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EXHIBIT 10.29
APEX ONLINE LEARNING INC.
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
This Agreement dated as of December 16, 1999, is entered into by and among
Apex Online Learning Inc., a Washington corporation (the "Company"), the
entities listed on Exhibit A attached hereto (the "Purchasers") and the existing
Shareholders of the Company listed on Exhibit B attached hereto (the "Existing
Shareholders") (the Purchaser and the Existing Shareholders are referred to
collectively herein as the "Shareholders").
Recitals
WHEREAS, the Company and the Shareholders desire to provide for certain
arrangements with respect to (i) the registration of shares of capital stock of
the Company under the Securities Act of 1933, (ii) the Shareholders' right of
first refusal with respect to certain issuances of securities of the Company,
(iii) certain negative covenants of the Company; and (iv) the continuing
representation of the Shareholders on the Board of Directors of the Company.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained in this Agreement, the parties hereto agree as follows:
1. Certain Definitions.
As used in Section 2 of this Agreement, the following terms shall have the
following respective meanings:
1.1 "Commission" means the Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
1.2 "Common Stock" means the common stock, $0.001 par value per
share, of the Company.
1.3 "Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
1.4 "Initiating Holders" means the Shareholders initiating a request
for registration pursuant to Section 2.1(a), 2.1(b), 2.1(c), or 2.1(d) as the
case may be.
1.5 "Initial Public Offering" means the initial underwritten public
offering of shares of Common Stock pursuant to an effective Registration
Statement.
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1.6 "Prospectus" means the prospectus included in any Registration
Statement, as amended or supplemented by an amendment or prospectus supplement,
including post-effective amendments, and all material incorporated by reference
or deemed to be incorporated by reference in such Prospectus.
1.7 "Registration Statement" means a registration statement filed by
the Company with the Commission for a public offering and sale of securities of
the Company (other than a registration statement on Form S-8 or Form S-4, or
their successors, or any other form for a similar limited purpose, or any
registration statement covering only securities proposed to be issued in
exchange for securities or assets of another corporation).
1.8 "Registration Expenses" means the expenses described in Section
2.4.
1.9 "Registrable Shares" means (i) the shares of Common Stock issued
or issuable upon conversion of the Preferred Shares, (ii) any shares of Common
Stock, and any shares of Common Stock issued or issuable upon the conversion or
exercise of any other securities, acquired by the Purchasers pursuant to Section
3 of this Agreement and (iii) any other shares of Common Stock issued in respect
of such shares (because of stock splits, stock dividends, reclassifications,
recapitalizations, or similar events); provided, however, that shares of Common
Stock which are Registrable Shares shall cease to be Registrable Shares upon (i)
any sale pursuant to a Registration Statement or Rule 144 under the Securities
Act or (ii) any sale in any manner to a person or entity which, by virtue of
Section 5 of this Agreement, is not entitled to the rights provided by this
Agreement. Wherever reference is made in this Agreement to a request or consent
of holders of a certain percentage of Registrable Shares, the determination of
such percentage shall include shares of Common Stock issuable upon conversion of
the Shares even if such conversion has not been effected.
1.10 "Securities Act" means the Securities Act of 1933, as amended,
or any successor federal statute, and the rules and regulations of the
Commission issued under such Act, as they each may, from time to time, be in
effect.
1.11 "Selling Shareholder" means any Shareholder owning Registrable
Shares included in a Registration Statement.
1.12 "Shares" shall have the meaning set forth in Section 6 below.
2. Registration Rights.
2.1 Required Registrations.
(a) At any time after the earlier of (x) July 2, 2002, or six
months after the closing of the Initial Public Offering, a Shareholder or
Shareholders holding in the aggregate at least 35% of the Registrable Shares
then outstanding may request, in writing, that the Company effect the
registration on Form S-1 or Form S-2 (or any successor form) of Registrable
Shares
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owned by such Shareholder or Shareholders having an aggregate value of at least
$5,000,000 (based on the then current market price or fair value).
(b) At any time after the earlier of (x) July 2, 2002, or six
months after the closing of the Initial Public Offering, a Shareholder or
Shareholders holding in the aggregate at least 50% of the Series B Preferred
Shares then outstanding may request, in writing, that the Company effect the
registration on Form S-1 or Form S-2 (or any successor form) of Registrable
Shares owned by such Shareholder or Shareholders having an aggregate value of at
least $5,000,000 (based on the then current market price or fair value).
(c) At any time after the earlier of (x) July 2, 2002, or six
months after the closing of the Initial Public Offering, a Shareholder or
Shareholders holding in the aggregate at least 50% of the Series C Preferred
Shares then outstanding may request, in writing, that the Company effect the
registration on Form S-1 or Form S-2 (or any successor form) of Registrable
Shares owned by such Shareholder or Shareholders having an aggregate value of at
least $5,000,000 (based on the then current market price or fair value).
(d) At any time after the Company becomes eligible to file a
Registration Statement on Form S-3 (or any successor form relating to secondary
offerings), a Shareholder or Shareholders holding in the aggregate at least
1,000,000 of the Registrable Shares then outstanding (as adjusted for stock
splits, stock dividends and similar recapitalizations) may request, in writing,
that the Company effect the registration on Form S-3 (or such successor form),
of Registrable Shares having an aggregate value of at least $1,000,000 (based on
the then current public market price); provided, that if a Shareholder requests
registration at least one year after the Initial Public Offering and the Company
is not then eligible to use Form S-3 (or such successor form), the Company shall
effect such registration on Form S-1 or Form S-2 (or any successor form).
(e) Upon receipt of any request for registration pursuant to
this Section 2, the Company shall promptly give written notice of such proposed
registration to all other Shareholders. Such Shareholders shall have the right,
by giving written notice to the Company within 30 days after the Company
provides its notice, to elect to have included in such registration such of
their Registrable Shares as such Shareholders may request in such notice of
election, subject in the case of an underwritten offering to the approval of the
managing under-writer as provided in Section 2.1(f) below. Thereupon, the
Company shall, as expeditiously as possible, use its best efforts to effect the
registration on an appropriate registration form of all Registrable Shares which
the Company has been requested to so register.
