Exhibit 5
CONSENT AND STANDSTILL AGREEMENT
This Consent and Standstill Agreement (this "Agreement")
is made and entered into as of July 10, 2001 by and among Xxxxxxxx
Communications, LLC, a Delaware limited liability company ("Xxxxxxxx"),
iBeam Broadcasting Corporation, a Delaware corporation (the "Company") and
the stockholders of the Company named on the signature pages hereof (each a
"Stockholder" and collectively, the "Stockholders").
WHEREAS, Xxxxxxxx, the Company and certain other parties
thereto have entered into a Stock Purchase Agreement, dated as of June 24,
2001 (the "Stock Purchase Agreement"), pursuant to which the Company has
agreed to issue and sell to Xxxxxxxx and such other parties thereto an
aggregate of 2,400,939 shares of Series A Convertible Preferred Stock, par
value $.0001 per share (the "Series A Preferred Stock"), of the Company
(the "Transaction");
WHEREAS, each Stockholder is the sole record and
beneficial owner of the number of shares of capital stock, other equity
interests and securities convertible into capital stock or other equity
interests in the Company as is indicated on the applicable signature page
of this Agreement (the "Shares"); and
WHEREAS, in consideration of and to induce Xxxxxxxx to
purchase shares of Series A Preferred Stock, each Stockholder agrees to
waive its rights under the Investors' Rights Agreement (as defined below)
and agrees to certain standstill restrictions as more fully described
below.
NOW, THEREFORE, in consideration of the mutual promises
and the mutual covenants and agreements contained herein and for other good
and valuable consideration, the parties agree as follows:
1. Definitions. As used in this Agreement, the following
terms have the following meanings:
"Affiliate" as applied to any Person, shall mean any
other Person directly or indirectly controlling or controlled by or under,
direct or indirect, common control with such Person. For the purposes of
this definition, control when used with respect to any Person means the
power to direct the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing. Notwithstanding the foregoing, Xxxxxxxx and
its Affiliates or each Stockholder and its Affiliates shall not be deemed
Affiliates of the Company for purposes of this Agreement.
"Agreement" shall have the meaning set forth in the
recitals.
"beneficially own" and "beneficial ownership" have the
meanings given to them in Rule13d-3 under the Securities Exchange Act of
1934, as amended.
"Company" shall have the meaning set forth in the
recitals.
"Investors' Rights Agreement" shall have the meaning set
forth in Section 2 of this Agreement.
"Permitted Transferee" shall mean with respect to any
Person, any other Person that is an Affiliate of the such Person.
"Registration Rights Agreement" shall have the meaning
set forth in Section 2 of this Agreement.
"Series A Preferred Stock" shall have the meaning set
forth in the recitals.
"Shares" shall have the meaning set forth in the
recitals.
"Standstill Period" shall have the meaning set forth in
Section 3 of this Agreement.
"Stock Purchase Agreement" shall have the meaning set
forth in the recitals.
"Stockholder" and "Stockholders" shall have the meanings
set forth in the recitals.
"Transaction" shall have the meaning set forth in the
recitals.
"Transaction Documents" shall have the meaning set forth
in the Stock Purchase Agreement.
"Voting Stock" means the capital stock of any class or
kind ordinarily having the power to vote generally for the election of
directors (or other persons or bodies performing similar functions) of the
Company. With respect to the Company, as of the Effective Date (as such
term is defined in the Stockholders Agreement) Voting Stock includes (i)
the Common Stock and (ii) the Series A Preferred Stock.
"Xxxxxxxx" shall have the meaning set forth in the
recitals.
