares
to such third party (the "Offer"). The Offer shall disclose the
identity of the proposed purchaser or transferee, the Shares proposed
to be sold or transferred, the agreed terms of the sale or transfer and
any other material facts relating to the sale or transfer. Within ten
(10) days after receipt of the Offer, the Company shall give notice to
such Founder of its intent to purchase all or any portion of the
offered Shares on the same terms and conditions as set forth in the
Offer.
(b) If, for any reason whatever, the Company shall not
exercise its right to purchase all of the offered Shares as provided herein,
then each of the Investors shall have the right to purchase a portion of the
offered Shares which the Company shall not have agreed to purchase from such
Founder (all such remaining shares being referred to as the "Remaining Offered
Shares") to be determined in the manner set forth herein.
(c) Each Investor shall have the right to purchase that number
of the Remaining Offered Shares as shall be equal to the aggregate Remaining
Offered Shares multiplied by a fraction, the numerator of which is the number of
Conversion Shares then held or
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deemed to be held by such Investor and the denominator of which is the aggregate
number of Conversion Shares then held or deemed to be held by all the Investors.
(The amount of shares each Investor or Qualified Transferee, as that term is
defined below, is entitled to purchase under this Section 2 shall be referred to
as his "Pro Rata Fraction"). Each Investor shall have the right to accept the
Offer as to all or part of the Remaining Offered Shares offered thereby. Each
Investor shall have the right to transfer his right to purchase any Pro Rata
Fraction or part thereof to any Qualified Transferee. To the extent an Investor
(together with its Qualified Transferees) does not elect to purchase all of its
Pro Rata Fraction, then any Investor who does elect to purchase all or part of
its Pro Rata Fraction shall have the right to purchase, on a pro rata basis with
any other Investor who so elects, to purchase the portion of the non-electing
Investor's Pro Rata Fraction not purchased by such Investor or its Qualified
Transferees.
(d) Each Investor shall act upon the Offer as soon as
practicable after receipt from the Company of notice that the Company has not
elected to purchase all of the offered Shares, and in all events within five (5)
days after receipt thereof. In the event that an Investor shall elect to
purchase all or part of the Remaining Offered Shares covered by the Offer, said
Investor shall individually communicate in writing such election to purchase to
the Founder who has made the Offer, which communication shall be delivered by
hand or mailed to such Founder at the address set forth in Section 9 below and
shall, when taken in conjunction with the Offer be deemed to constitute a valid,
legally binding and enforceable agreement for the sale and purchase of the
Shares covered thereby.
(e) In the event that the Company and the Investors, taken
together and their Qualified Transferees, do not purchase all of the Shares
offered by such Founder pursuant to and within thirty (30) days after the Offer,
any Shares not purchased may be sold by such Founder at any time within 120 days
after the expiration of the Offer, but subject to the provisions of Section 4
below. Any such sale shall be at not less than the price and upon other terms
and conditions, if any, not more favorable to the purchaser than those specified
in the Offer. Any Shares not sold within such 120-day period shall continue to
be subject to the requirements of a prior offer and re-sale pursuant to this
Section. In the event that Shares are sold to any purchaser pursuant to this
Section 2, said Shares shall no longer be entitled to the benefits conferred by,
or subject to the restrictions imposed by, this Agreement, except that the
purchaser of said Shares shall agree in writing to abide by the provisions of
Section 7 hereof.
(f) For purposes of this Agreement, a "Qualified Transferee"
shall mean any person who (i) is an Investor, (ii) is an affiliate (as defined
in the Investment Company Act of 1940) of an Investor, (iii) is a partner of an
Investor, (iv) is the transferee of a transfer described in Section 6, or (v) is
the transferee of a gift of Investor Shares made by an Investor no more than
once during any twelve-month period.
3. RIGHT OF REFUSAL ON DISPOSITIONS BY THE NON-FOUNDER STOCKHOLDERS.
(a) If at any time any of the Non-Founder Stockholders wishes to sell,
assign, transfer or otherwise dispose of any or all Shares owned by him
pursuant to the terms of a bona fide offer received from a third party,
he shall submit a written offer to sell such Shares to the Company on
terms and conditions, including price, not less favorable to the
Company than those on which he proposes to sell such Shares to such
third party (the "Stockholder
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Offer"). The Stockholder Offer shall disclose the identity of the
proposed purchaser or transferee, the Shares proposed to be sold or
transferred, the agreed terms of the sale or transfer and any other
material facts relating to the sale or transfer. Within ten (10) days
after receipt of the Stockholder Offer, the Company shall give notice
to the Non-Founder Stockholder of its intent to purchase all or any
portion of the offered Shares on the same terms and conditions as set
forth in the Stockholder Offer.