(f) If the Initiating Holders intend to distribute the
Registrable Shares covered by their request by means of an underwriting, they
shall so advise the Company as a part of their request made pursuant to Section
2.1(a), (b), (c) or (d), as the case may be, and the Company shall include such
information in its written notice referred to in Section 2.1(e). The right of
any other Shareholder to include its Registrable Shares in such registration
pursuant to Section 2.1(a), (b), (c) or (d), as the case may be, shall be
conditioned upon such other Shareholder's participation in such underwriting on
the terms set forth herein. If the managing underwriter determines that the
marketing factors require a limitation of the number of shares to
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be underwritten, the number of Registrable Shares to be included in a
Registration Statement filed pursuant to this Section 2.1, shall be reduced pro
rata among the requesting Shareholders based on the quotient of (1) the total
Registrable Shares to be included in the Registration Statement, divided by (2)
the total number of Registrable Shares that requested registration.
(g) The Initiating Holders shall have the right to select the
managing underwriter(s) for any underwritten offering requested pursuant to
Section 2.1(a), (b), (c) or (d), subject to the approval of the Company, which
approval will not be unreasonably withheld.
(h) The Company shall not be required to effect more than two
registrations pursuant to Section 2.1(a), one registration pursuant to Section
2.1(b) or 2.1(c)or more than three registrations pursuant to Section 2.1(d),
provided that, if a registration is effected pursuant to Section 2.1(a),
Sections 2.1(b) and 2.1(c) shall terminate immediately. In addition, the Company
shall not be required to effect any registration (other than on Form S-3 or any
successor form relating to secondary offerings) within six months after the
effective date of any other Registration Statement of the Company. For purposes
of this Section 2.1(h), a Registration Statement shall not be counted until such
time as such Registration Statement has been declared effective by the
Commission (unless the Initiating Holders withdraw their request for such
registration (other than as a result of information concerning the business or
financial condition of the Company which is made known to the Shareholders after
the date on which such registration was requested) and elect not to pay the
Registration Expenses therefor pursuant to Section 2.4).
(i) If at the time of any request to register Registrable
Shares by Initiating Holders pursuant to this Section 2.1, the Company is
engaged or has plans to engage in a registered public offering or is engaged in
any other activity which, in the good faith determination of the Company's Board
of Directors, would be adversely affected by the requested registration, then
the Company may at its option direct that such request be delayed for a period
not in excess of 90 days from the date of such request, such right to delay a
request to be exercised by the Company not more than once in any 12-month
period.
2.2 Incidental Registration.
(a) Whenever the Company proposes to file a Registration
Statement (other than a Registration Statement filed pursuant to Section 2.1) at
any time and from time to time, it will, prior to such filing, give written
notice to all Shareholders of its intention to do so; provided, that no such
notice need be given if no Registrable Shares are to be included therein as a
result of a determination of the managing underwriter pursuant to Section
2.2(b). Upon the written request of a Shareholder or Shareholders given within
20 days after the Company provides such notice (which request shall state the
intended method of disposition of such Registrable Shares), the Company shall
use its best efforts to cause all Registrable Shares which the Company has been
requested by such Shareholder or Shareholders to register to be registered under
the Securities Act to the extent necessary to permit their sale or other
disposition in accordance with the intended methods of distribution specified in
the request of such Shareholder or Shareholders; provided that the Company shall
have the right to postpone or
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withdraw any registration effected pursuant to this Section 2.2 without
obligation to any Shareholder.
(b) If the registration for which the Company gives notice
pursuant to Section 2.2(a) is a registered public offering involving an
underwriting, the Company shall so advise the Shareholders as a part of the
written notice given pursuant to Section 2.2(a). In such event, the right of any
Shareholder to include its Registrable Shares in such registration pursuant to
Section 2.2 shall be conditioned upon such Shareholder's participation in such
underwriting on the terms set forth herein. All Shareholders proposing to
distribute their securities through such underwriting shall enter into an
underwriting agreement in customary form with the underwriter or underwriters
selected for the underwriting by the Company, provided that such underwriting
agreement shall not provide for indemnification or contribution obligations on
the part of Shareholders materially greater than the obligations of the
Shareholders pursuant to Section 2.5. Notwithstanding any other provision of
this Section 2.2, if the managing underwriter determines that the inclusion of
all shares requested to be registered would adversely affect the offering, the
Company may limit the number of Registrable Shares to be included in the
registration and underwriting. The Company shall so advise all holders of
Registrable Shares requesting registration, and the number of shares that are
entitled to be included in the registration and underwriting shall be allocated
in the following manner. The securities of the Company held by holders other
than Shareholders shall be excluded from such registration and underwriting to
the extent deemed advisable by the managing underwriter, and, if a further
limitation on the number of shares is required, the number of shares that may be
included in such registration and underwriting shall be allocated among all
Shareholders requesting registration in proportion, as nearly as practicable, to
the respective number of shares of Common Stock (on an as-converted basis) which
they held at the time the Company gives the notice specified in Section 2.2(a),
provided that the number of Registrable Shares permitted to be included therein
shall in any event be at least 50% of the securities included therein (based on
aggregate market values). If any Shareholder would thus be entitled to include
more securities than such holder requested to be registered, the excess shall be
allocated among other requesting Shareholders pro rata in the manner described
in the preceding sentence. If any holder of Registrable Shares or any officer or
director disapproves of the terms of any such underwriting, such person may
elect to withdraw therefrom by written notice to the Company, and any
Registrable Shares or other securities excluded or withdrawn from such
underwriting shall be withdrawn from such registration.
