Exhibit 99.d
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (the "Agreement"), dated as of July 10, 2001
by and among (i) Xxxxxxxx Communications, LLC, a Delaware limited liability
company ("Xxxxxxxx"), (ii) iBeam Broadcasting Corporation, a Delaware
corporation (the "Company"), (iii) the other stockholders of the Company set
forth on the signature page hereto (the "Other Stockholders") and (iii) each
other Person (defined below) who becomes a party to this Agreement in accordance
with the terms hereof.
W I T N E S S E T H:
WHEREAS, this Agreement shall become effective (the "Effective
Date") on the date of, and simultaneously with, the closing under the Stock
Purchase Agreement, dated as of June 24, 2001 between the Company, Xxxxxxxx and
the Other Stockholders (the "Stock Purchase Agreement");
WHEREAS, on the Effective Date, (i) the authorized capital stock of
the Company will consist of 413,000,000 shares of common stock, $.0001 par value
(the "Common Stock"), and 10,000,000 shares of preferred stock, $.0001 par value
(the "Preferred Stock") of which 3,000,000 shares will be designated Series A
Convertible Preferred Stock, $.0001 par value (the "Series A Preferred Stock")
and (ii) the issued and outstanding capital stock of the Company will consist of
127,353,381 shares of Common Stock and 2,400,939 shares of Series A Preferred
Stock, with ___________ shares of Common Stock reserved for issuance upon the
exercise of certain stock options and warrants and upon conversion of the Series
A Preferred Stock; and
WHEREAS, on the Effective Date Xxxxxxxx shall hold 1,800,704 shares
of Series A Preferred Stock and the Other Stockholders shall hold, in the
aggregate, 600,235 shares of Series A Preferred Stock;
NOW THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the following
terms have the following meanings:
"Affiliate" as applied to any Person, shall mean any other Person
directly or indirectly controlling or controlled by or under, direct or
indirect, common control with such Person. For the purposes of this definition,
control when used with respect to any Person means the power to direct the
management and policies of such person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms
"controlling" and "controlled" have meanings correlative to the foregoing.
Notwithstanding the foregoing, neither Xxxxxxxx and its Affiliates nor the Other
Stockholders and their respective Affiliates shall be deemed Affiliates of the
Company for purposes of this Agreement.
"beneficially own" and "beneficial ownership" have the meanings
given to them in Rule 13d-3 under the Exchange Act.
"Board of Directors" shall mean the Board of Directors of the
Company.
"Business Day" shall mean each day other than Saturdays, Sundays and
days when commercial banks are authorized to be closed for business in New York,
New York.
"Certificate of Designations" shall mean the Certificate of
Designations of the Series A Preferred Stock attached hereto as Exhibits A.
"Charter Documents" shall mean the Certificate of Incorporation and
By-Laws of the Company, in effect as of the Effective Date, attached hereto as
Exhibits B and C, respectively.
"Commission" shall mean the United States Securities and Exchange
Commission.
"Common Stock" shall have the meaning set forth in the recitals.
"Company" shall have the meaning set forth in the preamble.
"Company Offered Securities" shall have the meaning set forth in
Section 6.1.
"Effective Date" shall have the meaning set forth in the recitals.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Indebtedness" of any Person at any date shall include (i) all
indebtedness of such Person for borrowed money or for the deferred purchase
price of property or services, including earn-out or similar contingent purchase
amounts, (ii) any other indebtedness of such Person which is evidenced by a
note, mortgage, bond, debenture or similar instrument, (iii) all obligations of
such Person under capitalized leases, (iv) all payments made or to be made
pursuant to sale-leaseback transactions, (v) all payments made or to be made
pursuant to a non-compete payment obligation, change of control payment
obligation, and severance and retention obligations, and (vi) all guarantees by
such Person of obligations of others whether or not such Person has assumed or
otherwise become directly liable for the payment thereof.
"MD&A" shall mean a management's discussion and analysis of the
Company's financial condition and results of operation comparable to the
discussion that is required to be included in periodic reports filed under the
Exchange Act.
"Notices" shall have the meaning set forth in Section 8.6.
"Permitted Transferee" shall mean with respect to any Person, any
other Person that is an Affiliate of the such Person.
"Person" shall mean an individual or a corporation, limited
liability company, partnership, trust, or any other entity or organization,
including a government or political subdivision or an agency or instrumentality
thereof.
"Preemptive Rights Offer" shall have the meaning set forth in
Section 6.1.
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"Preemptive Rights Offer Notice" shall have the meaning set forth in
Section 6.1.
"Preemptive Rights Transaction" shall have the meaning set forth in
Section 6.1.
"Preferred Stock" shall have the meaning set forth in the recitals.
"Registration Rights Agreements" shall mean the Registration Rights
Agreement, dated as of the date hereof, by and between the Company, Xxxxxxxx and
the Other Stockholders, attached hereto as Exhibit D.
"Securities Act" shall mean the Securities Act of 1933, as amended,
and the rules and regulations thereunder.
"Series A Preferred Stock" shall have the meaning set forth in the
recitals.
"Shares" shall mean, collectively, the Common Stock and the
Preferred Stock. Whenever this Agreement refers to a number or percentage of
Shares, such number or percentage shall be calculated as if each of the Shares
had been exchanged or converted into shares of Common Stock immediately prior to
such calculation regardless of the existence of any restrictions on or
conditions to such exchange or conversion.
"Standstill Period" shall have the meaning set forth in Section 5.1.
"Stock Purchase Agreement" shall have the meaning set forth in the
recitals.
"Subsidiary" shall mean, with respect to any Person, (a) a
corporation a majority of whose capital stock with voting power, under ordinary
circumstances, to elect directors is at the time, directly or indirectly, owned
by such Person, by a Subsidiary of such Person, or by such Person and one or
more Subsidiaries of such Person, (b) a partnership in which such Person or a
Subsidiary of such Person is, at the date of determination, a general partner of
such partnership, or (c) any other Person in which such Person, a Subsidiary of
such Person or such Person and one or more Subsidiaries of such Person, directly
or indirectly, at the date of determination thereof, has (i) at least a majority
ownership interest or (ii) the power to elect or direct the election of the
directors or other governing body of such Person.
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"Transaction Documents" shall have the meaning set forth in the
Stock Purchase Agreement.
