AMENDMENT TO
SETTLEMENT AND VOTING AGREEMENT
Amendment to Settlement and Voting Agreement, dated as of the 23rd
day of September, 1997 (the "Amendment"), to the Settlement and Voting
Agreement, dated as of June 12, 1997 (the "Settlement Agreement"), by and
among the parties executing this Amendment.
W I T N E S S E T H :
WHEREAS, the parties hereto hereby agree that it would be in their
mutual best interest to amend the Settlement Agreement in the manner set forth
herein;
NOW, THEREFORE, in consideration of the above premises and the mutual
promises contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Definitions. All capitalized terms which are not defined herein
shall have the respective meanings set forth in the Settlement Agreement.
2. Modifications. The Settlement Agreement is hereby amended as
follows:
(a) Sections 2.4 and 3.6 shall be deleted in their entirety
and the following provisions substituted in lieu thereof:
2.4. Transfer Restrictions. The Subscribing Parties
represent and warrant that, exclusive of any
securities in the May Xxxxx trading account above
11,400 outstanding shares of Common Stock, there
are 315,000 outstanding shares of Common Stock that
are Subscribing Party Voting Securities as of the
date hereof. The Company hereby agrees that the
Subscribing Parties may sell up to 170,000 shares
of such Subscribing Party Voting Securities at any
time following the date of this Amendment, subject
to compliance with applicable securities laws, free
of any restrictions imposed by the Company and that
the Company shall use its best efforts to cause its
counsel to deliver any and all opinions reasonably
requested by the Company's transfer agent in
connection with such transfers, promptly upon
request. The Company hereby confirms that, in the
event that a proposed sale is to be effected under
Rule 144 promulgated under the Securities Act of
1933, as amended, the form of seller's
representation letter attached hereto as Exhibit A,
when and if duly completed by the applicable
Subscribing Party, will be acceptable. The
Subscribing Parties agree that the remaining shares
of Common Stock will continue to constitute
Subscribing Party Voting Securities and that the
Subscribing Parties shall not sell or otherwise
transfer any of such shares (or take any other
action that would cause such Common Stock to cease
to be Subscribing Party Voting Securities) until
after the 1997 Annual Meeting (including any
adjournments of such Meeting). Any proposed
transfer of the remaining shares of Subscribing
Party Voting Securities (namely, 145,000 plus any
shares of Common Stock hereafter acquired pursuant
to Section 2.5 or otherwise) by a Subscribing Party
shall be void unless in accordance with the
provisions of this Section 2.4.
3.6. Withdrawal of Demand for Shareholder List. May
Xxxxx hereby confirms that it has withdrawn its
demand, dated February 27, 1997, pursuant to
Section 220 of the Delaware General Corporation
Law, for a list of the Company's shareholders.
(b) The following provisions shall be added to the
Settlement Agreement as Sections 2.5, 3.10 and 3.11, respectively:
2.5. Additional Shares. The Subscribing Parties
covenant and agree that they have completed or will
complete by October 1, 1997 a transaction by which
58,600 outstanding shares of Common Stock are sold
by Xxxxxx Xxxxxxxx ("Xxxxxxxx") to Ganaterra
Corporation N.V. ("Ganaterra"). The Company agrees
that 29,500 of such shares received by Ganaterra
have not become or shall not upon completion become
or be deemed Subscribing Party Voting Securities
and may be sold or transferred freely by Ganaterra,
subject to applicable securities laws or other
restrictions not contained in this Agreement. The
Subscribing Parties agree that the remaining 29,100
shares received by Ganaterra from Xxxxxxxx have
become or shall become upon completion Subscribing
Party Voting Securities and such shares do or shall
constitute additional shares subject to this
Agreement including, but not limited to, the
restrictions set forth in Section 2.4. The Company
agrees to use its best efforts to cause its counsel
to deliver any and all opinions reasonably
requested by the Company's transfer agent, promptly
upon request, in connection with the sale of 58,600
to Ganaterra and any subsequent transfer by
Ganaterra of such shares pursuant to this Section
2.5.
3.10. 1997 Annual Meeting Acknowledgment. The
Subscribing Parties hereby acknowledge that (i) the
Company made reasonable efforts through September
15, 1997 to hold the 1997 Annual Meeting by that
date; (ii) the
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delay of the 1997 Annual Meeting beyond September
15, 1997 was caused by forces beyond the Company's
reasonable control; (iii) the Company has not
violated Section 3.9 of the Agreement as in effect
prior to the Amendment; and (iv) the transfer
restrictions contained in Section 2.4, as amended,
are in full force and effect.
3.11 Exchange Act Compliance - The Company
represents and warrants that it has filed to date
the reports required to be filed by it under the
Securities Exchange Act of 1934 to the extent
required to enable holders of Shares to sell Shares
within the limitation of the exemptions provided by
Rule 144 under the Securities Act of 1933, as
amended.
(c) Section 6(b) of the Agreement shall be amended by
inserting the following sentence at the end of such Section:
All securities held in the trading account of May
Xxxxx shall be included in the definition of
Subscribing Party Voting Securities; provided,
however, that none of such securities other than
11,400 outstanding shares of Common Stock shall be
subject to Section 2.4. All warrants held by the
Subscribing Parties shall be expressly excluded
from the definition of Subscribing Party Voting
Securities.
