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EXHIBIT 10.22
SECURITIES RESTRICTION AGREEMENT
SECURITIES RESTRICTION AGREEMENT ("Agreement") dated as of November 2,
1995, by and among PARK 'N VIEW, INC., a Delaware corporation (the "Company"),
the Existing Investors as set forth on Exhibit A attached hereto and made a
part hereof and the Investors as set forth on Exhibit B attached hereto and
made a part hereof. The parties hereto other than the Company are referred to
herein collectively as the "Securityholders" and each individually as a
"Securityholder."
Definitions. Terms initially capitalized but not otherwise defined
herein shall have the meanings given such terms in the Stock Purchase
Agreements, except for the following:
"Event of Option" shall mean the occurrence of any of the
following:
(a) if any Securityholder shall: (i) apply for, consent
to, or acquiesce in, the appointment of a trustee, receiver, sequestrator or
other custodian or make a general assignment for the benefit of creditors for
itself or any of its property, (any of which shall be referred to herein as a
"Receiver"), or in the absence of such application, consent or acquiesce,
permit or suffer to exist the appointment of a Receiver and such Receiver shall
not be discharged within 60 calendar days; (ii) commit any act of bankruptcy or
permit or suffer to exist the commencement of any bankruptcy reorganization,
debt arrangement or other case or proceeding under any bankruptcy or insolvency
law, or any dissolution, winding up or liquidation proceeding in respect of
itself, and, if any such case or proceeding is not commenced by such
Securityholder, if such case or proceeding shall be consented to or acquiesced
in by such Securityholder, or shall result in the entry of an order for relief
and shall remain undismissed for 30 days; or (iii) take any corporate or other
action authorizing, or in furtherance of, any of the foregoing; or
(b) a writ of attachment, levy or other court order which
prevents a Securityholder from exercising his, her or its voting and/or other
rights in connection with all or a portion of his, her or its Stock in the
Company shall be entered and shall remain undismissed for 30 days.
"Non-Participating Investor" shall mean a Holder of Securities
that does not exercise its rights of first refusal under Section 3(a) of the
Securityholders' Agreement in connection with a transaction in which other
Holders of Securities purchase securities of the Company pursuant to such
section and any nominee for or Affiliate of such Holder unless such failure to
exercise its rights of first refusal under Section 3(a) of the Securityholders'
Agreement is due to a Regulatory Problem, as defined therein.
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"Prospective Purchaser" shall mean any person to whom a holder
shall desire to sell shares of Common Stock and who shall be identified by such
Securityholder to the Company and the Holders of Securities under the terms of
Subsection (A) of Section I hereof.
"Securities" shall mean at any time, the shares of then
outstanding Common Stock, Series A Preferred Stock and Subordinated Notes;
provided, however, that Securities shall not be deemed to include any shares of
Common Stock after such shares have been registered under the Securities Act
and sold pursuant to such registration or any shares sold without registration
under the Securities Act in compliance with Rule 144, or pursuant to any other
exemption from registration under the Securities Act to a person who is free to
resell such shares without registration under the Securities Act; and provided,
further, that at any time subsequent to the closing of the Initial Public
offering, Securities shall not include any shares which are eligible to be sold
without registration under the Securities Act in compliance with subsection (k)
of Rule 144.
"Sale" means the consolidation or merger of the Company into or
with any corporation or corporations (other than a merger with another
corporation in which the Company is the surviving corporation and which does
not result in any reclassification or change -- other than a change in par
value, or from par value to no par value, or from no par value to par value, or
as a result of a subdivision or combination -- of outstanding shares of the
Company's Stock of any class or series, whether now or hereafter authorized),
or the sale or transfer by the Company of all or substantially all of its
assets.
"Securities Purchase Agreements" shall mean those certain
Securities Purchase Agreements dated as of hereof by and between the Company
and each of the Investors, as defined therein.
"Subordinated Notes" shall mean the subordinated promissory
notes, 8% coupon, sold pursuant to the Securities Purchase Agreements.
"Series A Preferred Stock" shall mean the $.01 par value
Preferred Stock designated as Series A Preferred Stock pursuant to the
Certificate of Designation referred to in the Securities Purchase Agreement.
