EXHIBIT 10.31
CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTIONS OF THIS
DOCUMENT HAVE BEEN REDACTED AND HAVE BEEN SEPARATELY FILED WITH
THE COMMISSION.
SHAREHOLDERS' AGREEMENT
SHAREHOLDERS' AGREEMENT, dated as of June 30, 2000, between iBEAM
EUROPE LIMITED, a corporation registered in England (the "Company"), SOCIETE
EUROPEENNE DES SATELLITES S.A., a corporation organised and existing under the
laws of Luxembourg ("SES"), and iBEAM BROADCASTING CORPORATION, a corporation
organised and existing under the laws of Delaware ("iBEAM," and together with
SES, the "Shareholders").
WHEREAS, SES and iBEAM have executed a Memorandum of Understanding,
dated April 10, 2000 (the "MOU") containing the general terms for their
participation in a joint venture company to operate a business for the
distribution of streaming content via the Internet;
WHEREAS, the Company was established to act as such joint venture
company, in accordance with the terms of the MOU;
WHEREAS, as of the date hereof, iBEAM owns one ordinary share of [*]
per share, of the Company ("Ordinary Shares"), and intends to acquire 999,999
additional Ordinary Shares as set forth in Schedule I hereto;
WHEREAS, SES intends to acquire 500,000 Ordinary Shares as set forth
in Schedule I hereto;
WHEREAS, the parties hereto wish to restrict the transfer of their
Ordinary Shares, to provide for non-competition obligations, pre-emptive rights
and certain other rights and obligations as set forth more fully herein.
NOW, THEREFORE, in consideration of the mutual promises and
agreements set forth herein, the parties hereto agree as follows:
1. Definitions. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Affiliate" of any Person means any other Person directly or
indirectly controlling, controlled by or under common control with such Person.
For the purposes of this definition, "control," when used with respect to any
Person, means the power to direct or cause the direction of the management or
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise.
"Articles of Association" means the Articles of Association of
the Company from time to time.
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* Confidential material redacted and filed separately with the Commission.
"Board of Directors" means the Board of Directors of the
Company.
"Commission" means the United States Securities and Exchange
Commission or any similar agency then having jurisdiction to enforce the
Securities Act.
"Company Network" means the Internet content distribution
network to be owned and operated by the Company within the Territory.
"Company NOC" means any NOC providing 24-hour per day, 7-day
per week monitoring, first-line technical support, and related services to the
Company Network.
"Content Distribution Agreement" means the Content
Distribution Agreement executed by the Company, iBEAM and iBEAM Asia, Ltd. as of
the date hereof.
"dollar" or "$" means the lawful currency of the United States
of America.
"Ex-Territory ICP" means an ICP whose billing address (for
purposes of the service being provided by the Company to the ICP) is located
outside of the Territory.
"iBEAM Technology License Agreement" means the Technology
License Agreement executed by the Company and iBEAM as of the date hereof.
"ICP" means any Person whose business includes the delivery of
visual and/or audio media content over the Internet for receipt by end users.
"In-Territory ICP" means an ICP whose billing address (for
purposes of the service being provided by the Company to the ICP) is located
inside of the Territory.
"Initial Public Offering" means the Company's initial Public
Offering or flotation.
"Internet Content" means streaming media content, whether
video and/or audio, and such other content as the Company may from time to time
designate as being compatible with the Company Network.
"Intellectual Property" has the meaning assigned to that term
in the Subscription Agreement.
"IPO Effectiveness Date" means the date upon which the
Commission declares effective the Registration Statement relating to the Initial
Public Offering or the date upon which the Ordinary Shares are admitted to a
recognised investment exchange (as defined in section 207 of the Financial
Services Act 1986).
"New Issuance" has the meaning assigned such term in Section
3.2.1.
"NOC" means a network operations centre.
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"Ordinary Shares" means the ordinary shares of [*] each, of
the Company with the rights set out in the Articles of Association of the
Company.
"Party" means SES, iBEAM or the Company.
"Parties" mean SES, iBEAM and the Company.