2. Consent and Waiver. Each Stockholder hereby gives any
consent or waiver that is reasonably required in connection with the
entering into the Transaction Documents by the Company and consummation of
the transactions contemplated thereby (including the Transaction) under the
terms of any agreement to which such Stockholder is a party or pursuant to
any rights such Stockholder may have, including, (i) the waiver of such
Stockholder's rights pursuant to Section 1.12 of the Third Amended and
Restated Investors' Rights Agreement dated as of April 28, 2000, by and
among the Company and the parties thereto, as in effect on the date hereof
(the "Investors' Rights Agreement"), and (ii) the consent to the
registration rights granted to Xxxxxxxx and the other parties thereto
pursuant to the Registration Rights Agreement by and between the Company,
Xxxxxxxx and the other parties thereto, dated July 10, 2001 (the
"Registration Rights Agreement"), including, without limitation, the grant
of "demand" and "piggyback" registration rights, and the rights attendant
thereto, pursuant to the Registration Rights Agreement.
3. Standstill.
(a) Without the prior written consent of the Company or
except as provided in this Agreement, from the date hereof until the second
anniversary of the date hereof (the "Standstill Period"), each Stockholder
shall not, and such Stockholder shall not permit any of its Permitted
Transferees or its other Affiliates to acquire, publicly announce an
intention to acquire, or agree to acquire beneficial ownership of, any
Voting Stock of the Company resulting in an increase in such Stockholder's
percentage beneficial ownership, at such time, of the Company's Voting
Stock on a fully diluted basis.
(b) Notwithstanding anything in this Agreement (including
this Section 3) to the contrary, during the Standstill Period, (i) each
Stockholder, its Permitted Transferees and its other Affiliates may,
subject to compliance with applicable law, propose, announce and otherwise
make an offer to purchase all of the outstanding capital stock of the
Company and pursuant to such offer acquire such shares of capital stock,
and (ii) each Stockholder, its Permitted Transferees and its other
Affiliates may make open market purchases of the Company's Voting Stock as
may be necessary for such Stockholder (either directly or through its
Permitted Transferees) to maintain its fully-diluted ownership percentage
of the Company's Voting Stock existing on the date hereof. The Company
agrees that it will not unreasonably deny any request for a waiver of the
restrictions set forth in this Section 3 made by a Stockholder or its
Permitted Transferees.
4. Representations, Warranties and Covenants of the
Stockholders. Each Stockholder hereby represents, warrants and covenants to
Xxxxxxxx and the Company that each Stockholder (i) is the sole record and
beneficial owner of the Shares, (ii) does not own beneficially or of record
any shares of capital stock, other equity interests or securities
convertible into capital stock or other equity interests of the Company
other than the Shares, and (iii) has full power and authority to make,
enter into, deliver and carry out the terms of this Agreement. Each
Stockholder hereby further represents, warrants and covenants that (i) this
Agreement has been duly authorized by all necessary action on the part of
such Stockholder and has been duly executed by such Stockholder, (ii) this
Agreement constitutes the legal, valid and binding obligation of such
Stockholder, and (iii) neither the execution of this Agreement by such
Stockholder nor the consummation of the transactions contemplated hereby
will result in a breach or violation of the terms of any agreement by which
such Stockholder is bound or of any decree, judgment, order, law or
regulation now in effect of any court or other governmental body applicable
to such Stockholder.
5. Representations, Warranties and Covenants of Xxxxxxxx.
Xxxxxxxx represents, warrants and covenants to the Company and each
Stockholder that this Agreement (i) has been authorized by all necessary
action on the part of Xxxxxxxx and has been duly executed by Xxxxxxxx and
(ii) constitutes the legal, valid and binding obligation of Xxxxxxxx.
Neither the execution of this Agreement by Xxxxxxxx nor the consummation of
the transactions contemplated hereby will result in a breach or violation
of the terms of any agreement by which Xxxxxxxx is bound or of any decree,
judgment, order, law or regulation now in effect of any court or other
governmental body applicable to Xxxxxxxx.
6. Representations, Warranties and Covenants of the
Company. The Company represents, warrants and covenants to Xxxxxxxx and
each Stockholder that this Agreement (i) has been authorized by all
necessary action on the part of the Company and has been duly executed by
the Company and (ii) constitutes the legal, valid and binding obligation of
the Company. Neither the execution of this Agreement by the Company nor the
consummation of the transactions contemplated hereby will result in a
breach or violation of the terms of any agreement by which the Company is
bound or of any decree, judgment, order, law or regulation now in effect of
any court or other governmental body applicable to the Company.