(b) If, for any reason whatever, the Company shall not
exercise its right to purchase all of the offered Shares as provided herein,
then each of the Investors and the Founders shall have the right to purchase a
portion of the offered Shares which the Company shall not have agreed to
purchase from the Non-Founder Stockholder (all such remaining shares being
referred to as the "Stockholder Remaining Offered Shares") to be determined in
the manner set forth herein.
(c) Each Investor shall have the right to purchase that number
of the Stockholder Remaining Offered Shares as shall be equal to the aggregate
Stockholder Remaining Offered Shares multiplied by a fraction, the numerator of
which is the number of Conversion Shares then held or deemed to be held by such
Investor and the denominator of which is the sum of (i) the aggregate number of
Conversion Shares then held or deemed to be held by all the Investors and (ii)
the aggregate number of Shares held or deemed to be held by all of the Founders.
Each Founder shall have the right to purchase that number of the Stockholder
Remaining Offered Shares as shall be equal to the aggregate Stockholder
Remaining Offered Shares multiplied by a fraction, the numerator of which is the
number of Shares then held or deemed to be held by such Founder and the
denominator of which is the sum of (i) and (ii) above. (The amount of shares
each Investor, Founder or Qualified Transferee is entitled to purchase under
this Section 3 shall be referred to as his "Stockholder Pro Rata Fraction").
Each Investor or Founder, as the case may be, shall have the right to accept the
Stockholder Offer as to all or part of the Stockholder Remaining Offered Shares
offered thereby. Each Investor and Founder shall have the right to transfer his
right to purchase any Stockholder Pro Rata Fraction or part thereof to any
Qualified Transferee. To the extent an Investor or Founder (together with its
Qualified Transferees) does not elect to purchase all of its right to purchase
its Stockholder Pro Rata Fraction, then any Investor or Founder who does elect
to purchase all or part of its Stockholder Pro Rata Fraction shall have the
right to purchase, on a pro rata basis with any other Investor or Founder who so
elects, to purchase the portion of the non-electing Investor's or Founder's
Stockholder Pro Rata Fraction not purchased by such Investor, Founders or their
Qualified Transferees.
(d) Each Investor or Founder, as the case may be, shall act
upon the Stockholder Offer as soon as practicable after receipt from the Company
of notice that the Company has not elected to purchase all of the offered
Shares, and in all events within five (5) days after receipt thereof. In the
event that an Investor or Founder shall elect to purchase all or part of the
Stockholder Remaining Offered Shares covered by the Stockholder Offer, said
Investor or Founder shall individually communicate in writing such election to
purchase to whichever Non-Founder Stockholder has made the Stockholder Offer,
which communication shall be delivered by hand or mailed to such Non-Founder
Stockholder at the address set forth in Section 9 below and shall, when taken in
conjunction with the Stockholder Offer be deemed to
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constitute a valid, legally binding and enforceable agreement for the sale and
purchase of the Shares covered thereby.
(e) In the event that the Company, the Investors, the
Founders, and their respective Qualified Transferees, taken together, do not
purchase all of the Shares offered by a Non-Founder Stockholder pursuant to and
within thirty (30) days after the Stockholder Offer, any Shares not purchased
may be sold by such Non-Founder Stockholder at any time within 120 days after
the expiration of the Stockholder Offer. Any such sale shall be at not less than
the price and upon other terms and conditions, if any, not more favorable to the
purchaser than those specified in the Stockholder Offer. Any Shares not sold
within such 120-day period shall continue to be subject to the requirements of a
prior offer and re-sale pursuant to this Section. In the event that Shares are
sold to any purchaser pursuant to this Section, said Shares shall no longer be
entitled to the benefits conferred by, or subject to the restrictions imposed
by, this Agreement, except that the purchaser of said Shares shall agree in
writing to abide by the provisions of Section 7 hereof.
4. RIGHT OF PARTICIPATION IN SALES. If at any time any Founder wishes
to sell, or otherwise dispose of any Shares owned by such Founder to any person
(the "Purchaser") in a transaction which is subject to the provisions of Section
2 hereof, each Investor shall have the right to require, as a condition to such
sale or disposition, that the Purchaser purchase from said Investor at the same
price per share and on the same terms and conditions as involved in such sale or
disposition by such Founder the same percentage of Conversion Shares owned and
deemed to be owned hereunder by such Investor as such sale or disposition (as
finally consummated) represents with respect to said Shares then owned by such
Founder. Each Investor wishing so to participate in any such sale or disposition
shall notify such Founder of such intention as soon as practicable after receipt
of the Offer made pursuant to Section 2, and in all events within fifteen (15)
days after receipt thereof. In the event that an Investor shall elect to
participate in such sale or disposition, said Investor shall individually
communicate such election to such Founder, which communication shall be
delivered by hand or mailed to such Founder at the address set forth in Section
9 below. Such Founder and/or each participating Investor shall sell to the
Purchaser all, or at the option of the Purchaser, any part of the Shares and
Conversion Shares (as the case may be) proposed to be sold by them at not less
than the price and upon other terms and conditions, if any, not more favorable
to the Purchaser than those originally offered; PROVIDED, HOWEVER, that any
purchase of less than all of such Shares and Conversion Shares (as the case may
be) by the Purchaser shall be made from such Founder and/or each participating
Investor based upon a fraction, the numerator of which is the number of Shares
or Conversion Shares (as the case may be) of the Company then owned by such
Founder or such participating Investor and the denominator of which is the
aggregate number of Shares and Conversion Shares held by and deemed to be held
by such Founder and all of the participating Investors. Such Founder shall use
his or her best efforts to obtain the agreement of the Purchaser to the
participation of the participating Investors in the contemplated sale, and shall
not sell any Shares to such Purchaser if such Purchaser declines to permit the
participating Investors to participate pursuant to the terms of this Section 4.
