EXHIBIT 10.6
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VICINITY CORPORATION
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
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Dated: December 9, 1998
TABLE OF CONTENTS
ARTICLE 1. RIGHT OF FIRST REFUSAL ON COMPANY ISSUANCES..................... 1
1.1 Right of First Refusal............................................... 1
1.2 Pro Rata Share....................................................... 1
1.3 "New Securities"..................................................... 1
1.4 Procedure............................................................ 2
1.5 Waiver of Right of First Refusal..................................... 3
1.6 Fees and Expenses of Valuation of New Securities..................... 3
1.7 Company Right to Terminate Issuance of New Securities................ 3
ARTICLE 2. RIGHTS OF FIRST OFFER........................................... 3
2.1. Company Right of First Offer......................................... 3
2.2. Non-Selling Investor Right of First Offer............................ 4
2.3. Procedure............................................................ 4
2.4. Definition of Transfer Pro Rata Share................................ 5
2.5. Fees and Expenses of Valuation of Transfer Shares.................... 5
2.6. Rights of Co-Sale.................................................... 5
2.7. Procedure............................................................ 6
2.8. Transfer of Shares Upon Failure to Exercise Rights of First Offer
or Co-Sale........................................................... 6
2.9. Effect on Transferee................................................. 7
2.10 Limitations to the Right of First Offer and Co-Sale.................. 7
ARTICLE 3. ADDITIONAL PARTIES.............................................. 7
ARTICLE 4. GENERAL......................................................... 7
4.1. Governing Law........................................................ 8
4.2. No Assignment or Transfer; Legends................................... 8
4.3. Termination Of Rights................................................ 8
4.4. Modification; Waiver................................................. 9
4.5. Third Parties........................................................ 9
4.6. Entire Agreement..................................................... 9
4.7. Severability......................................................... 9
4.8. Notices.............................................................. 9
4.9. Spousal Consent...................................................... 10
4.10 Counterparts......................................................... 10
AMENDED AND RESTATED
SHAREHOLDERS AGREEMENT
This Amended and Restated Shareholders Agreement (the "Agreement") is made
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and entered into as of this 9th day of December, 1998 by and among Vicinity
Corporation, a California corporation (the "Company"), Rama Xxxxxx, Xxxxx
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Xxxxxxx, Xxxxxxx Xxxxx and Xxxxx XxXxxxx (the "Founders") and the investors
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named on Schedule I hereto (the "Investors" and together with the Founders, the
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"Shareholders").
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RECITALS
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A. Simultaneous with the execution and delivery of this Agreement the
Company is entering into that certain Series D Preferred Stock and Warrant
Purchase Agreement (the "Series D Purchase Agreement"), pursuant to which the
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Company has agreed to issue and sell to certain of the Investors and such
Investors have agreed to purchase from the Company shares of the Company's
Series D Preferred Stock (the "Series D Preferred") and warrants exercisable for
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shares of the Company's Series E Preferred Stock ( the "Warrants").
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B. In further consideration of the Company's issuance and sale and the
new Investors' purchase of the Series D Preferred and the Warrants, the several
parties hereto desire to enter into this Agreement. This Agreement amends and
restates the Shareholders Agreement dated as of December 12, 1996 among the
Company and the persons named therein, which agreement in turn, superseded the
Shareholders Agreement dated as of June 4, 1996 among the Company and the
persons named therein.
In consideration thereof, the parties hereto agree as follows:
ARTICLE 1.
RIGHT OF FIRST REFUSAL ON COMPANY ISSUANCES
1.1. Right of First Refusal. The Company hereby grants to each Investor
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who continues to hold not less than 250,000 shares of Preferred Stock (or shares
of the Company's Common Stock issued upon conversion of such Preferred Stock,
the "Conversion Stock") of the Company a right of first refusal
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("Right of First Refusal") to purchase such Investor's Pro Rata Share (as
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defined in Section 1.2 hereof) of any New Securities (as defined in Section 1.3
hereof) which the Company may, from time to time, propose to issue and sell.
1.2. Pro Rata Share. Each Investor's "Pro Rata Share," for purposes of
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this Article 1, is equal to the fraction obtained by dividing (a) the number of
shares of Common Stock held by such Investor by (b) the aggregate number of
shares of Common Stock then outstanding, assuming in each case the conversion,
exercise or exchange of all securities by their terms convertible into or
exercisable for Common Stock and the exercise of all options to purchase or
rights to subscribe for Common Stock or such convertible or exchangeable
securities.