"Person" means any individual, firm, corporation, partnership,
limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, governmental body or other entity of any
kind.
"Proprietary Information" has the meaning assigned such term
in Section 7.1:
"Public Offering" means any offer for sale of Ordinary Shares
either pursuant to an effective Registration Statement filed under the
Securities Act or in connection with the flotation of the Company on a
recognised investment exchange.
"Registration Statement" means a registration statement filed
pursuant to the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the Commission thereunder.
"SES Services Agreement" means the Services Agreement executed
by the Company and SES as of the date hereof.
"Shareholder" means any Person that is the registered holder
of Ordinary Shares.
"Standard Rate" means the Company's then-current volume
weighted average cost charged by the Company to its in-Territory ICPs.
"Subscription Agreement" means the Subscription Agreement
executed by the Parties as of the date hereof.
"Strategic Investment Issuance" means the issue within 90 days
of the date of this Agreement to strategic investors of new Ordinary Shares or
other share capital of the Company valued act [*] (based upon a pre-money
valuation of the Company of [*].
"Territory" means the countries and regions specified in
Schedule II hereof, as such schedule may be amended by the Parties in accordance
with this Agreement.
"Transaction Agreements" means, collectively, this Agreement,
the Subscription Agreement, the Content Distribution Agreement, the iBEAM
Technology License Agreement, and the SES Services Agreement.
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* Confidential material redacted and filed separately with the Commission.
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"Transfer" has the meaning assigned to such term in Section
3.1.
"Virtual Private Network" or "VPN" means a network partially
connected to the Internet that provides an encrypted connection between a user's
distributed sites.
2. Activities of the Company.
2.1 General. It is the intention of the Shareholders that the
primary business of the Company shall include (i) selling, marketing and
providing Internet content delivery, hosting, and encoding services to
In-Territory ICPs to enable end users to receive such ICPs' streaming content,
and (ii) providing similar services to Ex-Territory ICPs with whom iBEAM or an
iBEAM Affiliate has an agreement to distribute such ICP's content within the
Territory.
2.2 Business Plan. The Company shall conduct its business in
accordance with a business plan as created in accordance with Section 6.1.1
hereto, and as amended from time to time in accordance with Section 4.5. hereof
(the "Business Plan")
2.3 Technology. The Company shall conduct its business in
accordance with the iBEAM Technology License Agreement and the SES Services
Agreement.
2.4 Network Operations. The Company will establish a Company
NOC. The Company NOC's functions shall be to ensure the continuous operation of
the Company Network in the Territory and to provide first line customer support
for the Company's clients. The Company NOC will form part of the global iBEAM
network control system and will work to share responsibilities with the other
regional NOCs.
2.5 Content Distribution. [*]
2.6 Customer Referrals. [*]
2.7 Territory. The Company shall operate only within the
Territory.
3. Restrictions on the Transfer of Ordinary Shares; Preemptive
Rights.
3.1 Limitation on Transfers. Except as permitted in Section
3.1.1 hereof, no Shareholder shall sell, give, assign, hypothecate, pledge,
encumber, grant a security interest in, or otherwise dispose of (whether by
operation of law, or otherwise) any Ordinary Shares or any right, title or
interest therein or thereto (each a "Transfer"), other than in a bona fide sale
of such Ordinary Shares in accordance with the provisions of this Agreement. Any
attempt to Transfer any Ordinary Shares in violation of the preceding sentence
shall be null and void ab initio and the Company shall not register any such
Transfer.
3.1.1 Permitted Transfers. At any time a Shareholder may
Transfer Ordinary Shares to any Affiliate of such Shareholder.
3.1.2 Permitted Transfer Procedures. If any Shareholder
desires to Transfer all or any portion of its Ordinary Shares to its Affiliate
under this Section 3.1, it shall give
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* Confidential material redacted and filed separately with the Commission.
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notice to the Company (and the Company shall give notice to the other
Shareholder) of its intention to make such Transfer not less than five (5) days
prior to effecting such Transfer, which notice shall state the name and address
of each Affiliate to whom such Transfer is proposed and the number of Ordinary
Shares proposed to be transferred to such Affiliate.