The provisions of this Section 4 shall not apply to the sale of any Shares by a
Founder to an Investor pursuant to an Offer under Section 2.
5. TAKE ALONG RIGHT. If an Investor or group of Investors holding more
than 67% of the Conversion Shares held by all Investors and subject to this
Agreement (the "Take Along
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Group") determine to sell or exchange in one or a series of related bona fide
arms-length transactions to a third party or third parties (collectively, the
"Third Party"), 67% or more of the aggregate number of Conversion Shares subject
to this Agreement (the "Take Along Shares"), such Take Along Group shall give
not less than fifteen (15) days prior written notice of such intended transfer
(the "Transfer") to each other Investor and the Holders, which notice shall
include reasonable details of the proposed sale or exchange including the
proposed time and place of closing, the consideration to be received by the Take
Along Group and any other material terms of such transfer (such notice being
referred to as a "Sale Notice"). Each of such Investors and the Holders shall,
if specified in such Sale Notice, be obligated to, and shall, sell, transfer and
deliver, or cause to be sold, transferred and delivered, to such Third Party on
the same financial terms as the Take Along Group, that number of Shares owned by
such Investor or Holder as shall equal the product of (w) a fraction, the
numerator of which is the number of Conversion Shares proposed to be transferred
by the Take Along Group as of the date of such Sale Notice and the denominator
of which is the aggregate number of Conversion Shares held or deemed to be held
as of the date of such Sale Notice by the Take Along Group, multiplied by (x)
the number of Shares actually owned as of the date of such Sale Notice by such
Investor or Holder. Each such Investor and the Holders shall, if specified in
such Sale Notice, be obligated to, and shall, sell, transfer and deliver, or
cause to be sold, transferred and delivered, to such Third Party on the same
financial terms as the Take Along Group, that number of Conversion Shares held
or deemed to be held by such Investor and the Holders as shall equal the product
of (y) a fraction, the numerator of which is the number of Conversion Shares
proposed to be transferred by the Take Along Group as of the date of such Sale
Notice and the denominator of which is the aggregate number of Conversion Shares
held or deemed to be held as of the date of such Sale Notice by the Take Along
Group, multiplied by (z) the number of Conversion Shares held or deemed to be
held as of the date of such Sale Notice by such Investor or Holder. Each Holder
or Investor, if required to sell pursuant to this Section 5, shall (A) deliver
certificates evidencing the applicable Shares or Conversion Shares to be sold at
the closing of the proposed Transfer, duly endorsed or accompanied by duly
executed stock powers, free and clear of all liens, claims, charges, security
interests and other encumbrances of any nature whatsoever, and shall receive in
exchange therefor the consideration to be paid or delivered by such Third Party
in respect of such Shares or Conversion Shares as described in the Sale Notice
(which consideration per share shall be the same for all of the Take Along
Group, the Holders and the Investors) and (B) if stockholder approval for the
transaction is required, vote such Shares or Conversion Shares in favor thereof.
6. PERMITTED TRANSFERS. Anything herein to the contrary
notwithstanding, the provisions of Sections 1, 2, 3, 4 and 5 shall not apply
to: (a) any transfer of Shares to one or more of its partners or members in
any Holder or Investor that is a partnership or limited liability company or
to a retired or withdrawn partner or member who retires or withdraws after
the date hereof in full or partial distribution of his interest in such
partnership or limited liability company; (b) any transfer of Shares to any
immediate family member (which shall be deemed to include a spouse, sibling,
lineal descendant, ancestor, mother-in-law, father-in-law, brother-in-law and
sister-in-law) of an individual Holder or Investor by gift or bequest or
through inheritance, or to a trust or family limited partnership (or other
similar entity) created for the benefit of one or more of the foregoing; (c)
any transfer of Shares to any shareholder of any Holder or Investor that is a
corporation; (d) any transfer of Shares to any person or entity acquiring at
least 250,000 shares of Shares (such number being subject to adjustment for
any
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stock dividend, stock split, subdivision, combination or other
recapitalization); (e) any sale of the Company's equity securities in a
public offering pursuant to a registration statement filed by the Company
with the Securities and Exchange Commission (the "Commission"); and (f) any
sale permitted pursuant to Section 1.05 of the Purchase Agreement. In the
event of any such transfer, other than pursuant to subsection (e) of this
Section 6, the transferee of the Shares shall agree to become a party to this
Agreement and shall hold the Shares so acquired with all the rights conferred
by, and subject to all the restrictions imposed by, this Agreement.