1.3. "New Securities". Except as set forth below, "New Securities" shall
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mean any
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shares of capital stock of the Company, including Common Stock and Preferred
Stock, whether or not now authorized, and rights, options or warrants to
purchase said shares of Common Stock or Preferred Stock and securities of any
type whatsoever that are, or may by their terms become, convertible into said
shares of Common Stock or Preferred Stock. Notwithstanding the foregoing, "New
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Securities" does not include the Series D Preferred or the Warrants issued
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pursuant to the Series D Purchase Agreement or securities issued or issuable (i)
upon the conversion of Preferred Stock, (ii) to employees, officers, directors,
consultants or advisors of the Company pursuant to any one or more stock
incentive plans or agreements approved by the Company's board of directors (the
"Board"), (iii) pursuant to commercial transactions approved by the Board
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including, but not limited to, equipment leases or bank lines of credit,
provided that the specific issuance is approved by the Board and does not exceed
in the aggregate 100,000 shares of capital stock (as adjusted for any
combinations, considerations or subdivisions), (iv) as a dividend or
distribution on, or in connection with a split of, any of the capital stock of
the Company, (v) in connection with a recapitalization or reorganization of the
Company, relating to the Company's merger with or acquisition of another
corporation or other entity, (vi) upon exercise or conversion of warrants
(including the Warrants), options, rights, or convertible securities if the
issuance of such warrants, options, rights or convertible securities was subject
to the right of first refusal granted under this Article 1 or (vi) pursuant to a
registered public offering of shares of the Company's Common Stock pursuant to
an effective registration statement under the Securities Act of 1933, as amended
("Public Offering").
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1.4. Procedure. (a) In the event the Company proposes to undertake an
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issuance of New Securities, it shall give each Investor written notice (the
"Company Notice") of its intention, describing the amount and type of New
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Securities to be issued, and the price and terms upon which the Company proposes
to issue the same. Each Investor shall have ten (10) days from the date of
receipt of the Company Notice to exercise such Investor's Right of First Refusal
to purchase up to such Investor's respective Pro Rata Share of such New
Securities for the price and upon the terms specified in the Company Notice by
delivering written notice (the "Right of First Refusal Election Notice") to the
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Company and stating therein the quantity of New Securities to be purchased.
(b) Settlement for the New Securities to be purchased by the
Investors pursuant to this Section 1.4 shall be made either in cash or cash
equivalents or through repayment of indebtedness within twenty (20) days from
the Investors' deemed date of receipt of the Company Notice; provided, however,
that if the terms of payment for the New Securities specified in the Company
Notice were for other than cash against delivery or promissory notes payable
over time, each Investor shall pay in cash to the Company the fair market value
of such consideration as mutually agreed upon by the Company and a majority of
the Investors who elect to purchase New Securities or, if no such agreement is
reached, as determined by an investment banking firm mutually acceptable to the
Company and a majority of the Investors who elect to purchase New Securities,
which appraisal shall be final, within five (5) days of such determination if
such determination is made after fifteen (15) days following receipt of the
Company Notice.
(c) In the event that the Investors have not elected to purchase all
of the New
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Securities within the applicable period of either ten (10) days after the deemed
receipt of Company Notice pursuant to clause (a) above or within five (5) days
after such determination of fair market value pursuant to clause (b) above, the
Company shall have ninety (90) days thereafter to sell the New Securities not
elected to be purchased by a Investor at the price and upon the terms no more
favorable to the purchasers of such securities than specified in the Company
Notice. In the event the Company has not sold some or all of the New Securities
within said ninety (90) day period, the Company shall not thereafter issue or
sell any unsold New Securities without first offering such securities to the
Investors in the manner provided above.
(d) If any Investor shall have failed to deliver to the Company its
Right of First Refusal Election Notice within the time period described in this
Section 1.4, such Investor shall be deemed to have waived its Right of First
Refusal.
1.5. Waiver of Right of First Refusal. The Right of First Refusal may be
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waived as to any given issuance of New Securities on behalf of all Investors, by
Investors holding not less than eighty (80) percent of the shares of Common
Stock and Common Stock issuable upon conversion of any Preferred Stock then held
by all Investors or their permitted assignees or transferees.
1.6. Fees and Expenses of Valuation of New Securities. The fees and
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expenses of any investment banking firm retained in connection with the
determination of the fair market value of the consideration to be paid for the
New Securities pursuant to Section 1.4(a) shall be born proportionately by the
Company and each Investor who exercises such Investor's Right of First Refusal
to purchase New Securities according to the relative number of the New
Securities, if any, actually (i) sold by the Company to a third party and (ii)
purchased by such Investor from the Company.