3.1.3 Compliance with Law; Substitution of Transferee.
No Transfer may be made pursuant to this Section 3.1 unless (i) the Transfer
complies in all respects with the applicable provisions of this Agreement and
applicable law, (ii) the transferee undertakes in the form set out in Schedule
III to be bound by the terms and conditions of this Agreement, and (iii) the
transferor of the Ordinary Shares agrees in writing to use its best endeavours
to maintain its Affiliate as an Affiliate. Any attempt to Transfer any Ordinary
Shares or rights hereunder in violation of this Agreement shall be null and void
ab initio and the Company shall not register any such Transfer.
3.2 Pre-emptive Rights.
3.2.1 New Issuances. In the event that the Company
determines, in accordance with the provisions contained in the Articles of
Association and this Agreement, to issue relevant securities (as defined in
section 80(2) of the Companies Act 1985) ("Relevant Securities") (other than
relevant securities to be issued, in accordance with the Articles of
Association, (i) in connection with an employee share option plan or other bona
fide employment compensation arrangement, (ii) pursuant to a consolidation or
sub-division or an issue of shares in lieu of a dividend, (iii) pursuant to the
exercise of any option, warrant or convertible security the issuance of which
was previously approved by the Board, (iv) in connection with the Strategic
Investment Issuance, (v) in connection with financing transactions with lending
institutions, or (vi) pursuant to an Initial Public Offering) (a "New
Issuance"), the Company shall notify the Shareholders of the proposed issue.
Such notice shall specify the number and class of securities to be issued, the
rights, terms and privileges thereof and the estimated price at which such
securities will be issued. By written notice to the Company given within 15 days
of receipt of such notification, each Shareholder shall be entitled to purchase
that percentage of the New Issuance determined by dividing (x) the total number
of Ordinary Shares owned by such Shareholder by (y) the total number of Ordinary
Shares then owned by all of the Shareholders.
3.2.2 Subscription for Unsubscribed Ordinary Shares. If
any of the Shareholders do not fully subscribe for the number or amount of
Relevant Securities that such Shareholder is entitled to subscribe pursuant to
Section 3.2.1 hereof, the other Shareholders shall have the right to subscribe
any portion of the relevant securities not so subscribed. To the extent the
Shareholders do not elect to subscribe all of the Relevant Securities proposed
to be offered and sold in the New Issuance, the Company may issue those
securities not so subscribed for, provided that such sales are consummated
within 120 days after the Shareholders' rights hereunder have expired or been
waived.
4. Corporate Governance.
4.1 General. Each Shareholder shall vote its Ordinary Shares
at Shareholder meetings or in any written consent executed in lieu of such a
Shareholder meeting, and shall take all other actions necessary to give effect
to all of the provisions of this Agreement, including without limitation voting
its Ordinary Shares to (i) amend the Articles of Association to
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reflect all provisions of this Agreement, and the Subscription Agreement; (ii)
ensure that the Articles of Association do not at any time conflict in any
respect with the provisions of this Agreement or the Subscription Agreement, and
(iii) elect and remove any director nominated by a Shareholder pursuant to
Section 4.2 hereof.
4.2 Nomination of Directors
4.2.1 Number and Composition of the Board of Directors.
The number of directors constituting the entire Board of Directors upon
execution of this Agreement shall be five (5). The Board of Directors shall be
comprised of (i) two individuals nominated by iBEAM, one of whom shall initially
be [*], and one of whom shall initially be [*]; (ii) two individuals nominated
by SES, one of whom shall initially be [*], and one of whom shall initially be
[*]; and (iii) one individual elected by the holders of the Ordinary Shares on
the basis of a simple majority vote of all Ordinary Shares eligible to vote in
such an election. The Company shall include in any slate of directors that the
Company may propose or support for election by the Company's Shareholders, any
director designated by a Shareholder pursuant to this Section 4.2.