"Transfer" shall mean (i) when used as a noun: any direct or
indirect transfer, sale, assignment, pledge, hypothecation, encumbrance or other
disposition and (ii) when used as a verb: to directly or indirectly transfer,
sell, assign, pledge, hypothecate, encumber, or otherwise dispose of.
"Transferee" shall mean any Person to whom Shares have been
Transferred in compliance with the terms of this Agreement.
"Voting Stock" means the capital stock of any class or kind
ordinarily having the power to vote generally for the election of directors (or
other persons or bodies performing similar functions) of the Company. With
respect to the Company, as of the Effective Date, Voting Stock includes (i) the
Common Stock, and (ii) the Series A Preferred Stock.
"Xxxxxxxx Nominees" shall have the meaning set forth in Section
4.l(a).
ARTICLE II
RESTRICTIONS ON TRANSFERS
Section 1.2 Transfers in Accordance with this Agreement. Any attempt
to Transfer, or purported Transfer of, any of the Shares held by Xxxxxxxx, the
Other Stockholders or their respective Permitted Transferees in violation of the
terms of this Agreement shall be null and void and the Company shall not
register upon its books, and shall direct its transfer agent not to register on
its books any such Transfer. A copy of this Agreement shall be filed with the
Secretary of the Company and the Company's transfer agent and kept with the
records of the Company.
Section 1.3 Restrictions on Transfer.
(1) Except as set forth below, prior to the second anniversary
of the date hereof, Xxxxxxxx and its Permitted Transferees shall not Transfer
any Shares except (i) to a Permitted Transferee, (ii) pursuant to an effective
registration statement filed with the Commission (including a registration
statement contem-
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plated by the Registration Rights Agreement) or (iii) to any other stockholder
of the Company who is bound by the terms of this Agreement.
(2) Following the second anniversary hereof and subject to the
other terms of this Agreement, Xxxxxxxx and its Permitted Transferees may,
subject to applicable law, Transfer any Shares to any Person, provided that if
such Transferee is not a Permitted Transferee then such Transferee must, to the
extent it becomes a party to this Agreement, agree that it waives and otherwise
has no rights under Section 4.2(b). Subject to the other terms of this
Agreement, after the date hereof, the Other Stockholders and their respective
Permitted Transferees may, subject to applicable law, Transfer any Shares to any
Person. Prior to any Transfer of Shares by Xxxxxxxx, an Other Stockholder or
their Permitted Transferees which is not registered under the Securities Act,
the proposed transferor shall give written notice to the Company of such
transferor's intention to effect such Transfer. Each such notice shall describe
the manner of the proposed Transfer. If within three (3) Business Days after
receipt by the Company of such notice, the Company requests in writing an
opinion of counsel for such transferor that the proposed Transfer may be
effected without registration of such Shares under the Securities Act, then
prior to Transferring such Shares, such transferor shall provide the Company an
opinion of counsel (which counsel and opinion shall each be reasonably
satisfactory to the Company) that such Transfer may be effected without
registration of such Shares under the Securities Act.
(3) No Transfer provided in the foregoing clauses (a) and (b)
of this Section 2.2 (other than pursuant to an effective registration statement
filed with the Commission) shall be permitted unless (i) the certificates
representing such Shares issued to the Transferee bear the legend provided in
Section 2.3 and (ii) the Transferee (if not already a party hereto) has executed
and delivered to each other party hereto, as a condition precedent to such
Transfer, an instrument or instruments, reasonably satisfactory to the Company,
confirming that the Transferee agrees to be bound by the terms of this Agreement
in the same manner as such Transferee's transferor, except as otherwise provided
in this Agreement.
(4) The Company agrees that it will not unreasonably deny any
request for a waiver of the restrictions set forth in this Section 2.2 made by
Xxxxxxxx, the Other Stockholders or their respective Permitted Transferees.
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Section 1.4 Legend. Xxxxxxxx and the Other Stockholders hereby agree
that each outstanding certificate representing Shares issued to it and its
Permitted Transferees, or any certificate issued in exchange for or upon
conversion of any similarly legended certificate, shall bear a legend reading
substantially as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER ANY STATE SECURITIES
LAWS, AND MAY BE OFFERED AND SOLD ONLY IF SO REGISTERED OR AN EXEMP TION
FROM REGISTRATION IS AVAILABLE. THE SHARES REPRESENTED BY THIS CERTIFICATE
ALSO ARE SUBJECT TO ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN
THE STOCKHOLDERS AGREEMENT, DATED AS OF JULY 10, 2001, A COPY OF WHICH MAY
BE OBTAINED FROM THE COMPANY. NO TRANSFER OF SUCH SHARES WILL BE MADE ON
THE BOOKS OF THE COMPANY UNLESS ACCOMPANIED BY EVIDENCE OF COMPLIANCE WITH
THE TERMS OF SUCH AGREEMENT AND BY AN AGREEMENT OF THE TRANSFEREE TO BE
BOUND BY THE RESTRICTIONS SET FORTH IN THE STOCKHOLDERS AGREEMENT.
Section 1.5 Right of First Refusal.
(1) Except with respect to a Transfer of Common Stock pursuant
to an effective registration statement in an underwritten public offering (which
will be subject to Section 2.5 below), if at any time Xxxxx & Company
Incorporated, Touch America, Inc. or any their respective Permitted Transferees
(each, an "Offeror") proposes to Transfer any Shares to any Person other than to
one of its Permitted Transferees (such Person, a "Third Party"), the Offeror
shall, before such Transfer, deliver to Xxxxxxxx an offer (the "Offer") to
Transfer such Shares to Xxxxxxxx upon the terms set forth in this Section 2.4.
The Offer shall (i) state that the Offeror proposes to Transfer the Shares, (ii)
specify the number of Shares (the "Offered Shares") proposed to be Transferred,
and (iii) state the terms (including the purchase price) of the proposed
Transfer. The Offer shall remain open and irrevocable for a period of fifteen
(15) days (the "Acceptance Period") from the date of its receipt by Xxxxxxxx.
(2) Xxxxxxxx may accept the Offer by delivering to the Offeror
written notice within the Acceptance Period, which notice shall state the
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number (the "Accepted Number") of Offered Shares Xxxxxxxx desires to purchase.
Xxxxxxxx may exercise its right to purchase any or all of the Offered Shares
pursuant to the Offer.