1.7. Company Right to Terminate Issuance of New Securities.
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Notwithstanding the foregoing, the Company may in its sole discretion terminate
any proposed issuance of New Securities in respect to which the Company has
given Company Notice, at any time prior to the consummation thereof. The
foregoing provision shall apply even in the event one or more Investors shall
have exercised their Rights of First Refusal hereunder; provided, however, that
no New Securities shall then have been issued.
ARTICLE 2.
RIGHTS OF FIRST OFFER
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2.1. Company Right of First Offer. In the event that Shareholder (a
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"Selling Shareholder") proposes to sell, transfer or otherwise dispose of or
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pledge, grant a security interest in or otherwise encumber (a "Transfer") any
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shares of capital stock of the Company or options, warrants or other securities
by their terms convertible or exercisable for shares of capital stock of the
Company (the "Transfer Shares"), owned as of the date hereof or hereafter
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acquired by such Selling Shareholder, to any proposed purchaser or transferee
(each a "Transferee"), the Selling Shareholder shall first offer to the Company
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and the Company or its designee shall have a right to purchase up to all of such
Transfer Shares (the "Company Right of First Offer") on the terms and conditions
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described below. In the event that the Board determines, in its sole discretion,
that
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the Company is prohibited by law or by contract from exercising the Company
Right of First Offer, the Company may specify another individual or entity
(other than a Shareholder) as its designee to purchase such Transfer Shares upon
the exercise of the Company Right of First Offer, as set forth in Section 2.3(d)
hereof.
2.2. Non-Selling Investor Right of First Offer. In the event the Company
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or its designee shall not repurchase or shall elect to repurchase less than all
of the Transfer Shares pursuant to Section 2.1 hereof, the Selling Shareholder
shall then offer to each (or each other, as applicable) Investor that holds at
least 250,000 shares of Preferred Stock (or Conversion Stock issued in respect
thereof), as appropriately adjusted for stock splits, stock dividends,
combinations and the like (collectively, the "Non-Selling Investors") and each
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Non-Selling Investor shall have a right to purchase such Non-Selling Investor's
Transfer Pro Rata Share (as defined in Section 2.4 hereof) of any Transfer
Shares as to which the Company shall not have exercised the Company Right of
First Offer pursuant to Section 2.1 hereof (the "Investor Right of First Offer")
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on the terms described herein.
2.3. Procedure. (a) Each Selling Shareholder shall deliver a notice (the
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"Transfer Notice") to each Non-Selling Investor and to the Company, stating (i)
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such Selling Shareholder's bona fide intention to Transfer the Transfer Shares,
(ii) the number of Transfer Shares to be transferred, (iii) the price and
material terms and conditions upon which the proposed Transfer is to be made,
and (iv) the identity of the Transferee. The Transfer Notice shall include a
copy of any written proposal or letter of intent or other agreement relating to
the proposed Transfer.
(b) Within fifteen (15) days after delivery of the Transfer Notice
to the Company, the Company or its designee shall indicate to the Selling
Shareholder and to each Non-Selling Investor in writing (the "Company Election
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Notice") whether it elects to purchase any or all of the Shares to which the
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Transfer Notice refers at the price per share and on the terms and conditions
specified in the Transfer Notice. In the event that the Company or its designee
elects to purchase less than all of the Transfer Shares, within fifteen (15)
days of the Company's receipt of the Company Election Notice, each Non-Selling
Investor shall indicate to the Selling Shareholder and the Company in writing
(the "Investor Election Notice") whether such Non-Selling Investor elects to
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exercise such Non-Selling Investor's Investor Right of First Offer to purchase
any or all of the Transfer Shares as to which the Company or its designee shall
not have exercised the Company Right of First Offer pursuant to Section 2.1
hereof, at the price per share and on the terms and conditions specified in the
Transfer Notice.
(c) In the event the Company or its designee elects to acquire
Transfer Shares, out of funds legally available therefor, settlement thereof
shall be made in cash within thirty (30) days after delivery of the Transfer
Notice; provided, however, that if the terms of payment set forth in the
Transfer Notice were other than cash against delivery or promissory notes
payable over time, the Company or its designee shall pay in cash the fair market
value of such consideration as determined by an investment banking firm mutually
acceptable to the Selling Shareholder and the Company, which appraisal shall be
final within five (5) days of such determination if such determination is made
after twenty-five (25) days following delivery of the Transfer Notice.