4.2.2 Removal and Replacement. Each Shareholder shall
respectively be entitled at any time and for any reason to designate any or all
of its nominees on the Board of Directors for removal. If at any time a vacancy
is created on the Board of Directors by reason of such a designation, or by the
death or resignation of any director, then each Shareholder shall, as soon as
practicable after the date such vacancy first occurs, and in any event prior to
the transaction of any other business by the Shareholders or the Board of
Directors, take action, including the voting of its Ordinary Shares, to remove
such director and to elect a successor director in accordance with Section
4.2.1.
4.3 Voting. Except to the extent provided under applicable law
or in Sections 4.4 or 4.5 hereof, authority for the management of the Company
and its business shall rest exclusively with the Board of Directors, which shall
act in all such matters by simple majority vote. The Chairman of the meeting of
the Board shall not have a casting vote. The quorum for board meetings, other
than those referred to in Sections 4.4 and 4.5 shall be at least one director
nominated by iBEAM and one nominated by SES.
4.4 Transactions with Shareholders. Directors that are
nominated or elected by a Shareholder in accordance with Section 4.2.1 hereof or
employed directly or indirectly by such Shareholder ("Interested Directors"),
shall not be entitled to vote on any proposed transaction, or amendment or
modification to any existing transaction, with such Shareholder, its Affiliates,
or any officers, directors or members of management of such Shareholder (an
"Interested Party Transaction"). The Board of Directors shall not cause the
Company to enter into any Interested Party Transaction without the approval of a
majority of the Directors that are not Interested Directors.
4.5 Certain Actions - Supermajority. Notwithstanding anything
to the contrary contained in this Agreement, the Board of Directors shall not
cause any of the following actions, except with the consent of at least four (4)
of the members of the Board of Directors:
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* Confidential material redacted and filed separately with the Commission.
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4.5.1 any transactions, or the amendment or modification
of any existing transactions, with any officers, directors or members of
management of the Company;
4.5.2 any amendment, modification or restatement of the
Articles of Association;
4.5.3 any change in the Territory;
4.5.4 any change in the Company's name or the name under
which it carries on business,
4.5.5 any sale, conveyance, lease, transfer or other
disposition of all or substantially all of the assets of the Company;
4.5.6 any modification in any rights attached to any
Ordinary Shares;
4.5.7 any composition or arrangement with creditors or
any action which would result in the Company's winding up, liquidation, or being
subject to receivership;
4.5.8 any merger, acquisition, consolidation,
amalgamation, recapitalization or other form of business combination;
4.5.9 any agreement to remunerate the Directors;
4.5.10 any material agreement with a Person whom a
Shareholder reasonably considers to be a competitor of such Shareholder;
4.5.11 any material modification of the Business Plan,
any financial expenditure not contemplated by the Business Plan, the entry into
any line of business other than those which are contemplated by the Business
Plan, or the failure to implement any line of business contemplated by the
Business Plan;
4.5.12 any dividend payments or other payment or
distribution on account of the Ordinary Shares or other share capital of the
Company;
4.5.13 other than in the ordinary course of business,
any sale, transfer, lease, assignment, or any agreement to sell, transfer,
lease, assign, or otherwise dispose of any material part of the Company's
property or assets (or any interest therein);
4.5.14 other than a Strategic Investment Issuance, any
issuance, redemption, repurchase, acquisition or agreement to issue, redeem,
repurchase or acquire, any Ordinary Shares or other share capital of the Company
or rights of any kind convertible into or exchangeable for Ordinary Shares or
other share capital of the Company, or any option, warrant or other subscription
or purchase right with respect to Ordinary Shares or other share capital of the
Company;
4.5.15 any use of any Shareholder's service marks,
trademarks, or other proprietary information in conjunction with operation of
the Company's business; or
4.5.16 any change in the Company's Standard Rate.
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5. After-Acquired Securities. All of the provisions of this
Agreement shall apply to all of the Ordinary Shares now owned or that may be
issued or transferred hereafter to a Shareholder in consequence of any
additional issuance, purchase, exchange or reclassification of any of the
Ordinary Shares (including without limitation, upon the exercise of any option
or warrant), corporate reorganization, or any other form of recapitalization,
consolidation, merger, share split or share dividend, or that are acquired by a
Shareholder in any other manner.