(3) The Transfer of Offered Shares to Xxxxxxxx, to the extent
Xxxxxxxx has exercised its rights under this Section 2.4, shall be made on a
business day, as designated by the Offeror, not less than 10 nor more than 30
days after expiration of the Acceptance Period on the terms and conditions
specified in the Offer, which terms and conditions shall be identical to the
terms of the proposed Transfer to the Third Party.
(4) If the number of Offered Shares exceeds the Offered Shares
with respect to which Xxxxxxxx exercised its rights under this Section 2.4, the
Offer shall be deemed to be withdrawn with respect to such excess and the
Offeror may Transfer, subject to the provisions of Section 2 hereof, such excess
Offered Shares on the terms, conditions and purchase price specified in the
Offer (which shall be the same terms, conditions and purchase price available to
Xxxxxxxx exercising rights pursuant to this Section 2) to any Third Party within
60 days after expiration of the Acceptance Period, so long as such Third Party
agrees in writing to become a party hereto and be bound hereby. If such Transfer
is not made within such 60-day period, the restrictions provided for in this
Section 2 shall again become effective.
(5) In the event an Offeror or such Third Party, as the case
may be, shall modify the terms of the proposed Transfer of Offered Shares in any
way, the Offeror shall send an amended Offer to Xxxxxxxx. Xxxxxxxx shall, if it
so desires to exercise its right of Offer, as so amended, prior to the later of
five (5) days after the date such amended Offer is received by the Company or
the end of the original Acceptance Period, deliver to the Offeror an amended
notice of acceptance specifying the amended Accepted Number and/or such other
amended term of Xxxxxxxx' acceptance pursuant to this Section 2.
(6) This Section 2.4 is subject to Article V. Accordingly, to
the extent that Xxxxxxxx and its Permitted Transferees are prohibited from
acquiring Offered Shares as a result of the restrictions imposed by Article V,
Xxxxxxxx shall have the right to assign (without the consent of the other
parties hereto) its right to purchase such Offered Shares to any Person who is
not an Affiliate of Xxxxxxxx, provided that (i) such Person agrees to be bound
by the terms of this Agreement, including Section 2.4 and Section 2.5, and (ii)
such Person has the financial capability to purchase such Offered Shares. In the
event that Xxxxxxxx does not purchase
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any or all of the Offered Shares and the Offeror Transfers such Offered Shares
to a Third Party (other than pursuant to an effective registration statement)
then, prior to such Transfer, such Third Party must agree to be bound by the
terms of this Agreement, including Section 2.4 and Section 2.5.
Section 1.6 Right of First Offer in Underwritten Offering.
(1) If at any time an Offeror proposes to Transfer any shares
of Common Stock to a Third Party pursuant to an effective registration statement
in an underwritten public offering, the Offeror shall, before such Transfer,
deliver to Xxxxxxxx an offer (the "Underwritten Offer") to Transfer to Xxxxxxxx,
upon the terms set forth in this Section 2.5, (i) such shares of Common Stock,
(ii) if such Offeror then holds shares of Series A Preferred Stock, such number
of shares of Series A Preferred Stock which, upon conversion into shares of
Common Stock, would equal the number of shares of Common Stock proposed to be
Transferred pursuant to an effective registration statement in such underwritten
public offering, and (iii) if such Offeror then holds shares of both Common
Stock and Series A Preferred Stock, a combination of shares of Common Stock and
Series A Preferred Stock which, on an as if converted basis, is equal to the
number of shares of Common Stock proposed to be Transferred pursuant to an
effective registration statement in such underwritten public offering. The
Underwritten Offer shall (i) state that the Offeror proposes to Transfer the
shares of Common Stock and Series A Preferred Stock, as the case may be, (ii)
specify the number of shares of Common Stock and Series A Preferred Stock, as
the case may be, proposed to be Transferred (the "Underwritten Offered Shares"),
and (iii) state the terms of the proposed Transfer (including the per share
purchase price as determined in Section 2.5(c)). The Underwritten Offer shall
remain open and irrevocable for a period of fifteen (15) days (the "Underwritten
Acceptance Period") from the date of its receipt by Xxxxxxxx. At the time of
delivery of the Underwritten Offer to Xxxxxxxx, the Offeror must have a bona
fide intention to Transfer such shares of Common Stock pursuant to an effective
registration statement in an underwritten public offering within 105 days of
delivery of such Underwritten Offer.
(2) Xxxxxxxx may accept the Underwritten Offer by delivering
to the Offeror written notice (the "Underwritten Acceptance Notice") within the
Underwritten Acceptance Period, which notice shall state the number of
Underwritten Offered Shares Xxxxxxxx desires to purchase. Xxxxxxxx may exercise
its right to purchase any or all of the Underwritten Offered Shares pursuant to
the Underwritten Offer. The actual combination of shares of Common Stock and
Series A Preferred Stock referred to in clause (iii) of the first sentence of
Section 2.5(a) shall be deter-
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mined by Xxxxxxxx in its sole discretion based on the shares of Common Stock and
Series A Preferred Stock held by the Offeror at the time of the Underwritten
Offer is received by Xxxxxxxx.
(3) The per share purchase price of the Underwritten Offered
Shares shall be determined as follows: (i) for Underwritten Offered Shares which
are Common Stock, the per share purchase price of such Underwritten Offered
Shares shall be the average per share Closing Price (as defined below) of the
Common Stock during the period beginning on the date of receipt by Xxxxxxxx of
the Underwritten Offer and ending on the date Xxxxxxxx delivers to the Offeror
the Underwritten Acceptance Notice (the "Common Stock Purchase Price"), and (ii)
for Underwritten Offered Shares which are Series A Preferred Stock, the per
share purchase price of such Underwritten Offered Shares shall be the product of
(A) the Common Stock Purchase Price, and (B) the number equal to the number of
shares of Common Stock into which each share of Series A Preferred Stock is
convertible on the Underwritten Closing Date (as defined below). "Closing Price"
means, as to any particular day, the average closing prices on such day of the
sales of Common Stock on all domestic securities exchanges on which the Common
Stock may at the time be listed, or, if there have been no sales on any such
exchanges on any day, the average of the highest bid and lowest asked prices on
all such exchanges at the end of such day, or, if on any day the Common Stock is
not so listed on a domestic securities exchange, the average of the
representative bid and asked prices quoted on the NASDAQ Stock Market as of 4:00
P.M., New York City time, on such day, or, if on any day the Common Stock is not
listed on a domestic securities exchange or quoted on the NASDAQ Stock Market,
the average of the highest bid and lowest asked prices on such day in the
domestic over-the-counter market as reported by the National Quotation Bureau,
Incorporated, or any similar or successor organization (and in each such case
excluding any trades that are not bona fide, arm's-length transactions).