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(d) In the event the Company elects to acquire Transfer Shares, and
the Board determines, in its sole discretion, that the Company is prohibited by
law or by contract from acquiring the Transfer Shares itself, the Company may
specify in the Company Election Notice another person or entity (other than a
Founder or Investor) as its designee to purchase such Shares; provided, however,
that the designation of another person or entity to purchase such Transfer
Shares pursuant to this Section 2.3(d) shall constitute a legally binding
obligation of the Company to complete such purchase if its designee shall fail
to do so.
(e) Subject to Section 2.1 hereof, in the event any Non-Selling
Investor elects to acquire Transfer Shares, such Non-Selling Investor shall
specify in its Investor Election Notice the number of Transfer Shares (up to its
Transfer Pro Rata Share of the remaining unpurchased Transfer Shares) it has
elected to purchase. Settlement for the Transfer Shares to be purchased by such
Non-Selling Investors shall be made in cash within thirty (30) days after
delivery of the Transfer Notice; provided, however, that if the terms of payment
set forth in the Transfer Notice were other than cash against delivery or
promissory notes payable over time, such Non-Selling Investor shall pay in cash
the fair market value of such consideration as determined by an investment
banking firm mutually acceptable to the Selling Shareholder and to a majority of
the Non-Selling Investors who elect to exercise their right to purchase shares
hereunder, which appraisal shall be final, within five (5) days of such
determination if such determination is made after twenty-five (25) days
following delivery of the Transfer Notice.
2.4. Definition of Transfer Pro Rata Share. Each Non-Selling Investor's
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"Transfer Pro Rata Share" for purposes of this Article 2 is equal to the
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fraction obtained by dividing (a) the number of shares of Common Stock held by
such Non-Selling Investor by (b) the aggregate number of shares of Common Stock
then outstanding and held by all Non-Selling Investors, assuming in each case
the conversion, exercise or exchange of all securities by their terms
convertible into or exercisable for Common Stock and the exercise of all options
to purchase or rights to subscribe for Common Stock or such convertible or
exchangeable securities.
2.5. Fees and Expenses of Valuation of Transfer Shares. The fees and
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expenses of any investment banking firm retained in connection with the
determination of the fair market value of the consideration to be paid for the
Transfer Shares pursuant to Section 2.3(e) shall be born proportionately by the
Company, the Selling Shareholder and each Non-Selling Investor according to the
relative number of the Transfer Shares, if any, actually (i) purchased by the
Company, (ii) sold by the Selling Shareholder to a third party, and/or (iii)
purchased by such Non-Selling Investor.
2.6. Rights of Co-Sale. If at any time any Shareholder proposes to
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transfer any Transfer Shares to any Transferee and the Company (or its designee)
and the Non-Selling Investors shall not have elected to purchase all of the
Transfer Shares pursuant to their Company Right of First Offer and Investor
Right of First Offer (collectively, the "First Offer Rights") set forth at
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Sections 2.1 and 2.2, respectively, each Non-Selling Investor shall have a right
to sell such Non-Selling Investor's Co-Sale Pro Rata Share of any Transfer
Shares which have remained unpurchased by the Company or the Non-Selling
Investors pursuant to the First Offer Rights (the "Co-Sale Rights"), on the
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terms described herein. For purposes of this Section 2.6, each Non-
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Selling Investor's "Co-Sale Pro Rata Share" is equal to the fraction obtained
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by dividing (a) the number of shares of Common Stock held by such Non-Selling
Investor by (b) the aggregate number of shares of Common Stock then outstanding
and held by all Non-Selling Investors and the Selling Shareholder, assuming in
each case the conversion, exercise or exchange of all securities by their terms
convertible into or exercisable for Common Stock and the exercise of all options
to purchase or rights to subscribe for Common Stock or such convertible or
exchangeable securities.
2.7. Procedure. (a) Within five (5) days following any settlement for the
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Transfer Shares of the Selling Shareholder pursuant to exercise of the First
Offer Rights, such Selling Shareholder shall deliver a second Transfer Notice to
the Company and each Non-Selling Investor containing the information described
in Section 2.3, but reflecting the prior settlement of any First Offer Rights,
or if there has been no exercise of such First Offer Rights within thirty five
(35) days following the original Transfer Notice delivered by such Selling
Shareholder.