2.3 Registration Procedures.
(a) If and whenever the Company is required by the provisions
of this Agreement to use its best efforts to effect the registration of any
Registrable Shares under the Securities Act, the Company shall:
(i) file with the Commission a Registration Statement
with respect to such Registrable Shares and use its best efforts to cause that
Registration Statement to become effective as soon as possible;
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(ii) as expeditiously as possible prepare and file with
the Commission any amendments and supplements to the Registration Statement and
the prospectus included in the Registration Statement as may be necessary to
comply with the provisions of the Securities Act (including the anti-fraud
provisions thereof) and to keep the Registration Statement effective for 12
months from the effective date or such lesser period until all such Registrable
Shares are sold;
(iii) as expeditiously as possible furnish to each
Selling Shareholder such reasonable numbers of copies of the Prospectus,
including any preliminary Prospectus, in conformity with the requirements of the
Securities Act, and such other documents as such Selling Shareholder may
reasonably request in order to facilitate the public sale or other disposition
of the Registrable Shares owned by such Selling Stockholder;
(iv) as expeditiously as possible use its best efforts
to register or qualify the Registrable Shares covered by the Registration
Statement under the securities or Blue Sky laws of such states as the Selling
Shareholders shall reasonably request, and do any and all other acts and things
that may be necessary or desirable to enable the Selling Shareholders to
consummate the public sale or other disposition in such states of the
Registrable Shares owned by the Selling Shareholder; provided, however, that the
Company shall not be required in connection with this paragraph (iv) to qualify
as a foreign corporation or execute a general consent to service of process in
any jurisdiction;
(v) as expeditiously as possible, cause all such
Registrable Shares to be listed on each securities exchange or automated
quotation system on which similar securities issued by the Company are then
listed;
(vi) promptly provide a transfer agent and registrar for
all such Registrable Shares not later than the effective date of such
registration statement;
(vii) promptly make available for inspection by the
Selling Shareholders, any managing underwriter participating in any disposition
pursuant to such Registration Statement, and any attorney or accountant or other
agent retained by any such underwriter or selected by the Selling Shareholders,
all financial and other records, pertinent corporate documents and properties of
the Company and cause the Company's officers, directors, employees and
independent accountants to supply all information reasonably requested by any
such seller, underwriter, attorney, accountant or agent in connection with such
Registration Statement;
(viii) as expeditiously as possible, notify each Selling
Shareholder, promptly after it shall receive notice thereof, of the time when
such Registration Statement has become effective or a supplement to any
Prospectus forming a part of such Registration Statement has been filed; and
(ix) as expeditiously as possible following the
effectiveness of such Registration Statement, notify each seller of such
Registrable Shares of any request by the Commission for the amending or
supplementing of such Registration Statement or Prospectus.
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(b) If the Company has delivered a Prospectus to the Selling
Shareholders and after having done so the Prospectus is amended to comply with
the requirements of the Securities Act, the Company shall promptly notify the
Selling Shareholders and, if requested, the Selling Shareholders shall
immediately cease making offers of Registrable Shares and return all
Prospectuses to the Company. The Company shall promptly provide the Selling
Shareholders with revised Prospectuses and, following receipt of the revised
Prospectuses, the Selling Shareholders shall be free to resume making offers of
the Registrable Shares.
(c) In the event that, in the judgment of the Company, it is
advisable to suspend use of a Prospectus included in a Registration Statement
due to pending material developments or other events that have not yet been
publicly disclosed and as to which the Company believes public disclosure would
be detrimental to the Company, the Company shall notify all Selling Shareholders
to such effect, and, upon receipt of such notice, each such Selling Shareholder
shall immediately discontinue any sales of Registrable Shares pursuant to such
Registration Statement until such Selling Shareholder has received copies of a
supplemented or amended Prospectus or until such Selling Shareholder is advised
in writing by the Company that the then current Prospectus may be used and has
received copies of any additional or supplemental filings that are incorporated
or deemed incorporated by reference in such Prospectus. Notwithstanding anything
to the contrary herein, the Company shall not exercise its rights under this
Section 2.3(c) to suspend sales of Registrable Shares for a period in excess of
60 days in any 365-day period.
2.4 Allocation of Expenses. The Company will pay all Registration
Expenses for all registrations under this Agreement; provided, however, that if
a registration under Section 2.1 is withdrawn at the request of Initiating
Holders holding at least a majority of the Registrable Shares as to which
registration was requested (other than as a result of information concerning the
business or financial condition of the Company which is made known to the
Shareholders after the date on which such registration was requested) and if
such Initiating Holders elect not to have such registration counted as a
registration requested under Section 2.1, the requesting Shareholders shall pay
the Registration Expenses of such registration pro rata in accordance with the
number of their Registrable Shares included in such registration. For purposes
of this Section, the term "Registration Expenses" shall mean all expenses
incurred by the Company in complying with this Agreement, including, without
limitation, all registration and filing fees, exchange listing fees, printing
expenses, fees and expenses of counsel for the Company and the fees and expenses
of one counsel selected by the Selling Shareholders to represent the Selling
Shareholders, state Blue Sky fees and expenses, and the expense of any special
audits incident to or required by any such registration, but excluding
underwriting discounts, selling commissions and the fees and expenses of Selling
Shareholders' own counsel (other than the counsel selected to represent all
Selling Shareholders).
2.5 Indemnification and Contribution.
(a) In the event of any registration of any of the Registrable
Shares under the Securities Act pursuant to this Agreement, the Company will
indemnify and hold harmless the seller of such Registrable Shares, each
underwriter of such Registrable Shares, and each other
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person, if any, who controls such seller or underwriter within the meaning of
the Securities Act or the Exchange Act against any losses, claims, damages or
liabilities, joint or several, to which such seller, underwriter or controlling
person may become subject under the Securities Act, the Exchange Act, state
securities or Blue Sky laws or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any Registration Statement under which such Registrable Shares were
registered under the Securities Act, any preliminary prospectus or final
prospectus contained in the Registration Statement, or any amendment or
supplement to such Registration Statement, or arise out of or are based upon the
omission or alleged omission to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and the
Company will reimburse such seller, underwriter and each such controlling person
for any legal or any other expenses reasonably incurred by such seller,
underwriter or controlling person in connection with investigating or defending
any such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any untrue statement
or omission made in such Registration Statement, preliminary prospectus or
prospectus, or any such amendment or supplement, in reliance upon and in
conformity with information furnished to the Company, in writing, by or on
behalf of such seller, underwriter or controlling person specifically for use in
the preparation thereof.
(b) In the event of any registration of any of the Registrable
Shares under the Securities Act pursuant to this Agreement, each seller of
Registrable Shares, severally and not jointly, will indemnify and hold harmless
the Company, each of its directors and officers and each underwriter (if any)
and each person, if any, who controls the Company or any such underwriter within
the meaning of the Securities Act or the Exchange Act, against any losses,
claims, damages or liabilities, joint or several, to which the Company, such
directors and officers, underwriter or controlling person may become subject
under the Securities Act, Exchange Act, state securities or Blue Sky laws or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of a material fact contained in any Registration Statement
under which such Registrable Shares were registered under the Securities Act,
any preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to the Registration Statement, or
arise out of or are based upon any omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, if the statement or omission was made in reliance upon
and in conformity with information relating to such seller furnished in writing
to the Company by or on behalf of such seller specifically for use in connection
with the preparation of such Registration Statement, prospectus, amendment or
supplement; provided, however, that the obligations of a Shareholder hereunder
shall be limited to an amount equal to the net proceeds to such Shareholder of
Registrable Shares sold in connection with such registration.