7. Additional Documents. Each of the Stockholders,
Xxxxxxxx and the Company hereby covenant and agree to execute and deliver
any additional documents necessary or desirable, in the reasonable opinion
of such Stockholder, Xxxxxxxx or the Company, as the case may be, to carry
out the intent of this Agreement.
8. Miscellaneous.
(a) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or
invalidated.
(b) Binding Effect and Assignment. This Agreement and all
of the provisions hereof shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns,
but, except as otherwise specifically provided herein, neither this
Agreement nor any of the rights, interests or obligations of the parties
hereto may be assigned by any of the parties without the prior written
consent of the other.
(c) Amendments and Modifications. This Agreement may not
be modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
(d) Specific Performance; Injunctive Relief. The parties
hereto acknowledge that the other parties hereto will be irreparably harmed
and that there will be no adequate remedy at law for a violation of any of
the covenants or agreements of the parties set forth herein. Therefore, it
is agreed that, in addition to any other remedies which may be available to
a party upon such violation, such party shall have the right to enforce
such covenants and agreements by specific performance, injunctive relief or
by any other means available to it at law or in equity.
(e) Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and sufficient if
delivered in person, by commercial overnight courier service, by confirmed
telecopy, or sent by mail (registered or certified mail, postage prepaid,
return receipt requested) to the respective parties as follows:
(i) if to the Company:
iBeam Broadcasting Corporation
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
(ii) if to Xxxxxxxx:
Xxxxxxxx Communications, LLC
Xxx Xxxxxxxx Xxxxxx 00-0
Xxxxx, Xxxxxxxx 00000
Attn: General Counsel
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxx, Esq.
Fax: (000) 000-0000
(iii) if to any Stockholder, to the address set forth on
the applicable signature page hereto;
or to such other address as any of the parties may have furnished to the
other parties in writing in accordance herewith, except that notices of
change of address shall only be effective upon receipt.
(f) Termination. This Agreement shall terminate upon
termination of the Stock Purchase Agreement pursuant to Article VIII
thereof. In addition, Section 3 of this Agreement shall terminate upon
termination of the Stockholders Agreement pursuant to Article VII thereof.
(g) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware. Each
party hereto consents to the non-exclusive jurisdiction of the federal and
state courts within the State of Delaware.
(h) Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties
with respect to such subject matter, except that, with respect solely to
Xxxxxxxx and the Company, this Agreement, together with the Transaction
Documents (as defined in the Stock Purchase Agreement) contains the entire
understanding of the parties in respect of the subject matter hereof and
thereof, and supersedes all prior negotiations and understandings between
the parties with respect to such subject matter.
(i) Counterparts. This Agreement may be executed in
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
(j) Effect of Headings. The section headings herein are
for convenience only and shall not affect the construction or
interpretation of this Agreement.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed on the day and year first above written.
XXXXXXXX COMMUNICATIONS, LLC
By: /s/ Xxxx X. Xxxxxxxxx, Xx.
-------------------------------
Name: Xxxx X. Xxxxxxxxx, Xx.
Title: Senior Vice President
[Signature page to Consent and Standstill Agreement]
iBEAM BROADCASTING CORPORATION
By: /s/ Xxxxxx Xxxxx
________________________________
Name: Xxxxxx Xxxxx
Title: Vice President and
General Counsel
[Signature page to Consent and Standstill Agreement]
STOCKHOLDER:
ACCEL INVESTORS '98 L.P.
By:/s/ J. Xxxxx Xxxxxx
_______________________________
Name: J. Xxxxx Xxxxxx
Title: Managing Member of
General Partner
Stockholder's Address for Notice:
Accel Partners
000 Xxxxxxxxxx Xxx.
Xxxx Xxxx, XX 00000
Shares owned beneficially and of record:
983,383 shares of Common Stock
______ shares of Common Stock issuable pursuant to exercise of options or
other rights to acquire Common Stock
______ any other direct or indirect equity interests in the Company
(please specify)
[Signature page to Consent and Standstill Agreement]
STOCKHOLDER:
ACCEL INTERNET FUND II L.P.
