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EXHIBIT 10.29
PARK 'N VIEW, INC.
AMENDMENT TO AMENDED AND RESTATED SECURITYHOLDERS'
AGREEMENT AND EXCHANGE AGREEMENT
THIS AMENDMENT (the "Amendment") is made as of the 22nd day of August,
1997, by and among Park "N View, Inc., a Delaware corporation (the "Company"),
the Original Investors (the "Original Investors") ad the Patricof Investors (the
"Patricof Investors") set forth on Exhibit A attached hereto and made a part
hereof, the holders of Series B Preferred Stock set forth on Exhibit B attached
hereto and made a part hereof (the "Series B Holders" and, together with the
Original Investors and the Patricof Investors, the "Existing Investors") and the
holders of shares of Series C Stock (defined below) of the Company set forth on
Exhibit C attached hereto and made a part hereof (the "Series C Holders") and
Alex. Xxxxx & Sons Incorporated as the holder of a warrant to purchase shares of
the Company's Common Stock (the "Agent" and together with the Existing Investors
and the Series C Holders, the "Investors").
WHEREAS, the Existing Investors and the Company are parties to an
Amended and Restated Securityholders' Agreement and Exchange Agreement dated as
of November 13, 1996 (the "Securityholders' Agreement");
WHEREAS, in connection with the Company's (i) offering of 7% Series C
Cumulative, Convertible Preferred Stock (the "Series C Stock") and (ii) issuance
to the Agent of a warrant (the "Agent's Warrant") to purchase shares of the
Company's Common Stock, the Company has agreed to grant the Series C Holders and
the Agent certain rights of first refusal;
WHEREAS, in connection with the Company's offering of the Series C
Stock, the Company has agreed to grant the Series C Holders the right to
designate one member of the Company's Board of Directors;
WHEREAS, in connection with the sale of the Series C Stock, all parties
to the Securityholders' Agreement desire to amend the Securityholders' Agreement
to include the Series C Holders and the Agent as Investors (as defined in the
Securityholders' Agreement) and to amend certain portions of the
Securityholders' Agreement to reflect (i) the agreement concerning rights of
first refusal among the Series C Holders, the Agent and the Company and (ii) the
agreement concerning the right of the Series C Holders to designate a member of
the Company's Board of Directors;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree to amend the
Securityholders' Agreement as follows:
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1. Definitions.
(a) The first sentence of Section 1 shall be deleted in
its entirety.
(b) The following term set forth in Section 1 of the
Securityholders' Agreement shall be deleted in its entirety and shall hereafter
have the following meaning:
"Sale" shall have the meaning given such term in the
Securities Restriction Agreement, as amended, dated as of Auust 22, 1997.
(c) The following terms shall be added to Section 1 of
the Securityholders' Agreement:
Person" means an individual, a corporation, a partnership, a
trust, a limited liability company, an unincorporated organization or a
governmental organization or any agency or political subdivision thereof.
"Securities" means any debt or equity securities of the
Company whether now or hereafter authorized, and any instrument convertible into
or exchangeable for Securities or a Security.
"Series A Stock" shall mean the Preferred Stock of the Company
designated as Series A Preferred Stock pursuant to the Certificate of
Designation of the Series A Stock.
"Series B Stock" shall mean the Preferred Stock of the Company
designated as 7% Cumulative Convertible Series B Preferred Stock pursuant to the
Certificate of Designation of the Series B Stock.
"Series C Stock" shall mean the Preferred Stock of the Company
designated as 7% Cumulative Convertible Series C Preferred Stock pursuant to the
Certificate of Designation of the Series C Stock.
2. Rights of First Refusal.
(a) The term "Qualifying Offering" in romanette (i) in
Section 4(a) shall be replaced with "Series B Qualifying Offering or a Series C
Qualifying Offering".
(b) The term "Qualifying Offering" in the second
sentence of Section 4(a) shall be replaced with "Series B Qualifying Offering".
(c) Romanette (ii) within the definition of "Series B
Qualifying Offering" in Section 4(a) shall be deleted in its entirety and
replaced with the following:
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(ii) the Common Stock is quoted or listed on either The Nasdaq
Stock Market (National Market), the New York Stock Exchange or
the American Stock Exchange, and
(d) The following shall be added to the end of Section 4(a):
A "Series C Qualifying Offering" means (i) the Corporation
shall have consummated a firm commitment underwritten public
offering of its Common Stock by a nationally recognized
investment banking firm pursuant to an effective registration
under the Securities Act covering the offering and sale of
both primary and secondary shares of common Stock which
results in gross proceeds of at least $20,000,000, (ii) the
Common Stock is quoted or listed on either The Nasdaq Stock
Market (National Market), the New York Stock Exchange or the
American Stock Exchange, (iii) the price at which the Common
Stock is sold in such offering is at least equal to an amount
which (a) is 200% of the then effective conversion price of
the Series C Stock or (y) would represent, on an as converted
basis, a compound annual rate of return of 35% based upon the
original issuance price of the Series C Stock and (iv) all
outstanding shares of the Company's Series B Stock shall have
been converted into shares of the Company's Common Stock in
accordance with the Certificate of Designation relating to the
Series B Stock and all outstanding shares of the Company's
Series A Stock shall have been redeemed in accordance with the
Certificate of Designation relating to the Company's Series A
Stock.
