Exhibit 10.26
ACCESSION AGREEMENT AMONG iNAME, INC.
AND THE INVESTORS SIGNATORY HERETO
AGREEMENT, dated as of the 31st day of August, 1998, by and among
iName, Inc., a Delaware corporation doing business at 00 Xxxxxxxx, Xxxxx 000,
Xxx Xxxx, Xxx Xxxx (the "Company"), Primus Capital Fund IV Limited Partnership,
a limited partnership organized under the laws of Delaware ("Primus IV Fund")
and Primus Executive Fund Limited Partnership, a limited partnership organized
under the laws of Delaware ("Primus Executive Fund") (Primus IV Fund and Primus
Executive Fund together referred to as the "Primus Investors" and each
individually as a "Primus Investor").
WHEREAS, the Company and certain Purchasers (as defined in the Stock
Purchase Agreement referred to below) are parties to a certain Class C Preferred
Stock Purchase Agreement dated as of July 31, 1998, a copy of which is attached
as Exhibit A (the "Stock Purchase Agreement"), and a certain Waiver, Consent,
Amendment and Agreement dated as of July 31, 1998, a copy of which is attached
as Exhibit B (the "Investors' Rights Agreement"), whereby the Company sold and
such Purchasers purchased certain shares of Class C Preferred Stock and warrants
to purchase shares of Class C Preferred Stock of the Company;
WHEREAS, the Company desires to sell to the Primus Investors, and the
Primus Investors desire to purchase from the Company, 428,571 shares of Class C
Preferred Stock and 149,999 Warrants to purchase an equal amount of Stock Units
(as defined in the certificates representing the Warrants) of the Company upon
substantially the same terms and conditions as set forth in the Stock Purchase
Agreement; and
WHEREAS, the Company and the Primus Investors desire that the Primus
Investors become Purchasers under the terms of the Stock Purchase Agreement and
Additional Purchasers under the terms of the Investors' Rights Agreement, and be
bound by the terms and obligations set forth in the Stock Purchase Agreement and
the Investors' Rights Agreement, and be entitled to the same rights and benefits
as the Purchasers under the Stock Purchase Agreement and the Additional
Purchasers under the Investors' Rights Agreement;
NOW, THEREFORE, in consideration of the promises and mutual agreements
hereinafter contained, the parties hereto do hereby agree as follows:
SECTION 1 SALE OF SHARES
1
1.1 DEFINED TERMS. Except as set forth herein, the capitalized terms
contained in this Agreement shall have the respective meanings ascribed to such
terms in the Stock Purchase Agreement.
1.2. SALE OF SHARES AND WARRANTS. Subject to the terms and conditions
of this Agreement and the Stock Purchase Agreement, the Company shall issue and
sell to each Primus Investor, and each Primus Investor shall purchase from the
Company, the number of Shares and Warrants set forth opposite such Primus
Investor's name on Schedule 1.2 hereto at a cash purchase price of $6.91 per
Share and $0.25714 per Warrant. The purchase and sale of the Shares and Warrants
shall take place at the offices of the Company at 2:00 p.m. on August 31, 1998,
or at such other time, date (the "Closing Date") and place as the Company and
the Primus Investors may otherwise agree.
SECTION 2 AGREEMENT TO BE BOUND BY THE STOCK PURCHASE AGREEMENT AND THE
INVESTORS' RIGHTS AGREEMENT
By purchasing Shares and Warrants pursuant hereto, each Primus Investor
shall be deemed to become a Purchaser under the Stock Purchase Agreement and an
Additional Purchaser under the Investors' Rights Agreement, and, as such, agrees
to be bound by the terms and conditions of, and shall be entitled to the rights
and benefits under, the Stock Purchase Agreement and Investors' Rights
Agreement.
SECTION 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Disclosure Schedule attached hereto shall, for the purposes of this
Agreement, be the disclosure schedule with respect to the Stock Purchase
Agreement, and the Company represents that each of the representations and
warranties contained in section 3 of the Stock Purchase Agreement are true and
correct as of the date hereof.
