Exhibit 4
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (the "Agreement"), dated as of
July 10, 2001 by and among (i) Xxxxxxxx Communications, LLC, a Delaware
limited liability company ("Xxxxxxxx"), (ii) iBeam Broadcasting
Corporation, a Delaware corporation (the "Company"), (iii) the other
stockholders of the Company set forth on the signature page hereto (the
"Other Stockholders") and (iii) each other Person (defined below) who
becomes a party to this Agreement in accordance with the terms hereof.
W I T N E S S E T H:
WHEREAS, this Agreement shall become effective (the
"Effective Date") on the date of, and simultaneously with, the closing
under the Stock Purchase Agreement, dated as of June 24, 2001 between the
Company, Xxxxxxxx and the Other Stockholders (the "Stock Purchase
Agreement");
WHEREAS, on the Effective Date, (i) the authorized
capital stock of the Company will consist of 413,000,000 shares of common
stock, $.0001 par value (the "Common Stock"), and 10,000,000 shares of
preferred stock, $.0001 par value (the "Preferred Stock") of which
3,000,000 shares will be designated Series A Convertible Preferred Stock,
$.0001 par value (the "Series A Preferred Stock") and (ii) the issued and
outstanding capital stock of the Company will consist of 127,353,381 shares
of Common Stock and 2,400,939 shares of Series A Preferred Stock, with
240,930,900 shares of Common Stock reserved for issuance upon the exercise
of certain stock options and warrants and upon conversion of the Series A
Preferred Stock; and
WHEREAS, on the Effective Date Xxxxxxxx shall hold
1,800,704 shares of Series A Preferred Stock and the Other Stockholders
shall hold, in the aggregate, 600,235 shares of Series A Preferred Stock;
NOW THEREFORE, in consideration of the mutual covenants
and agreements herein contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. As used in this Agreement, the
following terms have the following meanings:
"Affiliate" as applied to any Person, shall mean any
other Person directly or indirectly controlling or controlled by or under,
direct or indirect, common control with such Person. For the purposes of
this definition, control when used with respect to any Person means the
power to direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing. Notwithstanding the foregoing, neither
Xxxxxxxx and its Affiliates nor the Other Stockholders and their respective
Affiliates shall be deemed Affiliates of the Company for purposes of this
Agreement.
"beneficially own" and "beneficial ownership" have the
meanings given to them in Rule 13d-3 under the Exchange Act.
"Board of Directors" shall mean the Board of Directors of
the Company.
"Business Day" shall mean each day other than Saturdays,
Sundays and days when commercial banks are authorized to be closed for
business in New York, New York.
"Certificate of Designations" shall mean the Certificate
of Designations of the Series A Preferred Stock attached hereto as Exhibits
A.
"Charter Documents" shall mean the Certificate of
Incorporation and By-Laws of the Company, in effect as of the Effective
Date, attached hereto as Exhibits B and C, respectively.
"Commission" shall mean the United States Securities and
Exchange Commission.
"Common Stock" shall have the meaning set forth in the
recitals.
"Company" shall have the meaning set forth in the
preamble.
"Company Offered Securities" shall have the meaning set
forth in Section 6.1.
"Effective Date" shall have the meaning set forth in the
recitals.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
"Indebtedness" of any Person at any date shall include
(i) all indebtedness of such Person for borrowed money or for the deferred
purchase price of property or services, including earn-out or similar
contingent purchase amounts, (ii) any other indebtedness of such Person
which is evidenced by a note, mortgage, bond, debenture or similar
instrument, (iii) all obligations of such Person under capitalized leases,
(iv) all payments made or to be made pursuant to sale-leaseback
transactions, (v) all payments made or to be made pursuant to a non-compete
payment obligation, change of control payment obligation, and severance and
retention obligations, and (vi) all guarantees by such Person of
obligations of others whether or not such Person has assumed or otherwise
become directly liable for the payment thereof.
"MD&A" shall mean a management's discussion and analysis
of the Company's financial condition and results of operation comparable to
the discussion that is required to be included in periodic reports filed
under the Exchange Act.
"Notices" shall have the meaning set forth in Section
8.6.
"Permitted Transferee" shall mean with respect to any
Person, any other Person that is an Affiliate of the such Person.
"Person" shall mean an individual or a corporation,
limited liability company, partnership, trust, or any other entity or
organization, including a government or political subdivision or an agency
or instrumentality thereof.
"Preemptive Rights Offer" shall have the meaning set
forth in Section 6.1.
"Preemptive Rights Offer Notice" shall have the meaning
set forth in Section 6.1.
"Preemptive Rights Transaction" shall have the meaning
set forth in Section 6.1.
"Preferred Stock" shall have the meaning set forth in the
recitals.
"Registration Rights Agreements" shall mean the
Registration Rights Agreement, dated as of the date hereof, by and between
the Company, Xxxxxxxx and the Other Stockholders, attached hereto as
Exhibit D.
"Securities Act" shall mean the Securities Act of 1933,
as amended, and the rules and regulations thereunder.
"Series A Preferred Stock" shall have the meaning set
forth in the recitals.
"Shares" shall mean, collectively, the Common Stock and
the Preferred Stock. Whenever this Agreement refers to a number or
percentage of Shares, such number or percentage shall be calculated as if
each of the Shares had been exchanged or converted into shares of Common
Stock immediately prior to such calculation regardless of the existence of
any restrictions on or conditions to such exchange or conversion.
"Standstill Period" shall have the meaning set forth in
Section 5.1.
"Stock Purchase Agreement" shall have the meaning set
forth in the recitals.
"Subsidiary" shall mean, with respect to any Person, (a)
a corporation a majority of whose capital stock with voting power, under
ordinary circumstances, to elect directors is at the time, directly or
indirectly, owned by such Person, by a Subsidiary of such Person, or by
such Person and one or more Subsidiaries of such Person, (b) a partnership
in which such Person or a Subsidiary of such Person is, at the date of
determination, a general partner of such partnership, or (c) any other
Person in which such Person, a Subsidiary of such Person or such Person and
one or more Subsidiaries of such Person, directly or indirectly, at the
date of determination thereof, has (i) at least a majority ownership
interest or (ii) the power to elect or direct the election of the directors
or other governing body of such Person.
"Transaction Documents" shall have the meaning set forth
in the Stock Purchase Agreement.