1. Right of First Refusal; Right of Co-Sale.
(A) Right of First Refusal. (1) Except in the event of a public offering,
merger, consolidation, exchange of securities of the Company approved by the
stockholders of the Company, in the event that a Securityholder desires to sell
any or all of the shares of Common Stock owned by such Securityholder and
receives a bona fide offer therefor (the "Selling Securityholder"), such
Selling Securityholder shall so notify the Holders of Securities in writing.
The notice to the Holders of Securities shall be delivered to them by hand, or
by first-class, certified or overnight mail, postage prepaid, or by telecopier,
to their respective addresses as shown on the books of the
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Company, which addresses shall be provided to the Selling Securityholder by the
Company. Each notice shall set forth the identity and mailing address of the
prospective purchaser ("Prospective Purchaser"), the quantity and description
of the Common Stock proposed to be sold, the price per share to be received
therefor, the number of shares purchasable by each Holder of Securities as
determined in accordance herewith and the address of the Selling Securityholder
to which the Holders of Securities and/or the Company may send notices to such
Selling Securityholder required hereunder. If the Selling Securityholder is
also selling Series A Preferred Stock and/or Subordinated Notes, then in order
to exercise its right of first refusal, Holders or the Company must purchase
all Securities being sold.
The Selling Securityholder shall advise the Holders of
Securities by providing them with written notice, whereupon each Holder of
Securities shall be entitled, for a period of 20 days from the date of such
notice, to purchase upon the terms set forth in such notice, that proportion of
the Common Stock as such Securityholder's aggregate holding of Securities then
bears to the aggregate holding of Common Stock held by all Holders of
Securities exercising their right under this Subsection l(A)(1) (excluding all
Securities held by Non-Participating Investors) by the tender of an official
bank check or certified check for the appropriate amount to the Selling
Securityholder, by first class, certified or overnight mail, postage prepaid,
addressed to the Selling Securityholder at the address specified in the notice,
within 30 days after being notified of the availability of such rights pursuant
hereto. Within five days after the receipt of such official bank or certified
check from the Company, the Selling Securityholder shall surrender to the
Company, by hand delivery or by first class, certified or overnight mail,
postage prepaid, addressed to the Company as aforesaid, the certificate or
certificates representing the Common Stock sold in accordance herewith. If the
certificate or certificates surrendered by the Selling Securityholder represent
a greater number of shares of Common Stock than have been so sold, the Company
shall promptly issue to the Selling Securityholder a new certificate
representing the shares of Common Stock not so sold. Upon receipt by the
Company of certificates representing the Common Stock sold in accordance
herewith, the Company shall issue to each purchaser (or to the nominee of such
purchaser) of such Common Stock a new certificate representing such shares.
(2) If any Holders of Securities eligible to exercise the
right granted pursuant to Section (A)(1) of this Section 1 do not exercise such
right, in whole, the Selling Securityholder shall advise the Holders of
Securities who exercised their rights under Subsection (A)(1) of this Section 1
by providing them written notice, delivered by hand or by first-class,
certified or overnight mail, postage prepaid or by telecopier, within 5 days
after the earlier of (i) the expiration of the 20 day period specified in
Subsection (A)(1) above or (ii) the date the Selling Securityholder has
determined the total number of shares of Common Stock being purchased pursuant
to Subsection (A)(1) of this Section 1. Each such Holder of Securities shall
thereupon be entitled, for a period of 7 days from the date of such notice, to
purchase some or all of the shares of Common Stock not otherwise purchased
under Subsection (A) (1) of this Section 1; provided, however, that to the
extent that more than one such Holder desires to purchase shares of Common
Stock exceeding that proportion as such purchaser's aggregate
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holding of Securities then bears to the aggregate holding of Securities then
held by all Holders of Securities which exercised their rights granted under
Subsection (A)(1) of this Section 1 ("Excess Securities"), the amount of such
Excess Securities which each such Holder shall be entitled to purchase shall be
reduced pro rata in accordance with that proportion as the number of shares of
Securities of which such Holder is then the Holder bears to the total number of
shares of Securities then held by all such Holders desiring to purchase Excess
Securities pursuant to this Subsection (A)(2). The rights granted by this
Subsection (A)(2) shall be exercisable, in whole or in part, in the manner
described in Subsection (A)(1) of this Section 1.