(4) The Transfer of Underwritten Offered Shares to Xxxxxxxx,
to the extent Xxxxxxxx has exercised its rights under this Section 2.5, shall be
made on a business day, as designated by Xxxxxxxx, not less than 10 nor more
than 30 days after expiration of the Underwritten Acceptance Period (the
"Underwritten Closing Date") on the terms and conditions specified in the
Underwritten Offer.
(5) If the number of Underwritten Offered Shares exceeds the
Underwritten Offered Shares with respect to which Xxxxxxxx exercised its rights
under this Section 2.5, the Underwritten Offer shall be deemed to be withdrawn
with respect to such excess and the Offeror may Transfer, subject to the
provisions of
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Section 2 hereof, such excess Underwritten Offered Shares to any Third Party,
provided that such Transfer is made pursuant to an effective registration
statement in an underwritten public offering within 90 days after expiration of
the Acceptance Period. If such Transfer is not made pursuant to an effective
registration statement in an underwritten public offering within such 90-day
period, the restrictions provided for in this Section 2 shall again become
effective.
(6) This Section 2.5 is subject to Article V. Accordingly, to
the extent that Xxxxxxxx and its Permitted Transferees are prohibited from
acquiring Underwritten Offered Shares as a result of the restrictions imposed by
Article V, Xxxxxxxx shall have the right to assign (without the consent of the
other parties hereto) its right to purchase such Underwritten Offered Shares to
any Person who is not an Affiliate of Xxxxxxxx, provided that (i) such Person
agrees to be bound by the terms of this Agreement, including Section 2.4 and
Section 2.5, and (ii) such Person has the financial capability to purchase such
Underwritten Offered Shares.
ARTICLE III
ADDITIONAL RIGHTS AND OBLIGATIONS OF
XXXXXXXX, THE OTHER STOCKHOLDERS AND THE COMPANY
Section 1.7 Access to Information; Confidentiality. Upon the request
of Xxxxxxxx, the Company shall afford Xxxxxxxx and its accountants, counsel and
other representatives reasonable access to all of the properties, books,
contracts, commitments and records (including, but not limited to, tax returns)
of the Company and its Subsidiaries that are reasonably requested. Xxxxxxxx
will, and will cause its agents and other representatives to, conduct any such
investigations on reasonable advance notice, during normal business hours, with
reasonable numbers of persons and in such a manner as not to interfere
unreasonably with the normal operations of the Company and its Subsidiaries.
Except as otherwise required by applicable law, neither the Company nor any of
its Subsidiaries shall be required to provide access to or to disclose
information where such access or disclosure would jeopardize the attorney-client
privilege of the Person in possession or control of such information, or would
violate any applicable law. The parties hereto will make appropriate substitute
disclosure arrangements under circumstances in which the restrictions of the
preceding sentence apply. Xxxxxxxx shall, and shall use its reasonable best
efforts to cause its representatives to, keep confidential all such information
to the same extent such information is treated as confidential by the Company.
The obligation to
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keep such information confidential shall not apply to (i) any information that
(x) was already in Xxxxxxxx' possession prior to the disclosure thereof by the
Company, (y) was then generally known to the public, or (z) was disclosed to
Xxxxxxxx by a third party not known by Xxxxxxxx to be bound by an obligation of
confidentiality or (ii) disclosures made as required by law, legal process or
stock exchange rule. If either Xxxxxxxx or its Affiliates is nonetheless, in the
opinion of their respective counsel, compelled to disclose information
concerning the Company to any tribunal or governmental body or agency or else
stand liable for contempt or suffer other censure or penalty, Xxxxxxxx and such
Affiliate may disclose such information to such tribunal or governmental body or
agency without liability hereunder.
Section 1.8 Furnishing of Information. (a) The Company shall deliver
to Xxxxxxxx and the Other Stockholders, as the case may be, as long as such
Section 1.9 Person (together with its Permitted Transferees) beneficially owns
in the aggregate 10% or more of the Shares issued pursuant to the Stock Purchase
Agreement on the Effective Date:
(1) As promptly as practical, but in no event later than
30 days after the end of each calendar month, a copy of the monthly
financial reporting package for such month customarily prepared for the
Company's Chief Executive Officer;
(2) As promptly as practical, but in no event later than
45 days after the close of each of its first three quarterly accounting
periods during any fiscal year of the Company, the consolidated balance
sheet of the Company as at the end of such quarterly period, and the
related consolidated statements of operations, stockholders' equity and
cash flows for such quarterly period, and for the elapsed portion of the
fiscal year ended with the last day of such quarterly period, and in each
case setting forth comparative figures for the related periods in the
prior fiscal year all of which shall be certified by the Chief Financial
Officer of the Company, to have been prepared in accordance with generally
accepted accounting principles, subject to year-end audit adjustments,
together with an MD&A;
(3) As promptly as practical, but in no event later than
90 days after the close of each fiscal year of the Company, the
consolidated balance sheet of the Company as of the
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end of such fiscal year and the related consolidated statements of
operations, stockholders' equity and cash flows for such fiscal year, in
each case setting forth comparative figures for the preceding fiscal year,
and certified by independent certified public accountants of recognized
national standing, together with an MD&A; and
(iv) All reports, if any, filed by the Company or any
Subsidiary of the Company with the Commission under the Exchange Act, as
promptly as practical, but in no event later than 5 days after filing any
such reports with the Commission.
ARTICLE IV
CORPORATE GOVERNANCE AND VOTING
Section 1.10 Board of Directors of the Company.