"Transfer" shall mean (i) when used as a noun: any direct
or indirect transfer, sale, assignment, pledge, hypothecation, encumbrance
or other disposition and (ii) when used as a verb: to directly or
indirectly transfer, sell, assign, pledge, hypothecate, encumber, or
otherwise dispose of.
"Transferee" shall mean any Person to whom Shares have
been Transferred in compliance with the terms of this Agreement.
"Voting Stock" means the capital stock of any class or
kind ordinarily having the power to vote generally for the election of
directors (or other persons or bodies performing similar functions) of the
Company. With respect to the Company, as of the Effective Date, Voting
Stock includes (i) the Common Stock, and (ii) the Series A Preferred Stock.
"Xxxxxxxx Nominees" shall have the meaning set forth in
Section 4.l(a).
ARTICLE II
RESTRICTIONS ON TRANSFERS
Section 2.1 Transfers in Accordance with this Agreement.
Any attempt to Transfer, or purported Transfer of, any of the Shares held
by Xxxxxxxx, the Other Stockholders or their respective Permitted
Transferees in violation of the terms of this Agreement shall be null and
void and the Company shall not register upon its books, and shall direct
its transfer agent not to register on its books any such Transfer. A copy
of this Agreement shall be filed with the Secretary of the Company and the
Company's transfer agent and kept with the records of the Company.
Section 2.2 Restrictions on Transfer.
(a) Except as set forth below, prior to the
second anniversary of the date hereof, Xxxxxxxx and its Permitted
Transferees shall not Transfer any Shares except (i) to a Permitted
Transferee, (ii) pursuant to an effective registration statement filed with
the Commission (including a registration statement contemplated by the
Registration Rights Agreement) or (iii) to any other stockholder of the
Company who is bound by the terms of this Agreement.
(b) Following the second anniversary hereof and
subject to the other terms of this Agreement, Xxxxxxxx and its Permitted
Transferees may, subject to applicable law, Transfer any Shares to any
Person, provided that if such Transferee is not a Permitted Transferee then
such Transferee must, to the extent it becomes a party to this Agreement,
agree that it waives and otherwise has no rights under Section 4.2(b).
Subject to the other terms of this Agreement, after the date hereof, the
Other Stockholders and their respective Permitted Transferees may, subject
to applicable law, Transfer any Shares to any Person. Prior to any Transfer
of Shares by Xxxxxxxx, an Other Stockholder or their Permitted Transferees
which is not registered under the Securities Act, the proposed transferor
shall give written notice to the Company of such transferor's intention to
effect such Transfer. Each such notice shall describe the manner of the
proposed Transfer. If within three (3) Business Days after receipt by the
Company of such notice, the Company requests in writing an opinion of
counsel for such transferor that the proposed Transfer may be effected
without registration of such Shares under the Securities Act, then prior to
Transferring such Shares, such transferor shall provide the Company an
opinion of counsel (which counsel and opinion shall each be reasonably
satisfactory to the Company) that such Transfer may be effected without
registration of such Shares under the Securities Act.
(c) No Transfer provided in the foregoing
clauses (a) and (b) of this Section 2.2 (other than pursuant to an
effective registration statement filed with the Commission) shall be
permitted unless (i) the certificates representing such Shares issued to
the Transferee bear the legend provided in Section 2.3 and (ii) the
Transferee (if not already a party hereto) has executed and delivered to
each other party hereto, as a condition precedent to such Transfer, an
instrument or instruments, reasonably satisfactory to the Company,
confirming that the Transferee agrees to be bound by the terms of this
Agreement in the same manner as such Transferee's transferor, except as
otherwise provided in this Agreement.
(d) The Company agrees that it will not
unreasonably deny any request for a waiver of the restrictions set forth in
this Section 2.2 made by Xxxxxxxx, the Other Stockholders or their
respective Permitted Transferees.
Section 2.3 Legend. Xxxxxxxx and the Other Stockholders
hereby agree that each outstanding certificate representing Shares issued
to it and its Permitted Transferees, or any certificate issued in exchange
for or upon conversion of any similarly legended certificate, shall bear a
legend reading substantially as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER
ANY STATE SECURITIES LAWS, AND MAY BE OFFERED AND SOLD ONLY IF SO
REGISTERED OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE. THE
SHARES REPRESENTED BY THIS CERTIFICATE ALSO ARE SUBJECT TO
ADDITIONAL RESTRICTIONS ON TRANSFER AS SET FORTH IN THE
STOCKHOLDERS AGREEMENT, DATED AS OF JULY 10, 2001, A COPY OF WHICH
MAY BE OBTAINED FROM THE COMPANY. NO TRANSFER OF SUCH SHARES WILL
BE MADE ON THE BOOKS OF THE COMPANY UNLESS ACCOMPANIED BY EVIDENCE
OF COMPLIANCE WITH THE TERMS OF SUCH AGREEMENT AND BY AN AGREEMENT
OF THE TRANSFEREE TO BE BOUND BY THE RESTRICTIONS SET FORTH IN THE
STOCKHOLDERS AGREEMENT.
Section 2.4 Right of First Refusal.
(a) Except with respect to a Transfer of Common
Stock pursuant to an effective registration statement in an underwritten
public offering (which will be subject to Section 2.5 below), if at any
time Xxxxx & Company Incorporated, Touch America, Inc. or any their
respective Permitted Transferees (each, an "Offeror") proposes to Transfer
any Shares to any Person other than to one of its Permitted Transferees
(such Person, a "Third Party"), the Offeror shall, before such Transfer,
deliver to Xxxxxxxx an offer (the "Offer") to Transfer such Shares to
Xxxxxxxx upon the terms set forth in this Section 2.4. The Offer shall (i)
state that the Offeror proposes to Transfer the Shares, (ii) specify the
number of Shares (the "Offered Shares") proposed to be Transferred, and
(iii) state the terms (including the purchase price) of the proposed
Transfer. The Offer shall remain open and irrevocable for a period of
fifteen (15) days (the "Acceptance Period") from the date of its receipt by
Xxxxxxxx.
(b) Xxxxxxxx may accept the Offer by delivering
to the Offeror written notice within the Acceptance Period, which notice
shall state the number (the "Accepted Number") of Offered Shares Xxxxxxxx
desires to purchase. Xxxxxxxx may exercise its right to purchase any or all
of the Offered Shares pursuant to the Offer.