(B) Right of Co-Sale. In the event that there are any
shares of Common Stock not purchased by one or more of the Holders of
Securities through the exercise of the rights granted in Subsection (A) of this
Section 1, no transfer of any of such shares shall be made other than in
compliance with this Subsection (B). The Selling Securityholder shall notify
the Holders of Securities, in the manner described in Subsection (A) of this
Section 1, of the number of shares of Common Stock remaining to be sold to the
Prospective Purchaser, restating the price to be paid in exchange therefor and
the terms of the proposed transaction. Such notice shall state the maximum
number of shares of Common Stock which may be sold to the Prospective Purchaser
by each Holder of Securities as determined in accordance herewith. With respect
to any shares of Common Stock which were unsold, each Holder of Securities
shall thereupon be entitled for a period of 20 days after the date of such
notice to offer to sell to the Prospective Purchaser, for such price and upon
such terms, that proportion (rounded to the nearest whole share) of the number
of shares of Common Stock proposed to be sold as such Holder's aggregate
holding of Securities then bears to the aggregate amount of Securities then
held by all Holders of Securities exercising their rights of co-sale under this
Subsection (B). The rights granted to the Holders of Securities in this
Subsection (B) may be exercised in whole or in part and shall be exercised by
the tender, conditioned upon receipt of the consideration for the Common Stock
sold hereunder, of the maximum number of shares of Common Stock the Holder
thereof desires to sell, endorsed and in transferable form, free and clear of
liens, claims, security interests and other encumbrances, to the Company, which
shall act as agent for purposes of such sale. On the first business day
following the date 20 days following the date of the first notice given to the
Holders of Securities, the Company shall notify the Selling Securityholder, the
Holders of Securities, and the Prospective Purchaser of the amount of
Securities to be sold under this Subsection (B) of Section 1, the price to be
paid for any shares of Common Stock and the price therefor. In such notice to
the Prospective Purchaser, the Company shall direct the Prospective Purchaser
to furnish to the Company, as agent, within 10 days of the date of such notice,
the price of such tendered shares of Common Stock in the form of an official
bank or certified check or checks in specified amounts. Promptly upon receipt
of such check or checks, the Company shall (i) transmit each check (duly
endorsed, if necessary) to the respective tendering Holder or Holders of
Securities (ii) transfer the shares so purchased on the books of the Company
into the name of the purchaser thereof, (iii) transmit certificates for such
shares to the Prospective Purchaser thereof by first class or certified mail,
(iv) transmit tendered shares not so purchased to the Holder thereof by first
class or certified mail, (v) notify the Holders of Securities in writing,
delivered by hand or by first-class, certified or overnight mail, postage
prepaid, or by telecopier,
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of such sale within 5 days following the completion thereof. In the event that,
as to any tender of shares of Common Stock or by the Holders of Securities
pursuant hereto, the entire purchase price for all shares of Common Stock duly
tendered and eligible for sale under this Subsection (B) is not received from
the Prospective Purchaser within the aforesaid 10-day period, the Company shall
promptly (i) return to the Holders of Securities all the shares of Common Stock
tendered by such Holders, delivered by hand or by first class, certified or
overnight mail, postage prepaid, and (ii) notify the Selling Securityholder of
the return of such shares of Common Stock . Any shares of Common Stock tendered
by a Holder of Securities as aforesaid received by the Company more than 20
days following the date of the first notice given to the Holders of Securities
pursuant to this Subsection (B) shall be ineligible for sale in accordance with
such notice and the Company shall promptly return such shares of Common Stock
to the tendering Holder, delivered by hand or by first class, certified or
overnight mail. The balance of the number of shares of Common Stock to be sold
to the Prospective Purchaser, after deduction of the number of shares of Common
Stock properly tendered, if any, by one or more Holders of Securities in
accordance herewith, except in the event of a public offering, merger,
consolidation, exchange of securities of the Company approved by the
stockholders of the Company, may be sold by the Selling Securityholder to the
Prospective Purchaser, at the price and upon the terms set forth in the first
notice given to the Holders of Securities pursuant to this Subsection (B), not
less than 20 days nor more than 60 days following the expiration of the 20-day
period during which Holders of Securities were entitled to exercise their
rights of co-sale hereunder but only if the Prospective Purchaser has timely
paid the purchase price for all shares properly tendered by such Holders and
eligible for sale under this Subsection (B).