(c) Each party entitled to indemnification under this Section
(the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the
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defense of any such claim or any litigation resulting therefrom; provided, that
counsel for the Indemnifying Party, who shall conduct the defense of such claim
or litigation, shall be approved by the Indemnified Party (whose approval shall
not be unreasonably withheld); and, provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section except to the extent
that the Indemnifying Party is adversely affected by such failure. The
Indemnified Party may participate in such defense at such party's expense;
provided, however, that the Indemnifying Party shall pay such expense if
representation of such Indemnified Party by the counsel retained by the
Indemnifying Party would be inappropriate due to actual or potential differing
interests between the Indemnified Party and any other party represented by such
counsel in such proceeding; provided further that in no event shall the
Indemnifying Party be required to pay the expenses of more than one law firm per
jurisdiction as counsel for the Indemnified Party. The Indemnifying Party also
shall be responsible for the expenses of such defense if the Indemnifying Party
does not elect to assume such defense. No Indemnifying Party, in the defense of
any such claim or litigation shall, except with the consent of each Indemnified
Party, consent to entry of any judgment or enter into any settlement which does
not include as an unconditional term thereof the giving by the claimant or
plaintiff to such Indemnified Party of a release from all liability in respect
of such claim or litigation, and no Indemnified Party shall consent to entry of
any judgment or settle such claim or litigation without the prior written
consent of the Indemnifying Party, which consent shall not be unreasonably
withheld.
(d) In order to provide for just and equitable contribution in
circumstances in which the indemnification provided for in this Section 2.5 is
due in accordance with its terms but for any reason is held to be unavailable to
an Indemnified Party in respect to any losses, claims, damages and liabilities
referred to herein, then the Indemnifying Party shall, in lieu of indemnifying
such Indemnified Party, contribute to the amount paid or payable by such
Indemnified Party as a result of such losses, claims, damages or liabilities to
which such party may be subject in such proportion as is appropriate to reflect
the relative fault of the Company on the one hand and the Shareholders on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and the Shareholders shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of material fact related to information supplied by the Company
or the Shareholders and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Shareholders agree that it would not be just and equitable
if contribution pursuant to this Section 2.5 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph of Section 2.5, (a) in no case shall any one Shareholder be
liable or responsible for any amount in excess of the net proceeds received by
such Shareholder from the offering of Registrable Shares and (b) the Company
shall be liable and responsible for any amount in excess of such proceeds;
provided, however, that no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Any party entitled to contribution will, promptly after
receipt of notice of commencement of any action, suit or proceeding against such
party in respect of which a claim for contribution may be made against another
party or parties under this Section, notify
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such party or parties from whom contribution may be sought, but the omission so
to notify such party or parties from whom contribution may be sought shall not
relieve such party from any other obligation it or they may have thereunder or
otherwise under this Section. No party shall be liable for contribution with
respect to any action, suit, proceeding or claim settled without its prior
written consent, which consent shall not be unreasonably withheld.
2.6 Other Matters with Respect to Underwritten Offerings. In the
event that Registrable Shares are sold pursuant to a Registration Statement in
an underwritten offering pursuant to Section 2.1, the Company agrees to (a)
enter into an underwriting agreement containing customary representations and
warranties with respect to the business and operations of the Company and
customary covenants and agreements to be performed by the Company, including
without limitation customary provisions with respect to indemnification by the
Company of the underwriters of such offering; (b) use its best efforts to cause
its legal counsel to render customary opinions to the underwriters and the
Selling Shareholders with respect to the Registration Statement; and (c) use its
best efforts to cause its independent public accounting firm to issue customary
"cold comfort letters" to the underwriters and the Selling Shareholders with
respect to the Registration Statement.
2.7 Information by Holder. Each holder of Registrable Shares
included in any registration shall furnish to the Company such information
regarding such holder and the distribution proposed by such holder as the
Company may reasonably request in writing and as shall be required in connection
with any registration, qualification or compliance referred to in this
Agreement.
2.8 "Stand-Off" Agreement; Confidentiality of Notices. Each
Shareholder, if requested by the Company and the managing underwriter of an
underwritten public offering by the Company of Common Stock, shall not sell or
otherwise transfer or dispose of any Registrable Shares or other securities of
the Company held by such Shareholder for a period of 180 days following the
effective date of a Registration Statement; provided, that:
(a) such agreement shall only apply to the Initial Public
Offering; and
(b) any Shareholder of the Company then beneficially owning
(within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as
amended) at least a majority of the outstanding Common Stock (on an as-converted
basis) and all officers and directors of the Company enter into similar
agreements.
The Company may impose stop-transfer instructions with respect to the
Registrable Shares or other securities subject to the foregoing restriction
until the end of such 180-day period.
Any Shareholder receiving any written notice from the Company regarding
the Company's plans to file a Registration Statement shall treat such notice
confidentially and shall not disclose such information to any person other than
as necessary to exercise its rights under this Agreement.
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2.9 Limitations on Subsequent Registration Rights. The Company shall
not, without the prior written consent of Shareholders holding at least a
majority of the Registrable Shares then held by all Shareholders, enter into any
agreement (other than this Agreement) with any holder or prospective holder of
any securities of the Company which grant such holder or prospective holder
rights to include securities of the Company in any Registration Statement,
unless (a) such rights to include securities in a registration initiated by the
Company or by Shareholders are not more favorable than the rights granted to
Other Holders under Sections 2.1 and 2.2 of this Agreement, and (b) no rights
are granted to initiate a registration, other than registration pursuant to a
registration statement on Form S-3 (or its successor) in which Shareholders are
entitled to include Registrable Shares on a pro rata basis with such holders
based on the number of shares of Common Stock (on an as-converted basis) owned
by Shareholders and such holders.