(1) The Company and its directors have taken all appropriate
and necessary action to (i) cause the Board of Directors of the Company, as of
the Effective Date, to be composed of nine (9) members and divided into three
(3) classes designated as Class I, Class II and Class III, each class consisting
of three (3) directors, and (ii) reclassify one of the existing Class III
directors as a Class II director. For so long as Xxxxxxxx, together with any and
all of its Permitted Transferees, beneficially own in the aggregate 25% or more
of the Shares beneficially owned by Xxxxxxxx on the Effective Date, the size of
the Board of Directors shall not exceed nine (9) members. Xxxxxxxx shall be
entitled to nominate four members to the Board of Directors (collectively, the
"Xxxxxxxx Nominees"). One Xxxxxxxx Nominee shall be classified as a Class I
Director of the Company, two Xxxxxxxx Nominees shall be classified as Class II
Directors of the Company and one Xxxxxxxx Nominees shall be classified as a
Class III Director of the Company.
(2) The Company and its directors have taken all appropriate
action to cause the appointment of the Xxxxxxxx Nominees to become effective as
of the Effective Date. For so long as Xxxxxxxx, together with any and all of its
Permit-
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xxx Transferees, beneficially own in the aggregate 25% or more of the Shares
beneficially owned by Xxxxxxxx on the Effective Date, Xxxxxxxx, the Other
Stockholders and each of their Permitted Transferees shall vote all of its
Voting Stock of the Company, and shall take all other necessary or desirable
actions within their control, and the Company shall take all necessary or
desirable action within its control, to cause the Xxxxxxxx Nominees to be
nominated for and elected to the Board of Directors.
(3) The Company shall use its best efforts to call, or cause
the appropriate officers and directors of the Company, to call, a special
meeting of stockholders of the Company, as applicable, to cause the removal
(with or without cause) of any Xxxxxxxx Nominee if Xxxxxxxx requests such
director's removal in writing for any reason and the Other Stockholders agree to
vote their Voting Stock to remove such director. Xxxxxxxx shall have the right
to designate a new nominee in the event any Xxxxxxxx Nominee shall be so removed
under this Section 4.1(c) or shall vacate his directorship for any reason.
(4) The initial Xxxxxxxx Nominees shall be Xxxxxx Xxxxxx, Xxxx
Xxxxxxxxx, Xx., Xxxxx Xxxxx and Xxxx Xxxxx. Any other person designated by
Xxxxxxxx as a Xxxxxxxx Nominee shall either be (x) an employee or director of
Xxxxxxxx or its Affiliates or (y) if not such an employee or director of
Xxxxxxxx or its Affiliates, a person who is reasonably acceptable to the
Company.
(5) At such time as Xxxxxxxx, together with any and all of its
Permitted Transferees, cease to beneficially own in the aggregate 50% or more of
the Shares beneficially owned by Xxxxxxxx on the Effective Date but such Persons
beneficially own in the aggregate 25% or more of the Shares beneficially owned
by Xxxxxxxx on the Effective Date, Xxxxxxxx shall be entitled to nominate only
three Xxxxxxxx Nominees in accordance with this Section 4. At such time as
Xxxxxxxx, together with any and all of its Permitted Transferees, cease to
beneficially own in aggregate 25% or more of the Shares beneficially owned by
Xxxxxxxx on the Effective Date but such Persons beneficially own in the
aggregate 10% or more of the Shares beneficially owned by Xxxxxxxx on the
Effective Date, Xxxxxxxx shall be entitled to nominate only two Xxxxxxxx
Nominees in accordance with this Section 4. At such time as Xxxxxxxx, together
with any and all of its Permitted Transferees, cease to beneficially own in
aggregate 10% or more of the Shares beneficially owned by Xxxxxxxx on the
Effective Date, Xxxxxxxx shall no longer be entitled to nominate any Xxxxxxxx
Nominees in accordance with this Section 4. Xxxxxxxx
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shall take all appropriate action to cause one or more of the Xxxxxxxx Nominees
to resign as a director of the Company as necessary to comply with this Section
4.1(e).
(6) The Company, the Other Stockholders and Xxxxxxxx shall
take all such action to cause one of the Xxxxxxxx Nominees to be Chairman of the
Compensation Committee of the Board of Directors.
(7) The Company and its directors have established, and will
continue to take all such action necessary to maintain, an Executive Committee
of the Board of Directors, comprised of three members as follows (i) the
Company's Chief Executive Officer, (ii) an executive vice president or more
senior executive officer of the Company who is also a director of the Company
and (iii) a Xxxxxxxx Nominee, provided that the right of Xxxxxxxx to have a
Xxxxxxxx Nominee on the Executive Committee of the Board of Directors shall be
effective only during such periods of time that Xxxxxxxx is entitled to have
three or more nominees on the Board of Directors. The duties of the Executive
Committee shall be established by the Board of Directors and shall include,
among other things, the development of the Company's annual business plan, which
plan shall be submitted to the Board of Directors for approval each fiscal year.
As long as Xxxxxxxx, together with any and all of its Permitted Transferees,
beneficially owns, in the aggregate, at least aggregate 25% or more of the
Shares beneficially owned by Xxxxxxxx on the Effective Date, the annual business
plan of the Company and any material adjustments to such plan shall require the
affirmative vote of a majority of the entire Board of Directors and the
affirmative vote of each Xxxxxxxx Nominee. In the event that the Company's
annual business plan and any material adjustments thereto is not approved by the
requisite vote set forth in the previous sentence, the annual business plan of
the Company shall revert back to the Company's previous annual business plan, or
in the case of any material adjustments, shall not be so adjusted. The Executive
Committee shall have authority, subject to applicable law, to take all actions
that (A) are ancillary to or arise in the normal course of the businesses of the
Company, and (B) implement and are consistent with resolutions of the Board of
Directors, provided, however, that such Executive Committee shall not be
authorized to take any action which, if proposed to be taken by the full Board
of Directors, would require the affirmative vote of the Xxxxxxxx Nominees in
accordance with Section 4.2. Each committee of the Board of Directors shall
include a proportionate number of Xxxxxxxx nominees equal to the percentage of
Xxxxxxxx nominees on the entire Board of Directors.