(C) Non-Participating Investors. Notwithstanding the
foregoing provisions of this Section 1, a Non-Participating Investor shall not
be entitled to exercise any rights pursuant to Subsection (A) of this Section
1. However, a Non-Participating Investor may participate in a sale pursuant to
Subsection (B) of this Section 1.
(D) Transfers to Affiliates. Notwithstanding anything in
this Section 1 to the contrary, any record owner of Common Stock purchased by a
Securityholder pursuant to the Securities Purchase Agreements may from time to
time transfer all or part of such record owner's Common Stock purchased
pursuant to the Securities Purchase Agreements: (i) to a nominee identified in
writing to the Company as being the nominee of or for such record owner, and
any nominee of or for a beneficial owner of Common Stock purchased pursuant to
the Securities Purchase Agreements identified in writing to the Company as
being the nominee of or for such beneficial owner may from time to time
transfer all or part of Common Stock purchased pursuant to the Securities
Purchase Agreements registered in the name of such nominee but held as nominee
on behalf of such Securityholder, to such Securityholder; (ii) an Affiliate of
such Securityholder; or (iii) if such Securityholder is a partnership or the
nominee of a partnership, to a partner, retired partner, or estate of a partner
or retired partner, of such partnership, so long as such transfer is in
accordance with the transferee's interest in such partnership and is without
consideration; provided, however, that each such transferee shall remain
subject to all restrictions on the transfer of Securities herein contained.
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(E) Termination of Provisions of this Section 1. The
rights granted and obligations imposed in this Section 1, shall terminate on
the first date on which shares of Common Stock are sold in an Initial Public
Offering, provided, however, that notwithstanding the foregoing provisions of
this Subsection l(E), all rights granted and obligations imposed in this
Section 1 shall terminate on the date of consummation of Sale.
2. Sale of the Company.
(A) Obligation to Sell. Upon a Sale, each Securityholder
shall sell, exchange or otherwise transfer his shares of Common Stock in
accordance with the terms and conditions of the Sale if such Sale was approved
by the Holders of at least a majority of each class of the outstanding
Securities. Each Securityholder shall execute such documents and perform such
acts, including, without limitation, voting his, her or its shares of Common
Stock, as may be reasonably necessary to consummate such transfer of his shares
of Common Stock; provided, however, that no Securityholder who is not an
officer of the Company shall be required to make any representations or
warranties in any such document, other than with respect to the status of such
Securityholder's title to its or his share of Common Stock and whether or not
it or he is an Accredited Investor (as that term is defined in Rule 501
promulgated by the Securities and Exchange Commission under the Securities
Act).
3. Event of Option.
(A) Company's Right of Option. Upon the occurrence of an
Event of Option, the Securityholder who is the subject of the Event of Option
(the "Optioner") shall notify the Company in writing (such notice to be
referred to as the "Optioner's Notice"), delivered by hand or by first-class,
certified or overnight mail, postage prepaid, or by telecopier, within 5 days
after the occurrence of such Event of option, of its occurrence and nature. The
Company shall, within 7 days after its receipt of such notice, notify all
Holders of Securities other than the Optioner, such notice to be in writing,
delivered by hand, or by first-class, certified or overnight mail, postage
prepaid, or by telecopier, to their respective addresses as shown on the books
of the Company. Each such notice shall set forth the identity of the Optioner,
the nature of the Event of Option and the quantity and description of the
Common Stock owned by the Optioner.
The Company shall thereupon be entitled, for a period of 20 days
after the delivery to it of the calculations of Fair Market Value to be made
pursuant to the last sentence of this Subsection (A), to purchase at a price
per share equal to the Fair Market Value of Common Stock, any or all of the
Optioner's shares of Common Stock by the tender of an official bank or
certified check for the appropriate amount to the Optioner. Within 3 days after
the receipt of such check from the Company, the Optioner shall surrender to the
Company by hand delivery or by first-class, certified or overnight mail,
postage prepaid, addressed to the Company, the certificates representing the
shares of Common Stock sold in accordance herewith. If the certificate or
certificates surrendered by the Optioner represent a greater number of shares
of
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Common Stock than have been sold, the Company shall promptly issue to the
Optioner a new certificate representing the shares of Common Stock not so sold.