6. Business Initiation Team.
6.1 Assignment of Employees. Within five (5) days of the date
of this Agreement, each of the Shareholders shall nominate, after consultation
with the other Shareholder, two employees of the nominating Shareholder,
reasonably acceptable to the other Shareholder (the "Start-up Team"). For a
period of sixty (60) days, the Start-up Team shall perform, inter alia, the
following tasks with respect to initiation of the Company's business:
6.1.1 create and deliver the Business Plan to the Board
of Directors within 60 days after the date of this Agreement;
6.1.2 hire the initial management team for the Company,
which team shall be given the authority to continue employing new staff to
initiate implementation of the Business Plan;
6.1.3 identify the top target customers of the Company
and initiate business contact with them; and
6.1.4 design the Company NOC, create an implementation
schedule for the Company NOC, design and create a rollout schedule for, the
Company Network, and deliver such design and schedule to the appropriate
operations managers of each of the Shareholders. The Company, upon approval of
the Board of Directors (which shall treat such matter as an Interested Party
Transaction), shall reimburse iBEAM and SES for their respective costs incurred
in connection with the establishment of the Company including the incorporation
of and initial organization thereof, up to a maximum of [*] per Shareholder.
7. Confidentiality/Non Competition.
7.1 Proprietary Information. The Shareholders acknowledge that
the Company will develop its Proprietary Information and Intellectual Property
over a substantial period of time and at a substantial expense, and its
Proprietary Information and Intellectual Property will be integral to the
goodwill of the Company. Protection of the Proprietary Information and
Intellectual Property is necessary to the conduct of the Company's business, and
the Company is and shall at all times remain the sole owner of the Company's
Proprietary Information and Intellectual Property. As used herein, the term
"Proprietary Information" includes any scientific, technical, trade or business
secrets of the Company and any scientific, technical, trade or business
materials that the Company justifiably treats as confidential or proprietary,
including, but not limited to, inventions belonging to the Company and trade
secret information obtained by or given to the Company about or belonging to its
suppliers, licensors, licensees, partners, affiliates, customers, potential
customers or others.
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* Confidential material redacted and filed separately with the Commission.
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7.2 Confidentiality Obligations. The Shareholders shall at all
times maintain in confidence and not utilize the Proprietary Information or the
Intellectual Properly of the Company, and/or technology or proprietary
information of others received in confidence by the Company, except in
performing services for the Company. Maintaining such Proprietary Information
and Intellectual Property in confidence shall include refraining from disclosing
such Proprietary Information or-Intellectual Property to any third party (except
when duly and, specifically authorized in writing to do so for purpose of
furthering the business of the Company), and refraining from using such
Proprietary Information or Intellectual Property for the benefit of any other
Person. Each Shareholder agrees not to make any copies of the Proprietary
Information or Intellectual Property of the Company (except when appropriate for
the furtherance of the business of the Company or when duly and specifically
authorized to do so) and promptly upon request to return to the Company any and
all documentary, machine-readable or other elements of evidence of such
Proprietary Information, Intellectual Property, and any copies of either that
may be in such Shareholder's possession or under such Shareholder's control.
7.3 Breach. In the event of any breach by a Shareholder of any
of the provisions of this Section 7, the Company shall be entitled, in addition
to monetary damages and to any other remedies available to the Company under
this Agreement and at law, to equitable relief, including injunctive relief, and
to payment by the breaching Shareholder of all costs incurred by the Company in
enforcement against such Shareholder of the provisions of this Section 7,
including reasonable attorneys' fees. The Shareholders agree that neither this
Section 7 nor any other provision in this Agreement shall be deemed to grant to
the Company (i) any license, right, title or interest in any intellectual
property of iBEAM beyond that provided for in the iBEAM Technology License
Agreement, or (ii) any license, right, title or interest in any intellectual
property of SES beyond that provided for in the SES Services Agreement.
7.4 Non-competition. [*]
7.5 Employee Recruitment. Throughout the term of this
Agreement, each of the Parties hereby agree not to hire any current employee of
the other Party, or any person who was employed by the other Party within the
preceding the twelve months.