(8) In the event that a director on the Board who is an
"independent director" under the rules and regulations of the Nasdaq Stock
Market
15
(other than any Xxxxxxxx Nominee) resigns, is removed from office or otherwise
ceases to be a director, the Company shall, and Xxxxxxxx and the Other
Stockholders shall take such action within their respective control to cause the
Company to, comply with the "independent director" requirements of The Nasdaq
Stock Market, and the Company shall have the right to approve the replacement of
such "independent director." So long as Xxxxxxxx beneficially owns less than a
majority of the outstanding Voting Stock, Xxxxxxxx agrees that (i) it shall not
call a special meeting of the Company's stockholders or take any other action
for the purpose of removing the non-Xxxxxxxx Nominees on the Board of Directors,
and (ii) in the event a non-Xxxxxxxx Nominee resigns, is removed from office or
otherwise ceases to be a director, the remaining non-Xxxxxxxx Nominees on the
Board of Directors shall have the right to appoint a replacement director.
(9) Each committee of the Board of Directors, to which
authority has been delegated, shall keep complete and accurate minutes and
records of all actions taken by such committee, prepare such minutes and records
in a timely fashion and promptly distribute such minutes and records to each
member of the Board of Directors.
(10) The parties agree that upon the request of Xxxxxxxx, the
Company shall cause the Board of Directors of any Subsidiary of the Company to
include such number of individuals designated by Xxxxxxxx in the same proportion
of the total number of members of the Board of Directors of such Subsidiary as
the proportion of the Company's Board of Directors to which Xxxxxxxx is entitled
pursuant to Section 4.1.
Section 1.11 Action by the Board of Directors.
(1) Except as provided herein, all decisions of the Board of
Directors shall require the affirmative vote of a majority of the directors of
the Company then in office, or a majority of the members of an Executive
Committee of the Board of Directors, to the extent such decisions may be
delegated to an Executive Committee pursuant to applicable law and Section
4.1(g).
(2) As long as Xxxxxxxx, together with any and all of its
Permitted Transferees, beneficially owns in aggregate 40% or more of the Shares
beneficially owned by Xxxxxxxx on the Effective Date, without the affirmative
vote of each of the Xxxxxxxx Nominees, the Company shall not, and it shall cause
each of its Subsidiaries not to, directly or indirectly, (i) incur a significant
amount of Indebt-
16
edness in the aggregate (which for purposes of this clause (i), any amount in
excess of $10 million in the aggregate shall be deemed to be significant); (ii)
redeem, purchase or otherwise acquire for value, or set apart money or other
property for any mandatory purchase or other similar fund for the redemption,
purchase or acquisition of any shares of Common Stock or Junior Stock (as
defined in the Certificates of Designations), except for the repurchase by the
Company of up to 5% of the outstanding Common Stock of the Company outstanding
on the Effective Date; (iii) declare or pay any dividend or make any
distribution (whether in cash, shares of capital stock of the Company, or other
property) on shares of Common Stock or Junior Stock; (iv) sell, lease, license
or otherwise dispose of, in any single transaction or series of related
transactions, a significant amount of the property and other assets of the
Company, (v) amend, alter or repeal, in any manner whatsoever, the designations,
preferences, privileges and relative rights and limitations and restrictions of
the Series A Preferred Stock, (vi) increase or decrease the number of authorized
shares of Common Stock or Preferred Stock, (vii) enter into any transaction
which results, directly or indirectly, in the sale, merger, consolidation or
corporate reorganization of, or other similar transaction involving, the
Company, including, without limitation, any transaction which would result in a
Change in Control (as defined in the Certificates of Designations) of the
Company, (viii) create (by reclassification or otherwise), authorize or issue
any new class or series of equity security having designations, preferences,
privileges or rights senior to, or on parity with, the Series A Preferred Stock,
(ix) create (by reclassification or otherwise), authorize or issue any class,
series or shares of capital stock or other securities junior to the Series A
Preferred Stock if such junior securities may be redeemed in any circumstance on
or prior to the Final Redemption Date (as defined in the Certificates of
Designations"), (x) amend, alter or repeal any of the provisions of the Charter
Documents or the Certificates of Designations in a manner that would adversely
affect the holders of the Series A Preferred Stock; (xi) adopt, and if adopted,
amend or waive any provision of, a shareholder rights plan or similar plan or
agreement, (xii) effect a voluntary liquidation, dissolution or winding up of
the Company; or (xiii) voluntarily file for bankruptcy, or otherwise seek
protection under any federal or state bankruptcy or similar law.
(3) Until the 6th month anniversary of the date hereof, any
termination of Xxxxxxxx Xxxxxxx'x, Xxxxxx Xxxxx' or Xxxxx Xxxxxxxx'x employment
by the Company without Cause (as defined in the Company's Retention Bonus Plan)
shall require the affirmative vote of a majority of the Board of Directors.
Notwith-
17
standing anything to the contrary herein, the approval of the termination of
such persons employment may not be delegated to a committee of the Board of
Directors.
Section 1.11 Certificates of Designations; Charter Documents. (a)
The Certificate of Designations, as in effect on the date hereof, is set forth
in Exhibit A hereto. The Charter Documents, as in effect on the date hereof, are
set forth in Exhibits B and C hereto.
(1) The Company covenants that it will act in accordance with
its Charter Documents and the Certificate of Designations. The Company shall
take all action necessary, to ensure that (i) the Charter Documents and
Certificate of Designations do not, at any time, conflict with the provisions of
this Agreement, and (ii) unless an amendment is approved by the Board of
Directors in accordance with Section 4.2, the Charter Documents and the
Certificate of Designations continue to be in effect in the forms attached
hereto.
Section 1.12 Meetings of Stockholders. The Other Stockholders and
Xxxxxxxx agree that their representatives shall meet, either in person or by
teleconference, at least five (5) Business Days prior to any meeting of
stockholders of the Company to discuss their respective views and opinions with
regard to the matters proposed for consideration at such stockholders meeting.
ARTICLE V
STANDSTILL
Section 1.13 Standstill (a) Without the prior written consent of the
Company or except as provided in this Agreement, from the date hereof until the
second anniversary of the date hereof (the "Standstill Period"), each of
Xxxxxxxx and the Other Stockholders shall not, and shall not permit any of their
respective Permitted Transferees or other Affiliates to, acquire, publicly
announce an intention to acquire, or agree to acquire beneficial ownership of
any Voting Stock of the Company resulting in an increase in their respective
percentage beneficial ownership, at such time, of the Company's Voting Stock on
a fully diluted basis.