2.10 Rule 144 Requirements. After the earliest of (i) the closing of
the sale of securities of the Company pursuant to a Registration Statement, (ii)
the registration by the Company of a class of securities under Section 12 of the
Exchange Act, or (iii) the issuance by the Company of an offering circular
pursuant to Regulation A under the Securities Act, the Company agrees to:
(a) make and keep current public information about the Company
available, as those terms are understood and defined in Rule 144;
(b) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Securities Act and the Exchange Act (at any time after it has become subject to
such reporting requirements); and
(c) furnish to any holder of Registrable Shares upon request
(i) a written statement by the Company as to its compliance with the reporting
requirements of Rule 144 and of the Securities Act and the Exchange Act (at any
time after it has become subject to such reporting requirements), (ii) a copy of
the most recent annual or quarterly report of the Company, and (iii) such other
reports and documents of the Company as such holder may reasonably request to
avail itself of any similar rule or regulation of the Commission allowing it to
sell any such securities without registration.
2.11 Termination. All of the Company's obligations to register
Registrable Shares under Sections 2.1 and 2.2 of this Agreement shall terminate
seven (7) years after the closing of the Initial Public Offering.
3. Right Of First Refusal.
(a) The Company shall not issue, sell or exchange, agree to
issue, sell or exchange, or reserve or set aside for issuance, sale or exchange,
(i) any shares of its Common Stock, (ii) any other equity securities of the
Company, including, without limitation, shares of preferred stock, (iii) any
option, warrant or other right to subscribe for, purchase or otherwise acquire
any equity securities of the Company, or (iv) any debt securities convertible
into capital stock of the Company (collectively, the "Offered Securities"),
unless in each such case the
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12
Company shall have first complied with this Section 3. The Company shall deliver
to the Shareholders a written notice of any proposed or intended issuance, sale
or exchange of Offered Securities (the "Offer"), which Offer shall (i) identify
and describe the Offered Securities, (ii) describe the price and other terms
upon which they are to be issued, sold or exchanged, and the number or amount of
the Offered Securities to be issued, sold or exchanged, (iii) identify the
persons or entities (if known) to which or with which the Offered Securities are
to be offered, issued, sold or exchanged and (iv) offer to issue and sell to or
exchange with each Shareholder (A) a pro rata portion of the Offered Securities
determined by dividing the aggregate number of shares of Common Stock then held
by such Shareholder (giving effect to the conversion of all shares of
convertible preferred stock then held) by the total number of shares of Common
Stock then outstanding (giving effect to the conversion of all outstanding
shares of convertible preferred stock) (the "Basic Amount"), and (B) any
additional portion of the Offered Securities attributable to the Basic Amounts
of other Shareholders as such Shareholder shall indicate it will purchase or
acquire should the other Shareholders subscribe for less than their Basic
Amounts (the "Undersubscription Amount").
(b) To accept an Offer, in whole or in part, each Shareholder
must deliver a written notice to the Company prior to the end of the 30-day
period of the Offer, setting forth the portion of such Shareholder's Basic
Amount that such Shareholder elects to purchase and, if such Shareholder shall
elect to purchase all of its Basic Amount, the Undersubscription Amount (if any)
that such Shareholder elects to purchase (the "Notice of Acceptance"). If the
Basic Amounts subscribed for by all Shareholders are less than the total of all
of the Basic Amounts available for purchase, then each Shareholder who has set
forth an Undersubscription Amount in its Notice of Acceptance shall be entitled
to purchase, in addition to the Basic Amounts subscribed for, the
Undersubscription Amount it has subscribed for; provided, however, that if the
Undersubscription Amounts subscribed for exceed the difference between the total
of all of the Basic Amounts available for purchase and the Basic Amounts
subscribed for (the "Available Undersubscription Amount"), the Shareholder who
has subscribed for any Undersubscription Amount shall be entitled to purchase
only that portion of the Available Undersubscription Amount as the
Undersubscription Amount subscribed for by such Shareholder bears to the total
Undersubscription Amounts subscribed for by all Shareholders, subject to
rounding by the Board of Directors to the extent it deems reasonably necessary.
(c) The Company shall have 90 days from the expiration of the
period set forth in Section 3(b) above to issue, sell or exchange all or any
part of such Offered Securities as to which a Notice of Acceptance has not been
given by a Shareholder (the "Refused Securities"), but only to the offerees or
purchasers described in the Offer (if so described therein) and only upon terms
and conditions (including, without limitation, unit prices and interest rates)
which are not more favorable, in the aggregate, to the acquiring person or
persons or less favorable to the Company than those set forth in the Offer.
(d) In the event the Company shall propose to sell less than
all the Refused Securities (any such sale to be in the manner and on the terms
specified in Section 3(c) above), then each Shareholder may, at its sole option
and in its sole discretion, reduce the number or amount of the Offered
Securities specified in its Notice of Acceptance to an amount that shall be not
less than the number or amount of the Offered Securities that the Shareholder
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elected to purchase pursuant to Section 3(b) above multiplied by a fraction, (i)
the numerator of which shall be the number or amount of Offered Securities the
Company actually proposes to issue, sell or exchange (including Offered
Securities to be issued or sold to Shareholders pursuant to Section 3(b) above
prior to such reduction) and (ii) the denominator of which shall be the original
amount of the Offered Securities. In the event that the Shareholders so elect to
reduce the number or amount of Offered Securities specified in the Notices of
Acceptance, the Company may not issue, sell or exchange more than the reduced
number or amount of the Offered Securities unless and until such securities have
again been offered to the Shareholders in accordance with Section 3(a) above.
(e) Upon the closing of the issuance, sale or exchange of all
or less than all of the Refused Securities, each Shareholder shall acquire from
the Company, and the Company shall issue to each Shareholder, the number or
amount of Offered Securities specified in the Notices of Acceptance, as reduced
pursuant to Section 3(d) above if the Shareholders have so elected, upon the
terms and conditions specified in the Offer. The purchase by the Shareholders of
any Offered Securities is subject in all cases to the preparation, execution and
delivery by the Company and the Shareholders of a purchase agreement relating to
such Offered Securities reasonably satisfactory in form and substance to the
Shareholders and their counsel.
(f) Any Offered Securities not acquired by the Shareholders or
other persons in accordance with Section 3(c) above may not be issued, sold or
exchanged until they are again offered to the Shareholders under the procedures
specified in this Agreement.