Notwithstanding anything herein to the contrary, in no event may any Holder
or Investor, together with its affiliates and assigns, assign their rights
and obligations hereunder to more than 10 persons in the aggregate.
7. ELECTION OF DIRECTORS. Each of the parties entitled to vote hereto
agrees to vote all of the Stock (as hereinafter defined) of the Company now
owned or hereafter acquired by such party (and attend, in person or by proxy,
all meetings of stockholders called for the purpose of electing directors), and
the Company agrees to take all actions (including, but not limited to the
nomination of specified persons) to cause and maintain the election to the Board
of Directors of the Company, to the extent permitted pursuant to the Company's
Certificate of Incorporation, the following:
(i) as long as shares of Series A Preferred Stock are
outstanding, one nominee designated by Brand Equity Ventures I, L.P., who shall
initially be Xxxxxxxxxxx X. Xxxxxxx;
(ii) as long as shares of Series A Preferred Stock are
outstanding, one nominee designated by 60% in interest of the holders of Series
A Preferred Stock, who shall initially be Xxxxxxx Xxxxxx, and if no shares of
Series A Preferred Stock are outstanding, one nominee designated by 60% in
interest of the holders of the Class B Common Stock issuable upon conversion of
the Class A Common Stock, whether now owned or hereafter acquired (the "Series A
Conversion Shares");
(iii) two nominees designated by a majority in interest of the
holders of the Class B Common Stock, one of whom shall initially be Xxxxxx
Xxxxxxxxxx, who shall initially serve as Chairman, and the other shall initially
be Xxxxx Xxxx; and
(iv) as long as shares of Series A Preferred Stock are
outstanding, one nominee to be designated by a majority in interest of the
holders of Series A Preferred Stock, who shall initially be Xxxxxx Xxxxxx, and
if no shares of Series A Preferred Stock are outstanding, by 60% in interest of
the holders of Series A Conversion Shares, and approved by a majority in
interest of the holders of the Class B Common Stock;
(v) as long as shares of Series B Preferred Stock (or shares
of Class B Common Stock issuable upon conversion of the Series B Preferred
Stock, whether now owned or hereafter acquired ("Series B Conversion Shares"))
are outstanding, one nominee designated by @Ventures III, L.P., who shall
initially be Xxxx Xxxxxxx;
(vi) as long as shares of Series B Preferred Stock are
outstanding, one nominee designated by 60% in interest of the holders of Series
B Preferred Stock, and if no shares of
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Series B Preferred Stock are outstanding, one nominee designated by 60% in
interest of the holders of the Series B Conversion Shares, who shall initially
be Xxxxxx Xxxxxxx; and
(vii) as long as shares of Series C Preferred Stock and/or
Series D Preferred Stock are outstanding, one nominee designated by the holders
of shares representing at least 60% of the votes represented by the shares of
Series C Preferred Stock and Series D Preferred Stock then outstanding, and if
no shares of Series C Preferred Stock or Series D Preferred Stock are
outstanding, one nominee designated by 60% in interest of the holders of Class B
Common Stock issuable upon conversion of the Series C Preferred Stock and Series
D Preferred Stock, whether now owned or hereafter acquired, in each case the
nominee shall not be a Series C Investor or a Series D Investor or an affiliate
thereof; such nominee shall initially be undesignated.
Each of the parties further covenants and agrees to vote, to
the extent possible, all shares of Stock of the Company now owned or hereafter
acquired by such party so that the Company's Board of Directors shall consist of
eight (8) members.
For the purposes of this Agreement, "Stock" shall mean and
include all Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock, Class A Common Stock, Class B Common
Stock (including shares of Class B Common Stock issued upon conversion of other
securities), and all other securities of the Company which may be exchangeable
for or issued in exchange for or in respect of shares of Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock, Class A Common Stock or Class B Common Stock (whether by way of stock
split, stock dividends, combination, reclassification, reorganization or any
other means) whether now held or hereafter acquired.
In the absence of any designation from the persons or groups
so designating directors as specified above, the director previously designated
by them and then serving shall be reelected if still eligible to serve as
provided herein.
Except in the case of bad faith or willful misconduct by a
member of the Board of Directors, no party hereto shall vote to remove any
member of the Board of Directors designated in accordance with the aforesaid
procedures unless the persons or groups so designating directors as specified
above so vote, and, if such persons or groups so vote then the non-designating
party or parties shall likewise so vote.