7.6 Severance. If any part of this Section 7 should be
determined by a court of competent jurisdiction to be unreasonable in duration,
geographic area, or scope, then this section is intended to and shall extend
only for such period of time, in such area and with respect to such activity as
is determined to be reasonable.
8. Deed of Adherence. No Ordinary Shares shall be issued by the
Company and none of the Shareholders shall transfer any Ordinary Shares in the
Company without the allottee or transferee, as appropriate, first by deed (in
the form set out in Schedule III) or such other form as the Board may approve)
undertaking to adhere to and be bound by the provisions of this Agreement, to
the extent such allottee or transferee is not already a party hereto prior to
such allotment or transfer. On and with effect from such adherence, the adherent
shall be entitled to -enjoy the rights and benefits hereby conferred upon the
Shareholders.
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* Confidential material redacted and filed separately with the Commission.
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9. Miscellaneous.
9.1 Notices. All notices or other communications required or
permitted hereunder shall be in writing and shall be delivered personally,
teltcopied or sent by certified, registered or express mail, postage prepaid.
Any such notice shall be deemed given when so delivered personally, telecopied
or sent by certified, registered or express mail or, if mailed, five days after
the date of deposit in the United States mail, as follows:
9.1.1 if to the Company, to:
iBEAM Europe Limited
c/o Gouldens Solicitors
00 Xxx Xxxxxx
Xxxxxx XX0X 0XX
Attention: Xxxxxx Xxxxxx, Esq.
Xxxxxx Xxxxxx, Esq.
Telecopier: 00-00-0000-0000
9.1.2 if to iBEAM, to:
iBEAM Broadcasting Corporation
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Attention: General Counsel
Telecopier: (000) 000-0000
9.1.3 if to SES, to:
Societe Europeenne des Satellites
X-0000 Xxxxxxx xx Xxxxxxxx
Xxxxxxxxxx
Attention: Jacques Noppaney, Esq.
Telecopier: 352-710-725-291
with a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 X Xxxxxx, XX Xxxxx 0000
Xxxxxxxxxx, X.X. 00000
Telecopier: 000-000-0000
Any party may, by notice given in accordance with this Section
9.1, designate another address or person for receipt of notices hereunder.
9.2 Amendment and Waiver.
9.2.1 No failure or delay on the part of any party
hereto in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial
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exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The
remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to the parties hereto at law, in equity or
otherwise.
9.2.2 Any amendment, supplement or modification of or to any
provision of this Agreement, any waiver of any provision of this Agreement, and
any consent to any departure by any party from the terms of any provision of
this Agreement, shall be effective (i) only if it is made or given in writing
and signed by both Shareholders and (ii) only in the specific instance and for
the specific purpose for which made or given.
9.3 Material Events. The following shall constitute Material Events
(each, a "Material Event") by a Shareholder with respect to this Agreement:
9.3.1 if a petition is presented or a proceeding is
commenced or an order is made or an effective resolution is passed for the
winding up, insolvency, administration, reorganization, reconstruction,
dissolution or bankruptcy of the Shareholder or for the appointment of a
liquidator, receiver, administrator, trustee or similar officer of the
Shareholder or of all or any part of its business or assets; if the Shareholder
stops or suspends payments to its creditors generally or is unable or admits its
inability to pay its debts as they fall due or seeks to enter into any
composition or other arrangement with its creditors or is declared or becomes
bankrupt or insolvent; or if a creditor takes possession of all or any part of
the business or assets of the Shareholder or any execution or other legal
process is enforced against the business or any substantial asset of the
Shareholder and such legal process is not discharged within sixty (60) days;
9.3.2 if the Shareholder ceases or threatens to cease to
carry on its business or any substantial part thereof, or changes, or threatens
to change, the nature or scope of its business, or if the Shareholder disposes
of, or threatens to dispose of, or any governmental or other authority
expropriates, or threatens to expropriate, all or any substantial part of the
Shareholder's business or assets or displaces or threatens to displace the
management of the Shareholder;
9.3.3 if the Shareholder is in material breach of its
obligations hereunder or under any of the Transaction Agreements and such
breach, if capable of remedy, has not been remedied at the expiry of thirty (30)
days following written notice to that effect having been served on the
Shareholder by the other Shareholder indicating the steps required to be taken
to remedy the failure; or
9.3.4 if at any time hereafter there is a change in the
ownership or control, direct or indirect, of shares carrying more than fifty
percent (50%) of the voting rights attached to the issued share capital of the
Shareholder, provided, however, that the initial public offering of the stock of
iBEAM and the conversion of iBEAM preferred stock to iBEAM common stock shall
not be deemed a change in the ownership or control of iBEAM for purposes of this
Agreement.