(b) Within ten (10) days after delivery of the second Transfer
Notice, each Non-Selling Investor shall indicate to the Selling Shareholder and
the Company in writing (the "Co-Sale Election Notice") whether such Non-Selling
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Investor elects to exercise its Co-Sale Rights to sell up to such Non-Selling
Investor's Co-Sale Pro Rata Share at the per share price and on the terms and
conditions specified in the Transfer Notice and shall accompany such Co-Sale
Election Notice with one or more certificates, properly endorsed for transfer,
which represent: (i) the type and number of shares of Common Stock which such
Non-Selling Investor elects to sell, or (ii) that number of shares of Preferred
Stock which is at such time convertible into the number of shares of Common
Stock which such Non-Selling Investor elects to sell; provided, however, that if
the prospective Transferee objects to the delivery of Preferred Stock in lieu of
Common Stock, such Non-Selling Investor shall convert such Preferred Stock into
Common Stock and deliver Common Stock as provided in clause (i) above. The
Company agrees to make any such conversion concurrent with the actual transfer
of such shares to the Transferee.
(c) The stock certificate or certificates that the Non-Selling
Investor delivers to the Selling Shareholder pursuant to Section 2.7(b) shall be
transferred to the Transferee in consummation of the sale of the Common Stock
pursuant to the terms and conditions specified in the Co-Sale Election Notice
delivered by the Selling Shareholder pursuant to Section 2.7(a) above, and the
Selling Shareholder shall concurrently therewith remit to such Non-Selling
Investor that portion of the sale proceeds to which such Non-Selling Investor is
entitled by reason of its participation in such sale. To the extent that any
prospective Transferee or Transferees prohibits such assignment or otherwise
refuses to purchase shares of other securities from a Non-Selling Investor
pursuant to its exercise of its Co-Sale Rights hereunder, the Selling
Shareholder shall not sell to such prospective Transferee or Transferees any
such Transfer Shares unless and until, simultaneously with such sale, the
Selling Shareholder shall purchase such shares or other securities from such
Non-Selling Investor.
2.8. Transfer of Shares Upon Failure to Exercise Rights of First Offer or
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Co-Sale. Subject to the First Offer Rights of Section 2.1 and 2.2 and the Co-
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Sale Rights of Section 2.6, the Selling Shareholder may, not later than ninety
(90) days following delivery to the Non-
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Selling Investors and the Company of the Transfer Notice, conclude a Transfer of
any or all of the Transfer Shares covered by the Transfer Notice on terms and
conditions not materially more favorable to the Transferee than those described
in the Transfer Notice. Any proposed Transfer on terms and conditions materially
more favorable to the Transferee than those described in the Transfer Notice, as
well as any subsequent proposed Transfer of any of the Transfer Shares by the
Selling Shareholder, shall again be subject to the First Offer Rights of
Sections 2.1 and 2.2 and the Co-Sale Rights of Section 2.6 and shall require
compliance by the Selling Shareholder with the procedures described in this
Article 2.
2.9. Effect on Transferee. The Company Right of First Offer, the Non-
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Selling Investor Rights of First Offer and Co-Sale Rights shall not be binding
upon any Transferee of Transfer Shares other than the Company or any other
Investor acquiring Shares in a transaction which complies with this Article 2.
2.10. Limitations to the Right of First Offer and Co-Sale. The First Offer
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Rights and Co-Sale Rights shall not apply to: (i) cumulative transfers with
respect to a given Shareholder of less than 50,000 shares (unless the Transferee
would as a result of such proposed Transfer become the holder of 50% or more of
the outstanding voting power of the Company), (ii) pledges of shares, (iii)
gifts of shares, (iv) transfers to family members or descendants or trusts
therefor, in the case of individuals, or to corporate subsidiaries, affiliates
or parents thereof, in the case of corporate entities, or to general or limited
partners or to a liquidating trust established for the benefit of any such
general or limited partners, in the case of partnership entities, or to any
investment fund or other entity controlled or managed by an affiliate of such
partnership entities, in each of cases (ii), (iii) or (iv) hereof so long as the
transferee shall have assumed the obligations of the transferor under the
agreement with respect to subsequent transfers. In addition, such rights shall
not apply to a Public Offering or to the transfer by the Founders of 1,000,000
shares of Common Stock pursuant to the terms of that Common Stock Purchase
Agreement, dated the date hereof, among the Founders and the Investors named
therein.
ARTICLE 3.