(c) The Transfer of Offered Shares to Xxxxxxxx,
to the extent Xxxxxxxx has exercised its rights under this Section 2.4,
shall be made on a business day, as designated by the Offeror, not less
than 10 nor more than 30 days after expiration of the Acceptance Period on
the terms and conditions specified in the Offer, which terms and conditions
shall be identical to the terms of the proposed Transfer to the Third
Party.
(d) If the number of Offered Shares exceeds the
Offered Shares with respect to which Xxxxxxxx exercised its rights under
this Section 2.4, the Offer shall be deemed to be withdrawn with respect to
such excess and the Offeror may Transfer, subject to the provisions of
Section 2 hereof, such excess Offered Shares on the terms, conditions and
purchase price specified in the Offer (which shall be the same terms,
conditions and purchase price available to Xxxxxxxx exercising rights
pursuant to this Section 2) to any Third Party within 60 days after
expiration of the Acceptance Period, so long as such Third Party agrees in
writing to become a party hereto and be bound hereby. If such Transfer is
not made within such 60-day period, the restrictions provided for in this
Section 2 shall again become effective.
(e) In the event an Offeror or such Third Party,
as the case may be, shall modify the terms of the proposed Transfer of
Offered Shares in any way, the Offeror shall send an amended Offer to
Xxxxxxxx. Xxxxxxxx shall, if it so desires to exercise its right of Offer,
as so amended, prior to the later of five (5) days after the date such
amended Offer is received by the Company or the end of the original
Acceptance Period, deliver to the Offeror an amended notice of acceptance
specifying the amended Accepted Number and/or such other amended term of
Xxxxxxxx' acceptance pursuant to this Section 2.
(f) This Section 2.4 is subject to Article V.
Accordingly, to the extent that Xxxxxxxx and its Permitted Transferees are
prohibited from acquiring Offered Shares as a result of the restrictions
imposed by Article V, Xxxxxxxx shall have the right to assign (without the
consent of the other parties hereto) its right to purchase such Offered
Shares to any Person who is not an Affiliate of Xxxxxxxx, provided that (i)
such Person agrees to be bound by the terms of this Agreement, including
Section 2.4 and Section 2.5, and (ii) such Person has the financial
capability to purchase such Offered Shares. In the event that Xxxxxxxx does
not purchase any or all of the Offered Shares and the Offeror Transfers
such Offered Shares to a Third Party (other than pursuant to an effective
registration statement) then, prior to such Transfer, such Third Party must
agree to be bound by the terms of this Agreement, including Section 2.4 and
Section 2.5.
Section 2.5 Right of First Offer in Underwritten Offering.
(a) If at any time an Offeror proposes to
Transfer any shares of Common Stock to a Third Party pursuant to an
effective registration statement in an underwritten public offering, the
Offeror shall, before such Transfer, deliver to Xxxxxxxx an offer (the
"Underwritten Offer") to Transfer to Xxxxxxxx, upon the terms set forth in
this Section 2.5, (i) such shares of Common Stock, (ii) if such Offeror
then holds shares of Series A Preferred Stock, such number of shares of
Series A Preferred Stock which, upon conversion into shares of Common
Stock, would equal the number of shares of Common Stock proposed to be
Transferred pursuant to an effective registration statement in such
underwritten public offering, and (iii) if such Offeror then holds shares
of both Common Stock and Series A Preferred Stock, a combination of shares
of Common Stock and Series A Preferred Stock which, on an as if converted
basis, is equal to the number of shares of Common Stock proposed to be
Transferred pursuant to an effective registration statement in such
underwritten public offering. The Underwritten Offer shall (i) state that
the Offeror proposes to Transfer the shares of Common Stock and Series A
Preferred Stock, as the case may be, (ii) specify the number of shares of
Common Stock and Series A Preferred Stock, as the case may be, proposed to
be Transferred (the "Underwritten Offered Shares"), and (iii) state the
terms of the proposed Transfer (including the per share purchase price as
determined in Section 2.5(c)). The Underwritten Offer shall remain open and
irrevocable for a period of fifteen (15) days (the "Underwritten Acceptance
Period") from the date of its receipt by Xxxxxxxx. At the time of delivery
of the Underwritten Offer to Xxxxxxxx, the Offeror must have a bona fide
intention to Transfer such shares of Common Stock pursuant to an effective
registration statement in an underwritten public offering within 105 days
of delivery of such Underwritten Offer.
(b) Xxxxxxxx may accept the Underwritten Offer
by delivering to the Offeror written notice (the "Underwritten Acceptance
Notice") within the Underwritten Acceptance Period, which notice shall
state the number of Underwritten Offered Shares Xxxxxxxx desires to
purchase. Xxxxxxxx may exercise its right to purchase any or all of the
Underwritten Offered Shares pursuant to the Underwritten Offer. The actual
combination of shares of Common Stock and Series A Preferred Stock referred
to in clause (iii) of the first sentence of Section 2.5(a) shall be
determined by Xxxxxxxx in its sole discretion based on the shares of Common
Stock and Series A Preferred Stock held by the Offeror at the time of the
Underwritten Offer is received by Xxxxxxxx.
(c) The per share purchase price of the
Underwritten Offered Shares shall be determined as follows: (i) for
Underwritten Offered Shares which are Common Stock, the per share purchase
price of such Underwritten Offered Shares shall be the average per share
Closing Price (as defined below) of the Common Stock during the period
beginning on the date of receipt by Xxxxxxxx of the Underwritten Offer and
ending on the date Xxxxxxxx delivers to the Offeror the Underwritten
Acceptance Notice (the "Common Stock Purchase Price"), and (ii) for
Underwritten Offered Shares which are Series A Preferred Stock, the per
share purchase price of such Underwritten Offered Shares shall be the
product of (A) the Common Stock Purchase Price, and (B) the number equal to
the number of shares of Common Stock into which each share of Series A
Preferred Stock is convertible on the Underwritten Closing Date (as defined
below). "Closing Price" means, as to any particular day, the average
closing prices on such day of the sales of Common Stock on all domestic
securities exchanges on which the Common Stock may at the time be listed,
or, if there have been no sales on any such exchanges on any day, the
average of the highest bid and lowest asked prices on all such exchanges at
the end of such day, or, if on any day the Common Stock is not so listed on
a domestic securities exchange, the average of the representative bid and
asked prices quoted on the NASDAQ Stock Market as of 4:00 P.M., New York
City time, on such day, or, if on any day the Common Stock is not listed on
a domestic securities exchange or quoted on the NASDAQ Stock Market, the
average of the highest bid and lowest asked prices on such day in the
domestic over-the-counter market as reported by the National Quotation
Bureau, Incorporated, or any similar or successor organization (and in each
such case excluding any trades that are not bona fide, arm's-length
transactions).
(d) The Transfer of Underwritten Offered Shares
to Xxxxxxxx, to the extent Xxxxxxxx has exercised its rights under this
Section 2.5, shall be made on a business day, as designated by Xxxxxxxx,
not less than 10 nor more than 30 days after expiration of the Underwritten
Acceptance Period (the "Underwritten Closing Date") on the terms and
conditions specified in the Underwritten Offer.
(e) If the number of Underwritten Offered Shares
exceeds the Underwritten Offered Shares with respect to which Xxxxxxxx
exercised its rights under this Section 2.5, the Underwritten Offer shall
be deemed to be withdrawn with respect to such excess and the Offeror may
Transfer, subject to the provisions of Section 2 hereof, such excess
Underwritten Offered Shares to any Third Party, provided that such Transfer
is made pursuant to an effective registration statement in an underwritten
public offering within 90 days after expiration of the Acceptance Period.
If such Transfer is not made pursuant to an effective registration
statement in an underwritten public offering within such 90-day period, the
restrictions provided for in this Section 2 shall again become effective.
(f) This Section 2.5 is subject to Article V.
Accordingly, to the extent that Xxxxxxxx and its Permitted Transferees are
prohibited from acquiring Underwritten Offered Shares as a result of the
restrictions imposed by Article V, Xxxxxxxx shall have the right to assign
(without the consent of the other parties hereto) its right to purchase
such Underwritten Offered Shares to any Person who is not an Affiliate of
Xxxxxxxx, provided that (i) such Person agrees to be bound by the terms of
this Agreement, including Section 2.4 and Section 2.5, and (ii) such Person
has the financial capability to purchase such Underwritten Offered Shares.
ARTICLE III
ADDITIONAL RIGHTS AND OBLIGATIONS OF
XXXXXXXX, THE OTHER STOCKHOLDERS AND THE COMPANY
Section 3.1 Access to Information; Confidentiality. Upon
the request of Xxxxxxxx, the Company shall afford Xxxxxxxx and its
accountants, counsel and other representatives reasonable access to all of
the properties, books, contracts, commitments and records (including, but
not limited to, tax returns) of the Company and its Subsidiaries that are
reasonably requested. Xxxxxxxx will, and will cause its agents and other
representatives to, conduct any such investigations on reasonable advance
notice, during normal business hours, with reasonable numbers of persons
and in such a manner as not to interfere unreasonably with the normal
operations of the Company and its Subsidiaries. Except as otherwise
required by applicable law, neither the Company nor any of its Subsidiaries
shall be required to provide access to or to disclose information where
such access or disclosure would jeopardize the attorney-client privilege of
the Person in possession or control of such information, or would violate
any applicable law. The parties hereto will make appropriate substitute
disclosure arrangements under circumstances in which the restrictions of
the preceding sentence apply. Xxxxxxxx shall, and shall use its reasonable
best efforts to cause its representatives to, keep confidential all such
information to the same extent such information is treated as confidential
by the Company. The obligation to keep such information confidential shall
not apply to (i) any information that (x) was already in Xxxxxxxx'
possession prior to the disclosure thereof by the Company, (y) was then
generally known to the public, or (z) was disclosed to Xxxxxxxx by a third
party not known by Xxxxxxxx to be bound by an obligation of confidentiality
or (ii) disclosures made as required by law, legal process or stock
exchange rule. If either Xxxxxxxx or its Affiliates is nonetheless, in the
opinion of their respective counsel, compelled to disclose information
concerning the Company to any tribunal or governmental body or agency or
else stand liable for contempt or suffer other censure or penalty, Xxxxxxxx
and such Affiliate may disclose such information to such tribunal or
governmental body or agency without liability hereunder.
Section 3.2 Furnishing of Information. (a) The Company
shall deliver to Xxxxxxxx and the Other Stockholders, as the case may be,
as long as such Person (together with its Permitted Transferees)
beneficially owns in the aggregate 10% or more of the Shares issued
pursuant to the Stock Purchase Agreement on the Effective Date:
(i) As promptly as practical, but in no event
later than 30 days after the end of each calendar month, a copy of
the monthly financial reporting package for such month customarily
prepared for the Company's Chief Executive Officer;
(ii) As promptly as practical, but in no event
later than 45 days after the close of each of its first three
quarterly accounting periods during any fiscal year of the
Company, the consolidated balance sheet of the Company as at the
end of such quarterly period, and the related consolidated
statements of operations, stockholders' equity and cash flows for
such quarterly period, and for the elapsed portion of the fiscal
year ended with the last day of such quarterly period, and in each
case setting forth comparative figures for the related periods in
the prior fiscal year all of which shall be certified by the Chief
Financial Officer of the Company, to have been prepared in
accordance with generally accepted accounting principles, subject
to year-end audit adjustments, together with an MD&A;
(iii) As promptly as practical, but in no event
later than 90 days after the close of each fiscal year of the
Company, the consolidated balance sheet of the Company as of the
end of such fiscal year and the related consolidated statements of
operations, stockholders' equity and cash flows for such fiscal
year, in each case setting forth comparative figures for the
preceding fiscal year, and certified by independent certified
public accountants of recognized national standing, together with
an MD&A; and
(iv) All reports, if any, filed by the Company
or any Subsidiary of the Company with the Commission under the
Exchange Act, as promptly as practical, but in no event later than
5 days after filing any such reports with the Commission.
ARTICLE IV
CORPORATE GOVERNANCE AND VOTING
Section 4.1 Board of Directors of the Company.
(a) The Company and its directors have taken all
appropriate and necessary action to (i) cause the Board of Directors of the
Company, as of the Effective Date, to be composed of nine (9) members and
divided into three (3) classes designated as Class I, Class II and Class
III, each class consisting of three (3) directors, and (ii) reclassify one
of the existing Class III directors as a Class II director. For so long as
Xxxxxxxx, together with any and all of its Permitted Transferees,
beneficially own in the aggregate 25% or more of the Shares beneficially
owned by Xxxxxxxx on the Effective Date, the size of the Board of Directors
shall not exceed nine (9) members. Xxxxxxxx shall be entitled to nominate
four members to the Board of Directors (collectively, the "Xxxxxxxx
Nominees"). One Xxxxxxxx Nominee shall be classified as a Class I Director
of the Company, two Xxxxxxxx Nominees shall be classified as Class II
Directors of the Company and one Xxxxxxxx Nominees shall be classified as a
Class III Director of the Company.
(b) The Company and its directors have taken all
appropriate action to cause the appointment of the Xxxxxxxx Nominees to
become effective as of the Effective Date. For so long as Xxxxxxxx,
together with any and all of its Permitted Transferees, beneficially own in
the aggregate 25% or more of the Shares beneficially owned by Xxxxxxxx on
the Effective Date, Xxxxxxxx, the Other Stockholders and each of their
Permitted Transferees shall vote all of its Voting Stock of the Company,
and shall take all other necessary or desirable actions within their
control, and the Company shall take all necessary or desirable action
within its control, to cause the Xxxxxxxx Nominees to be nominated for and
elected to the Board of Directors.
(c) The Company shall use its best efforts to
call, or cause the appropriate officers and directors of the Company, to
call, a special meeting of stockholders of the Company, as applicable, to
cause the removal (with or without cause) of any Xxxxxxxx Nominee if
Xxxxxxxx requests such director's removal in writing for any reason and the
Other Stockholders agree to vote their Voting Stock to remove such
director. Xxxxxxxx shall have the right to designate a new nominee in the
event any Xxxxxxxx Nominee shall be so removed under this Section 4.1(c) or
shall vacate his directorship for any reason.
(d) The initial Xxxxxxxx Nominees shall be
Xxxxxx Xxxxxx, Xxxx Xxxxxxxxx, Xx., Xxxxx Xxxxx and Xxxx Xxxxx. Any other
person designated by Xxxxxxxx as a Xxxxxxxx Nominee shall either be (x) an
employee or director of Xxxxxxxx or its Affiliates or (y) if not such an
employee or director of Xxxxxxxx or its Affiliates, a person who is
reasonably acceptable to the Company.
(e) At such time as Xxxxxxxx, together with any
and all of its Permitted Transferees, cease to beneficially own in the
aggregate 50% or more of the Shares beneficially owned by Xxxxxxxx on the
Effective Date but such Persons beneficially own in the aggregate 25% or
more of the Shares beneficially owned by Xxxxxxxx on the Effective Date,
Xxxxxxxx shall be entitled to nominate only three Xxxxxxxx Nominees in
accordance with this Section 4. At such time as Xxxxxxxx, together with any
and all of its Permitted Transferees, cease to beneficially own in
aggregate 25% or more of the Shares beneficially owned by Xxxxxxxx on the
Effective Date but such Persons beneficially own in the aggregate 10% or
more of the Shares beneficially owned by Xxxxxxxx on the Effective Date,
Xxxxxxxx shall be entitled to nominate only two Xxxxxxxx Nominees in
accordance with this Section 4. At such time as Xxxxxxxx, together with any
and all of its Permitted Transferees, cease to beneficially own in
aggregate 10% or more of the Shares beneficially owned by Xxxxxxxx on the
Effective Date, Xxxxxxxx shall no longer be entitled to nominate any
Xxxxxxxx Nominees in accordance with this Section 4. Xxxxxxxx shall take
all appropriate action to cause one or more of the Xxxxxxxx Nominees to
resign as a director of the Company as necessary to comply with this
Section 4.1(e).
(f) The Company, the Other Stockholders and
Xxxxxxxx shall take all such action to cause one of the Xxxxxxxx Nominees
to be Chairman of the Compensation Committee of the Board of Directors.
(g) The Company and its directors have
established, and will continue to take all such action necessary to
maintain, an Executive Committee of the Board of Directors, comprised of
three members as follows (i) the Company's Chief Executive Officer, (ii) an
executive vice president or more senior executive officer of the Company
who is also a director of the Company and (iii) a Xxxxxxxx Nominee,
provided that the right of Xxxxxxxx to have a Xxxxxxxx Nominee on the
Executive Committee of the Board of Directors shall be effective only
during such periods of time that Xxxxxxxx is entitled to have three or more
nominees on the Board of Directors. The duties of the Executive Committee
shall be established by the Board of Directors and shall include, among
other things, the development of the Company's annual business plan, which
plan shall be submitted to the Board of Directors for approval each fiscal
year. As long as Xxxxxxxx, together with any and all of its Permitted
Transferees, beneficially owns, in the aggregate, at least aggregate 25% or
more of the Shares beneficially owned by Xxxxxxxx on the Effective Date,
the annual business plan of the Company and any material adjustments to
such plan shall require the affirmative vote of a majority of the entire
Board of Directors and the affirmative vote of each Xxxxxxxx Nominee. In
the event that the Company's annual business plan and any material
adjustments thereto is not approved by the requisite vote set forth in the
previous sentence, the annual business plan of the Company shall revert
back to the Company's previous annual business plan, or in the case of any
material adjustments, shall not be so adjusted. The Executive Committee
shall have authority, subject to applicable law, to take all actions that
(A) are ancillary to or arise in the normal course of the businesses of the
Company, and (B) implement and are consistent with resolutions of the Board
of Directors, provided, however, that such Executive Committee shall not be
authorized to take any action which, if proposed to be taken by the full
Board of Directors, would require the affirmative vote of the Xxxxxxxx
Nominees in accordance with Section 4.2. Each committee of the Board of
Directors shall include a proportionate number of Xxxxxxxx nominees equal
to the percentage of Xxxxxxxx nominees on the entire Board of Directors.
(h) In the event that a director on the Board
who is an "independent director" under the rules and regulations of the
Nasdaq Stock Market (other than any Xxxxxxxx Nominee) resigns, is removed
from office or otherwise ceases to be a director, the Company shall, and
Xxxxxxxx and the Other Stockholders shall take such action within their
respective control to cause the Company to, comply with the "independent
director" requirements of The Nasdaq Stock Market, and the Company shall
have the right to approve the replacement of such "independent director."
So long as Xxxxxxxx beneficially owns less than a majority of the
outstanding Voting Stock, Xxxxxxxx agrees that (i) it shall not call a
special meeting of the Company's stockholders or take any other action for
the purpose of removing the non-Xxxxxxxx Nominees on the Board of
Directors, and (ii) in the event a non-Xxxxxxxx Nominee resigns, is removed
from office or otherwise ceases to be a director, the remaining
non-Xxxxxxxx Nominees on the Board of Directors shall have the right to
appoint a replacement director.
(i) Each committee of the Board of Directors, to
which authority has been delegated, shall keep complete and accurate
minutes and records of all actions taken by such committee, prepare such
minutes and records in a timely fashion and promptly distribute such
minutes and records to each member of the Board of Directors.
(j) The parties agree that upon the request of
Xxxxxxxx, the Company shall cause the Board of Directors of any Subsidiary
of the Company to include such number of individuals designated by Xxxxxxxx
in the same proportion of the total number of members of the Board of
Directors of such Subsidiary as the proportion of the Company's Board of
Directors to which Xxxxxxxx is entitled pursuant to Section 4.1.
Section 4.2 Action by the Board of Directors.
(a) Except as provided herein, all decisions of
the Board of Directors shall require the affirmative vote of a majority of
the directors of the Company then in office, or a majority of the members
of an Executive Committee of the Board of Directors, to the extent such
decisions may be delegated to an Executive Committee pursuant to applicable
law and Section 4.1(g).
(b) As long as Xxxxxxxx, together with any and
all of its Permitted Transferees, beneficially owns in aggregate 40% or
more of the Shares beneficially owned by Xxxxxxxx on the Effective Date,
without the affirmative vote of each of the Xxxxxxxx Nominees, the Company
shall not, and it shall cause each of its Subsidiaries not to, directly or
indirectly, (i) incur a significant amount of Indebtedness in the aggregate
(which for purposes of this clause (i), any amount in excess of $10 million
in the aggregate shall be deemed to be significant); (ii) redeem, purchase
or otherwise acquire for value, or set apart money or other property for
any mandatory purchase or other similar fund for the redemption, purchase
or acquisition of any shares of Common Stock or Junior Stock (as defined in
the Certificates of Designations), except for the repurchase by the Company
of up to 5% of the outstanding Common Stock of the Company outstanding on
the Effective Date; (iii) declare or pay any dividend or make any
distribution (whether in cash, shares of capital stock of the Company, or
other property) on shares of Common Stock or Junior Stock; (iv) sell,
lease, license or otherwise dispose of, in any single transaction or series
of related transactions, a significant amount of the property and other
assets of the Company, (v) amend, alter or repeal, in any manner
whatsoever, the designations, preferences, privileges and relative rights
and limitations and restrictions of the Series A Preferred Stock, (vi)
increase or decrease the number of authorized shares of Common Stock or
Preferred Stock, (vii) enter into any transaction which results, directly
or indirectly, in the sale, merger, consolidation or corporate
reorganization of, or other similar transaction involving, the Company,
including, without limitation, any transaction which would result in a
Change in Control (as defined in the Certificates of Designations) of the
Company, (viii) create (by reclassification or otherwise), authorize or
issue any new class or series of equity security having designations,
preferences, privileges or rights senior to, or on parity with, the Series
A Preferred Stock, (ix) create (by reclassification or otherwise),
authorize or issue any class, series or shares of capital stock or other
securities junior to the Series A Preferred Stock if such junior securities
may be redeemed in any circumstance on or prior to the Final Redemption
Date (as defined in the Certificates of Designations"), (x) amend, alter or
repeal any of the provisions of the Charter Documents or the Certificates
of Designations in a manner that would adversely affect the holders of the
Series A Preferred Stock; (xi) adopt, and if adopted, amend or waive any
provision of, a shareholder rights plan or similar plan or agreement, (xii)
effect a voluntary liquidation, dissolution or winding up of the Company;
or (xiii) voluntarily file for bankruptcy, or otherwise seek protection
under any federal or state bankruptcy or similar law.
(c) Until the 6th month anniversary of the date
hereof, any termination of Xxxxxxxx Xxxxxxx'x, Xxxxxx Xxxxx' or Xxxxx
Xxxxxxxx'x employment by the Company without Cause (as defined in the
Company's Retention Bonus Plan) shall require the affirmative vote of a
majority of the Board of Directors. Notwithstanding anything to the
contrary herein, the approval of the termination of such persons employment
may not be delegated to a committee of the Board of Directors.
Section 4.3 Certificates of Designations; Charter
Documents. (a) The Certificate of Designations, as in effect on the date
hereof, is set forth in Exhibit A hereto. The Charter Documents, as in
effect on the date hereof, are set forth in Exhibits B and C hereto.
(b) The Company covenants that it will act in
accordance with its Charter Documents and the Certificate of Designations.
The Company shall take all action necessary, to ensure that (i) the Charter
Documents and Certificate of Designations do not, at any time, conflict
with the provisions of this Agreement, and (ii) unless an amendment is
approved by the Board of Directors in accordance with Section 4.2, the
Charter Documents and the Certificate of Designations continue to be in
effect in the forms attached hereto.
Section 4.4 Meetings of Stockholders. The Other
Stockholders and Xxxxxxxx agree that their representatives shall meet,
either in person or by teleconference, at least five (5) Business Days
prior to any meeting of stockholders of the Company to discuss their
respective views and opinions with regard to the matters proposed for
consideration at such stockholders meeting.
ARTICLE V
STANDSTILL
Section 5.1 Standstill (a) Without the prior written
consent of the Company or except as provided in this Agreement, from the
date hereof until the second anniversary of the date hereof (the
"Standstill Period"), each of Xxxxxxxx and the Other Stockholders shall
not, and shall not permit any of their respective Permitted Transferees or
other Affiliates to, acquire, publicly announce an intention to acquire, or
agree to acquire beneficial ownership of any Voting Stock of the
Company resulting in an increase in their respective percentage beneficial
ownership, at such time, of the Company's Voting Stock on a fully diluted
basis.
(b) Notwithstanding anything in this Agreement (including
this Section 5.1) to the contrary, during the Standstill Period, (i) each
of Xxxxxxxx, the Other Stockholders and their respective Permitted
Transferees and other Affiliates may acquire additional Voting Stock upon
the conversion or exchange of the Series A Preferred Stock, (ii) each of
Xxxxxxxx, the Other Stockholders and their respective Permitted Transferees
and other Affiliates may, subject to compliance with applicable law,
propose, announce and otherwise make an offer to purchase all of the
outstanding capital stock of the Company and pursuant to such offer acquire
such shares of capital stock, and (iii) each of Xxxxxxxx, the Other
Stockholders and their respective Permitted Transferees and other
Affiliates may make open market purchases of the Company's Voting Stock as
may be necessary for such Persons (either directly or through its Permitted
Transferees) to maintain their respective fully-diluted ownership
percentage of the Company's Voting Stock existing on the date hereof. The
Company agrees that it will not unreasonably deny any request for a waiver
of the restrictions set forth in this Article V made by Xxxxxxxx, the Other
Stockholders or their respective Permitted Transferees.
ARTICLE VI
PREEMPTIVE RIGHTS
Section 6.1 Preemptive Rights.
(a) In case the Company proposes at any time to
issue or sell any shares of equity securities of the Company (or securities
convertible or exchangeable for equity securities of the Company) issued by
the Company after the date hereof (collectively, the "Company Offered
Securities"), the Company shall, no later than twenty (20) days prior to
the consummation of such transaction (a "Preemptive Rights Transaction"),
give notice in writing (the "Preemptive Rights Offer Notice") to Xxxxxxxx,
the Other Stockholders and their respective Permitted Transferees of such
Preemptive Rights Transaction. The Preemptive Rights Offer Notice shall
describe the proposed Preemptive Rights Transaction, identify the proposed
purchaser or purchasers, and contain an offer (the "Preemptive Rights
Offer") to sell Xxxxxxxx, the Other Stockholders and their respective
Permitted Transferees, at the same price and for the same consideration to
be paid by the proposed purchaser (provided, that, in the event any of such
consideration is non- cash consideration, at the election of Xxxxxxxx, the
Other Stockholders or their respective Permitted Transferees to whom the
Preemptive Rights Offer is made, Xxxxxxxx, the Other Stockholders and their
respective Permitted Transferees may pay cash equal to the value of such
non-cash consideration), all or any part of Xxxxxxxx', the Other
Stockholders' and their respective Permitted Transferees' pro rata portion
of the Company Offered Securities (which shall be a fraction of the Company
Offered Securities determined by dividing the number of shares of
outstanding Voting Stock owned by Xxxxxxxx, the Other Stockholders or such
of their Permitted Transferees, as the case may be, by the total number of
outstanding shares of Voting Stock). If Xxxxxxxx, the Other Stockholders or
their respective Permitted Transferees to whom a Preemptive Rights Offer is
made fail to accept (each a "Non-Responding Holder") in writing the
Preemptive Rights Offer by the fifteenth (15th) day after the Company's
delivery of the Preemptive Rights Offer Notice, such Non-Responding Holders
shall have no further rights with respect to the proposed Preemptive Rights
Transaction and the Company may proceed with the proposed Preemptive Rights
Transaction, free of any right on the part of such Non-Responding Holders,
as the case may be, under this Section 6 in respect thereof.
(b) The parties hereto agree that preemptive
rights granted pursuant to paragraph (a) of this Section 6.1 shall not be
effective for issuances of shares of Common Stock pursuant to the Company's
2000 Employee Stock Purchase Plan, in accordance with the terms of such
plan as in effect on the date hereof and without giving effect to any
amendment, alteration or repeal of any of the terms of such plan or any
increase in the number of shares of Common Stock reserved for issuance
under such plan.
ARTICLE VII
TERMINATION
Section 7.1 Termination. Except as otherwise provided
herein with respect to certain specific provisions, this Agreement shall
terminate upon the earlier to occur of:
(i) the mutual agreement of Xxxxxxxx and the
Company,
(ii) Xxxxxxxx and its Permitted Transferees
ceasing to beneficially own in the aggregate 10% or more of the
Shares beneficially owned by Xxxxxxxx on the Effective Date, and
(iii) with respect to each Other Stockholder,
such Other Stockholder and its Permitted Transferees ceasing to
beneficially own in the aggregate 10% or more of the Shares
beneficially owned by such Other Stockholder on the Effective
Date.
ARTICLE VIII
MISCELLANEOUS
Section 8.1 Consolidation. In the event that in the
reasonable judgment of Xxxxxxxx, Xxxxxxxx or its Affiliates are required to
consolidate their interest in the Company for financial accounting
purposes, then, at the request of Xxxxxxxx, the Company, the Other
Stockholders and Xxxxxxxx shall amend the terms of the Transaction
Documents such that the neither Xxxxxxxx nor its Affiliates are required to
consolidate their interest in the Company for financial accounting
purposes.
Section 8.2 No Inconsistent Agreements. The Company
represents and agrees that, as of the Effective Date, there is no (and from
and after the Effective Date they will not, and will cause its respective
Subsidiaries and Affiliates not to, enter into any) agreement with respect
to any securities of the Company or any of its Subsidiaries (and from and
after the Effective Date Company shall not take, or permit any of its
Subsidiaries or Affiliates to take, any action) that is inconsistent with
the rights granted to Xxxxxxxx and the Other Stockholders in this
Agreement. Without limiting the foregoing, the Company represents that
there are no existing agreements relating to the voting or registration of
any equity securities of the Company or any of its Subsidiaries other than
the Company's Third Amended and Restated Investors Rights Agreement dated
April 28, 2000, and there are no other existing agreements between the
Company and any other holder of Shares relating to the transfer of any
equity securities of the Company or any of its Subsidiaries.
Section 8.3 Recapitalization. Exchanges, etc. If any
capital stock or other securities are issued in respect of, in exchange
for, or in substitution of, any Shares by reason of any reorganization,
recapitalization, reclassification, merger, consolidation, spin-off,
partial or complete liquidation, stock dividend, split-up, sale of assets,
distribution to stockholders or combination of the Shares or any other
change in capital structure of the Company, appropriate adjustments shall
be made with respect to the relevant provisions of this Agreement so as to
fairly and equitably preserve, as far as practicable, the original rights
and obligations of the parties hereto under this Agreement and the terms
"Common Stock," "Preferred Stock" and "Shares," each as used herein, shall
be deemed to include shares of such capital stock or other securities, as
appropriate. Without limiting the foregoing, whenever a particular number
of Shares is specified herein, such number shall be adjusted to reflect
stock dividends, stock-splits, combinations or other reclassifications of
stock or any similar transactions.
Section 8.4 Successors and Assigns. This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto, and
their respective successors and permitted assigns; provided that (i)
neither this Agreement nor any rights or obligations hereunder may be
transferred or assigned by the Company; and (ii) neither this Agreement nor
any rights or obligations hereunder may be transferred or assigned by
Xxxxxxxx or the Other Stockholders except (A) to any Person to whom it has
Transferred Shares in compliance with this Agreement and who has become
bound by this Agreement pursuant to Section 2.2 hereof, and (B) to any
Person pursuant Section 2.4(f).
Section 8.5 No Waivers; Amendments. (a) No failure or
delay by any party in exercising any right, power or privilege hereunder
shall operate as a waiver thereof, nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the exercise of
any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
(b) This Agreement may not be amended or
modified, nor may any provision hereof be waived, other than by a written
instrument signed by the Company and Xxxxxxxx, provided that any amendment,
modification or waiver that materially and adversely affects the rights of
one of the Other Stockholders hereunder shall require the written consent
of such Other Stockholder.
Section 8.6 Notices. All notices, demands, requests,
consents or approvals (collectively, "Notices") required or permitted to be
given hereunder or which are given with respect to this Agreement shall be
in writing and shall be personally delivered or mailed, registered or
certified, return receipt requested, postage prepaid (or by a substantially
similar method), or delivered by a reputable overnight courier service with
charges prepaid, or transmitted by hand delivery or facsimile, addressed as
set forth below, or such other address (and with such other copy) as such
party shall have specified most recently by written Notice. Notice shall
be deemed given or delivered on the date of service or transmission if
personally served or transmitted by facsimile. Notice otherwise sent as
provided herein shall be deemed given or delivered on the third business
day following the date mailed or on the next business day following
delivery of such Notice to a reputable overnight courier service.
To the Company:
iBeam Broadcasting Corporation
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
To Xxxxxxxx:
Xxxxxxxx Communications, LLC
Xxx Xxxxxxxx Xxxxxx 00-0
Xxxxx, Xxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
To the Other Stockholders to the address and persons set
forth on the signature pages hereto.
Section 8.7 Inspection. So long as this Agreement shall
be in effect, this Agreement and any amendments hereto and waivers hereof
shall be distributed to all parties hereto after becoming effective and
shall be made available for inspection at the principal office of the
Company.
Section 8.8 GOVERNING LAW. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
DELAWARE. EACH PARTY HERETO CONSENTS TO THE NON-EXCLUSIVE JURISDICTION OF
THE FEDERAL AND STATE COURTS WITHIN THE STATE OF DELAWARE.
Section 8.9 Headings. The section headings contained in
this Agreement are for reference purposes only and shall not affect the
meaning or interpretation of this Agreement.
Section 8.10 Entire Agreement. This Agreement, together
with the other Transaction Documents, constitutes the entire agreement and
understanding among the parties hereto with respect to the subject matter
hereof and thereof and supersedes any and all prior agreements and
understandings, written or oral, relating to the subject matter hereof.
Section 8.11 Severability. Any term or provision of this
Agreement which is invalid or unenforceable in any jurisdiction shall, as
to such jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Agreement or affecting the validity or
enforceability of any of the terms or provisions of this Agreement in any
other jurisdictions, it being intended that all rights and obligations of
the parties hereunder shall be enforceable to the fullest extent permitted
by law.
Section 8.12 Counterparts. This Agreement may be signed
in counterparts, each of which shall constitute an original and which
together shall constitute one and the same agreement.
Section 8.13 Required Approvals. If approval of this
Agreement or any of the transactions contemplated hereby shall be required
by any governmental agency or instrumentality or is considered to be
necessary or advisable by the parties hereto, all parties hereto shall use
their reasonable best efforts to obtain such approval.
Section 8.14 Public Disclosure. The Company shall not,
and shall not permit any of its Subsidiaries to, make any public
announcements or disclosures relating or referring to Xxxxxxxx, the Other
Stockholder or any of their respective Affiliates, or any of their
respective directors, officers, employees or agents (including, without
limitation, any Person designated as a director of the Company pursuant to
the terms hereof) unless such Person has consented to the form and
substance thereof, which consent shall not be unreasonably withheld except
to the extent such disclosure is required by law or by stock exchange
regulation, provided that (i) any such required disclosure shall only be
made, to the extent consistent with the law, after consultation with such
Person and (ii) no such announcement or disclosure (except as required by
law or by stock exchange regulation) shall identify any such Person without
such Person's prior consent.
* * *
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
iBEAM BROADCASTING CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President and Chief
Executive Officer
XXXXXXXX COMMUNICATIONS, LLC
By: /s/ Xxxx X. Xxxxxxxxx, Xx.
------------------------------------
Name: Xxxx X. Xxxxxxxxx, Xx.
Title: Senior Vice President
OTHER STOCKHOLDERS SIGNATURE PAGES FOLLOW
By execution of this signature page, the undersigned
shall become an Other Stockholder under, and a party to, the Stockholders
Agreement, dated as of July 10, 2001 by and among iBeam Communications
Corporation, Xxxxxxxx Communications, LLC and the Other Stockholders.
Notice: XXXXX & COMPANY INCORPORATED
Xxxxx & Company Incorporated
000 0xx Xxxxxx - 0xx Xxxxx By: /s/ Xxxx X. Xxxxx
New York, New York ----------------------------
Fax: (000) 000-0000 Name: Xxxx X. Xxxxx
Attn: Xxxx Xxxxx Title: Managing Director
By execution of this signature page, the undersigned
shall become an Other Stockholder under, and a party to, the Stockholders
Agreement, dated as of July 10, 2001 by and among iBeam Communications
Corporation, Xxxxxxxx Communications, LLC and the Other Stockholders.
Notice: XXXX iBEAM, LLC
Xxxx iBeam, LLC
One North Franklin By: /s/ Xxxxxx X. Xxxx
Suite 750 _____________________________
Xxxxxxx, Xxxxxxxx 00000 Name: Xxxxxx X. Xxxx
Fax: (000) 000-0000 Title: Managing Director
By execution of this signature page, the undersigned
shall become an Other Stockholder under, and a party to, the Stockholders
Agreement, dated as of July 10, 2001 by and among iBeam Communications
Corporation, Xxxxxxxx Communications, LLC and the Other Stockholders.
Notice: TOUCH AMERICA, INC.
Touch America, Inc.
000 Xxxxx Xxxx Xxxxxx By: /s/ Xxxxxxx X. Xxxxxxxxx
Xxxxx, XX 00000-0000 ----------------------------
Fax: (000) 000-0000 Name: Xxxxxxx X. Xxxxxxxxx
Attn: General Counsel Title Vice President - Corporate
Development