Any vacancy on the Board of Directors created by the
resignation, removal, incapacity or death of any person designated under this
Section 7 shall be filled by another person designated in a manner so as to
preserve the constituency of the Board as provided above. If a person is not so
designated, such vacancy shall be filled by a person elected by the vote of a
majority of the holders of Stock, voting together as a class.
8. TERMINATION. This Agreement, and the respective rights and
obligations of the parties hereto, shall terminate UPON the earliest to occur of
the following: (i) the completion of a fully underwritten, firm commitment
public offering pursuant to an effective registration statement under the
Securities Act of 1933 covering the Offering or sale by the Company of its
equity securities in which the aggregate gross proceeds received by the Company
shall be at least
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$15 million; (ii) the sale of the Company, whether by merger, sale, or transfer
of capital stock representing a majority of the voting power at elections of
directors of the Company, or sale of substantially all of its assets or (iii)
upon the Company becoming a reporting person under Section 12 of the Securities
Exchange Act of 1934.
9. NOTICES. All notices, requests, demands and other communications
provided for hereunder shall be in writing and mailed, sent by facsimile
transmission or delivered to each applicable party at the address set forth on
SCHEDULE I hereto or on the Instrument of Accession pursuant to which he became
a party to this Agreement or at such other address as to which such party may
inform the other parties in writing in compliance with the terms of this
Section.
If to the Company: at 0000 Xxxxxxxxx Xxxx, Xxxxx 0, Xxxxxxxxxx, XX
00000, or via facsimile at (000) 000-0000, Attention: Xxxxxx Xxxxxx, or at such
other address as shall be designated by the Company in a written notice to the
OTHER parties complying as to delivery with the terms of this Section; with a
copy to Xxxx and Xxxx LLP, 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000, or via facsimile
at (000) 000-0000, Attention: Xxxxxxx X. Xxxxxx, Esq.
If (i) to any holder of Series C Preferred Stock associated with
Amerindo Investment Advisors Inc., with a copy to Buchalter, Nemer, Fields &
Younger, 000 Xxxxx Xxxxxxxx Xxxxxx, Xxx Xxxxxxx, XX 00000 or via facsimile at
(000) 000-0000, Attention: Xxxx Xxxxx, Esq. and (ii) to any party associated
with the @Ventures Purchasers (as defined in the Purchase Agreement), with a
copy to Xxxxxxxx, Xxxxxxx & Xxxxxxx, 000 Xxxxxxx Xxxxxx, Xxxxxx, XX 00000 or via
facsimile at (000) 000-0000, Attention: Xxxxx Xxxxxx, Esq.
All such notices, requests, demands and other communications shall, (i)
when mailed (which mailing must be accomplisheD by express overnight courier
service or registered mail, return receipt requested), be effective two DAYS
after deposited in the mails, (ii) when sent by facsimile, be effective one hour
after sending (or as of 8 a.m. Boston time on the following day, if faxed after
the later of 6 p.m. Boston time and the close of business of the recipient) and
(iii) when delivered by hand, upon receipt, in each case addressed as aforesaid,
unless otherwise provided herein.
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10. LOCK-UP AGREEMENT. If requested in writing by the underwriters for
the initial underwritten public offering of securities of the Company, each
Holder and Investor shall agree not to sell publicly any shares of Stock without
the consent of such underwriters, for a period of not more than 180 days
following the date APPEARING on the final prospectus relating to such offering;
PROVIDED, HOWEVER, that all persons entitled to registration rights with respect
to shares of Stock and who are not parties to this Agreement, all executive
officers, directors and 1% shareholders of the Company shall also have agreed
not to sell publicly their Stock under the circumstances and pursuant to the
terms set forth herein; PROVIDED, FURTHER, that the restrictions contained in
this Section 10 shall not apply to any securities acquired by the Series C
Investors in the Company's first Qualified Public Offering (as defined in the
Purchase Agreement) (other than securities acquired pursuant to Section 5.07 of
the Purchase Agreement which may be subject to such restrictions to the extent
necessary to comply with applicable law and rules and regulations of the
Commission and the National Association of Securities Dealers, Inc.) or to
securities acquired by the Series C Investors on the open market after the
Company's first Qualified Public Offering.
11. SPECIFIC PERFORMANCE. The rights of the parties under this
Agreement are unique and, accordingly, the parties shall, in addition to such
other remedies as MAY be available to any of them at law or in equity, have the
right to enforce their rights hereunder by actions for specific performance to
the extent permitted by law.
12. LEGEND. The certificates representing the Stock shall bear on their
face a legend indicating the existence of the restrictions imposed hereby.
13. ENTIRE AGREEMENT. This Agreement, the Purchase Agreement (including
any and all Exhibits, Schedules and other instruments contemplated thereby) and
the Third Amended and Restated Registration Rights Agreement dated the date
hereof among the Company and certain of its stockholders named therein
constitute the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings between them
or any of them as to such subject matter.