As used in this Section 3, the term "Fair Market Value" shall mean the fair
market value per share of Common Stock on the date of the relevant Event of
Option as applicable, as determined by the firm of certified public accountants
regularly engaged by the Company to audit its financial statements, which
determination the Company shall cause its accountants to make and deliver to
the Company no later than 20 days after its receipt of the Optioner's Notice.
(B) Investors' Rights to Option.
(1) If the Company does not exercise, in whole, the option granted under
Subsection (A) of this Section 4 by the end of the 20 day option period
referred to therein, the Company shall so advise the Holders of Securities
other than the Optioner, by providing them with written notice as aforesaid
within 7 days after the expiration of the aforesaid 20 day period. Each Holder
of Securities, other than the Optioner and Non-Participating Investors, shall
thereupon be entitled, for a period of 20 days from the date of such notice, to
purchase that proportion of the Common Stock for which the Company did not
exercise its rights under Subsection (A) of this Section 3 as such purchaser's
aggregate holding of Securities then bears to the aggregate holding of
Securities then held by all Holders of Securities (excluding all Securities
held by Non-Participating Investors). The rights granted by this Subsection
(B)(1) shall be exercisable, in whole or in part, in the manner described in
Subsection (A) of this Section 3. In addition, upon receipt by the Company of
Common Stock sold in accordance herewith, the Company shall issue to each
purchaser of such Common Stock (or to the nominee of such purchaser) a new
certificate representing such shares.
(2) If any Holders of Securities eligible to
exercise the option granted pursuant to Section (B)(1) of this section 3 do not
exercise such right, in whole, the Company shall advise the Holders of
Securities who exercised their rights under Subsection (B)(1) of this Section 3
by providing them written notice within 5 days after the expiration of the 20
day period specified in Subsection (B)(1) above. Each such Holder of Securities
shall thereupon be entitled, for a period of 7 days from the date of such
notice, to purchase some or all of the shares of Common Stock not otherwise
purchased under Subsections (A) or (B) of this Section 3; provided, however,
that to the extent that more than one such Holder exercising its rights granted
under this Subsection (B)(2) desires to purchase Common Stock exceeding that
proportion as such purchaser's aggregate holding of Securities then bears to
the aggregate holding of Securities then held by all Holders of Securities
which exercised their rights granted under Subsection (B)(1) of this Section 3
("Excess Option Securities"), the amount of such Excess Securities which each
such Holder shall be entitled to purchase shall be reduced pro rata in
accordance with that proportion as the number of shares of Common Stock of
which such Holder is then the Holder bears to the total number of shares of
Common Stock then held by all such Holders desiring certificates representing
the Common Stock, to purchase Excess Option Securities pursuant to this
Subsection (B)(2). The rights granted by this Subsection (B)(2) shall be
exercisable, in whole or in part, in the manner described in Subsection (B)(1)
of this Section 3.
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(C) Shares Not Purchased
Any shares not purchased pursuant to Subsection (A) or (B) of
this Section 3 shall continue to be subject to an open option to purchase by
the Company or by the Holders of any Securities other than the Optioner. Any
transfer, sale or disposition of such shares subject to this option shall not
be valid unless the intended transferee has executed and delivered to the
Company, a valid and binding agreement to such effect as a condition to such
transfer, sale, or disposition.
(D) Information
Upon the occurrence of an Event of Option, the Optioner shall
cease to be entitled to receive information pursuant to Section 6.5 and 6.8 of
the Securities Purchase Agreements and shall cease to have any rights under
Sections 6.6 of the Securities Purchase Agreements.