ADDITIONAL PARTIES
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The parties hereto agree that additional holders of securities of the
Company may, with the consent only of the Company, be added as parties to this
Agreement with respect to any or all securities of the Company held by them, and
shall thereupon be deemed for all purposes "Investors" and/or "Shareholders"
hereunder, as appropriate, and Schedule I hereto shall be amended to
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accordingly; provided, however, that from and after the date of this Agreement,
the Company shall not without the prior written consent of each Investor, enter
into any agreement with any holder or prospective holder of any securities of
the Company providing for the grant to such holder of rights superior to those
granted herein. Any such additional party shall execute a counterpart of this
Agreement, and upon execution by such additional party and by the Company, shall
be considered an Investor and or a Shareholder, as appropriate, for purposes of
this Agreement.
ARTICLE 4.
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GENERAL
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4.1. Governing Law This Agreement shall be governed by and construed
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under the laws of the State of California as applied to agreements among
California residents entered into and to be performed entirely within
California.
4.2. No Assignment or Transfer; Legends. (a) The Right of First Refusal,
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the Right of First Offer and the Right of Co-Sale may not be assigned or
transferred except upon death by will or laws of intestacy to the successors,
heirs, executors or administrators of the Investors in the case of individuals,
or to affiliates in the case of corporate entities, or to general or limited
partners or to a liquidating trust established for the benefit of any such
general or limited partners, in the case of partnership entities, or to any
investment fund or other entity controlled or managed by an affiliate of such
partnership entities, so long as such assignees or transferees shall have
assumed the obligations set forth in Article 1 and Article 2. All such assignees
or transferees of the Right of First Refusal, the Right of First Offer and the
Right of Co-Sale shall be bound by the restrictions and obligations set forth in
Article 1 and Article 2, respectively, as if they were a Investor under the
terms of this Agreement.
(b) All certificates or instruments representing shares of the
Company's capital stock held by the Shareholders or any Transferee within the
meaning of Article 2 hereof, whether now outstanding or subsequently issued,
shall be surrendered to the Company for endorsement or be endorsed by the
Company prior to their issuance with the following legend:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE
SUBJECT TO, AND MAY BE TRANSFERRED ONLY IN COMPLIANCE
WITH, AN AGREEMENT AMONG THE COMPANY, THE HOLDER OF THESE
SECURITIES AND CERTAIN OTHER HOLDERS OF THE COMPANY'S
CAPITAL STOCK, WHICH AGREEMENT INCLUDES RIGHTS OF FIRST
REFUSAL, FIRST OFFER AND CO-SALE, A COPY OF WHICH IS ON
FILE AT THE PRINCIPAL OFFICE OF THE ISSUER."
The Company shall not transfer any of the shares of capital stock subject
to this Agreement on its books without first ascertaining compliance with all of
the applicable provisions of this Agreement with respect to such transfer.
4.3. Termination Of Rights. Each of the Right of First Refusal, the
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Company Right of First Offer, the Investor Right of First Offer and Co-Sale
Rights shall terminate on the earliest to occur of: (i) the closing of a firm
commitment underwritten public offering of shares of the Company's Common Stock
pursuant to an effective registration statement under the Securities Act of
1933, as amended, (ii) the merger or consolidation of the Company with or into
any other corporation or entity, other than a wholly-owned subsidiary of the
Company, or a sale of all or substantially all of the assets of the Company
(unless shareholders of the Company immediately prior to any such transaction
are holders of at least a majority of the voting securities of the surviving or
acquiring corporation thereafter, and for the purposes of this calculation,
voting securities of the surviving or acquiring corporation which any
shareholder of the corporation
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owned immediately prior to such merger or consolidation as shareholders of
another party to the transaction shall be disregarded) or (iii) as to each
Shareholder, at such time and for so long as such Shareholder shall no longer be
the beneficial owner of any shares of capital stock of the Company.
4.4. Modification; Waiver. Except as otherwise expressly provided herein,
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no modification or waiver of any provision of this Agreement or consent to
departure therefrom shall be effective unless approved in writing by each of the
Investors, each of the Founders and the Company. Any modification or waiver so
approved shall be binding on all of the Investors, all Founders and the Company.
Each Investor shall have the absolute right to exercise or refrain from
exercising any right or rights that such Investor may have by reason of this
Agreement, including, without limitation, the right to consent to the waiver or
modification of any obligation under this Agreement, and such Investor shall not
incur any liability to any other holder of any securities of the Company as a
result of exercising or refraining from exercising any such right or rights.
