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EXHIBIT 10.82
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.
WITNESSETH:
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 240,930,900 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:
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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.
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"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 earnout 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.
"Preemptive Rights Offer Notice" shall have the meaning set
forth in Section 6.1.
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"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 2.1 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 2.2 Restrictions on Transfer.
(a) 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.
(b) 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.
(c) 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.
(d) 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.
Section 2.3 Legend. Xxxxxxxx and the Other Stockholders hereby
agree that each outstanding certificate representing Shares issued to it and its
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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 EXEMPTION 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 2.4 Right of First Refusal.
(a) 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.
(b) Xxxxxxxx may accept the Offer by delivering to the
Offeror written notice within the Acceptance Period, which notice shall state
the number (the "Accepted Number") of Offered Shares Xxxxxxxx desires to
purchase.
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Xxxxxxxx may exercise its right to purchase any or all of the Offered Shares
pursuant to the Offer.
(c) 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.
(d) 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.
(e) 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.
(f) 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 any or all of the Offered
Shares and the Offeror Transfers such Offered Shares to a
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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 2.5 Right of First Offer in Underwritten Offering.
(a) 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.
(b) 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 determined by Xxxxxxxx in its sole
discretion based on the shares of Common Stock and
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Series A Preferred Stock held by the Offeror at the time of the Underwritten
Offer is received by Xxxxxxxx.
(c) 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).
(d) 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.
(e) 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 Section 2 hereof, such excess Underwritten Offered Shares to
any Third Party,
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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.
(f) 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 3.1 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 keep such information confidential shall not
apply to (i) any information that (x) was
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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 3.2 Furnishing of Information. (a) The Company shall
deliver to Xxxxxxxx and the Other Stockholders, as the case may be, as long as
such 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:
(i) 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;
(ii) 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;
(iii) 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 end of such fiscal
year and the related consolidated statements of operations,
stockholders' equity and cash flows for such fiscal year, in each case
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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 4.1 Board of Directors of the Company.
(a) 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.
(b) 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 Permitted Transferees, beneficially own in the aggregate 25% or
more of the Shares beneficially owned by Xxxxxxxx on the Effective Date,
Xxxxxxxx, the Other Xxxxx-
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holders 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.
(c) 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.
(d) 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.
(e) 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 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).
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(f) 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.
(g) 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.
(h) In the event that a director on the Board who is
an "independent director" under the rules and regulations of the Nasdaq Stock
Market (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,
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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.
(i) 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.
(j) 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 4.2 Action by the Board of Directors.
(a) 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).
(b) 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 Indebtedness 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
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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.
(c) 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. Notwithstanding 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.
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Section 4.3 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.
(b) 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 4.4 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 5.1 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.
(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 applica-
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ble 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 6.1 Preemptive Rights.
(a) 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 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
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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
(15 th ) 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.
(b) 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 7.1 Termination. Except as otherwise provided herein
with respect to certain specific provisions, this Agreement shall terminate upon
the earlier to occur of:
(i) the mutual agreement of Xxxxxxxx and the Company,
(ii) 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
(iii) with respect to each Other Stockholder, such
Other Stockholder and its Permitted Transferees ceasing to
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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 8.1 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 8.2 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.
Section 8.3 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
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"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 8.4 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 8.5 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.
(b) 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.
Section 8.6 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
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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:
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.
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Section 8.7 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 8.8 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 8.9 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 8.10 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 8.11 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.
Section 8.12 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 8.13 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.
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Section 8.14 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.
* * *
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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
27
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 -------------------------------
Fax: (000) 000-0000 Name:
Attn: Xxxx Xxxxx Title:
28
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:
Suite 750 ---------------------------
Xxxxxxx, Xxxxxxxx 00000 Name:
Fax: (000) 000-0000 Title:
29
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 -------------------------------
Fax: (000) 000-0000 Name:
Attn: General Counsel Title:
