EXECUTION COPY
AMENDED AND RESTATED
STOCKHOLDERS' AGREEMENT
DATED AS OF MAY 4, 1999
AMONG
XXXXX.XXX INC.
AND
THE STOCKHOLDERS
NAMED ON THE SIGNATURE PAGES HERETO
AND THE SCHEDULES ATTACHED HERETO
TABLE OF CONTENTS
ARTICLE I CERTAIN DEFINITIONS 2
ARTICLE II BOARD OF DIRECTORS 5
Section 1 Number of Directors. . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2 Identity of Directors. . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.3 Board Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Section 2.4 Significant Business Decisions . . . . . . . . . . . . . . . . . . . . 6
Section 2.5 Reimbursement of Certain Expenses. . . . . . . . . . . . . . . . . . . 9
Section 2.6 Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE III CERTIFICATE OF INCORPORATION 10
ARTICLE IV TRANSFER OF SHARES 10
Section 4.1 Restriction on Transfers; Permitted Transferees. . . . . . . . . . . .10
Section 4.2 Right of First Offer . . . . . . . . . . . . . . . . . . . . . . . . .12
Section 4.3 Bring Along Rights; Tag Along Rights . . . . . . . . . . . . . . . . .14
Section 4.4 Merger Transactions. . . . . . . . . . . . . . . . . . . . . . . . . .15
Section 4.5 Legend on Certificate. . . . . . . . . . . . . . . . . . . . . . . . .15
Section 4.6 Involuntary Transfers. . . . . . . . . . . . . . . . . . . . . . . . .15
Section 4.7 Holdback Agreements. . . . . . . . . . . . . . . . . . . . . . . . . .16
ARTICLE V ADDITIONAL AGREEMENTS 16
Section 5.1 Inspection Rights. . . . . . . . . . . . . . . . . . . . . . . . . . .16
Section 5.2 Financial Reports. . . . . . . . . . . . . . . . . . . . . . . . . . .16
Section 5.3 Budget . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
Section 5.4 System of Accounting . . . . . . . . . . . . . . . . . . . . . . . . .19
Section 5.5 Prompt Payment of Taxes; Consolidated Return . . . . . . . . . . . . .19
Section 5.6 Maintenance of Corporate Existence, etc. . . . . . . . . . . . . . . .19
Section 5.7 Maintenance of Properties. . . . . . . . . . . . . . . . . . . . . . .19
Section 5.8 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
Section 5.9 Compliance with Laws; Obligations. . . . . . . . . . . . . . . . . . .20
Section 5.10 Key Person Life Insurance . . . . . . . . . . . . . . . . . . . . . .20
Section 5.11 Availability of Common Stock for Conversion . . . . . . . . . . . . .20
ARTICLE VI MISCELLANEOUS 20
Section 6.1 Survival of Agreement; Term. . . . . . . . . . . . . . . . . . . . . .20
Section 6.2 By-Laws. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
Section 6.3 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
Section 6.4 Binding Effect . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
Section 6.5 Complete Agreement . . . . . . . . . . . . . . . . . . . . . . . . . .23
Section 6.6 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
Section 6.7 Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
Section 6.8. Governing Law; Consent to Jurisdiction and Service of Process. . . . .23
Section 6.9 Injunctive Relief. . . . . . . . . . . . . . . . . . . . . . . . . . .24
Section 6.10 New Stockholders. . . . . . . . . . . . . . . . . . . . . . . . . . .24
Section 6.11 Severability. . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
Section 6.12 Recapitalization, etc . . . . . . . . . . . . . . . . . . . . . . . .24
AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
This AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT (the
"AGREEMENT"), dated as of May 4, 1999, among Xxxxx.xxx Inc., a Delaware
corporation (the "COMPANY"), and the Stockholders (as defined herein).
W I T N E S S E T H
WHEREAS, the Company and the Stockholders named on Schedule 1
hereto entered into a certain Stockholders' Agreement dated as of June 2,
1997 (as amended by that certain Amendment No. 1 thereto dated as of October
31, 1997 ("AMENDMENT NO. 1") and as otherwise heretofore amended or modified,
the "ORIGINAL STOCKHOLDERS' AGREEMENT") in connection with the execution and
delivery of the Series A Purchase Agreement;
WHEREAS, in accordance with Section 6.10 of the Original
Stockholders' Agreement and subsequent to June 2, 1997, the additional
Stockholders named on Schedule 2 hereto have become parties to the Original
Stockholders Agreement pursuant to Amendment No. 1, certain Joinders, and
certain Joinder Agreements to the Original Stockholders' Agreement;
WHEREAS, simultaneously herewith, the Company is issuing and
selling, and certain of the Stockholders are purchasing from the Company,
shares of Series E Stock and, if applicable, shares of Series A-IV
Convertible Preferred Stock, pursuant to the terms and conditions of the
Series E Purchase Agreement (defined below);
WHEREAS, it is a condition precedent to the consummation of
the transactions contemplated by the Series E Purchase Agreement that the
Company and the Stockholders that are parties to the Original Stockholders'
Agreement amend and restate the Original Stockholders' Agreement on the terms
and subject to the conditions set forth herein; and
WHEREAS, in accordance with Section 6.1 of the Original
Stockholders' Agreement, a majority of the entire Board, with the concurrence
of at least one GSCP Director, and Stockholders holding Shares representing
at least eighty percent (80%) of the Shares issued and outstanding on the
date hereof, do hereby amend and restate the Original Stockholders' Agreement
on the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements, covenants and provisions contained herein, and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
The following terms shall have the definitions set forth below:
"AFFILIATE" has the meaning given such term in Rule 12b-2 under the
Exchange Act.
"BOARD" means the Board of Directors of the Company.
"BUDGET" means the operating plan contemplated by SECTION 5.3 which
has been approved by a majority of the members of the Board and by at least
one (1) GSCP Director (so long as the GSCP Stockholders are entitled to
nominate a director under Section 2.2) and the netWorth Director (so long as
the netWorth Stockholders are entitled to nominate a director under Section
2.2).
"BUSINESS DAY" means any day (other than a day which is a Saturday,
Sunday or legal holiday in the State of New York) on which banks are open for
business in New York.
"CERTIFICATE OF INCORPORATION" means the Restated Certificate of
Incorporation of the Company, as amended or restated.
"COMMON STOCK" means the Common Stock, par value $.01 per share, of
the Company.
"CONVERTIBLE SECURITIES" means any warrants, options or other
rights to acquire Shares or securities convertible into or exercisable or
exchangeable for Shares.
"COURT ORDER" means any judgment, order, award or decree of any
foreign, federal, state, local or other court or tribunal and any award in
any arbitration proceeding.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"FAIR VALUE", with respect to any security, assets or property
means that value determined in good faith by the Board, in its reasonable
discretion, to be the fair value of such security, assets or property;
PROVIDED, HOWEVER, that, if requested by any Stockholder who, alone or
together with one or more other Stockholders, holds Shares that at the date
of this Agreement constituted at least fifteen percent (15%) of the sum of
(i) the issued and outstanding shares of Common Stock and (ii) the shares of
Common Stock issuable upon conversion of the Preferred Stock, the Fair Value
of a security, assets or property shall be determined by a
nationally-recognized investment banking or business valuation firm,
unaffiliated with the Company or any Stockholder, selected by the Board and
approved by at least one (1) GSCP Director (so long as the GSCP Stockholders
are entitled to nominate a director under Section 2.2) and the netWorth
Director (so long as the netWorth Stockholders are entitled to nominate a
director under Section 2.2).
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"GOVERNMENTAL BODY" means any foreign, federal, state, local or
other governmental authority or regulatory body.
"GSCP" means GS Capital Partners II, L.P., a Delaware limited
partnership.
"GSCP DIRECTOR" means any director of the Company nominated by the
GSCP Stockholders in accordance with SECTION 2.2.
"GSCP STOCKHOLDERS" means GSCP and such other Affiliates of GSCP
who from time to time hold Shares and their Permitted Transferees.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
business, assets, liabilities, results of operations, condition (financial or
otherwise) or prospects of the Company.
"NETWORTH" means netWorth Partners I, LLC, a Delaware limited
partnership.
"NETWORTH DIRECTOR" means the director of the Company nominated by
the netWorth Stockholders in accordance with SECTION 2.2.
"NETWORTH STOCKHOLDERS" means netWorth and such other Affiliates of
netWorth who from time to time hold Shares and their Permitted Transferees.
"ORIGINAL STOCKHOLDERS' AGREEMENT" has the meaning set forth in the
preamble.
"PERMITTED TRANSFEREES" has the meaning set forth in SECTION 4.1(d).
"PERSON" means any natural person, corporation, general
partnership, limited liability company, limited partnership, proprietorship,
other business organization, trust, union or association.
"PREFERRED STOCK" means the Company's Series A Convertible
Preferred Stock, Series B Convertible Preferred Stock, Series C Convertible
Preferred Stock, Series D Convertible Preferred Stock and Series E Stock and
any other preferred stock of the Company issued and outstanding.
"REGISTRATION RIGHTS AGREEMENT" means the Amended and Restated
Registration Rights Agreement, dated as of the date hereof, between the
Company and the persons named on the signature pages thereof, as amended from
time to time in accordance with its terms.
"REQUIREMENTS OF LAWS" means any foreign, federal, state and local
laws, statutes, regulations, rules, codes or ordinances enacted, adopted,
issued or promulgated by any Governmental Body or common law.
"RULE 144" means Rule 144 promulgated by the Securities and
Exchange Commission under the Securities Act, and any successor provision
thereto.
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"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"SERIES A PURCHASE AGREEMENT" means that certain Preferred Stock
Purchase Agreement, dated as of June 2, 1997, between the Company and the
persons named on the signature pages thereof, as amended from time to time in
accordance with its terms.
"SERIES E PURCHASE AGREEMENT" means that certain Series E
Convertible Preferred Stock Purchase Agreement, dated as of even date
herewith, between the Company and the persons named on the signature pages
thereof, as amended from time to time in accordance with its terms.
"SERIES E STOCK" means the Company's Series E Convertible Preferred
Stock.
"SHARES" means shares of Common Stock or Preferred Stock.
"STOCKHOLDERS" means the "Stockholders" under and as defined in the
Original Stockholders' Agreement, the GSCP Stockholders, the "Existing
Investors" under and as defined in the Original Stockholders' Agreement
(including, without limitation, the Persons so named in the Joinders and
Joinder Agreements to the Original Stockholders' Agreement), the other
stockholders designated on Schedule 1 and Schedule 2 hereto, the Persons so
designated on the signature pages hereto (certain of which are also set forth
on Schedule 1 and Schedule 2 hereto), the Transferees of Shares, whether from
another Stockholder or from the Company, who are required by this Agreement
to agree to be bound by the terms and conditions of this Agreement, and the
Persons who become Stockholders after the date hereof who are required by
Section 6.10 to agree to be bound by the terms and conditions of this
Agreement. The term "STOCKHOLDER" means any one of the Stockholders and, in
the case of a Stockholder who is a natural person, the term "STOCKHOLDER"
shall also include such Stockholder's legal representatives, executors or
administrators when the context so requires.
"STOCK OPTION PLAN" means, collectively, the Company's (i) 1997
Stock Option Plan providing for the issuance of options to purchase up to
1,550,000 shares of Common Stock to employees, officers, directors, and
consultants of the Company, and (ii) 1999 Stock Option Plan providing for the
issuance of options to purchase up to 500,000 shares of Common Stock to
employees, officers, directors, and consultants of the Company.
"TAX" means any federal, state, local or foreign net income,
alternative or add-on minimum, gross income, gross receipts, property, sales,
use, transfer, gains, license, excise, employment, payroll, withholding or
minimum tax, or any other tax custom, duty, governmental fee or other like
assessment or charge of any kind whatsoever, together with any interest or
any penalty, addition to tax or additional amount imposed by any Governmental
Body.
"TRANSFEREE" has the meaning set forth in SECTION 4.1(b).
"XXXXXX MEDIA" means Straight Arrow Publishers Company, L.P., a New
York limited partnership.
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"XXXXXX MEDIA AFFILIATION AGREEMENT" means that certain Affiliation
Agreement dated as of November 10, 1997 by and between the Company and Xxxxxx
Media.
ARTICLE II
BOARD OF DIRECTORS
Section 2.1 NUMBER OF DIRECTORS. The Stockholders agree that, except
as otherwise provided herein or in the governing instruments and agreements
relating to the rights of the Preferred Stock, the Board shall consist of
seven (7) directors, except for any vacancies which may arise prior to the
annual meeting of the stockholders of the Company or any special meeting held
for the election of directors.
Section 2.2 IDENTITY OF DIRECTORS. The Stockholders agree that (i) so
long as the GSCP Stockholders hold outstanding shares of Preferred Stock, the
GSCP Stockholders shall be entitled to nominate all of the directors
constituting the "Series A Directors" pursuant to the Certificate of
Incorporation, (ii) so long as the netWorth Stockholders hold the power to
vote (or cause to be voted), whether by proxy, voting trust, stockholders'
agreement or otherwise, at least Seven Hundred and Fifty Thousand (750,000)
shares of Series E Stock (subject to adjustment by way of stock split,
reverse stock split, stock dividend, stock distribution, merger, combination,
consolidation, reclassification, recapitalization, reorganization or
otherwise), the netWorth Stockholders shall be entitled to nominate the
director constituting the "Series E Director" pursuant to the Certificate of
Incorporation, (iii) during the initial term and any renewal term of the
Xxxxxx Media Affiliation Agreement, Xxxxxx Media shall be entitled to
nominate one (1) of the directors constituting the "Common Directors"
pursuant to the Certificate of Incorporation, and (iv) so long as Xxxxxx X.
Xxxxxxx is an executive officer of the Company, (a) he shall be nominated as
one (1) of the directors constituting the "Common Directors" pursuant to the
Certificate of Incorporation and (b) he shall be entitled to nominate one (1)
of the directors constituting the "Common Directors" pursuant to the
Certificate of Incorporation. Nominations for all other Common Directors
(exclusive of the Common Directors nominated in accordance with the preceding
sentence) shall be made by the Board. Each of the Stockholders agrees to
vote all Shares held by such Stockholder in favor of the directors nominated
by the GSCP Stockholders, the netWorth Stockholders, Xxxxxx Media and Xxxxxx
X. Xxxxxxx, respectively, and in favor of Xxxxxx X. Xxxxxxx, for election to
the Board, so long as each such person is required to be nominated to the
Board pursuant to the preceding sentence hereof. Should the individuals
elected as directors pursuant to this SECTION 2.2 be unwilling or unable to
serve, or otherwise cease to serve (including by means of removal in
accordance with the following sentence), vacancies on the Board shall be
filled by the Board, except that the GSCP Stockholders, the netWorth
Stockholders, Xxxxxx Media and Xxxxxx X. Xxxxxxx shall be entitled to
nominate or designate any replacement for a director originally nominated by
each of them pursuant to this SECTION 2.2. If any of the GSCP Stockholders,
the netWorth Stockholders, Xxxxxx Media or Xxxxxx X. Xxxxxxx propose to
remove any director nominated by such Stockholder(s) pursuant to this SECTION
2.2, all of the Stockholders agree to cooperate in such removal, and any
resulting vacancy shall be filled in accordance with the preceding sentence.
Any action to be taken by the GSCP Stockholders or the netWorth Stockholders
under this SECTION 2.2 shall be taken by (i) the GSCP Stockholders who own at
least seventy-five percent (75%) of all Shares owned by the
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GSCP Stockholders, and (ii) the netWorth Stockholders who own at least
two-thirds (2/3) of all Shares owned by the netWorth Stockholders.
Section 2.3 BOARD ACTION. Directors comprising at least a majority of
the Board (including at least one (1) GSCP Director (so long as the GSCP
Stockholders are entitled to nominate a director under Section 2.2) and the
netWorth Director (so long as the netWorth Stockholders are entitled to
nominate a director under Section 2.2)) must be present, in person or by
telephone, at every meeting of the Board to constitute a quorum. The Board
shall call, and use its best efforts to have, regular meetings not less often
than quarterly.
Section 2.4 SIGNIFICANT BUSINESS DECISIONS. Notwithstanding that no
vote may be required, or that a lesser percentage vote may be specified by
law, by the Certificate of Incorporation or By-Laws of the Company, or
otherwise, the Company and the Stockholders agree that the Company shall not
take, and shall not cause or permit any subsidiary of the Company to take,
any of the following actions, in a single transaction or a series of related
transactions, without the approval of at least one (1) GSCP Director (so long
as the GSCP Stockholders are entitled to nominate a director under Section
2.2) and the netWorth Director (so long as the netWorth Stockholders are
entitled to nominate a director under Section 2.2):
(a) amend the Certificate of Incorporation or Bylaws of the
Company or take any action or enter into any other agreement prohibited by or
in contravention of the Certificate of Incorporation or Bylaws of the
Company;
(b) increase or decrease the total number of its authorized shares
of capital stock or authorize shares of any class or series, or alter or
change the rights, preferences or privileges of any class or series;
(c) authorize or issue, or obligate itself to authorize or issue,
any equity security or any Convertible Security, except for (i) sales or
issuances of shares of capital stock of a wholly-owned subsidiary of the
Company to the Company or to another wholly-owned subsidiary of the Company,
(ii) issuances of shares of Common Stock upon conversion of the Preferred
Stock, and (iii) issuances of shares of Common Stock upon the exercise of any
options or similar rights granted pursuant to any employee benefit plan
adopted and approved by the Board in accordance with the terms of this
Agreement;
(d) redeem, retire, purchase or otherwise acquire, directly or
indirectly, through any of its subsidiaries or otherwise, shares of its
capital stock or warrants or options with respect to such capital stock,
except as provided in the Certificate of Incorporation of the Company;
(e) declare or pay any cash or other dividend or make any other
distribution of any kind on, or purchase or set aside any sums for the
purchase or payment of, its capital stock other than dividends and
distributions from a wholly-owned subsidiary of the Company to the Company or
to any other wholly-owned subsidiary of the Company;
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(f) enter into any agreement with respect to any merger,
reorganization or consolidation (other than a merger of a wholly-owned
subsidiary of the Company into or consolidation with the Company or any of
its wholly-owned subsidiaries);
(g) sell, lease, exchange, transfer or otherwise dispose of, any
assets (including the capital stock of subsidiaries) having an aggregate Fair
Value of greater than $2,500,000; PROVIDED, HOWEVER, that this limitation
shall not apply to transfers to the Company or any of the Company's
wholly-owned subsidiaries;
(h) enter into or permit to exist any agreement or undertaking
(other than this Agreement) which prohibits, restricts or limits the ability
of any of its subsidiaries to pay dividends or distributions to the Company
or otherwise to transfer assets or engage in transactions with the Company;
(i) recapitalize or otherwise change its capital structure in such
a manner as will result in a change in control from one person to another
person, either directly or indirectly, of the power to vote 50 percent or
more of the securities or other interests of the Company having voting power
for the election of directors of the Company or otherwise having voting power
to direct or cause the direction of management policies of the Company;
(j) voluntarily dissolve or liquidate;
(k) have a subsidiary which is not wholly-owned by the Company
either directly or indirectly through one or more other wholly-owned
subsidiaries;
(l) discontinue or withdraw from a line of business presently
engaged in, or expand into or enter a line of business not presently engaged
in, by the Company and its subsidiaries taken as a whole;
(m) subject its assets (including the capital stock of
subsidiaries) to liens or encumbrances in excess of $1,250,000 in the
aggregate;
(n) purchase, lease, exchange or otherwise acquire any securities
or assets of any other Person for an amount in excess of $2,500,000 in the
aggregate, except for acquisitions of supplies and equipment in the ordinary
course of business and acquisitions of assets pursuant to the Budget;
(o) make capital expenditures or commitments for additions to
property, plant or equipment constituting capital assets which individually
are in an amount greater than $200,000 or in the aggregate are in an amount
greater than $1,250,000 in any twelve (12) month period, other than in
accordance with the Budget;
(p) enter into any joint venture or partnership with any other
Person involving a cash investment by the Company or any of its subsidiaries
in an amount in excess of $1,000,000, or
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resulting in any sharing of revenues or profits between the Company or any of
its subsidiaries and any other Person in an amount in excess of $1,000,000 in
cash in the aggregate;
(q) enter into or engage in, or amend or modify the terms of, any
material transaction or arrangement between the Company or any of its
subsidiaries and any director or officer of the Company, any Stockholder of
the Company, or any partner or family member of any such Person, or any
Affiliate of any of the foregoing Persons;
(r) incur, create, assume, become or be liable in any manner with
respect to, or permit to exist, any indebtedness (including, without
limitation, capitalized leases) or for the deferred purchase price for the
acquisition of property, other than (i) accounts payable incurred in the
ordinary course of business or (ii) indebtedness for borrowed money not to
exceed in the aggregate at any one time $1,250,000; voluntarily purchase,
cancel, prepay or otherwise provide for a complete or partial discharge in
advance of a scheduled payment date with respect to, or waive any material
right under or modify any material term of, any such indebtedness, except in
accordance with the Budget;
(s) adopt, enter into or become bound by any employee benefit or
incentive plan, program or arrangement (including, without limitation, any
stock option plan) or any collective bargaining agreement, or amend, modify
or terminate (partially or completely) any employee benefit, incentive plan,
program or arrangement (including, without limitation, any stock option plan)
or any collective bargaining agreement, in each case other than pursuant to
the Stock Option Plan or as contemplated in the Budget;
(t) hire, appoint or enter into an employment contract with, or
increase or otherwise materially modify the salary, wages or other
compensation of, or any material terms of the employment of, any (i)
executive officer of the Company or (ii) other officer, employee or
consultant of the Company or any of its subsidiaries whose annual
compensation is $200,000 or more or is required to be more than $200,000 in
any year during the term of the contract (excluding any stock options issued
thereunder);
(u) commence any proceeding or file any petition seeking relief
under Title 11 of the United States Code, as now constituted or hereafter
amended, or any other federal or state bankruptcy, insolvency or receivership
or similar law; consent to the institution of or fail to contest in a timely
and appropriate manner any such proceeding or filing; apply for or consent to
the appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for the Company or any of its subsidiaries; file an
answer admitting the material allegations of a petition filed against it in
any such proceeding; make a general assignment for the benefit of creditors;
become unable, admit in writing its inability or fail generally to pay its
debts as they become due; or take any action for the purpose of effecting any
of the foregoing;
(v) become a party to or permit any of its subsidiaries to become
a party to any agreement which by its terms or otherwise could reasonably be
expected to materially and adversely affect the Company's performance of or
compliance with this Agreement, the Registration Rights Agreement or the
Certificate of Incorporation of the Company;
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(w) enter into or amend any contract so as to create a financial
obligation of the Company or any of its subsidiaries in excess of $1,000,000,
whether payable at one time or in a series of payments;
(x) except as required or permitted by the terms of the
Registration Rights Agreement, register any security pursuant to the
Securities Act, grant registration rights to any Person, or withdraw, reduce,
expand or otherwise modify the registration rights granted to any Person;
(y) approve or adopt, or materially modify or amend, the Budget;
(z) select the independent auditors of the Company and its
subsidiaries; or
(aa) change the number of members of the Board from seven (7)
(exclusive of any vacancies which may arise from time to time).
Section 2.5 REIMBURSEMENT OF CERTAIN EXPENSES. To the fullest extent
permitted by applicable law, the Company shall from time to time upon request
therefor, promptly reimburse the directors of the Company for the reasonable
out-of-pocket expenses incurred by them in connection with their attendance
of meetings of the Board and any other activities undertaken by them in their
capacity as directors of the Company. The foregoing shall be in addition to,
and not in lieu of, any indemnification or reimbursement obligations of the
Company under the Certificate of Incorporation or By-laws of the Company.
Section 2.6 FURTHER ASSURANCES. Each of the Stockholders agrees to
vote, in person or by proxy, all of the shares of Common Stock or Preferred
Stock owned by such Stockholder, at any annual or special meeting of
Stockholders of the Company called for the purpose of voting on the election
of directors or by consensual action of Stockholders without a meeting with
respect to the election of directors, in favor of the election of the
directors nominated in accordance with SECTION 2.2. Each Stockholder shall
vote the Shares owned by such Stockholder and shall take all other actions
necessary to ensure that the Certificate of Incorporation and By-laws of the
Company do not at any time conflict with the provisions of this Agreement.
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ARTICLE III
CERTIFICATE OF INCORPORATION
The Stockholders acknowledge and agree that the Restated Certificate of
Incorporation of the Company, as amended as of the date hereof, is set forth
as EXHIBIT A.
ARTICLE IV
TRANSFER OF SHARES
Section 4.1 RESTRICTION ON TRANSFERS; PERMITTED TRANSFEREES.
(a) Each Stockholder, severally and not jointly, agrees and
acknowledges that such Stockholder will not directly or indirectly, offer,
sell, assign, pledge, encumber or otherwise transfer any Shares or solicit
any offers to purchase or otherwise acquire or make a pledge of any Shares
unless such offer, sale, assignment, pledge, encumbrance, or other transfer
complies with the provisions of this Agreement, and either (i) such offer,
sale, assignment, pledge or other transfer is pursuant to an effective
registration statement under the Securities Act and has been registered under
all applicable state securities or "blue sky" laws or (ii) unless waived by
the Company in writing, such Stockholder shall have furnished the Company
with an opinion of counsel, which opinion of counsel shall be reasonably
satisfactory to the Company, to the effect that no such registration is
required because of the availability of an exemption from registration under
the Securities Act and all applicable state securities or "blue sky" laws.
(b) Except in the case of a sale of Shares pursuant to an
effective registration statement under the Securities Act or a sale of Shares
pursuant to a transaction complying with Rule 144, no Stockholder shall sell,
assign, pledge, encumber or otherwise transfer any Shares to any Person
(regardless of the manner in which such Stockholder initially acquired such
Shares) nor shall the Company issue, sell or otherwise transfer any Shares to
any Person (all Persons acquiring Shares from a Stockholder or from the
Company, regardless of the method of transfer, shall be referred to
collectively as "TRANSFEREES" and individually as a "TRANSFEREE") unless (i)
such Shares bear legends as provided in SECTION 4.5 and (ii) such Transferee
shall have executed and delivered to the Company, as a condition precedent to
any acquisition of Shares, an instrument in form and substance satisfactory
to the Company confirming that such Transferee takes such Shares subject to
all the terms and conditions of this Agreement, and agrees to be bound by the
terms of this Agreement. The Company shall not transfer upon its books any
Shares purporting to be transferred by a Stockholder to any Person except in
accordance with this Agreement.
(c) Except as specifically contemplated hereby, no Stockholder
shall grant any proxy or enter into or agree to be bound by any voting trust
with respect to any Shares nor shall any Stockholder enter into any
Stockholder agreements or arrangements of any kind with any Person with
respect to any Shares inconsistent with the provisions of this Agreement,
including but not limited to, agreements or arrangements with respect to the
acquisition, disposition or voting of Shares, nor shall any Stockholder act,
for any reason, as a member of a group or in concert with any
10
other Persons (other than Permitted Transferees) in connection with the
acquisition, disposition or voting of Shares in any manner which is
inconsistent with the provisions of this Agreement. Notwithstanding the
foregoing or anything in this Agreement to the contrary, the Stockholders
shall have the right to grant proxies, enter into or agree to be bound by
voting trusts, or enter into stockholder agreements or arrangements with
netWorth with respect to up to two hundred and fifty thousand (250,000)
Shares in the aggregate for all Stockholders; PROVIDED, HOWEVER, that any
such proxy, voting trust, or stockholder agreement or arrangement shall not
conflict with the terms of this Agreement.
(d) None of the restrictions contained in this Agreement with
respect to transfers of Shares (other than those set forth in SECTIONS
4.1(a), 4.1(b) and 4.5) shall apply:
(i) to any transfer or assignment for consideration or to any
gift by any Stockholder to any spouse, child, parent, sibling or
grandchild of such Stockholder, or by any of such relatives to such
Stockholder or to any one or more of such relatives, or by any
Stockholder or any such relatives to a trust of which there are no
principal beneficiaries other than such Stockholder or one or more of
such relatives;
(ii) to any gift by any Stockholder to a bona fide charity or
foundation approved by the Board (such approval not to be unreasonably
withheld);
(iii) to any transfer to a legal representative in the event
any Stockholder becomes mentally incompetent;
(iv) to any transfer by will or the laws of descent; and
(v) with respect to a Stockholder which is a corporation,
partnership or limited liability company, (a) to any transfer by such
Stockholder to any Affiliate thereof, or (b) to any transfer by such
Stockholder in connection with the consolidation, merger or sale of all
or substantially all of the assets of such Stockholder;
PROVIDED that in each of cases (i) through (vi) each Transferee, donee or
distributee (a "PERMITTED TRANSFEREE") agrees to take subject to and to
comply with the provisions of this SECTION 4.1. For purposes hereof, the
Permitted Transferees of a Stockholder shall include the Permitted
Transferees of such Stockholder's Permitted Transferees.
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Section 4.2 RIGHT OF FIRST OFFER.
(a) Except as provided in SECTIONS 4.1(d), 4.3 and 4.4, any
Stockholder who desires to sell, assign or otherwise transfer any Shares (the
"SELLING STOCKHOLDER") shall first give written notice (a "SELLER'S NOTICE")
to the Company and all other Stockholders (the "OFFEREE STOCKHOLDERS")
stating the Selling Stockholder's desire to make such transfer, the number of
Shares to be transferred (the "OFFERED SHARES") and the cash price which the
Selling Stockholder proposes to be paid for the Offered Shares by the Company
or the other Stockholders (the "FIRST OFFER PRICE").
(b) Upon receipt of the Seller's Notice (the "FIRST OFFER"), the
Company shall have the irrevocable and exclusive option to purchase up to all
of the Offered Shares at the First Offer Price; PROVIDED that the Company
shall not have the right to purchase any of the Offered Shares unless either:
(i) the Company purchases all such Offered Shares; (ii) if the Company elects
to purchase less than all the Offered Shares, the Offeree Stockholders elect
to purchase all the remaining Offered Shares pursuant to SECTION 4.2(c); or
(iii) the Selling Stockholder consents to the purchase of less than all of
the Offered Shares. The Company's option under this SECTION 4.2(b) shall be
exercisable by a written notice to the Selling Stockholder, with copies to
the Offeree Stockholders, given within 15 days from the date of the Seller's
Notice.
(c) If the Company does not exercise its option to purchase
Offered Shares or if the Company elects to purchase less than all the Offered
Shares, then each of the Offeree Stockholders shall have the irrevocable and
exclusive option to purchase up to that percentage of the Offered Shares not
purchased by the Company determined by dividing the number of Shares owned by
such Stockholder by the total number of Shares owned by all Stockholders who
elect to purchase Offered Shares hereunder, without reference to either the
Offered Shares or the number of Shares held by any Offeree Stockholder who
elects not to purchase any Offered Shares (the "PROPORTIONATE SHARE"). To
the extent that any Offeree Stockholder does not fully subscribe for its
Proportionate Share of the Offered Shares, each other fully participating
Offeree Stockholder shall have an option to purchase that percentage of the
Offered Shares not purchased by partially participating Offeree Stockholders
determined by dividing the number of Shares owned by such fully participating
Offeree Stockholder by the total number of shares owned by all fully
participating Offeree Stockholders. Unless the Selling Stockholder shall
have consented to the purchase of less than all the Offered Shares, no
Stockholder may purchase any Shares (irrespective of whether it is prepared
to subscribe fully for its Proportionate Share) unless all Shares offered are
to be purchased. The option of each of the Offeree Stockholders
participating in the purchase under this SECTION 4.2(c) shall be exercisable
by written notice to the Selling Stockholder, with copies to the Company,
given within 30 days from the date of the Seller's Notice.
(d) If the Seller's Notice shall be duly given, and if the Company
and all the Offeree Stockholders shall not exercise their options to purchase
the Offered Shares at the First Offer Price or do not purchase all Shares
offered by the Selling Stockholder, then the Selling Stockholder shall be
free, for a period of 90 days from the earlier of (i) the 30th day following
the date of the Seller's Notice or (ii) the date the Selling Stockholder
shall have received written notice from the Company and the Offeree
Stockholders stating their intention not to exercise the options granted
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under SECTIONS 4.2(b) and (c), to sell the Offered Shares to any third party
Transferee at the same price and on the same material terms as the First
Offer Price; PROVIDED that such sale complies with the provisions of SECTION
4.1.
(e) If the proposed purchase price of a Transferee for the Offered
Shares is less than the First Offer Price, the Selling Stockholder shall not
sell or otherwise transfer any of the Offered Shares unless the Selling
Stockholder shall first reoffer the Offered Shares at such lesser price to
the Company and each of the Offeree Stockholders by giving written notice
(the "REOFFER NOTICE") thereof, stating the Selling Stockholder's intention
to make such transfer at such lower price (the "REOFFER PRICE"). The Company
and each of the Offeree Stockholders shall then have the irrevocable and
exclusive option to purchase all of the Offered Shares at the Reoffer Price,
exercisable in the same order of priority, proportions and manner as provided
in SECTIONS 4.2(b) and (c). If the Company or any of the Offeree
Stockholders do not then purchase all the Offered Shares, such Offered Shares
may be sold by the Selling Stockholder within 60 days following the earlier
of (i) the 30th day from the date of the Reoffer Notice or (ii) the date on
which the Selling Stockholder shall have received written notice from the
Company and the Offeree Stockholders stating their intention not to exercise
the option granted in this SECTION 4.2(e), at a cash price equal to or
greater than the Reoffer Price; PROVIDED that such sale complies with the
provisions of SECTION 4.1.
(f) If the Company and the Offeree Stockholders do not exercise
their option to purchase the Offered Shares at the First Offer Price or at
the Reoffer Price, and the Selling Stockholder shall not have sold the
Offered Shares to any Transferee for any reason before the expiration of the
60-day period described in SECTION 4.2(e) in the event of a Reoffer or, if no
Reoffer Notice is given, the 90-day period described in SECTION 4.2(d), then
the Selling Stockholder shall not give a Seller's Notice with respect to a
transaction which would require compliance with this SECTION 4.2 for a period
of three months from the last day of such 60-day or 90-day period, as the
case may be.
(g) The closing of all purchases pursuant to the first offer
rights granted under this SECTION 4.2 shall take place at the principal
offices of the Company at 10 a.m. on the later of (x) the tenth Business Day
following the delivery to the Selling Stockholder of all notices exercising
such first offer rights with respect to all of the Offered Shares to be sold
by the Selling Stockholder or (y) the fifth Business Day following the
expiration or termination of all waiting periods under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended, applicable to such purchases,
or at such other time and/or place as the parties to such purchases may
agree. At such closing, (i) the Selling Stockholder shall assign and
transfer to the Company and each Stockholder purchasing Shares good and valid
title to the Shares being purchased by them, by delivery of the certificates
representing the Shares to be sold and transferred, duly endorsed in blank,
with the requisite stock transfer tax stamps attached, together with such
stock powers, certificates, legal opinions and other instruments of transfer
as the Company or the accepting Stockholder(s) shall reasonably request; and
(ii) the Company and each Stockholder purchasing Shares shall pay to the
Selling Stockholder the purchase price for the Shares being purchased by them
in cash, by delivery of a certified or bank check or by wire transfer of
immediately available funds to such account as the Selling Stockholder shall
direct by written notice delivered to the Company and each such Stockholder
not later than two (2) Business Days before such closing.
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(h) Notwithstanding anything in this Agreement to the contrary,
the provisions set forth in Section 4.2 shall not apply to the GSCP
Stockholders or the netWorth Stockholders after the second anniversary of the
date of this Agreement.
Section 4.3 BRING ALONG RIGHTS; TAG ALONG RIGHTS.
(a) In the event that, following compliance with the provisions of
SECTION 4.2, any Stockholder or any group of Stockholders acting together or
pursuant to a common plan or arrangement propose to sell or otherwise dispose
of to a party unaffiliated with such Stockholder(s) (a "PURCHASER") Shares
that as of the date of this Agreement constitute at least eighty percent
(80%) of the sum of (i) the issued and outstanding shares of Common Stock,
(ii) the shares of Common Stock issuable upon conversion of the Preferred
Stock and (iii) the Shares of Common Stock issuable upon conversion of any
Convertible Securities (a "DISPOSITION"), such Stockholder(s) (the "PROPOSING
STOCKHOLDERS") shall provide notice of such proposed Disposition to each of
the other Stockholders (a "PROPOSAL NOTICE") no later than twenty (20) days
prior to the proposed closing of such Disposition, and the Proposing
Stockholders shall have the right (a "BRING ALONG RIGHT") to require such
other Stockholders to sell the Shares owned by them to the Purchaser at the
same price and upon the same terms as are applicable to the sale of Shares by
the Proposing Stockholders. SECTION 4.2 shall not apply to sales of Shares
by Stockholders pursuant to the exercise of a Bring Along Right in accordance
with this SECTION 4.3.
(b) In the event that (i) the Company and the Offeree Stockholders
do not elect to exercise their right of first refusal to purchase all Shares
offered by the Selling Stockholder under SECTION 4.2, and (ii) any Selling
Stockholder proposes to sell or otherwise dispose of Shares to a Purchaser,
such Offeree Stockholders shall have the right (a "TAG ALONG RIGHT") to
participate in such sale as set forth in this paragraph (b). Within thirty
(30) days of the date of the Seller's Notice, the Offeree Stockholders may
elect (an "ELECTING STOCKHOLDER"), by providing such Selling Stockholder with
written notice, to offer for sale some or all of their Shares to the
Purchaser at the price set forth in the Seller's Notice. In the event the
Purchaser agrees to purchase less than all of the Shares that the Selling
Stockholder and the Electing Stockholders offer for sale, the Selling
Stockholder and each Electing Stockholder shall be entitled to sell to the
Purchaser its pro rata share of the Shares (in the proportion that the number
of Shares offered to be sold by the Selling Stockholder or Electing
Stockholder bears to the sum of all Shares offered to be sold by the Selling
Stockholder and the Electing Stockholders, or in such other proportion as may
be agreed to by the Selling Stockholder and the Electing Stockholders).
Section 4.2 shall not apply to sales of Shares by an Electing Stockholder
pursuant to the exercise of a Tag Along Right in accordance with this Section
4.3.
An Electing Stockholder shall effect its participation in the sale by
promptly delivering to the Selling Stockholder for transfer to the Purchaser
one or more certificates, properly endorsed for transfer, which represent at
least the number of Shares that such Electing Stockholder elects to sell.
The stock certificate(s) that the Electing Stockholder delivers to the
Selling Stockholder shall be transferred to the Purchaser in consummation of
the Tag Along Right in accordance with the Seller's Notice, and the Selling
Stockholder (or Purchaser) shall concurrently remit to such Electing
Stockholder that portion of the sales proceeds to which such Electing
Stockholder is entitled by
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reason of its participation in such sale.
Notwithstanding anything in this paragraph (b) to the contrary, each
Selling Stockholder may sell or otherwise transfer a cumulative, aggregate of
200,000 Shares (subject to adjustment) without triggering any right of
co-sale to the other Stockholders under this paragraph (b).
Section 4.4 MERGER TRANSACTIONS. Notwithstanding any other provision
of this Agreement to the contrary, the Company may enter into an agreement to
consolidate with or merge with or into any other corporation if such
agreement is approved by the Board, by at least one (1) GSCP Director (so
long as the GSCP Stockholders are entitled to nominate a director under
Section 2.2) and the netWorth Director (so long as the netWorth Stockholders
are entitled to nominate a director under Section 2.2) and by the requisite
vote of the holders of Common Stock and Preferred Stock in accordance with
the Certificate of Incorporation and the Business Corporation Act and any
other applicable laws of the State of Delaware. In such event, SECTIONS 4.2
AND 4.3 shall not be applicable and all Shares may be transferred pursuant to
such merger or consolidation for such consideration as is so approved by the
Board at least one (1) GSCP Director (so long as the GSCP Stockholders are
entitled to nominate a director under Section 2.2), the netWorth Director (so
long as the netWorth Stockholders are entitled to nominate a director under
Section 2.2), and the holders of Common Stock and Preferred Stock.
Section 4.5 LEGEND ON CERTIFICATE. Each outstanding certificate
representing Shares that are subject to this Agreement shall bear an
endorsement reading substantially as follows:
The securities represented by this certificate were
issued in a transaction exempt from registration under
the Securities Act of 1933 (as then in effect), and in
reliance upon the holder's representation that such
securities were being acquired for investment and not for
resale. No transfer of such securities may be made on
the books of the Company unless accompanied by an opinion
of counsel, satisfactory to the Company, that such
transfer may be effected without registration under the
Securities Act of 1933 (as amended) or that such
securities have been so registered under a registration
statement which is in effect at the date of such
transfer.
The sale, assignment, pledge, encumbrance or other
transfer of the securities represented by this
certificate is subject to the provisions of an Amended
and Restated Stockholders' Agreement, dated as of May 4,
1999, among the Company and the Stockholders named
therein, a copy of which is on file at the principal
executive office of the Company.
Section 4.6 INVOLUNTARY TRANSFERS. If a Stockholder involuntarily
transfers directly or indirectly any or all of its Shares for any reason and
such transfer is not to a Permitted Transferee, the Transferee of such Shares
and its Permitted Transferees shall be required to offer all of the Shares
held by such Transferee and its Permitted Transferees to the Company and the
other Stockholders in accordance with the procedures set forth in SECTION
4.2. For purposes of such offer, the First Offer Price for such Shares shall
be the Fair Value of such Shares as of the date of the
15
involuntary transfer of such Shares to such Transferee (appropriately
adjusted to reflect the Fair Value of any dividends or distributions received
or to be received by the holder of such Shares subsequent to the date of such
involuntary transfer). The Board shall make or obtain a determination of the
Fair Value of such Shares no later than ninety (90) days following the date
of any such involuntary transfer, and the Seller's Notice with respect to
such Shares shall be given by such Stockholder or by the Company on behalf of
such Stockholder as promptly as practicable following such determination.
Section 4.7 HOLDBACK AGREEMENTS. Unless the lead managing
underwriter (the "MANAGING UNDERWRITER") for an offering of Shares to the
public (a "PUBLIC OFFERING") pursuant to an effective registration statement
under the Securities Act (or, in the case of a non-underwritten Public
Offering, the Company) otherwise agrees, no Stockholder shall effect any
public sale or distribution (including a sale under Rule 144) of any Shares,
or any securities convertible into or exchangeable or exercisable for Shares,
during the fourteen (14) days prior to and (i) the one hundred eighty (180)
days after the effective date of any registration statement filed by the
Company in connection with an initial Public Offering (or for such shorter
period of time as is sufficient and appropriate, in the opinion of the
Managing Underwriter (or, in the case of a non-underwritten Public Offering,
the Company) or (ii) the ninety (90) days after the effective date of any
registration statement filed by the Company in connection with a secondary or
later Public Offering (or for such shorter period of time as is sufficient
and appropriate, in the opinion of the Managing Underwriter (or, in the case
of a non-underwritten Public Offering, the Company), in order to complete the
sale and distribution of the securities included in such registration),
except as part of such registration statement, whether or not such
Stockholder participates in such registration. The provisions set forth in
this Section 4.7 shall remain in full force and effect for a period of two
(2) years after the termination of this Agreement.
ARTICLE V
ADDITIONAL AGREEMENTS
Section 5.1 INSPECTION RIGHTS. The Company shall permit authorized
representatives of the Stockholders to visit and inspect the properties of
the Company, including its books and records (and to make extracts therefrom)
and to discuss the Company's affairs, finances and accounts with the
officers, employees and auditors of the Company, all at such reasonable times
and as often as such Stockholders may reasonably request and upon reasonable
notice to the Company.
Section 5.2 FINANCIAL REPORTS. The Company will deliver to the GSCP
Stockholders and the netWorth Stockholders, so long as each holds Shares:
(a) as soon as available after the end of each fiscal month of the
Company, and in any event within 30 days thereafter, (i) an unaudited
consolidated statement of financial position of the Company and its
subsidiaries as at the end of such month, (ii) an unaudited consolidated
statement of income of the Company and its subsidiaries for such month and
for the fiscal year of the Company to the end of such month, (iii) an
unaudited consolidated statement of stockholders' equity of the Company and
its subsidiaries for such month and for the fiscal year of the Company
16
to the end of such month, (iv) an unaudited consolidated statement of cash
flow of the Company and its subsidiaries for such month and for the fiscal
year to the end of such month, and (v) a comparison between the actual
financial figures for such month and the comparable figures included in the
Budget, with an explanation of any material differences between them, all in
reasonable detail, subject to changes resulting from normal year-end audit
adjustments, certified by the chief executive officer of the Company;
(b) as soon as available after the end of each fiscal year of the
Company, and in any event within 90 days thereafter, an audited consolidated
statement of financial position of the Company and its subsidiaries, and the
related audited consolidated statements of income, stockholders' equity and
cash flows of the Company and its subsidiaries for such fiscal year, setting
forth in each case in comparative form the figures for the previous fiscal
year, all in reasonable detail, accompanied by (i) an unqualified opinion on
such financial statements of a firm of independent public accountants of
nationally recognized standing selected by the Board and approved by at least
one (1) GSCP Director (so long as the GSCP Stockholders are entitled to
nominate a director under Section 2.2) and the netWorth Director (so long as
the netWorth Stockholders are entitled to nominate a director under Section
2.2) that such financial statements fairly present the financial position of
the companies being reported upon at the end of such fiscal year and the
results of their operations and cash flows for such fiscal year in conformity
with generally accepted accounting principles, and (ii) a comparison by the
Company between the actual financial figures for such fiscal year, the
comparable figures for the prior fiscal year and the comparable figures
included in the Budget for such fiscal year, with an explanation of any
material differences between them;
(c) as soon as available all monthly, quarterly, annual and other
statements, certificates or notices to any lenders to the Company;
(d) promptly upon receipt of a written request from a GSCP
Stockholder or a netWorth Stockholder therefor, copies of all other reports,
if any, submitted to the Company by independent public accountants in
connection with any annual or interim audit of the books of the Company and
its subsidiaries made by such accountants;
(e) promptly upon receipt of a written request from a GSCP
Stockholder or a netWorth Stockholder therefor, a copy of each financial
statement, report and return that the Company or any of its subsidiaries
shall file with the Securities and Exchange Commission or (if requested by a
GSCP Stockholder or a netWorth Stockholder) with any other Governmental Body
and each such report that the Company or any of its subsidiaries shall file
with any stock exchange;
(f) promptly upon the occurrence thereof, notice of any material
disputes with any customer or the occurrence of any other event which has
had, or could reasonably be expected to have, a Material Adverse Effect;
(g) promptly upon the Company's learning thereof, written notice
of (i) any pending litigation affecting the Company or any of its
subsidiaries, whether or not the claim is considered by the Company to be
covered by insurance, and (ii) any pending administrative or
17
arbitration proceeding or investigation, or the receipt by the Company or any
of its subsidiaries of any notice or order from any Governmental Body having
jurisdiction over the Company or any of its subsidiaries, which litigation,
proceeding, investigation, notice or order has had, or could reasonably be
expected to have, a Material Adverse Effect;
(h) promptly upon the occurrence thereof, notice of (i) any change
in the business or affairs of the Company or any of its subsidiaries which
the Company reasonably determines has had, or could reasonably be expected to
have, a Material Adverse Effect, (ii) any material breach of any of its
covenants, representations or warranties set forth in the Series A Purchase
Agreement, the Series E Purchase Agreement, the Registration Rights Agreement
or this Agreement, (iii) any material labor dispute to which the Company or
any of its subsidiaries may become a party, any strikes or walkouts relating
to any of the Company's or any such subsidiary's facilities, and the
expiration or termination of any labor contract to which the Company or any
of its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or of any negotiations with respect thereto, (iv) a
default by the Company or any of its subsidiaries under any indenture, loan
agreement or mortgage or any material note, lease, deed or other material
agreement to which the Company or such subsidiary is a party or by which the
Company or any such subsidiary is bound, (v) the Company's or any of its
subsidiaries' learning that any of its assets is (A) the subject of any
"Superfund" evaluation or investigation or (B) the subject of any federal,
state or local investigation evaluating whether any remedial action is needed
to respond to a release of any hazardous substance into the environment, (vi)
the receipt by the Company or any of its subsidiaries of a notice of
violation with respect to any of its permits (environmental or otherwise) or
a notice of an enforcement action relating to any such permits, or (vii)
receipt by the Company or any of its subsidiaries of notice of any event
described in Section 4043 of the Employee Retirement Income Security Act and
the regulations thereunder for which the reporting requirement is not thereby
waived; and
(i) with reasonable promptness, such other data, reports and
information as from time to time a GSCP Stockholder or a netWorth Stockholder
may reasonably request and such data, press releases, reports and information
as the Company or any of its subsidiaries may from time to time furnish to
holders of its securities.
Section 5.3 BUDGET. With respect to each fiscal year of the Company,
the Company shall prepare and submit to the Board a budget (the "BUDGET") for
such fiscal year, which shall set forth in reasonable detail the Company's
operating and financial plan for such fiscal year and the related capital and
headcount requirements to fulfill the plan. The Budget shall be submitted to
the Board no later than sixty (60) days before the commencement of each such
fiscal year. The Budget shall be accepted as the Budget for such fiscal year
when it has been approved by a majority of the members of the Board and by at
least one (1) GSCP Director (so long as the GSCP Stockholders are entitled to
nominate a director under Section 2.2) and the netWorth Director (so long as
the netWorth Stockholders are entitled to nominate a director under Section
2.2). The Budget shall be reviewed by the Company periodically and all
changes therein and all material deviations therefrom shall be resubmitted to
the Board in advance and shall be accepted when approved by, and the Company
shall not make any such changes or material deviations to or from the Budget
without such prior approval of, a majority of the Board and by at least one
(1) GSCP Director (so long as the GSCP Stockholders
18
are entitled to nominate a director under Section 2.2) and the netWorth
Director (so long as the netWorth Stockholders are entitled to nominate a
director under Section 2.2). With respect to the fiscal period of the
Company ending on December 31, 1999, the Company has prepared and delivered
to the Board the Budget for such fiscal period.
Section 5.4 SYSTEM OF ACCOUNTING. The Company shall maintain a system
of accounting established and administered in accordance with generally
accepted accounting principles, and will set aside on its books and cause
each of its subsidiaries, if any, to set aside on its books all such proper
reserves as shall be required by generally accepted accounting principles.
Section 5.5 PROMPT PAYMENT OF TAXES; CONSOLIDATED RETURN. The Company
will, and will cause each of its subsidiaries to, pay or cause to be paid all
Taxes levied upon any of its properties or assets or those of its
subsidiaries or in respect of its or their respective franchises, businesses,
income or profits before the same become delinquent, except that (unless and
until foreclosure, sale or other similar proceedings shall have been
commenced) no such charge need be paid if being contested in good faith and
by appropriate proceedings promptly initiated and diligently conducted if (i)
such reserve or other appropriate provision, if any, as shall be required by
sound accounting practice shall have been made therefor and (ii) no property
or assets are in imminent danger of forfeiture. The Company will withhold
all amounts for Taxes required to be withheld by it under applicable
Requirements of Laws. The Company will not consent to joining into a
consolidated return with any Person by filing Internal Revenue Service Form
1122 or by taking any action deemed to be a consent pursuant to Section 1502
of the Internal Revenue Code of 1986 or Treasury Regulations Section
1.1502-75.
Section 5.6 MAINTENANCE OF CORPORATE EXISTENCE, ETC. The Company shall
maintain in full force and effect its corporate existence, rights,
governmental approvals and franchises and all licenses and other rights to
use patents, processes, licenses, trademarks, trade names or copyrights owned
or possessed by it and deemed by the Company to be material to the conduct of
its business.
Section 5.7 MAINTENANCE OF PROPERTIES. The Company will, and will
cause each of its subsidiaries to, keep its properties in good repair,
working order and condition, reasonable wear and tear excepted, and from time
to time make all needful and proper, or legally required, repairs, renewals,
replacements, additions and improvements thereto.
Section 5.8 INSURANCE. The Company shall maintain or cause to be
maintained, and shall cause each of its subsidiaries to maintain, with
financially sound and reputable insurers, insurance with respect to its
properties and businesses and the properties and businesses of its
subsidiaries against loss or damage as may be required by law or as is
customary for companies similarly situated and which reflects the Company's
best business judgment as to the types and amounts of insurance that should
be carried in light of conditions in the insurance industry, and at the
request of a Stockholder shall furnish such Stockholder with evidence of the
same. The insurance coverage of the Company and its subsidiaries shall be
evaluated annually by the Board and by the management of the Company.