(g) The rights of the Shareholders under this Section 3 shall
not apply to:
(1) Common Stock issued as a stock dividend to holders
of Common Stock or upon any subdivision or combination of shares of Common
Stock;
(2) the issuance of any shares of Common Stock upon
conversion of shares of convertible preferred Stock;
(3) the issuance of up to the greater of (i) 4,441,208
shares (such number to be proportionately adjusted in the event of any stock
splits, stock dividends, recapitalizations or similar events occurring on or
after the date of this Agreement) or (ii) 25% of the capital stock of the
Company on a fully-diluted basis (assuming the conversion to Common Stock of all
convertible securities and the exercise of all outstanding options and
warrants), or the grant of options or warrants therefor, including shares issued
upon exercise of options outstanding on the date of this Agreement to officers,
directors, consultants and employees of the Company or any subsidiary pursuant
to the Stock Option Plan or any other plan, agreement or arrangement approved by
a vote of not less than a majority of the Board of Directors of the Company (it
being understood that any shares subject to options that expire or terminate
unexercised shall not count towards the maximum number set forth in this clause
(3));
(4) securities issued solely in consideration for the
bona fide acquisition (whether by merger or otherwise) by the Company or any of
its subsidiaries of all or
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a majority of the stock or substantially all of the assets or a discrete product
line of any other entity;
(5) securities issued in connection with bona fide
technology licensing, distribution or similar corporate partnering arrangements,
provided that any such arrangements are approved by the Company's Board of
Directors and are not for equity financing purposes, and further provided, that
any options or warrants issued pursuant to such arrangements shall count towards
the maximum number set forth in clause (3) above; or
(6) shares of Common Stock sold by the Company in an
underwritten public offering pursuant to an effective registration statement
under the Securities Act.
4. Restrictions on Transfer.
4.1 General.
(a) Any sale, transfer or other disposition, whether
voluntarily or by operation of law ("Transfer") of any of the Shares, as defined
in Section 6 below, by a Shareholder, other than according to the terms of this
Agreement, shall be void and transfer no right, title, or interest in or to any
of such Shares to the purported transferee. For purposes of calculating a
Shareholder's pro rata ownership of Shares, all shares of Preferred Stock of the
Company shall be deemed to have been converted into Common Stock of the Company.
(b) Each Shareholder agrees to present the certificates
representing the Shares presently owned or hereafter acquired by him to the
Secretary of the Company and cause the Secretary to stamp on the certificate in
a prominent manner the following legend:
"The sale or other disposition of any of the shares
represented by this certificate is restricted by a
Shareholders Agreement, as amended from time to time, among
certain of the shareholders of this corporation and this
corporation (the "Agreement"). A copy of the Agreement is
available for inspection during normal business hours at the
principal executive office of this corporation."
4.2 Transfer Not Subject to Restrictions.
(a) Any Shareholder may Transfer Shares to his spouse or
children or to a trust established for the benefit of his spouse, children or
himself, or dispose of them under his will, without compliance with Sections 4.3
through 4.6 hereof provided that the transferee delivers to the Company and the
Shareholders a written instrument agreeing to be bound by the terms of this
Agreement as if it were a Shareholder.
(b) The rights of the Company and the Shareholders under
Sections 4.4 and 4.5 hereof shall not apply to any pledge of Shares by a
Shareholder which creates a mere
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security interest, provided the pledgee provides the Company and the
Shareholders with a written agreement to be bound hereby to the same extent as
the pledging Shareholder.
4.3 Offer of Sale: Notice of Proposed Sale.
If any Shareholder desires to Transfer any of its Shares, or any interest
in such Shares, in any transaction other than pursuant to Section 4.2 of this
Agreement, such Shareholder (the "Selling Shareholder") shall first deliver
written notice of its desire to do so (the "Notice") to the Company and the
other Shareholders, in the manner prescribed in Section 9(d) of this Agreement.
The Notice must specify: (i) the name and address of the party to which the
Selling Shareholder proposes to sell or otherwise dispose of the Shares or an
interest in the Shares (the "Offeror"), (ii) the number of Shares the Selling
Shareholder proposes to sell or otherwise dispose of (the "Offered Shares"),
(iii) the consideration per Share to be delivered to the Selling Shareholder for
the proposed sale, transfer or disposition, and (iv) all other material terms
and conditions of the proposed transaction.
4.4 Company's Option to Purchase.
(a) Subject to Section 4.6, the Company shall have the first
option to purchase all or any part of the Offered Shares for the consideration
per share and on the terms and conditions specified in the Notice. The Company
must exercise such option, no later than 15 days after such Notice is deemed
under Section 9(d) hereof to have been delivered to it, by written notice to the
Selling Shareholder.
(b) In the event the Company does not exercise its option
within such 15-day period with respect to all of the Offered Shares, the Company
shall, by the last day of such period, give written notice of that fact (the
"Shareholder Notice") to the other Shareholders (the "Eligible Shareholders").
The Shareholder Notice shall specify the number of Offered Shares not purchased
by the Company (the "Remaining Shares").
(c) In the event the Company duly exercises its option to
purchase all or part of the Offered Shares, the closing of such purchase shall
take place at the offices of the Company on the later of (i) the date five days
after the expiration of such 15-day period or (ii) the date that the Eligible
Shareholders consummate their purchase of Remaining Shares under Section 4.5(c)
hereof.
(d) To the extent that the consideration proposed to be paid
by the Offeror for the Offered Shares consists of property other than cash or a
promissory note, the consideration required to be paid by the Company and/or the
Eligible Shareholders exercising their options under Sections 4.4 and 4.5 hereof
may consist of cash equal to the value of such property, as determined in good
faith by agreement of the Selling Shareholder and the Company and/or the
Eligible Shareholders acquiring such Offered Shares.
(e) Notwithstanding anything to the contrary herein, neither
the Company nor the Eligible Shareholders shall have any right to purchase any
of the Offered Shares
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hereunder unless the Company and/or the Eligible Shareholders exercise their
option or options to purchase all of the Offered Shares.
4.5 Shareholder Option to Purchase.
(a) Subject to Section 4.6, the Eligible Shareholders shall
have an option, exercisable for a period of 15 days from the date of delivery of
the Shareholder Notice, to purchase the Remaining Shares for the consideration
per share and on the terms and conditions set forth in the Notice. Such option
shall be exercised by delivery by each Eligible Shareholder of written notice to
the Secretary of the Company. Alternatively, an Eligible Shareholder may within
the same 15-day period, notify the Secretary of the Company of its desire to
participate in the sale of the Shares on the terms set forth in the Notice, and
the number of Shares it wishes to sell.