18
(b) Notwithstanding anything in this Agreement (including this
Section 5.1) to the contrary, during the Standstill Period, (i) each of
Xxxxxxxx, the Other Stockholders and their respective Permitted Transferees and
other Affiliates may acquire additional Voting Stock upon the conversion or
exchange of the Series A Preferred Stock, (ii) each of Xxxxxxxx, the Other
Stockholders and their respective Permitted Transferees and other Affiliates
may, subject to compliance with applicable law, propose, announce and otherwise
make an offer to purchase all of the outstanding capital stock of the Company
and pursuant to such offer acquire such shares of capital stock, and (iii) each
of Xxxxxxxx, the Other Stockholders and their respective Permitted Transferees
and other Affiliates may make open market purchases of the Company's Voting
Stock as may be necessary for such Persons (either directly or through its
Permitted Transferees) to maintain their respective fully-diluted ownership
percentage of the Company's Voting Stock existing on the date hereof. The
Company agrees that it will not unreasonably deny any request for a waiver of
the restrictions set forth in this Article V made by Xxxxxxxx, the Other
Stockholders or their respective Permitted Transferees.
ARTICLE VI
PREEMPTIVE RIGHTS
Section 1.15 Preemptive Rights.
(1) In case the Company proposes at any time to issue or sell
any shares of equity securities of the Company (or securities convertible or
exchangeable for equity securities of the Company) issued by the Company after
the date hereof (collectively, the "Company Offered Securities"), the Company
shall, no later than twenty (20) days prior to the consummation of such
transaction (a "Preemptive Rights Transaction"), give notice in writing (the
"Preemptive Rights Offer Notice") to Xxxxxxxx, the Other Stockholders and their
respective Permitted Transferees of such Preemptive Rights Transaction. The
Preemptive Rights Offer Notice shall describe the proposed Preemptive Rights
Transaction, identify the proposed purchaser or purchasers, and contain an offer
(the "Preemptive Rights Offer") to sell Xxxxxxxx, the Other Stockholders and
their respective Permitted Transferees, at the same price and for the same
consideration to be paid by the proposed purchaser (provided, that, in the event
any of such consideration is non-cash consideration, at
19
the election of Xxxxxxxx, the Other Stockholders or their respective Permitted
Transferees to whom the Preemptive Rights Offer is made, Xxxxxxxx, the Other
Stockholders and their respective Permitted Transferees may pay cash equal to
the value of such non-cash consideration), all or any part of Xxxxxxxx', the
Other Stockholders' and their respective Permitted Transferees' pro rata portion
of the Company Offered Securities (which shall be a fraction of the Company
Offered Securities determined by dividing the number of shares of outstanding
Voting Stock owned by Xxxxxxxx, the Other Stockholders or such of their
Permitted Transferees, as the case may be, by the total number of outstanding
shares of Voting Stock). If Xxxxxxxx, the Other Stockholders or their respective
Permitted Transferees to whom a Preemptive Rights Offer is made fail to accept
(each a "Non-Responding Holder") in writing the Preemptive Rights Offer by the
fifteenth (15th) day after the Company's delivery of the Preemptive Rights Offer
Notice, such Non-Responding Holders shall have no further rights with respect to
the proposed Preemptive Rights Transaction and the Company may proceed with the
proposed Preemptive Rights Transaction, free of any right on the part of such
Non-Responding Holders, as the case may be, under this Section 6 in respect
thereof.
(2) The parties hereto agree that preemptive rights granted
pursuant to paragraph (a) of this Section 6.1 shall not be effective for
issuances of shares of Common Stock pursuant to the Company's 2000 Employee
Stock Purchase Plan, in accordance with the terms of such plan as in effect on
the date hereof and without giving effect to any amendment, alteration or repeal
of any of the terms of such plan or any increase in the number of shares of
Common Stock reserved for issuance under such plan.
ARTICLE VII
TERMINATION
Section 1.15 Termination. Except as otherwise provided herein with
respect to certain specific provisions, this Agreement shall terminate upon the
earlier to occur of:
(1) the mutual agreement of Xxxxxxxx and the Company,
20
(2) Xxxxxxxx and its Permitted Transferees ceasing to
beneficially own in the aggregate 10% or more of the Shares beneficially
owned by Xxxxxxxx on the Effective Date, and
(3) with respect to each Other Stockholder, such Other
Stockholder and its Permitted Transferees ceasing to beneficially own in
the aggregate 10% or more of the Shares beneficially owned by such Other
Stockholder on the Effective Date.
ARTICLE VIII
MISCELLANEOUS
Section 1.16 Consolidation. In the event that in the reasonable
judgment of Xxxxxxxx, Xxxxxxxx or its Affiliates are required to consolidate
their interest in the Company for financial accounting purposes, then, at the
request of Xxxxxxxx, the Company, the Other Stockholders and Xxxxxxxx shall
amend the terms of the Transaction Documents such that the neither Xxxxxxxx nor
its Affiliates are required to consolidate their interest in the Company for
financial accounting purposes.
Section 1.17 No Inconsistent Agreements. The Company represents and
agrees that, as of the Effective Date, there is no (and from and after the
Effective Date they will not, and will cause its respective Subsidiaries and
Affiliates not to, enter into any) agreement with respect to any securities of
the Company or any of its Subsidiaries (and from and after the Effective Date
Company shall not take, or permit any of its Subsidiaries or Affiliates to take,
any action) that is inconsistent with the rights granted to Xxxxxxxx and the
Other Stockholders in this Agreement. Without limiting the foregoing, the
Company represents that there are no existing agreements relating to the voting
or registration of any equity securities of the Company or any of its
Subsidiaries other than the Company's Third Amended and Restated Investors
Rights Agreement dated April 28, 2000, and there are no other existing
agreements between the Company and any other holder of Shares relating to the
transfer of any equity securities of the Company or any of its Subsidiaries.
21
Section 1.18 Recapitalization. Exchanges, etc. If any capital stock
or other securities are issued in respect of, in exchange for, or in
substitution of, any Shares by reason of any reorganization, recapitalization,
reclassification, merger, consolidation, spin-off, partial or complete
liquidation, stock dividend, split-up, sale of assets, distribution to
stockholders or combination of the Shares or any other change in capital
structure of the Company, appropriate adjustments shall be made with respect to
the relevant provisions of this Agreement so as to fairly and equitably
preserve, as far as practicable, the original rights and obligations of the
parties hereto under this Agreement and the terms "Common Stock," "Preferred
Stock" and "Shares," each as used herein, shall be deemed to include shares of
such capital stock or other securities, as appropriate. Without limiting the
foregoing, whenever a particular number of Shares is specified herein, such
number shall be adjusted to reflect stock dividends, stock-splits, combinations
or other reclassifications of stock or any similar transactions.