9.4 Transfer of Ordinary Shares Upon Material Event.
9.4.1 Upon the occurrence of any Material Event with
respect to a Shareholder (the "Affected Shareholder"), the other Shareholder
(the "Other Shareholder") shall have the right to deliver a notice of material
event ("Material Event Notice") to the Affected
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Shareholder. If the Other Shareholder delivers such notice, the Other
Shareholder shall, without prejudice to its other rights and remedies, have the
right to purchase all, but not less than all, of the Affected Shareholder's
Ordinary Shares (the "Call Option") at any time during the period of six (6)
months from the date of the Material Event Notice (the "Option Period"). The
Call Option shall lapse if not exercised within the Option Period.
9.4.2 The Other Shareholder may exercise the call option
by serving written notice (an "Option Notice") on the Affected Shareholder of
the Other Shareholder's intent to exercise the Call Option. The Option Notice
shall be irrevocable by the Other Shareholder except with the written consent of
the Affected Shareholder. Upon service of an Option Notice, the Affected
Shareholder shall become bound to sell the Ordinary Shares specified therein at
the price and in accordance with the terms set forth in this Section 9.4.
9.4.3 The transfer price (the "Transfer Price") at which
such purchase shall take place shall be determined as follows: (i) by an
investment bank that is agreed to by each of the Shareholders, if the
Shareholders so agree within twenty (20) days of the date of the Option Notice,
or (ii) if the Shareholders are not able to so agree within such twenty (20)
days, then by taking the average of the price proposed by an
internationally-recognized investment bank selected by iBEAM and the price
proposed by an internationally-recognized investment bank selected by SES.
Completion of a transfer of Ordinary Shares pursuant to the exercise of a Call
Option shall take place no later than fourteen days after the date on which the
Transfer Price has been determined. Completion of such a transfer shall be
conditioned upon receipt of all necessary third-party and governmental consents
and approvals.
9.5 Termination.
9.5.1 This Agreement may be terminated by the mutual
written consent of the Parties.
9.5.2 Upon the occurrence of a Material Event under
Section 9.3.3, the Other Shareholder may terminate this Agreement upon written
notice to the Affected Shareholder.
9.5.3 If this Agreement is terminated (i) in accordance
with Section 9.5.1, or (ii) by SES in accordance with Section 9.5.2, the
Shareholders agree to negotiate in good faith a non-exclusive reseller agreement
which allows SES to continue reselling iBEAM's services.
9.5.4 If this Agreement is terminated (i) in accordance
with Section 9.5.1, or (ii) by iBEAM in accordance with Section 9.5.2, the
Shareholders agree to negotiate in good faith a non-exclusive reseller agreement
which allows iBEAM to continue reselling SES' services.
9.6 Specific Performance. The Parties hereto intend that each
of the Parties has the right to seek damages or specific performance in the
event that any other Party hereto fails to perform such party's obligations
hereunder. Therefore, if any party shall institute any action or proceeding to
enforce the provisions hereof, any Party against whom such action or proceeding
is brought hereby waives any claim or defense therein that the plaintiff Party
has an adequate remedy at law.
9.7 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
12
9.8 Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions hereof.
9.9 Rights of Third Parties. Nothing contained in this
Agreement, express or implied, is intended to confer on any person other than
the parties hereto or their respective successors and assigns, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
9.10 Entire Agreement. This Agreement (together with the other
Transaction Documents) is intended by the parties to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein.