SECTION 4 CLOSING DELIVERIES
4.1 DELIVERIES BY EACH PRIMUS INVESTOR. At the closing, each Primus
Investor shall deliver to the Company, by check or by wire transfer to an
account designated by the Company at least two days prior to the Closing Date,
the purchase price for the Shares and Warrants set forth opposite such Primus
Investor's name on Schedule 1.2.
4.2 DELIVERIES BY THE COMPANY. At the Closing, the Company shall
deliver to each Primus Investor:
(a) a certificate representing the Shares purchased by such
Primus Investor and a certificate representing the Warrants purchased
by such Primus Investor;
2
(b) an opinion of Xxxxx Xxxxxx, counsel for the Company, and
an opinion of Winthrop, Stimson, Xxxxxx & Xxxxxxx, special counsel for
the Company, in the respective forms set forth as Exhibit D to the
Stock Purchase Agreement;
(c) a Compliance Certificate and Secretary's Certificate as
contemplated by section 5.3 and 5.4, respectively, of the Stock
Purchase Agreement; and,
(d) the Observer Rights Agreement attached hereto as
Exhibit C.
3
WHEREAS, the undersigned have executed this Accession Agreement as of
the date above written.
iNAME, INC.
/s/ Xxxx Xxxxxx
-----------------------------------------
Name: Xxxx Xxxxxx
Title: President
PRIMUS CAPITAL FUND IV LIMITED PARTNERSHIP
By: Primus Venture Partners IV Limited Partnership, its
general partner
By: Primus Venture Partners IV, Inc., its general partner
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
PRIMUS EXECUTIVE FUND LIMITED PARTNERSHIP
By:
By: Primus Venture Partners IV Limited Partnership, its
general partner
By: Primus Venture Partners IV, Inc., its general partner
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Executive Vice President
4
SCHEDULE 1.2
---------------------------- -------------------------- -------------------------- --------------------------
INVESTOR NUMBER OF SHARES NUMBER OF WARRANTS PURCHASE PRICE
---------------------------- -------------------------- -------------------------- --------------------------
Primus Capital Fund IV 411,428 143,999 $2,879,995.30
Limited Partnership
---------------------------- -------------------------- -------------------------- --------------------------
Primus Executive Fund 17,143 6,000 120,000.97
Limited Partnership
---------------------------- -------------------------- -------------------------- --------------------------
TOTAL 428,571 149,999 $2,999,996.27
---------------------------- -------------------------- -------------------------- --------------------------
5
Exhibit 10.26
August 31, 1998
Mr. Xxxxxxx Xxxxxxxx
Primus Venture Partners, Inc
0000 Xxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxx, 0X 0000-0000
Re: Accession Agreement between
iName, Inc. and Primus
Dear Xx. Xxxxxxxx:
Reference is made to the Accession Agreement dated as of August 31, 1998
between iName, Inc., the Primus Capital Fund IV Limited Partnership and the
Primus Executive Fund Limited Partnership (the "Accession Agreement"). The terms
set forth herein shall have the meaning set forth in the Accession Agreement.
In order to induce the Primus Funds to execute the Accession Agreement, I
agree to the following additional limitation on my rights contained in section
6.2.1 of the Investors' Rights Agreement.
I agree that I will not exercise the rights set forth in section 6.2.1 of
the Investors' Rights Agreement at a price per share of Class C Preferred Stock
of less than seven dollars ($7.00) (adjusted to reflect subsequent stock splits,
combinations, stock dividends and recapitalizations) until after the earlier of
(i) the date on which the Liquidity Ratchet Adjustment set forth in Article IV,
section 3(c)(v) of the Company's Amended and Restated Certificate of
Incorporation is made, and (ii) the date on which the Additional Purchasers have
been offered the opportunity to sell, transfer or dispose of 100% of their
shares of Class C Preferred Stock or the underlying shares of Class A Common
Stock in accordance with the 3x Exit Condition referred to in section 5.7 of the
Investors' Rights Agreement.
Very truly yours,
/s/ Xxxxxx Xxxxxx
Xxxxxx Xxxxxx