14. WAIVERS AND FURTHER AGREEMENTS. Any of the provisions of this
Agreement for the benefit of the Series A Investors may be waived with the
consent of the Series A Investors holding at least 60% in interest of the Series
A Conversion Shares then held or deemed to be held by all Series A Investors.
Any of the provisions of this Agreement for the benefit of the Series B
Investors may be waived with the consent of the Series B Investors holding at
least 60% in interest of the Series B Conversion Shares then held or deemed to
be held by all Series B Investors and, in the case of any waiver of the benefits
of paragraph (v) of Section 7 hereof, with the consent of @Ventures III, L.P.
Any of the provisions of this Agreement for the benefit of the Series C
Investors may be waived with the consent of the Series C Investors holding at
least 60% in interest of the Series C Conversion Shares then held or deemed to
be held by all Series C Investors. Any of the provisions of this Agreement for
the benefit of the Series D Investors may be waived with the consent of the
Series D Investors holding at least 60% in interest of the Series D Conversion
Shares then held or deemed to be held by all Series D Investors. Any waiver by
any party of a breach of any provision of this Agreement shall not operate or be
construed as a waiver of any subsequent breach of that provision or of any other
provision hereof. Each of the parties hereto agrees to execute all such further
instruments and documents
-10-
and to take all such further action as any other party may reasonably require in
order to effectuate the terms and purposes of this Agreement. Notwithstanding
the foregoing, no waiver approved in accordance herewith shall be effective if
and to the extent that such waiver (i) grants to any one or more Investors any
rights more favorable than any rights granted to all other similarly situated
Investors or otherwise treats any one or more Investors differently than all
other similarly situated Investors and (ii) waives any of the rights of the
Founders without the additional written consent of the Founders.
15. AMENDMENTS. Except as otherwise expressly provided herein, this
Agreement may not be amended except by an instrument in writing executed by (i)
Series A Investors holding at least 60% in interest of the Series A Conversion
Shares then held or deemed to be held by all Series A Investors, (ii) Series B
Investors holding at least 60% in interest of the Series B Conversion Shares
then held or deemed to be held by all Series B Investors, (iii) Series C
Investors holding at least 60% in interest of the Series C Conversion Shares
then held or deemed to be held by all Series C Investors, (iv) Series D
Investors holding at least 60% in interest of the Series D Conversion Shares
then held or deemed to be held by all Series D Investors and (v) Holders (not
including Investors) holding a majority of the Shares subject to this Agreement.
Notwithstanding the foregoing, no amendment approved in accordance with clauses
(i), (ii), (iii), (iv) and (v) above shall be effective if and to the extent
that such amendment: (a) creates any additional affirmative obligations to be
complied with by any or all of the Investors or Holders, (b) grants to any one
or more Investors or Holders any rights more favorable than any rights granted
to all similarly situated Investors or Holders, as the case may be, or (c)
otherwise treats any one or more Investors or Holders differently than all other
similarly situated Investors or Holders. In addition, Section 7 of this
Agreement shall not be amended with (i) regard to Brand Equity Ventures I,
L.P.'s right to designate a representative to the Board of Directors without the
written consent of Brand Equity Ventures I, L.P. or (ii) with regard to
@Ventures III, L.P.'s right to designate a representation to the Board of
Directors without the written consent of @Ventures III, L.P.
16. ASSIGNMENT; SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their respective
heirs, executors, legal representatives, successors and Qualified Transferees,
except as may be expressly provided otherwise herein, AND PROVIDED, FURTHER,
that no Investor may transfer its rights or obligations hereunder except to a
Qualified Transferee.
17. SEVERABILITY. In case any one or more of the provisions contained
in this Agreement shall for any reason be held to be INVALID, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement and such invalid, illegal
and unenforceable provision shall be reformed and construed so that it will be
valid, legal and enforceable to the maximum extent permitted by law.
18. 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. The Company shall require
(i) each executive officer who shall, after the date hereof, acquire or receive
the right to acquire any shares of the Company's capital stock, and (ii) each
person who shall, after the date HEREOF, hold, acquire or receive the right to
acquire more than 100,000 shares of the Company's capital stock (appropriately
adjusted for any stock split,
-11-
recapitalization or other reorganization), as a condition to such acquisition,
to become a party to this Agreement by executing and delivering to the Company
an Instrument of Accession in the form of SCHEDULE II hereto.
19. SECTION HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not in any way affect the meaning or
interpretation of this Agreement.
20. GOVERNING LAW. This Agreement shall be construed and enforced in
accordance with and governed by the General Corporation Law of the State of
Delaware.
21. AGGREGATION OF STOCK. All securities of the Company held or
acquired by an affiliate of any Investor or entities under common management
with or managed by such Investor shall be aggregated with those held or acquired
by such Investor for the purpose of determining the availability of or discharge
of any rights of such Investor under this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-12-
XXXXXXXXX.XXX, INC.