(d) Section 3.9 of the Agreement shall be amended by
changing the phrase "September 15, 1997" to "October 13,
1997" in each instance in which it appears
(e) May Xxxxx and the Company hereby agree that Sections
5(n), 5(p) and 5(v) of the Underwriting Agreement shall be
deleted in their entirety and the following provisions
substituted in lieu thereof (all capitalized terms used
below shall have the respective meanings set forth in the
Underwriting Agreement):
5(n) From the Effective Date until January 1, 1998,
not issue any other shares of Common Stock or
securities convertible into Common Stock without
the prior written consent of the Underwriter, which
consent shall not be unreasonably withheld or
delayed. In the event that the Company requests the
Underwriter's consent for any of the above, the
Underwriter shall have five days from the date of
such request to indicate its approval or
disapproval. If the Underwriter does not respond
within such five day period, its consent will be
assumed. Notwithstanding the foregoing, the Company
may issue securities (A) upon (i) the exercise of
any warrants or options outstanding on the date
hereof or contemplated in the Prospectus pursuant
to the terms thereof; (ii) pursuant to the exercise
of the Over-allotment Option; and (iii) the
exercise of the Underwriter's Warrant, and (B)
pursuant to any of the Stock Option Plans described
in the Prospectus or plans subsequently
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adopted.
5(p) For a period of two years from the Effective
Date, the Company will not file a Form S-8
registration statement without the consent of the
Underwriter, which consent will not be unreasonably
withheld; provided, however, that May Xxxxx hereby
consents to the filing by the Company, on or after
May 14, 1998, of one or more Form S-8 registration
statements and any amendments thereto which
register the offer and sale of not more than
1,360,000 shares of Common Stock issuable upon the
exercise of stock options or pursuant to the
NetLive Performance Share Program Plan and/or any
employee benefit program of the Company.
5(v) From the Effective Date until January 1, 1998,
the Company shall not issue any of its securities in
any offering pursuant to Regulation S under the
1933 Act, without the prior written consent of the
Underwriter.
3. Confirmation. Except as expressly specified herein, all other
terms, conditions and provisions of the Settlement Agreement are hereby
confirmed and shall remain in full force and effect without modification.
4. Counterparts. This Amendment may be executed in one or more
counterparts, each of which will be deemed an original and all of which shall
constitute a single document.
5. Governing Law. This Amendment shall be governed by and construed
in accordance with the internal laws of the State of New York applicable to
contracts made and to be performed therein.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
NETLIVE COMMUNICATIONS, INC.
By: /s/ Xxxxxxx Xxxxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxxxx
Title: Chairman of the Board
Chief Executive Officer
Address: THE SUBSCRIBING PARTIES:
Xxxx May MAY XXXXX GROUP, INC.
May Xxxxx Group, Inc.
Wall Xxxxxx Xxxxx
00 Xxxxxxxx Xxxxx By: /s/ Xxxx May
Xxx Xxxx, Xxx Xxxx 00000 -------------------------------
Facsimile No: (000) 000-0000 Name: Xxxx May
Executive Officer Title: Chairman and Chief
Address:
Xxxx May
May Xxxxx Group, Inc. /s/ Xxxx May
Wall Street Tower ----------------------------
00 Xxxxxxxx Xxxxx XXXX XXX
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Address:
Dibo Attar /s/ Dibo Attar
c/o Woodco Fund Management -----------------------------
0000 Xxxxxxx - Xxxxx 000 XXXX XXXXX
Xxxxxxx, Xxxxx 00000
Facsimile No.: (000) 000-0000
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Address:
Xxxxxx Xxx /s/ Xxxxxx Xxx
Xxxxxx Xxx Associates -----------------------------
00000 Xxxx Xxx Xxxx Xxxx XXXXXX XXX
Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Address:
Davstar II Mgd. Investments DAVSTAR II MGD. INVESTMENTS CORP.
Corp. N.V. N.V.
c/o Woodco Fund Management
0000 Xxxxxxx - Xxxxx 000 By: /s/
Xxxxxxx, Xxxxx 00000 ------------------------------
Facsimile: (000) 0000-0000 Name:
Title:
Address:
Jasminville Corp. N.V. JASMINVILLE CORP. N.V.
c/o Woodco Fund Management
4900 Woodway By: /s/
Suite 650 ------------------------------
Xxxxxxx, Xxxxx 00000 Name:
Facsimile: (000) 000-0000 Title:
Address:
Celestial Dreams Corp. N.V. CELESTIAL DREAMS CORP. N.V.
c/o Woodco Fund Management
4900 Woodway By: /s/
Suite 650 ------------------------------
Xxxxxxx, Xxxxx 00000 Name:
Facsimile: (000) 000-0000 Title:
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Address: EAGLEHURST CORP. N.V.
Eaglehurst Corp. N.V.
c/o Woodco Fund Management By: /s/
0000 Xxxxxxx - Xxxxx 000 ______________________________
Xxxxxxx, Xxxxx 00000 Name: Intertrust (Curacao) N.V.
Facsimile: No. (000) 000-0000 Title: Managing Director
Address: SIGNAL HILL N.V.
Signal Hill N.V.
c/o Woodco Fund Management By: /s/
0000 Xxxxxxx - Xxxxx 000 ______________________________
Xxxxxxx, Xxxxx 00000 Name: Intertrust (Curacao) N.V.
Facsimile: No. (000) 000-0000 Title: Managing Director
Address: WELLINGTON CORP. N.V.
Wellington Corp. N.V.
c/o Woodco Fund Management By: /s/
0000 Xxxxxxx - Xxxxx 000 ______________________________
Xxxxxxx, Xxxxx 00000 Name: Intertrust (Curacao) N.V.
Facsimile: No. (000) 000-0000 Title: Managing Director
Address: GANATERRA CORP. N.V.
Ganaterra Corp. N.V.
c/o Woodco Fund Management By: /s/
0000 Xxxxxxx - Xxxxx 000 ______________________________
Xxxxxxx, Xxxxx 00000 Name: Intertrust (Curacao) N.V.
Facsimile: No. (000) 000-0000 Title: Managing Director
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