(b) In the event options to purchase have been exercised by
the Eligible Shareholders with respect to some but not all of the Remaining
Shares, those Eligible Shareholders who have exercised their options within the
15-day period specified in Section 4.5(a) shall have an additional option, for a
period of five days next succeeding the expiration of such 15-day period, to
purchase all or any part of the balance of such Remaining Shares on the terms
and conditions set forth in the Notice, which option shall be exercised by the
delivery of written notice to the Secretary of the Company. In the event there
are two or more such Eligible Shareholders that choose to exercise the
last-mentioned option for a total number Remaining Shares in excess of the
number available, the Remaining Shares available for each such Eligible
Shareholder's options shall be allocated to such Eligible Shareholder pro rata
based on the number of Shares owned by the Eligible Shareholder so electing.
(c) If the option to purchase the Remaining Shares is
exercised in full by the Purchaser, the closing of the purchase of the Remaining
Shares shall take place at the offices of the Company no later than five days
after the date of such notice to the Purchaser.
4.6 Failure to Fully Exercise Options; Co-Sale.
(a) If the Company and the Eligible Shareholders do not
exercise their options to purchase all of the Offered Shares within the periods
described in this Agreement (the "Option Period"), then all options of the
Company and the Eligible Shareholders to purchase the Offered Shares, whether
exercised or not, shall terminate, but each Eligible Shareholder has, pursuant
to Section 4.5, expressed a desire to sell Shares in the transaction (a
"Participating Shareholder"), shall be entitled to do so pursuant to this
Section. The Company shall promptly, on expiration of the Option Period, notify
the Selling Shareholder of the aggregate number of Shares the Participating
Shareholders wish to sell. The Selling Shareholder shall use its best efforts to
interest the Offeror in purchasing, in addition to the Offered Shares, the
Shares the Participating Shareholders wish to sell. If the Offeror does not wish
to purchase all of the Shares made available by the Selling Shareholder and the
Participating Shareholders, then the Participating Shareholders and the Selling
Shareholder shall be entitled to sell, at the price and on the terms and
conditions set forth in the Notice, a portion of the Shares being sold to the
Offeror, in the same proportion as such Selling Shareholder or Participating
Shareholders'
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ownership of Shares bears to the aggregate number of Shares owned by the Selling
Shareholder and the Participating Shareholders. The transaction contemplated by
the Notice shall be consummated not later than 60 days after the expiration of
the Option Period.
(b) If the Participating Shareholders do not elect to sell the
full number of Shares which they are entitled to sell pursuant to Section
4.6(a), the Selling Shareholder shall be entitled to sell to the Offeror,
according to the terms set forth in the Notice, that number of its own Shares
which equals the difference between the number of Shares desired to be purchased
by the Offeror and the number of Shares the Participating Shareholders are
entitled to sell pursuant to Section 4.6(a). If the Selling Shareholder wishes
to Transfer any such Shares at a price per Share which differs from that set
forth in the Notice, upon terms different from those previously offered to the
Company and the Eligible Shareholders, or more than 60 days after the expiration
of the Option Period, then, as a condition precedent to such transaction, such
Shares must first be offered to the Company and the Eligible Shareholders on the
same terms and conditions as given the Offeror, and in accordance with the
procedures and time periods set forth above.
(c) The proceeds of any sale made by the Selling Existing
Shareholder without compliance with the provisions of this Section 4 shall be
deemed to be held in constructive trust in such amount as would have been due
the Participating Shareholders if the Selling Shareholder had complied with this
Agreement.
5. Transfers of Rights; Additional Shareholders. This Agreement, and the
rights and obligations of each Shareholder hereunder, may be assigned by such
Shareholder to (i) any person or entity to which at least 200,000 Shares
(subject to appropriate adjustment for stock splits, stock dividends,
recapitalizations and other similar events) are transferred by such Shareholder
or (ii) to any partner or stockholder of a Shareholder, and such transferee
shall be deemed a "Shareholder" for purposes of this Agreement; provided, that
the transferee provides written notice of such assignment to the Company and
agrees in writing to be bound hereby. The Purchaser shall have the right to
require that the Company, as a term of the issuance of stock of the Company to
any additional shareholder, require such shareholder to agree to the terms of
Section 5 of this Agreement to the same extent as if such shareholder were a
"Shareholder" hereunder; provided, that any party to whom securities are issued
pursuant to a transaction described in Section 3(g) above shall not be required
to enter into this Agreement if such issuance does not result in a majority of
the capital stock of the Company on a fully-diluted basis (assuming the
conversion to Common Stock of all convertible securities and the exercise of all
outstanding options and warrants) being held by parties other than the
Shareholders.
6. Shares. As used in this Agreement, the term "Shares" shall mean all
shares of capital stock of the Company held by a Shareholder, whether now owned
or subsequently acquired.
7. Termination. This Agreement shall terminate in its entirety on the
earliest of (a) the closing of the Company's initial public offering of shares
of Common Stock pursuant to an effective registration statement under the
Securities Act of 1933, as amended, resulting in at least $30,000,000 of gross
proceeds to the Company at a minimum price to the public of $10.00 per share
(subject to appropriate adjustment for stock splits, stock dividends,
recapitalizations and
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other similar events), or (b) the sale of all or substantially of the assets or
business of the Company, by merger, sale of assets or otherwise.
8. Voting of Shares.
(a) The parties hereto acknowledge and agree that Vulcan
Ventures Incorporated has the right to elect a director of the Company in
accordance with the provisions of the Certificate of Designation establishing
the Series A Preferred.
(b) The parties hereto acknowledge and agree that Edison
Schools Inc. has the right to designate and elect a director of the Company in
accordance with the provisions of the Certificate of Designation establishing
the Series B Preferred.
(c) The parties hereto acknowledge and agree that Warburg,
Xxxxxx Equity Partners. L.P. and its affiliates (as defined in Section 7.9 of
the Certificate of Designation establishing the Series C Preferred) has the
right to designate and elect a director of the Company in accordance with the
provisions of the Certificate of Designation establishing the Series C
Preferred.
9. General.
(a) Severability. The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provision of this Agreement.
(b) Specific Performance. In addition to any and all other
remedies that may be available at law in the event of any breach of this
Agreement, the Purchaser shall be entitled to specific performance of the
agreements and obligations of the Company hereunder and to such other injunctive
or other equitable relief as may be granted by a court of competent
jurisdiction.
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Washington
(without reference to the conflicts of law provisions thereof).