4. Limitations on Transfer: Legend.
(A) Transfer Limitations and Exceptions. FOR SO LONG AS
THIS AGREEMENT SHALL REMAIN IN EFFECT, THE SECURITYHOLDERS SHALL NOT, DIRECTLY
OR INDIRECTLY, OFFER FOR SALE, SELL, ASSIGN, TRANSFER, PLEDGE, HYPOTHECATE,
ENCUMBER, CONVEY IN TRUST, GIFT, TRANSFER BY REQUEST, DEVISE OR DESCENT OR
OTHERWISE DISPOSE OF, OR SUBJECT TO A SECURITY INTEREST, ANY SHARES OF COMMON
STOCK OR ANY INTEREST THEREIN WHETHER NOW OWNED OR HEREAFTER ACQUIRED, OWNED
BENEFICIALLY OR OF RECORD (EACH OF THE ABOVE-DESCRIBED ACTIONS BY ANY
SECURITYHOLDER BEING REFERRED TO HEREIN AS A "TRANSFER"), EXCEPT IN STRICT
COMPLIANCE WITH THE PROVISIONS OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT THIS
SECTION 4 SHALL NOT RESTRICT ANY TRANSFER OF SHARES OF COMMON STOCK BY GIFT TO
SUCH SECURITYHOLDER'S SPOUSE, LINEAL DESCENDANT OR ANTECEDENT, BROTHER OR
SISTER, THE ADOPTED CHILD OR ADOPTED GRANDCHILD, OR SPOUSE OF ANY CHILD,
ADOPTED CHILD, GRANDCHILD OR ADOPTED GRANDCHILD OF SUCH SECURITYHOLDER OR TO A
TRUST OR TRUSTS FOR THE EXCLUSIVE BENEFIT OF SUCH SECURITYHOLDER OR SUCH
SECURITYHOLDER'S FAMILY MEMBERS, OR TRANSFER BY DEVISE OR DESCENT OR IF SUCH
SECURITYHOLDER IS A PARTNERSHIP, TO ANY PARTNERS OF SUCH PARTNERSHIP, PROVIDED
THAT IN ALL CASES, THE TRANSFEREE OR OTHER RECIPIENT EXECUTES A COUNTERPART
COPY OF THIS AGREEMENT AND BECOMES BOUND THEREBY.
(B) PROHIBITED TRANSFERS. ANY TRANSFER OF SHARES OF
COMMON STOCK IN VIOLATION OF THIS AGREEMENT (A "PROHIBITED TRANSFER") SHALL BE
NULL AND VOID. THE COMPANY SHALL NOT RECORD ANY PROHIBITED TRANSFER ON ITS
BOOKS AND SHALL NOT RECOGNIZE ANY EQUITABLE OR OTHER CLAIM TO, OR ANY INTEREST
IN, SECURITIES THAT ARE THE SUBJECT OF A PROHIBITED TRANSFER ON THE PART OF ANY
THIRD PARTY.
(C) LEGEND. ALL CERTIFICATES REPRESENTING SHARES OF COMMON
STOCK OF THE COMPANY HELD OR LATER ACQUIRED BY THE PARTIES HERETO SHALL BEAR A
LEGEND IN SUBSTANTIALLY THE FOLLOWING FORM:
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"THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY MAY NOT BE
SOLD, ASSIGNED, BEQUEATHED, TRANSFERRED (INCLUDING BY WILL OR PURSUANT TO THE
LAWS OF DESCENT AND DISTRIBUTION OR OTHERWISE), PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF OR BE MADE THE SUBJECT OF A SECURITY INTEREST EXCEPT AS
PROVIDED IN THAT CERTAIN SECURITIES RESTRICTION AGREEMENT DATED AS OF NOVEMBER
2, 1995, BY AND AMONG PARK `N VIEW, INC. (THE "COMPANY") AND THE
SECURITYHOLDERS OF THE COMPANY, A COPY OF WHICH AGREEMENT IS ON FILE AT THE
OFFICE OF THE COMPANY AND WILL BE FURNISHED TO THE HOLDER OF THIS CERTIFICATE
UPON WRITTEN REQUEST AND WITHOUT CHARGE. ANY PURPORTED TRANSFER IN VIOLATION OF
THAT AGREEMENT SHALL BE VOID."
Upon termination of this Agreement, if a Securityholder shall so
request in writing, the Company shall promptly issue to such Securityholder a
new certificate not bearing the foregoing legend representing any shares of
Common Stock then held by such Securityholder.
(D) In the event the Company or Securityholders pursuant
to the Registration Rights Agreement propose to make an underwritten public
offering of Securities, all Securityholders shall agree not to sell any
Securities (including short sales) for a period to be determined by a majority
vote of each class of Securities except pursuant to such registration statement
without the prior written consent of the Company and the underwriter.