(c) The following sentence shall be added to the end of
subsection (d) of Section 4:
In the event that such sale is not consummated within
such three (3) month period, then the Company must reoffer
such Newly Issued Securities to the Investors in accordance
with subsections (a), (b) and (c) of this Section 4 before any
such sale may be consummated.
3. Board Designees.
(a) The first two sentences of subsection (a) of Section 5
shall be deleted in their entirety and replaced with the following:
The Board shall consist of not more than seven (7)
members of which two (2) members shall be designated by the
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Patricof Investors as provided herein, one (1) member shall be
designated by the Series B Holders, one (1) member shall be
designated by the Series C Holders and two (2) members shall
be designated by the Original Investors. It is contemplated
that one (1) additional director shall be designated by the
mutual agreement of the Board of Directors, the Series B
Holders and Series C Holders.
(b) The last sentence of subsection (a) of Section 5 shall be
deleted in its entirety and replaced with the following:
The Series B Holders and the Series C Holders shall
each have such rights to designate one (1) member of the Board
of Directors as provided in the Certificate of Designation
relating to the Series B Stock and the Certificate of
Designation relating to the Series C Stock, respectively.
4. Application to Subsequent Investors. Romanette (ii) of Section
9 shall be deleted in its entirety and replaced with the following:
(ii) any Person who after the date hereof,
shall become a holder of any shares of any Common
Stock, Series A Stock, Series B Stock, and/or Series
C Stock (such Person's acceptance of such shares to
be deemed to constitute his, her or its agreement to
be bound hereby) and such Person's heirs, legal
representatives, successors and assigns.
5. Binding Agreement. The Securityholders' Agreement as modified
herein, shall remain in full force and effect as so modified.
6. Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument. The authentic
signature of any party received by facsimile transmission shall constitute a
valid and binding signature of such party.
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IN WITNESS WHEREOF, the parties have executed this Amendment as of the
___ day of ____________, 1997.
COMPANY Investors
/s/ Xxx Xxxxxxxx
--------------------------------- -------------------------------------
Park 'N View, Inc. The Existing Investors whose
By: Xxx Xxxxxxxx signatures appear on Exhibit A hereto
President and Chief and the Series C Holders whose
Executive Officer signatures appear on the respective
Omnibus Signature Pages
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EXHIBIT A
By: /s/ Xxx Xxxxxxxx
-------------------------------
Name: Xxx Xxxxxxxx
Title: President
/s/ Xxx Xxxxxxxx /s/ Xxxx Xxxxxxxxx
------------------------------- -----------------------------
Xxx Xxxxxxxx Xxxx Xxxxxxxxx
/s/ Xxx Xxxxxxx /s/ Xxxxxxx Xxxxxxxxx
------------------------------- -----------------------------
Xxx Xxxxxxx Xxxxxxx Xxxxxxxxx
/s/ for MPN Partners, Ltd.
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MPN Partners, Ltd.
NELGO INVESTMENTS
By: /s/ Xxxxxx X'Xxxxxxx
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Name: Xxxxxx X'Xxxxxxx
Title: General Partners
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APA EXCELSIOR IV, L.P.
By: APA EXCELSIOR IV PARTNERS, L.P.
(Its General Partner)
By: PATRICOF & CO. MANAGERS, INC.
(Its General Partner)
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: X.X.
XXXXXX & CO. (CAYMAN) LTD., CUSTODIAN FOR
APA EXCELSIOR IV/OFFSHORE, L.P.
By: PATRICOF & CO. VENTURES, INC., INVESTMENT ADVISOR
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: G.P.
THE P/A FUND, L.P.
By: APA PENNSYLVANIA PARTNERS, L.P.
(Its General Partner)
By: /s/ Xxxxxx Xxxxxxx
--------------------------------
Name: Xxxxxx Xxxxxxx
Title: G.P.