(d) Notices. All notices, requests, consents, and other
communications under this Agreement shall be in writing and shall be deemed
delivered (i) two business days after being sent by registered or certified
mail, return receipt requested, postage prepaid or (ii) one business day after
being sent via a reputable nationwide overnight courier service guaranteeing
next business day, delivery, in each case to the intended recipient as set forth
below:
If to the Company, at 000 000xx Xxxxxx X.X., Xxxxx 000, Xxxxxxxx,
Xxxxxxxxxx 00000, Attention: President, Facsimile: (000) 000-0000, or at such
other address or addresses as may have been furnished in writing by the
Company to the Purchaser, with a copy to Xxxxxxxx X.
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Xxxxxx, Esq., Xxxxxx Pepper & Shefelman PLLC, 0000 Xxxxx Xxxxxx, Xxxxx 0000,
Xxxxxxx, Xxxxxxxxxx 00000, Facsimile: (000) 000-0000; or
If to a Shareholder, at its address set forth on Exhibit A, or at such
other address or addresses as may have been furnished to the Company in writing
by the Shareholder.
Any party may give any notice, request, consent or other communication
under this Agreement using any other means (including, without limitation,
personal delivery, messenger service, telecopy, first class mail or electronic
mail), but no such notice, request, consent or other communication shall be
deemed to have been duly given unless and until it is actually received by the
party for whom it is intended. Any party may change the address to which
notices, requests, consents or other communications hereunder are to be
delivered by giving the other parties notice in the manner set forth in this
Section.
(e) Complete Agreement. This Agreement constitutes the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof and supersedes all prior agreements and understandings relating to
such subject matter including, without limitation, the Shareholders Agreement,
dated as of July 2, 1999, by and among the Company and the Existing
Shareholders.
(f) Amendments and Waivers. Any term of this Agreement may be
amended or terminated and the observance of any term of this Agreement may be
waived (either generally or in a particular instance and either retroactively or
prospectively), with the written consent of the Company and all of the
Shareholders. No waivers of or exceptions to any term, condition or provision of
this Agreement, in any one or more instances, shall be deemed to be, or
construed as, a further or continuing waiver of any such term, condition or
provision.
(g) Pronouns. Whenever the context may require, any pronouns
used in this Agreement shall include the corresponding masculine, feminine or
neuter forms, and the singular form of nouns and pronouns shall include the
plural, and vice versa.
(h) Counterparts; Facsimile Signatures. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original, and all of which together shall constitute one and the same document.
This Agreement may be executed by facsimile signatures.
(i) Section Headings. The section headings are for the
convenience of the parties and in no way alter, modify, amend, limit or restrict
the contractual obligations of the parties.
[Signature pages follow.]
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IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED SHAREHOLDERS AGREEMENT as of the date set forth in the first paragraph
hereof.
COMPANY:
APEX ONLINE LEARNING INC.
By /s/ Xxxxx X. Xxxxxxxx
-------------------------------------
Xxxxx X. Xxxxxxxx, President
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IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED SHAREHOLDERS AGREEMENT as of the date set forth in the first paragraph
hereof.
SHAREHOLDERS:
VULCAN VENTURES INCORPORATED
By: /s/ Xxxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
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IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED SHAREHOLDERS AGREEMENT as of the date set forth in the first paragraph
hereof.
SHAREHOLDERS:
EDISON SCHOOLS INC.
By: /s/ H. Xxxxxxxxxxx Xxxxxxx
-------------------------------------
H. Xxxxxxxxxxx Xxxxxxx,
President
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IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED SHAREHOLDERS AGREEMENT as of the date set forth in the first paragraph
hereof.
SHAREHOLDERS:
/s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx
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IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED SHAREHOLDERS AGREEMENT as of the date set forth in the first paragraph
hereof.
SHAREHOLDERS:
WARBURG, XXXXXX EQUITY PARTNERS, L.P.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name:
Title:
WARBURG, XXXXXX NETHERLANDS EQUITY
PARTNERS I, C.V.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name:
Title:
WARBURG, XXXXXX NETHERLANDS EQUITY
PARTNERS II, C.V.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name:
Title:
WARBURG, XXXXXX NETHERLANDS EQUITY
PARTNERS III, C.V.
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------------
Name:
Title:
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IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED SHAREHOLDERS AGREEMENT as of the date set forth in the first paragraph
hereof.
SHAREHOLDERS:
MAVERON EQUITY PARTNERS, L.P.
By MAVERON GENERAL PARTNER, LLC, its
general partner
By: /s/ Xxx Xxxxxxx
-------------------------------------
Name: Xxx Xxxxxxx
Title: Manager
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IN WITNESS WHEREOF, the parties hereto have executed this AMENDED AND
RESTATED SHAREHOLDERS AGREEMENT as of the date set forth in the first paragraph
hereof.
SHAREHOLDERS:
XXXXXX EDUCATIONAL CENTERS, INC.
By: /s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Executive Vice President
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EXHIBIT A
PURCHASERS
Investor Name and Address Number of Shares Purchase Price
------------------------- ---------------- --------------
Warburg, Xxxxxx Equity Partners, L.P. 2,170,750 $14,174,998
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Warburg, Xxxxxx Netherlands Equity Partners I, 68,913 $ 450,002
C.V.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Warburg, Xxxxxx Netherlands Equity Partners II, 45,942 $ 300,001
C.V.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Warburg, Xxxxxx Netherlands Equity Partners 11,485 $ 74,997
III, C.V.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
28
Maveron Equity Partners, L.P. 306,279 $ 2,000,000
By Maveron General Partner, LLC
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxx Xxxxxxx, Manager
Facsimile: (000) 000-0000
Vulcan Ventures Incorporated 306,279 $ 2,000,000
000 - 000xx Xxxxxx X.X., Xxxxx 000
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
Facsimile: (000) 000-0000
Xxxxxx Educational Center, Inc. 153,139 $ 1,000,000
000 Xxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000
Attn: Xxxxxx Xxxxxxxxx with a copy to
Xxxxxxxx Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
29
EXHIBIT B
SHAREHOLDERS
Xxxx X. Xxxxx 000 000xx Xxxxxx X.X.
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xx Xxxxxx
Telecopy: (000) 000-0000
Vulcan Ventures Incorporated 000 000xx Xxxxxx X.X.
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xx Xxxxxx
Telecopy: (000) 000-0000
Edison Schools Inc. 000 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxxxxxx Xxxx, Esq.
Telecopy: (000) 000-0000