19
Section 5.9 COMPLIANCE WITH LAWS; OBLIGATIONS. The Company shall, and
shall cause each of its subsidiaries to, comply with all Requirements of Laws
and Court Orders applicable to it and its respective assets and properties,
and with all contracts and agreements to which it is a party or shall become
a party, the violation of which could reasonably be expected to have a
Material Adverse Effect, and the Company shall perform, and shall cause each
of its subsidiaries to perform, all obligations which it has or shall incur,
the violation or lack of performance of which could reasonably be expected to
have a Material Adverse Effect. Notwithstanding the foregoing, nothing in
this Section shall prohibit the Company from contesting in good faith the
validity or applicability of any law by appropriate proceedings, promptly
initiated and diligently conducted, if such reserve or other appropriate
provision, if any, as shall be required by sound accounting practices, shall
have been made therefor.
Section 5.10 KEY PERSON LIFE INSURANCE. Unless otherwise agreed to in
writing by GSCP and netWorth, the Company will use its best efforts to obtain
and maintain or cause to be maintained, with financially sound and reputable
insurers, term life insurance in a minimum aggregate amount of $1,000,000 on
the life of Xxxxxx X. Xxxxxxx. Such policy shall be owned by the Company and
all benefits thereunder shall be payable to the Company.
Section 5.11 AVAILABILITY OF COMMON STOCK FOR CONVERSION. The Company
will at all times reserve and keep available out of its authorized but
unissued shares of Common Stock, for the purpose of effecting the conversion
of the Preferred Stock, such number of its duly authorized shares of Common
Stock as shall be sufficient to effect the conversion of the Preferred Stock
from time to time outstanding. If at any time the number of authorized but
unissued shares of Common Stock shall not be sufficient to effect the
conversion of the Preferred Stock, the Company will forthwith take such
corporate action as may be necessary to increase its authorized but unissued
shares of Common Stock to such number of shares as shall be sufficient for
such purposes. The Company will obtain any authorization, consent, approval
or other action by or make any filing with any Governmental Body that may be
required under applicable state securities laws in connection with the
issuance of shares of Common Stock upon conversion of the Preferred Stock.
ARTICLE VI
MISCELLANEOUS
Section 6.1 SURVIVAL OF AGREEMENT; TERM. This Agreement shall not be
terminated, modified or amended unless a resolution approving and adopting
such termination, modification or amendment has been adopted by a majority of
the entire Board, with the concurrence of at least one (1) GSCP Director (so
long as the GSCP Stockholders are entitled to nominate a director under
Section 2.2) and the netWorth Director (so long as the netWorth Stockholders
are entitled to nominate a director under Section 2.2), and Stockholders
holding Shares representing at least sixty-six and two-thirds percent
(66-2/3%) of the Shares then issued and outstanding agree in writing to such
termination, modification or amendment. This Agreement shall terminate:
(i) on June 2, 2007 or, if sooner,
20
(ii) upon the merger of the Company with or into, or its
consolidation with, another corporation if, immediately after such
merger or consolidation, the Stockholders immediately prior thereto own,
in the aggregate, capital stock of the surviving or resulting
corporation representing less than a majority of the total voting power
of such corporation, or
(iii)immediately prior to the consummation of a primary or
secondary sale of shares of Common Stock to the public pursuant to a
registered public offering under the Securities Act where the proposed
aggregate public offering price of the shares of Common Stock so
registered is at least $30,000,000 (based on the fair value estimated by
the underwriters) and the proposed offering price reflects a preoffering
valuation of the Common Stock of at least $20.00 per share (giving
effect to the conversion into or exercise in exchange for shares of
Common Stock of any outstanding securities of the Company that are at
such time convertible into or exercisable in exchange for shares of
Common Stock);
PROVIDED, HOWEVER, that any provision of this Agreement which specifically
provides for termination of such provision on another date shall terminate on
such other date, and PROVIDED FURTHER, that the provisions of SECTIONS 4.1(a)
and (b) and SECTION 4.5 shall remain in full force and effect notwithstanding
a termination of this Agreement pursuant to the preceding clause (i) or (iii).
Section 6.2 BY-LAWS. If and to the extent that any provision of this
Agreement conflicts with or is inconsistent with any provision of the By-Laws
of the Company, such provision of this Agreement shall be controlling and, to
the extent practicable, the conflicting or inconsistent provision of the
By-Laws shall be construed in a manner consistent with such provision of this
Agreement.
Section 6.3 NOTICES. All notices to be given by any party hereunder
shall be in writing and shall be deemed to have been duly given if mailed, by
first class or registered mail, three (3) Business Days after deposit in the
United States Mail, or if telexed or telecopied, sent by telegram, or
delivered by hand or reputable overnight courier, when confirmation is
received, in each case as follows:
(i) in the case of any Stockholder (other than a GSCP
Stockholder or a netWorth Stockholder), to such Stockholder at its
address set forth in the stock ledger of the Company;
(ii) in the case of the Company, to:
Xxxxx.xxx Inc.
000 Xxxxx XxXxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
21
with a copy to:
Xxxxxxxx & Xxxxxx
000 Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
(iii) in the case of the GSCP Stockholders (or any of them), to:
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Ms. Kaca Xxxxxxx
with a copy to:
Sidley & Austin
Xxx Xxxxx Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
(iv) in the case of the netWorth Stockholders (or any of them), to:
netWorth Partners, L.P.
Xxx Xxxxxxxx Xxxxx
Xxxxx 000
0000 Xxxxxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxxx, Xx.
with a copy to:
Xxxxxx & Bird LLP
One Atlantic Center
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
Attention: B. Xxxx Xxxxx
22
The parties may change their respective addresses for purposes of notice
hereunder by giving notice of such change to all other parties in the manner
provided in this SECTION 6.3.
Section 6.4 BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the respective successors and permitted assigns of
the parties hereto. If any Transferee of any Stockholder shall acquire any
Shares in any manner, whether by operation of law or otherwise, such Shares
shall be held subject to all of the terms of this Agreement, and by taking
and holding such Shares such person shall be conclusively deemed to have
agreed to be bound by and to perform all of the terms and provisions of this
Agreement, PROVIDED, HOWEVER, that Shares which have been distributed in a
registered public offering under the Securities Act or sold in a transaction
complying with Rule 144 shall no longer be subject to this Agreement.
Section 6.5 COMPLETE AGREEMENT. This Agreement amends and restates the
Original Stockholders' Agreement in its entirety and supersedes all prior
negotiations, statements and agreements of the parties hereto with respect to
the subject matter of this Agreement and the Original Stockholders'
Agreement. This Agreement represents the entire agreement among the
Stockholders and the Company with respect to the matters set forth herein,
and the parties hereto acknowledge that there have been no representations,
warranties, covenants or agreements made by any party hereto with respect to
the subject matter hereof other than those contained in this Agreement (as
amended and restated), the consents and resolutions executed and delivered in
accordance with the Original Stockholders' Agreement, the Registration Rights
Agreement, the Series A Purchase Agreement, the agreements, documents, and
instruments executed and delivered pursuant to the Series A Purchase
Agreement, the Series E Purchase Agreement, and the agreements, documents,
and instruments executed and delivered pursuant to the Series E Purchase
Agreement.
Section 6.6 COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be signed by the Company and one or more
Stockholders, and all of which are deemed to be one and the same agreement
binding upon the Company and each of the Stockholders.
Section 6.7 HEADINGS. The headings of the various sections of this
Agreement have been inserted for convenience of reference only and shall not
be deemed to be a part of this Agreement.
Section 6.8. GOVERNING LAW; CONSENT TO JURISDICTION AND SERVICE OF
PROCESS. This Agreement shall be governed by and construed in accordance
with the laws of the State of Illinois, without regard to its conflicts of
law doctrine. By execution and delivery of this Agreement, the Original
Stockholders Agreement, or any Joinder hereto or thereto, each of the
Stockholders accepts and/or reaffirms, generally and unconditionally, the
nonexclusive jurisdiction of the state or federal courts in Illinois in any
action or proceeding concerning this Agreement. Each Stockholder (other than
the GSCP Stockholders and the netWorth Stockholders) hereby irrevocably
appoints (and/or reaffirms such Stockholder's appointment pursuant to the
Original Stockholders' Agreement or any Joinder thereto) the person under
whose name such Stockholder's name is listed on EXHIBIT B hereto at such
person's office listed on such exhibit, its lawful agent and attorney to
accept and acknowledge service of any and all process against it in any
action, suit or proceeding arising out of or relating to this Agreement or
any of the transactions contemplated hereby and upon whom such process may be
served, PROVIDED that in the case of any service upon such agent and
attorney, the party effecting
23
such service shall also deliver a copy thereof to the other party at the
address and in the manner specified in SECTION 6.3. A Stockholder who is not
listed on EXHIBIT B shall be served (i) at such Stockholder's residence or
principal place of business in the State of Illinois if such Stockholder
resides in Illinois, (ii) by service upon such Stockholder's registered agent
in the State of Illinois if such Stockholder is qualified to do business in
Illinois, or (iii) by service upon such agent for service of process as
specified in this Agreement (or in the document reflecting such Stockholder's
agreement to be bound by this Agreement) if such Stockholder does not reside
or do business in Illinois. The Stockholders (other than the GSCP
Stockholders and the netWorth Stockholders) will enter into such agreements
with such agents as may be necessary to constitute and continue the
appointment of such agents hereunder. Each party hereby irrevocably waives,
to the fullest extent permitted by law, any objection that it may now or
hereafter have to the laying of the venue of any such action, suit or
proceeding brought in such a court and any claim that any such action, suit
or proceeding brought in such a court has been brought in an inconvenient
forum. Nothing herein shall affect the right of any party to serve process
in any other manner permitted by law or to commence legal proceedings or
otherwise proceed against the other in any other jurisdiction.