5. Failure to Deliver Securities If a Securityholder becomes
obligated to sell any shares of Common Stock to a Holder of Securities or to
the Company under this Agreement and fails to deliver such shares in accordance
with the terms of Agreement, such Holder or the Company, as the case maybe, may
at its option, in addition to all other remedies it may have, send to such
Securityholder the purchase price for such shares of Common Stock as is herein
specified. Thereupon, the Company upon written notice delivered by hand or by
first-class, certified or overnight mail, postage prepaid, or by telecopier, to
such Securityholder, (a) shall cancel on its books the certificate or
certificates represent the shares of Common Stock to be sold and (b) shall
issue, in lieu thereof, in the name of such Holder or the Company, as the case
may be, a certificate or certificates representing such shares of Common Stock
and thereupon all of such Securityholder's rights in and to such shares of
Common Stock shall terminate.
6. Miscellaneous.
(A) (i) Amendments. This Agreement may not be altered,
amended or supplemented except in a written instrument executed by the Company,
Holders of not less than a majority of each class of the then existing
Securities.
(ii) Pledge. The parties to the Agreement hereby
consent to the pledge of Securities by Messrs. Xxxxxxxx and Xxxxxxxxx to secure
their obligation to indemnify the Investors and the Company under that certain
Indemnification and Stock Pledge Agreement dated November 2, 1995.
(B) Successors and Assigns. The rights and benefits of
this Agreement shall inure to the benefit of, and be enforceable by, the
successors and assigns of the Company and the Holders of Securities.
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The rights and obligations of the Securityholders under this Agreement may only
be assigned with the prior written consent of the Company and the Holders of at
least a majority of each class of the then outstanding Securities. This
Agreement shall be binding upon the Company and its successors and assigns and
each Securityholder and his heirs, personal representatives, successors and
assigns.
(C) Further Execution. The parties hereto agree to execute
any additional documents or instruments necessary to carry out the purposes of
this Agreement.
(D) Governing Law. The validity, meaning and effect of
this Agreement shall be determined in accordance with the domestic laws of the
State of Delaware applicable to contracts made and to be performed in that
state without giving any effect to any choice or conflict of law provision or
rule (whether in the State of Delaware or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
Delaware.
(E) Headings. The headings herein are solely for the
convenience of the parties and shall not serve to modify or interpret the text
of the Sections at the beginning of which they appear.
(F) Severability. In the event that any court or any
governmental authority or agency declares all or any part of any Section of
this Agreement to be unlawful or invalid, such unlawfulness or invalidity shall
not serve to invalidate any other Section of this Agreement, and in the event
that only a portion of any Section is so declared to be unlawful or invalid,
such unlawfulness or invalidity shall not serve to invalidate the balance of
such Section.
(G) Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be an original but all of which shall
together constitute one and the same document.
(H) Entire Agreement. This Agreement constitutes the
entire agreement by and among the parties hereto with respect to the subject
matter hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first set forth above.
ATTEST: PARK 'N VIEW, INC.
By: /s/ Xxx Xxxxxxxx
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Secretary
Existing Investors whose signatures
appear on Exhibit A hereto, and the Investors whose signatures appear on
Exhibit B hereto.
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EXHIBIT A
Park 'N View General Partner, Inc.
By: /s/ Xxx Xxxxxxxx
----------------------------------------------
Name: Xxx Xxxxxxxx
Title: President
/s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx
/s/ Xxx Xxxxxxx
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Xxx Xxxxxxx
/s/ Xxxxx Xxxxxxxxx
-------------------------------------------------
Xxxxx Xxxxxxxxx
Nelgo Investments
By: /s/ Xxxxxx X. X'Xxxxxxx
---------------------------------
Name: Xxxxxx X. X'Xxxxxxx
Title: General Partner
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EXHIBIT B
I. APA EXCELSIOR IV, L.P.
By: APA EXCELSIOR IV PARTNERS, L.P.
(Its General Partner)
By: PATRICOF & CO. MANAGERS, INC.
(Its General Partner)
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: X.X.
XX. APA EXCELSIOR IV OFFSHORE, L.P.
By: PATRICOF & CO. VENTURES, INC., INVESTMENT ADVISOR
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: G.P.
III. THE P/A FUND, L.P.
By: APA PENNSYLVANIA PARTNERS, L.P.
(Its General Partner)
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: G.P.
/s/ Xxxxxxx Xxxxxxx
----------------------------------------------
Xxxxxxx Xxxxxxx
12