THIRD AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
Counterpart Signature Page
IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed as of the date first above written.
THE COMPANY:
------------
XXXXXXXXX.XXX, INC.,
By: /s/ Xxxx Xxxxxx
---------------------------
Name: Xxxx Xxxxxx
Title: VP, Legal and Business Affairs
-13-
SCHEDULE I
----------
XXXXXXXXX.XXX
SCHEDULE OF HOLDERS AND INVESTORS
---------------------------------
NAMES AND ADDRESSES NO. OF CLASS B COMMON SHARES
------------------- ----------------------------
FOUNDERS
--------
Xxxxxx Xxxxxxxxxx 4,089,400
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxx, XX 00000
Misha Katzc/o Xxxxxxxxx.xxx, Inc. 165,800
0000 Xxxxxxxxx Xxxx,Xxxxx 0
Xxxxxxxxx, XX 00000-0000
TOTAL CLASS B COMMON SHARES: 4,255,200
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NON-FOUNDER STOCKHOLDERS
------------------------
Xxxxxxx Xxxxxx
c/o Bessemer Venture Partners 165,800
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Xxxxxx Xxxxxx 884,403
c/o Xxxxxxxxx.xxx, Inc.
0000 Xxxxxxxxx Xxxx, Xxxxx 0
Xxxxxxxxxx, XX 00000
Xxxx Xxxxxxxxx 150,000
c/o Xxxxxxxxx.xxx, Inc.
0000 Xxxxxxxxx Xxxx, Xxxxx 0
Xxxxxxxxxx, XX 00000
Xxxxxxx Xxxxx 20,000
c/o Xxxxxxxxx.xxx, Inc.
0000 Xxxxxxxxx Xxxx, Xxxxx 0
Xxxxxxxxxx, XX 00000
Xxx Xxxxxxxx 80,000
c/o Xxxxxxxxx.xxx, Inc.
0000 Xxxxxxxxx Xxxx, Xxxxx 0
Xxxxxxxxxx, XX 00000
Xxxxxxx Xxxxxxxx 100,000
c/o Xxxxxxxxx.xxx, Inc.
0000 Xxxxxxxxx Xxxx, Xxxxx 0
Xxxxxxxxxx, XX 00000
Xxxxx Xxxxxxx 100,000
c/o Xxxxxxxxx.xxx, Inc.
0000 Xxxxxxxxx Xxxx, Xxxxx 0
Xxxxxxxxxx, XX 00000
Xxxxxxx Xxx Xxxxxx 150,000
c/o Xxxxxxxxx.xxx, Inc.
0000 Xxxxxxxxx Xxxx, Xxxxx 0
Xxxxxxxxxx, XX 00000
Xxxx Xxxxxxx 150,000
c/o Xxxxxxxxx.xxx, Inc.
0000 Xxxxxxxxx Xxxx, Xxxxx 0
Xxxxxxxxxx, XX 00000
TOTAL CLASS B COMMON SHARES: 1,788,774
-15-
INVESTORS
---------
Number of Number of Number of Number of Number of
Series A Class A Series B Series C Series D
Preferred Shares Common Shares Preferred Shares Preferred Shares Preferred Shares
---------------- ------------- ---------------- ---------------- ----------------
Brand Equity Ventures I, L.P. 1,485,000 1,500,000 1,056,338 67,540 0
Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxxxxx
Bessemer Venture Investors, L.P. 70,290 71,000 140,845 0 0
0000 Xxx Xxxxxxx Xxxx,
Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Bessemer Venture Partners IV L.P. 422,631 426,900 774,648 40,524 63,830
0000 Xxx Xxxxxxx Xxxx,
Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx
Bessec Ventures IV L.P. 249,579 252,100 492,958 27,016 42,553
0000 Xxx Xxxxxxx Xxxx, Xxxxx
000
Xxxxxxxx, XX 00000
Shad Run Investments, L.P. 0 0 528,169 0 0
0000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Comdisco, Inc. 0 0 352,113 135,079 106,383
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Xxxxxx X. Xxxxxxxx 0 0 88,028 0 10,000
00 Xxxxxxxxx Xxx
Xxxx Xxxxxx, XX 00000
Xxxxxxxx X. Xxxxxxxx 0 0 88,028 0 10,000
Xxxxx Xxxxxxxx Plaza
00 Xxxxx 0xx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
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Xxxxxxx Xxxxxx 395,700 400,000 0 0 0
c/o Bessemer Venture Partners
00 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
The Trustees of Amherst 66,000 66,666 0 0 0
College for the Xxxxxxx X. &
Xxxxx X. Xxxxxx Charitable
Remainder Unitrust
Campus Box 2203
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
The Trustees of Amherst 33,000 33,334 0 0 0
College for the Xxxxxxx X. &
Xxxxx X. Xxxxxx Charitable
Remainder Unitrust II
Campus Box 2203
X.X. Xxx 0000
Xxxxxxx, XX 00000-0000
Xxx Xxxxxxx 9,900 10,000 0 0 0
0 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Xxxxxxx Xxxxxxxx 148,500 150,000 0 0 0
Xxxxxxx River Associates
33rd Floor - 000 Xxxxxxxxx Xx.