This Agreement supersedes all prior agreements and understandings between the
parties with respect to the same subject matter, including, but not limited to
the MOU.
9.11 Term of Agreement. This Agreement shall become effective
upon the execution hereof and shall terminate on the IPO Effectiveness Date.
9.12 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of England.
9.13 Consent to Jurisdiction. In the event of any dispute or
controversy arising out of or relating to this Agreement, the parties shall
first attempt in good faith amicably to resolve such dispute or controversy. If
such attempt fails to resolve the dispute or controversy within thirty (30) days
of any written request from one of the parties to try in good faith to resolve
the dispute amicably, the dispute shall, be settled by arbitration in London or
any other place agreeable by the Parties involved in such dispute, in accordance
with the UNCITRAL Arbitration Rules, and shall be conducted in the English
language. The number of arbitrators shall be 3. The award rendered by the
arbitrators shall be final and binding upon the parties concerned.
9.14 Further Assurances. Each of the parties shall, and shall
cause their respective Affiliates to, execute such instruments and take such
action as may be reasonably required or desirable to carry out the provisions
hereof and the transactions contemplated hereby.
9.15 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective permitted
successors and assigns. This Agreement is not assignable except to an Affiliate
or in connection with a permitted transfer of Ordinary Shares in accordance with
this Agreement.
(Balance of this page intentionally left blank)
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9.16 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, and all of which
taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed, or have
caused to be executed, this Agreement as of the date first written above.
iBEAM EUROPE LIMITED
By:_________________________________________
Name:
Title:
iBEAM BROADCASTING CORPORATION
By:_________________________________________
Name: Xxxxx Desnoco
Title: President and CEO
SOCIETE EUROPEENNE DES SATELLITES, S.A.
By:_________________________________________
Name:
Title:
By:_________________________________________
Name:
Title:
14
SCHEDULE I
Dated as of June 30, 2000
ORDINARY SHARES
Ordinary Ordinary Ordinary
Shares owned Shares to be Shares to TOTAL
as of the acquired at be acquired ORDINARY
Subscriber date hereof First Closing at Second Closing SHARES
---------- ----------- ------------- ----------------- ------
IBEAM Broadcasting 1 100,000 899,999 1,000,000
Corporation
Societe Europeenne des 0 100,000 400,000 500,000
Satellites, S.A.
Total Ordinary Shares 1 200,000 1,299,999 1,500,000
SCHEDULE II
iBEAM Europe Territory:
Germany
France
U.K.
Italy
Austria
Belgium
Croatia
Czech Republic
Denmark
Finland
Hungary
Ireland (Rep.)
Luxembourg
Netherlands
Norway
Poland
Portugal
Slovak Rep.
Slovenia
Spain
Sweden
Switzerland
Ukraine
SCHEDULE III
THIS DEED is made on [________] BY [___________] ("the new shareholder") in
favour of iBEAM EUROPE, LIMITED, a company incorporated in England with
registered number [____] (the "Company") and THE PERSONS whose names and
addresses are set out in the Schedule hereto ("the Shareholders") and is
supplemental to an Agreement dated June 30, 2000 ("the Shareholders' Agreement")
made between the Company and the Shareholders therein mentioned.
WHEREAS the new Shareholder proposes to [purchase] [subscribe] for
[______________] shares of [______] each of the Company and it is a precondition
to such [purchase] [subscription] that he enter into this Deed.
NOW THIS DEED WITNESSETH as follows:
1. The new Shareholder hereby adheres as a Shareholder to the Shareholders'
Agreement and undertakes and covenants with the company and the Shareholders to
perform and observe all of the obligations on his part as a Shareholder under
the Shareholders' Agreement as if he had been a party to the Shareholders'
Agreement with effect on and from [-----------].
2. This Deed shall be governed by and construed in accordance with English law.
IN WITNESS WHEREOF, this Deed has been duly executed by the new Shareholder as a
Deed on the date first above mentioned.