4.4.1. Conditions to Exercise of the Investors' Rights. Exercise of the
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Investors' Rights of First Refusal, First Offer and Co-Sale under this Agreement
shall be subject to and conditioned upon, and the Company and any Selling
Shareholder shall use their best efforts to assist Investors exercising such
rights in, compliance with applicable federal and state securities laws;
provided, however, that in connection therewith neither the Company nor such
Selling Shareholder shall be required to file a general consent to service of
process in any jurisdiction where not previously subject to such process.
4.5. Third Parties. Nothing in this Agreement, express or implied, is
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intended to confer upon any party, other than the parties hereto, and their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as otherwise expressly
provided herein.
4.6. Entire Agreement. This Agreement contains the entire agreement
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among the parties hereto with respect to the transactions contemplated herein
and supersedes in their entirety all prior agreements and understandings among
the parties relating to the subject matter hereof.
4.7. Severability. If any provision of this Agreement or any portion
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thereof is finally determined to be unlawful or unenforceable, such provision or
portion thereof shall be deemed to be severed from this Agreement. Every other
provision, and any portion of such an invalidated provision that is not
invalidated by such a determination, shall remain in full force and effect.
4.8. Notices. Any notice required or permitted under this Agreement
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shall be given in writing and shall be deemed effectively given upon personal
delivery; upon confirmed transmission by telecopy or telex; or three (3) days
following deposit with the United States Post Office, by certified mail, postage
prepaid, addressed to the Company, the Investors and the Founders at their
respective addresses as set forth on the signature pages hereto or subsequent
address appearing on the books of the Company. A copy of all notices to the
Company shall also concurrently be delivered to Xxxxxx & Xxxxxxx, 000
Xxxxxxxxxxxx Xxxxx, Xxxxx Xxxx,
0
Xxxxxxxxxx, 00000, to the attention of Xxxxx Xxxxxx.
4.9. Spousal Consent. The spouse of each Investor and Founder who is an
---------------
individual and who is married shall execute a Spousal Consent in substantially
the form of Attachment A hereto.
4.10. Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be enforceable against the parties actually
executing such counterparts, and all of which together shall constitute one
instrument.
10
IN WITNESS WHEREOF, the undersigned or each of their respective duly
authorized officers or representatives have set their hands hereunto effective
upon the date first written above.
"COMPANY"
VICINITY CORPORATION
By: ______________________
Name: Xxxxxxx Xxxxx
Title: President
Signature Page to Vicinity Corporation
Amended and Restated Shareholders Agreement
"FOUNDERS"
____________________________
Xxxx Xxxxxx
____________________________
Xxxxx Xxxxxxx
____________________________
Xxxxxxx Xxxxx
____________________________
Xxxxx XxXxxxx
Signature Page to Vicinity Corporation
Amended and Restated Shareholders Agreement
"INVESTORS"
CMG @ VENTURES I, LLC
By:__________________________________
Name: Xxxxx Xxxxx
Title: General Partner
XXXX XXXXXXX SEPARATE PROPERTY
TRUST dated FEBRUARY 16, 1996
By:__________________________________
Name: Xxxx Xxxxxxx
Title: Trustee
WS INVESTMENT COMPANY 96A
By:__________________________________
Name:
Title:
WSGR RETIREMENT PLAN U/A DTD
02/01/78 FBO XXXXX X. XXXXX
By:__________________________________
Name:
Title:
_____________________________________
Xxxxx X. Xxxxx
Signature Page to Vicinity Corporation
Amended and Restated Shareholders Agreement
_____________________________________
Xxxx Xxxxxxx
_____________________________________
Xxx Xxxxxxx
_____________________________________
Xxxxx Xxxxxxx
21ST CENTURY INTERNET FUND, L.P.
By:__________________________________
Name: Xxxx Xxxxxxxxx
Title: General Partner
ENCOMPASS GROUP, INC.
By:__________________________________
Name: Xxxxxx Xxxxxxxxx
Title: General Partner
OAK INVESTMENT PARTNERS VIII, L.P.