Section 6.9 INJUNCTIVE RELIEF. It is hereby agreed and acknowledged
that it will be impossible to measure in money the damages that would be
suffered if the parties to this Agreement fail to comply with any of the
obligations imposed on them by this Agreement and that in the event of any
such failure, an aggrieved person will be irreparably damaged and will not
have an adequate remedy at law. Any such person shall, therefore, be
entitled to injunctive relief, including specific performance, to enforce
such obligations, and if any action should be brought in equity to enforce
any of the provisions of this Agreement, none of the parties hereto shall
raise the defense that there is an adequate remedy at law.
Section 6.10 NEW STOCKHOLDERS. As a condition to the issuance by the
Company of any authorized but unissued Shares or Shares held in treasury, or
any Convertible Securities to any person other than pursuant to a registered
public offering, the Company shall require such person to enter into this
Agreement and to agree to be bound by the terms and conditions hereof (by
executing an additional counterpart signature page to this Agreement, a
joinder, or such other document evidencing such person's agreement to be
bound hereby).
Section 6.11 SEVERABILITY. The invalidity or unenforceability of any
provisions of this Agreement in any jurisdiction shall not affect the
validity, legality or enforceability of the remainder of this Agreement in
such jurisdiction or the validity, legality or enforceability of any
provision of this Agreement in any other jurisdiction, it being intended that
all rights and obligations of the parties hereunder shall be enforceable to
the fullest extent permitted by law.
Section 6.12 RECAPITALIZATION, ETC. In the event that any capital
stock or other securities are issued in respect of, in exchange for, or in
substitution of, any shares of Common Stock 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 of Common Stock or
any other change in the Company's capital structure, appropriate adjustments
shall be made to the provisions of this Agreement so as to fairly and
24
equitably preserve, as far as practicable, the original rights and
obligations of the parties hereto under this Agreement.
[SIGNATURES ON FOLLOWING PAGES]
25
IN WITNESS WHEREOF, the parties hereto have executed this Amended and
Restated Stockholders' Agreement as of the day and year first above written.
THE COMPANY:
XXXXX.XXX INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
------------------------------------
Title: Chief Financial Officer
------------------------------------
STOCKHOLDERS:
NETWORTH PARTNERS I, LLC
By: /s/ Xxxxxx X. Xxxxxxxxx, Xx.
------------------------------------
Name: XXXXXX X. XXXXXXXXX, XX.
------------------------------------
Title: AUTHORIZED PERSON
------------------------------------
GS CAPITAL PARTNERS II, L.P. , a Delaware
limited partnership
By: GS Advisors, L.P., its general partner
By: GS Advisors, Inc., its general partner
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Its: Vice President
---------------------------------
GS CAPITAL PARTNERS II OFFSHORE, L.P., a
limited partnership organized under the laws
of the Cayman Islands
By: GS Advisors II (Cayman), L.P., its
general partner
By: GS Advisors II, Inc., its general partner
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Its: Vice President
---------------------------------
S-1
[SIGNATURE PAGE TO AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT]
XXXXXXX XXXXX & CO. VERWALTUNGS GmbH, a
company organized under the laws of Germany
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------
Its: Xxxxxx X. Xxxxxxxxx
------------------------------------
By: /s/ Xxx X. Xxxxxxxx
------------------------------------
Its: Registered Agent
------------------------------------
STONE STREET FUND 1997, L.P., a Delaware
limited partnership
By: Stone Street Asset Corp., General
Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
----------------------------------
Its: Authorized Signatory
-----------------------------------
BRIDGE STREET FUND 1997, L.P., a Delaware
limited partnership
By: Stone Street Asset Corp., Managing
General Partner
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------------
Its: Authorized Signatory
---------------------------------
S-2
Schedule 1
to
Amended and Restated Stockholders' Agreement
Dated as of May 4, 1999
STOCKHOLDERS, AS OF JUNE 2, 1997, UNDER THE ORIGINAL STOCKHOLDERS' AGREEMENT:
GS Capital Partners II, L.P.
GS Capital Partners II Offshore, X.X.
Xxxxxxx Sachs & Co., Verwaltungs GmbH
Stone Street Fund 0000, X.X.
Xxxxxx Xxxxxx Fund 1997, X.X.
Xxxxx X. Xxxxxxxx
D. Xxxxx Xxxx
Xxxx X. Xxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx-Internet, L.P.
Xxxxxxx X. Xxxx
Xxxxxxx X. Xxxx
Xxxxx X. Xxxxx XX
Xxxxx X. Xxxxxxxxx
Xxxx X. Xxxxxx
Golan Productions, Inc.
Xxxxxx X. Xxxxxx
Jam Enterprises Corp.
Xxxxxxx Xxxxxxx Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
Xxxx Xxxxx
Xxxxxx X. Xxxxxxxx
Xxxxx Xxxxxxx
Red 5 Management, Inc.
Rosy Partnership
Xxxxxxx X. Xxxxxx
Xxxx Xxxxxxxxxxxx III
Xxxxxxxx X. Xxxxxxxxxxxx
Xxxxx X. Xxxxx
Xxxxx Xxxxx Revocable Trust
Xxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
Schedule 1
(Page 1 of 1)
Schedule 2
to
Amended and Restated Stockholders' Agreement
Dated as of May 4, 1999
STOCKHOLDERS, SUBSEQUENT TO JUNE 2, 1997, UNDER THE ORIGINAL STOCKHOLDERS'
AGREEMENT:
Xxxx X. Xxxxx
Xxxxx Xxxxxxxx
Xxxxx X. Xxxxx
Xxxxxx Xxxxxx Trust dated 9/14/90
Xxxxx X. Xxxxxx
Xxxx X. Xxxxxxxx
The Xxxxxxxxx X. Xxxx Trust dated November 25, 1991
Xxxx X. Xxxx, XXX R/O
Xxxxxxx X. Xxxx
Xxx X. Xxxxxx
Xxxx X. Childs
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxx
Xxxx X. Xxxxxx
Xxxxx XxXxxxx
Enterprise Law Group, Inc.
FDP Music, L.L.C.
Xxxx Xxxxxx
Xxxxxxx X. Xxxx
Xxxxx X. Xxxxxx
The Xxxxx Family Trust dated 2/3/81
Heartland Internet Music, L.L.C.
Xxx Xxxxxx
Xxxxx X. Xxxxxx
JAMtv Venture Partners, L.L.C.
K. A. Steel Chemicals Inc.
Xxxx X. Xxxx
Xxxx Xxxx
Xxx Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxx Xxxxx
Xxxxxxxx X. Xxxxx
Xxxxx Xx Xxx
Xxxxxx Xxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxxxx
Schedule 2
(Page 1 of 2)
SCHEDULE 2 (CONT.):
Xxxx Xxxxxxx
Xxxxx Xxxxxx
Xxxxxx X. XxXxxxxx
Xxxxxx Xxxxxxxx
Xxxxxx Xxxxxxxx
Xxxx Xxxxxxxx
Music Convergence, L.L.C.
Music Funding L.L.C.
Music Infusion, L.L.C.
Xxxxx X. Xxxx
Xxxxxx X. Xxxxxx
Xxxxx Xxxxx
Renrel V Investments Limited Partnership
Resolute Partners, L.P.
Xxxxxx Xxxxxxx
Xxxxxxx Xxxxxx
Xxxxx Xxxxxxxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxx
Xxxx Xxxxxxxxxxx, XXX R/O
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxxxx Xxxxxx Xxxxxx
WNC Corporation
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
A "Stockholder" under and as defined in this Agreement shall include, without
limitation, the following Persons holding Shares and any other Person holding
Shares; provided that such Person has agreed to be bound by the terms and
conditions of this Agreement (by executing an additional counterpart
signature page to this Agreement, a joinder, or such other document
evidencing such Person's agreement to be bound hereby):
netWorth Partners I, LLC
FDP Music II, L.L.C.
Music Infusion II, L.L.C.
Xxxxx X. Xxxx
Xxxxxxxx X. Xxxxxxxxxx
Xxxx X. Bank
The Xxxxxxx Living Trust
Music Funding II, L.L.C.
Schedule 2
(Page 2 of 2)