By:/s/ J. Xxxxx Xxxxxx
_______________________________
Name: J. Xxxxx Xxxxxx
Title: Managing Member of
General Partner
Stockholder's Address for Notice:
Accel Partners
000 Xxxxxxxxxx Xxx.
Xxxx Xxxx, XX 00000
Shares owned beneficially and of record:
1,482,000 shares of Common Stock
______ shares of Common Stock issuable pursuant to exercise of options or
other rights to acquire Common Stock
______ any other direct or indirect equity interests in the Company
(please specify)
[Signature page to Consent and Standstill Agreement]
STOCKHOLDER:
ACCEL KEIRETSU VI L.P.
By:/s/ J. Xxxxx Xxxxxx
_______________________________
Name: J. Xxxxx Xxxxxx
Title: Managing Member of
General Partner
Stockholder's Address for Notice:
Accel Partners
000 Xxxxxxxxxx Xxx.
Xxxx Xxxx, XX 00000
Shares owned beneficially and of record:
185,270 shares of Common Stock
______ shares of Common Stock issuable pursuant to exercise of options or
other rights to acquire Common Stock
______ any other direct or indirect equity interests in the Company
(please specify)
[Signature page to Consent and Standstill Agreement]
STOCKHOLDER:
ACCEL VI L.P.
By:/s/ J. Xxxxx Xxxxxx
_______________________________
Name: J. Xxxxx Xxxxxx
Title: Managing Member of
General Partner
Stockholder's Address for Notice:
Accel Partners
000 Xxxxxxxxxx Xxx.
Xxxx Xxxx, XX 00000
Shares owned beneficially and of record:
11,601,085 shares of Common Stock
______ shares of Common Stock issuable pursuant to exercise of options or
other rights to acquire Common Stock
______ any other direct or indirect equity interests in the Company
please specify)
[Signature page to Consent and Standstill Agreement]
STOCKHOLDER:
CROSSPOINT VENTURE PARTNERS 1997
By:/s/ Xxxxxxx Xxxxxxx
_______________________________
Name: Xxxxxxx Xxxxxxx
Title Managing Partner
Stockholder's Address for Notice:
----------------------------------
----------------------------------
----------------------------------
Shares owned beneficially and of record:
15,114,498 shares of Common Stock
______ shares of Common Stock issuable pursuant to exercise of options or
other rights to acquire Common Stock
______ any other direct or indirect equity interests in the Company
(please specify)
[Signature page to Consent and Standstill Agreement]
STOCKHOLDER:
MEDIA TECHNOLOGY VENTURES L.P.
By: /s/ Media Tech Management, LLC
its General Partner
_______________________________
Name:
Title:
Stockholder's Address for Notice:
Media Technology Partners
Xxx Xxxxx Xxxxxx #0
Xxx Xxxxx, XX 00000
Shares owned beneficially and of record:
4,629,255 shares of Common Stock
______ shares of Common Stock issuable pursuant to exercise of options or
other rights to acquire Common Stock
______ any other direct or indirect equity interests in the Company
(please specify)
[Signature page to Consent and Standstill Agreement]
STOCKHOLDER:
MEDIA TECHNOLOGY VENTURES
ENTREPRENEURS FUND L.P.
By: /s/ Media Tech Management, LLC
its General Partner
_______________________________
Name:
Title:
Stockholder's Address for Notice:
Media Technology Partners
Xxx Xxxxx Xxxxxx #0
Xxx Xxxxx, XX 00000
Shares owned beneficially and of record:
5,226,985 shares of Common Stock
______ shares of Common Stock issuable pursuant to exercise of options or
other rights to acquire Common Stock
______ any other direct or indirect equity interests in the Company
(please specify)
[Signature page to Consent and Standstill Agreement]