By:__________________________________
Name:
Title:
Signature Page to Vicinity Corporation
Amended and Restated Shareholders Agreement
OAK VIII AFFILIATES FUND,
LIMITED PARTNERSHIP
By:___________________________
Name:
Title:
______________________________
Xxxxxx X. Xxx
______________________________
Xxx Xxxxxxxxxx
Signature Page to Vicinity Corporation
Amended and Restated Shareholders Agreement
SCHEDULE I
Shares of Company Stock Currently Held
--------------------------------------
Founders Common Stock
-------- ------------
Xxxx Xxxxxx 705,000
000 Xxxxxxx Xxx
Xxxxxxx Xxxxxx, XX 00000
Xxxxx Xxxxxxx 187,500
0000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Xxxxxxx Xxxxx 770,000
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Xxxxx XxXxxxx 548,334
000 Xxxxx Xxx
Xxxxxxx Xxxxxx, XX 00000
SCHEDULE I
Shares of Company Stock Currently Held
--------------------------------------
Number of Type of
Investors Shares Shareholding
--------- --------- ------------
CMG @ Ventures 275,512 Common Stock
0000 Xxxx Xxxx Xxxx, Xxxxx 000 1,852,000 Series A Preferred
Xxxxx Xxxx, Xxxxxxxxxx 00000 1,875,000 Series B Preferred
1,222,000 Series C Preferred
Xxxx Xxxxxxx Separate Property Trust 67,600 Common Stock
dated February 16, 1996
00000 Xxxxxxxx Xxxx
Xxx Xxxxx Xxxxx, Xxxxxxxxxx 00000
WS Investment Company 96a 18,750 Series B Preferred
c/o Wilson, Sonsini, Xxxxxxxx
& Xxxxxx, Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
WSGR Retirement Plan U/A Dtd 02/01/78 FBO 9,375 Series B Preferred
Xxxxx X. Xxxxx
c/o Wilson, Sonsini, Xxxxxxxx
& Xxxxxx, Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Xxxxx X. Xxxxx 3,125 Series B Preferred
c/o Wilson, Sonsini, Xxxxxxxx
& Xxxxxx, Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Xxxx Xxxxxxx 3,125 Series B Preferred
c/o Wilson, Sonsini, Xxxxxxxx
& Xxxxxx, Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
2
SCHEDULE I
Shares of Company Stock Currently Held
--------------------------------------
Number of Type of
Investors Shares Shareholding
--------- --------- ------------
Xxx Xxxxxxx 3,125 Series B Preferred
c/o Wilson, Sonsini, Xxxxxxxx
& Xxxxxx, Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Xxxxx Xxxxxxx 6,250 Series B Preferred
00 Xxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000-0000
21st Century Internet Fund, L.P. 1,750,000 Series C Preferred
0000 Xxxxxx Xxxxxx, Xxxxx X
Xxxxxxxxxx, Xxxxxxxxxx 00000
Encompass Group, Inc. 332,000 Series C Preferred
000-000xx Xxxxxx XX
Xxxxxxxx, Xxxxxxxxxx 00000
Oak Investment Partners VIII, L.P. 981,000 Common Stock
One Xxxxxx Island 2,256,901 Series D Preferred
Xxxxxxxx, Xxxxxxxxxxx 00000 934,286 Series E Preferred subject
Tel: 000-000-0000 to exercise of warrants
Fax: 000-000-0000 therefor
Oak VIII Affiliates Fund, L.P. 19,000 Common Stock
One Xxxxxx Island 43,712 Series D Preferred
Xxxxxxxx, Xxxxxxxxxxx 00000 18,095 Series E Preferred subject
Tel: 000-000-0000 to exercise of warrants
Fax: 000-000-0000 therefor
3
SCHEDULE I
Shares of Company Stock Currently Held
--------------------------------------
Number of Type of
Investors Shares Shareholding
--------- --------- ------------
Xxxxxx X. Xxx 11,905 Series E Preferred
Oak Investment Partners
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx, XX 00000
Tel: 000-000-0000
Fax: 000-000-0000
Xxx Xxxxxxxxxx 47,619 Series E Preferred
0000 Xxxxxxxx
Xxx Xxxxxxxxx, XX 00000-0000
4
ATTACHMENT A
Consent of Spouse
-----------------
I, ____________________, spouse of ____________________, have read and
approve of the foregoing Amended and Restated Shareholders Agreement dated as of
December 9, 1998 (the "Agreement"). In consideration of the rights granted
therein, I hereby appoint my spouse as my attorney-in-fact in respect of the
rights granted and obligations assumed with respect to the capital stock of
Vicinity Corporation under the Agreement and agree to be bound by the provisions
of said Agreement insofar as I may have any rights in said Agreement or in any
of such capital stock under the community property laws or similar laws relating
to marital property in effect in the state of our residence as of the date of
the signing of the foregoing Agreement.
Dated:_____________________ ____________________________