/s/ Xxxxxxx Xxxxxxx
---------------------------------
Xxxxxxx Xxxxxxx
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EXHIBIT B
By: /s/ Xxxxx Xxxx
---------------------------------------
Name: Xxxxx Xxxx
Title: Acting Administrator Alternative Investments Division
BENEFIT CAPITAL MANAGEMENT CORPORATION,
as Investment Manager for The Prudential Insurance Co.
of America, Separate Account No. VCA-GA-5298
By: /s/
---------------------------------------
Name:
Title:
CSK VENTURE CAPITAL CO., LTD.
as Investment Manager for CSK-1(A), CSK(B), CSK-2 Investment Fund
By: /s/ Masahiro Aozono
---------------------------------------
Name: Masahiro Aozono
Title: President
CREDIT SUISSE (GUERNSEY) LIMITED as
Trustee of Dynamic Growth Fund II
By: /s/ X. Xxxxxx-Xxxxxxx
---------------------------------------
Name: B. Xxxxxx Xxxxxxx
Title: Member Senior Management
By: /s/ M E Zuning
---------------------------------------
Name: M E Zuning
Title: Associate
APA EXCELSIOR IV, L.P.
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By: APA EXCELSIOR IV PARTNERS, L.P.
(Its General Partner)
By: PATRICOF & CO. MANAGERS, INC. (Its General Partner)
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title: X.X.
XXXXXX & CO. (CAYMAN) LTD., CUSTODIAN FOR
APA EXCELSIOR IV/OFFSHORE, L.P.
By: PATRICOF & CO. VENTURES, INC.,
INVESTOR ADVISOR
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: G.P.
THE P/A FUND, L.P.
By: APA PENNSYLVANIA PARTNERS, L.P.
(Its General Partner)
By: /s/ Xxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxx Xxxxxxx
Title: G.P.
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
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EXHIBIT C
Holders of Shares of Series C Preferred Stock
Name Number of Shares
---- ----------------
Venhill Limited Partnership 187,500
Juliet Challenger, Inc. 625,000
Xxxxx X. Xxxxxxx, Xxxxx Xxxxxxxx Xxxxxxx and X.X.
Xxxxxxxxxxxx, Trustees of the Xxxxx X. Xxxxxxx
Trust U/A dated 11/18/85 187,500
X.X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx, Trustees
U/A/T dated 8/28/68 for Juliet Xxx Xxxxxxx 62,500
X.X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx, Trustees
U/A/T dated 8/28/68 for Xxxxxx Xxxxxxxx Xxxxxxx 62,500
X.X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx, Trustees
U/A/T dated 8/28/68 for Xxxxx Xxx Xxxxxxx, Xx. 62,500
X.X. Xxxxxxxxxxxx and Xxxxxx X. Xxxxxx, Trustees
U/A/T dated 8/28/68 for Xxxxxxx Xxxxxxx Xxxxxxx 62,500
Winfield Capital Corp. 93,750
ABS Employees' Venture Fund Limited Partnership 17,662
Xxxxxxxx Xxxxxxx 15,750
Arundel Lumber Company, Inc. 15,625
E. Xxxx Xxxxxx 375
Xxxxx Xxxx Family Foundation 15,625
Xxxxxxx XxxXxxxx 12,500
Xxxx X. Xxxxxxxxx 12,500
Xxxxxxx X. Xxxx 3,125
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Xxxxxxx X. Xxxxxxxx Trust #2 12,500
Xxxxx X. Xxxxx 31,250
Xxxxxxx Xxxxxx 15,625
Xxxx Xxxxxx 16,000
Xxxxxx Xxxxx and/or Xxxxxx Xxxxx, as Tenants - by -
Entirety 16,250
Xxxxxx Xxxxxx & Xxxxx X. Xxxxxx, as Tenants - by -
Entirety 6,256
Xxxxx X. XxXxxxxx 12,500
Xxxx Xxxxxxx 37,500
Spiegel Enterprises 15,625
Tampsco Partnership XII 125,000
Foundation Partners Fund, G.P. 125,000
Tennyson Private Placement Fund, LLC 62,500
Xxxxx X. Xxxxxxxxx 25,000
Tri Ventures 15,625
Benefit Capital Management Corporation as
Investment Manager for The Prudential Insurance
Company of America, Separate Account No. VCA-GA-5298 125,000
State Treasurer of the State of Michigan, Custodian
of the Michigan Public School Employees' Retirement
System, State Employees' Retirement System,
Michigan State Police Retirement System, and
Michigan Judges Retirement System 125,000
APA Excelsior IV, L.P. 92,500
Xxxxxx & Co. (Cayman) LTD., Custodians for
APA/Excelsior IV/Offshore, L.P. 16,250
The P/A Fund, L.P. 16,250
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Total 2,328,543
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