Xxxxxx, XX 00000
Xxxxxxx X. Xxxxx 99,000 100,000 0 0 0
K.I.
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
@Ventures III, L.P. 0 0 2,115,363 324,603 287,599
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
CMG@Ventures III, L.L.C. 0 0 700,704 107,523 95,266
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
@Ventures Investors, LLC * 0 0 70,423 10,807 9,574
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
-17-
@Ventures Foreign Fund III, L.P. * 0 0 634,637 97,385 86,284
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
Xxxxx X. Xxxxxxx, as 10,000 10,000 0 0 0
Custodian under the Ohio
Transfers to Minors Act for
the benefit of Xxx X. Xxxxxx
Xxxxx X. Xxxxxxx, as 10,000 10,000 0 0 0
Custodian under the Ohio
Transfers to Minors Act for
the benefit of Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxx, as 10,000 10,000 0 0 0
Custodian under the Ohio
Transfers to Minors Act for
the benefit of Xxxxxx X. Xxxxxx
Arkaro Holding B.V. 0 0 0 1,350,795 244,949
Locatellikade 1
Parnassustoren
1076 AZ Amsterdam
X.X. Xxx 00000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attn: Xxxxx X. van der Sluijs-
Xxxxxx
Covestco-Ateura, LLC 0 0 0 1,080,635 265,957
c/o Jura Trust
Mitteldorf 1
Vaduz, Liechtenstein, FL-9490
Attn: Xxxxx X. Xxxxxx
With copies to:
Xx. Xxxxxxx X. Xxxx Partners
000 Xxxxxxxxxx
Xxxxxx X0X 0XX
Attn: Xxxxxx Xxxx and
Xxxxxxx Xxxxxxx
Xxxxxxx & Co., L.L.C.
000 Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx Xxxxxxxx
-18-
ATGF II 0 0 0 726,982 0
c/o Amerindo Investment
Advisors Inc.
000 Xxxx Xxxxxx 0xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx Xxxxxx
RRE Investors, L.P. 0 0 0 261,352 51,383
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
RRE Investors Fund, L.P. 0 0 0 143,886 28,404
P.O. Box 31106 SMB
West Bay Road
Grand Cayman, Cayman
Islands B.W.I.
Xxxxxxx Xxxxxxxxxxx 0 0 0 80,000 0
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Xxxxx Xxxxxxxxxx 0 0 0 3,500 0
Amerindo Investment
Advisors Inc.
00 Xxxxx Xxxxxxxxx Xxxxxx
Xxxxxx X0x 0XX
Xxxxxxx
Xxxxxx Xxxxx 0 0 0 6,754 0
000 X. 00xx Xxxxxx, Xxx. 0
Xxx Xxxx, XX 00000
Trellus Partners, LP 0 0 0 263,405 36,450
000 X. 00xx Xxxxxx, 00xx
Xxxxx
Xxx Xxxx, XX 00000
Munder NetNet Fund 0 0 0 0 1,595,744
000 Xxxxxx Xxxxxx, Xxx 000
Xxxxxxxxxx, XX 00000
Xxxxxx Master Trust 0 0 0 0 106,383
c/o Amerindo Investment
Advisors Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
TOTAL 3,009,600 3,040,000 7,042,254 4,727,786 3,040,759
========= ========= ========= ========= =========
-19-
SCHEDULE II
-----------
XXXXXXXXX.XXX
INSTRUMENT OF ACCESSION
-----------------------
The undersigned, _________________, as a condition precedent to
becoming the owner or holder of record of ___________________ (______) shares of
the [Class A Common Stock or Class B Common Stock], par value $.01 per share, of
Xxxxxxxxx.xxx, a Delaware corporation (the "Company"), hereby agrees to become a
Holder party to and bound by that certain Third Amended and Restated
Stockholders' Agreement, dated as of December 30, 1999 by and among the Company
and other stockholders of the Company. This Instrument of Accession shall take
effect and shall become an integral part of the said Third Amended and Restated
Stockholders' Agreement immediately upon execution and delivery to the Company
of this Instrument.
IN WITNESS WHEREOF, this INSTRUMENT OF ACCESSION has been duly executed
by or on behalf of the undersigned, as a sealed instrument under the laws of the
State of Delaware, as of the date below written.
Signature:
---------------------------------
(Print Name)
Address:
---------------------------------
Date:
-------------------------------------
Accepted:
---------------------------------
XXXXXXXXX.XXX
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Date:
--------------------------------------
-20-