Section 1.19 Successors and Assigns. This Agreement shall be binding
upon and shall inure to the benefit of the parties hereto, and their respective
successors and permitted assigns; provided that (i) neither this Agreement nor
any rights or obligations hereunder may be transferred or assigned by the
Company; and (ii) neither this Agreement nor any rights or obligations hereunder
may be transferred or assigned by Xxxxxxxx or the Other Stockholders except (A)
to any Person to whom it has Transferred Shares in compliance with this
Agreement and who has become bound by this Agreement pursuant to Section 2.2
hereof, and (B) to any Person pursuant Section 2.4(f).
Section 1.20 No Waivers; Amendments. (a) No failure or delay by any
party in exercising any right, power or privilege hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
(1) This Agreement may not be amended or modified, nor may any
provision hereof be waived, other than by a written instrument signed by the
Company and Xxxxxxxx, provided that any amendment, modification or waiver that
materially and adversely affects the rights of one of the Other Stockholders
hereunder shall require the written consent of such Other Stockholder.
22
Section 1.21 Notices. All notices, demands, requests, consents or
approvals (collectively, "Notices") required or permitted to be given hereunder
or which are given with respect to this Agreement shall be in writing and shall
be personally delivered or mailed, registered or certified, return receipt
requested, postage prepaid (or by a substantially similar method), or delivered
by a reputable overnight courier service with charges prepaid, or transmitted by
hand delivery or facsimile, addressed as set forth below, or such other address
(and with such other copy) as such party shall have specified most recently by
written Notice. Notice shall be deemed given or delivered on the date of service
or transmission if personally served or transmitted by facsimile. Notice
otherwise sent as provided herein shall be deemed given or delivered on the
third business day following the date mailed or on the next business day
following delivery of such Notice to a reputable overnight courier service.
To the Company:
iBeam Broadcasting Corporation
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
To Xxxxxxxx:
Xxxxxxxx Communications, LLC
Xxx Xxxxxxxx Xxxxxx 00-0
Xxxxx, Xxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
23
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
To the Other Stockholders to the address and persons set forth on
the signature pages hereto.
Section 1.22 Inspection. So long as this Agreement shall be in
effect, this Agreement and any amendments hereto and waivers hereof shall be
distributed to all parties hereto after becoming effective and shall be made
available for inspection at the principal office of the Company.
Section 1.23 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE. EACH PARTY
HERETO CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF THE FEDERAL AND STATE
COURTS WITHIN THE STATE OF DELAWARE.
Section 1.24 Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect the meaning or
interpretation of this Agreement.
Section 1.25 Entire Agreement. This Agreement, together with the
other Transaction Documents, constitutes the entire agreement and understanding
among the parties hereto with respect to the subject matter hereof and thereof
and supersedes any and all prior agreements and understandings, written or oral,
relating to the subject matter hereof.
Section 1.26 Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdictions, it
being intended that all rights and obligations of the parties hereunder shall be
enforceable to the fullest extent permitted by law.
24
Section 1.27 Counterparts. This Agreement may be signed in
counterparts, each of which shall constitute an original and which together
shall constitute one and the same agreement.
Section 1.28 Required Approvals. If approval of this Agreement or
any of the transactions contemplated hereby shall be required by any
governmental agency or instrumentality or is considered to be necessary or
advisable by the parties hereto, all parties hereto shall use their reasonable
best efforts to obtain such approval.
Section 1.29 Public Disclosure. The Company shall not, and shall not
permit any of its Subsidiaries to, make any public announcements or disclosures
relating or referring to Xxxxxxxx, the Other Stockholder or any of their
respective Affiliates, or any of their respective directors, officers, employees
or agents (including, without limitation, any Person designated as a director of
the Company pursuant to the terms hereof) unless such Person has consented to
the form and substance thereof, which consent shall not be unreasonably withheld
except to the extent such disclosure is required by law or by stock exchange
regulation, provided that (i) any such required disclosure shall only be made,
to the extent consistent with the law, after consultation with such Person and
(ii) no such announcement or disclosure (except as required by law or by stock
exchange regulation) shall identify any such Person without such Person's prior
consent.
* * *
25
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
iBEAM BROADCASTING CORPORATION
By: ____________________________________
Name:
Title:
XXXXXXXX COMMUNICATIONS, LLC
By: ____________________________________
Name:
Title:
OTHER STOCKHOLDERS SIGNATURE PAGES FOLLOW
By execution of this signature page, the undersigned shall become an
Other Stockholder under, and a party to, the Stockholders Agreement, dated as of
_______ __, 2001 by and among iBeam Communications Corporation, Xxxxxxxx
Communications, LLC and the Other Stockholders.
Notice: XXXXX & COMPANY INCORPORATED
Xxxxx & Company Incorporated
000 0xx Xxxxxx - 0xx Xxxxx By:__________________________________
New York, New York Name:
Fax: (000) 000-0000 Title:
Attn: Xxxx Xxxxx
By execution of this signature page, the undersigned shall become an
Other Stockholder under, and a party to, the Stockholders Agreement, dated as of
_______ __, 2001 by and among iBeam Communications Corporation, Xxxxxxxx
Communications, LLC and the Other Stockholders.
Notice: XXXX iBEAM, LLC
Xxxx iBeam, LLC
One North Franklin By: __________________________________
Xxxxx 000 Name:
Xxxxxxx, Xxxxxxxx 00000 Title:
Fax: (000) 000-0000
By execution of this signature page, the undersigned shall become an
Other Stockholder under, and a party to, the Stockholders Agreement, dated as of
_______ __, 2001 by and among iBeam Communications Corporation, Xxxxxxxx
Communications, LLC and the Other Stockholders.
Notice: TOUCH AMERICA, INC.
Touch America, Inc.
000 Xxxxx Xxxx Xxxxxx Xx:___________________________________
Xxxxx, XX 00000-0000 Name:
Fax: (000) 000-0000 Title
Attn: General Counsel
