Exhibit 10.1
ALLOCATION AGREEMENT
This ALLOCATION AGREEMENT (this "Agreement") is made as of the 13th day
of November 1998, by and among Viant Corporation, a California corporation (the
"Company") and the purchasers of the Company's Series D Preferred Stock ("Series
D Preferred"), whose names appear on Exhibit A attached hereto (the
"Purchasers").
RECITALS
WHEREAS, the Company and the Purchasers are parties to that certain
Series D Preferred Stock Purchase Agreement dated of even date herewith (the
"Stock Purchase Agreement"); and
WHEREAS, in connection with the Company's issuance of Series D
Preferred pursuant to the Stock Purchase Agreement, the Company has agreed to
enter into this Agreement in order to further induce the Purchasers to enter
into the Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual agreements, covenants
and conditions contained herein, the Company and each of the Purchasers hereby
agree as follows:
1. ALLOCATION OF SHARES TO PURCHASERS. In connection with the
first offering of the Company's securities in a firmly underwritten public
offering on Form S-1 or SB-2, if any (the "Offering"), the Company shall require
that the managing underwriters for such Offering offer to Purchasers the right
to purchase, at the Offering Price (as defined below), a number of shares in
such Offering in the manner set forth in this Agreement. Such requirement shall
be subject to the consent of the managing underwriters, which consent shall not
be unreasonably withheld. Subject to such consent, the number of shares that
shall be subject to Purchasers' rights (the "Allocation Shares") shall be
determined by dividing $3,000,000 by a price per share equal to the share price
in the Offering (the "Offering Price").
2. NOTICE; PRO-RATA PORTION OF ALLOCATION SHARES. The Company
shall give each Purchaser written notice of the number of Allocation Shares and
the Offering Price promptly after such time as the Company first determines
same. The Purchasers shall have forty-eight (48) hours after receipt of such
notice to indicate their interest in purchasing all or part of their respective
"pro-rata portion" of the Allocation Shares. A particular Purchaser's "pro-rata
portion" of the Allocation Shares shall be determined by multiplying the number
of Allocation Shares by a fraction, the numerator of which shall be the number
of shares of Series D Preferred (determined on an as-converted basis) held by a
particular Purchaser and the denominator of which shall be the total number of
shares of Series D Preferred (determined on an as-converted basis) then
outstanding.
3. NOTICE OF PURCHASE; PURCHASE OF ALLOCATION SHARES The
Purchasers that are interested in purchasing all or part of their respective
pro-rata portion of the Allocation Shares shall advise the Company of their
interest no later than the end of the aforesaid forty-eight (48) hour period,
specifying the quantity of the applicable Purchaser's pro-rata portion of
Allocation Shares that the Purchaser is interested in purchasing. If a
particular Purchaser shall have indicated its interest in purchasing all of such
Purchaser's pro-rata portion of the Allocation Shares (an "Allocation
Purchaser"), each such Allocation Purchaser shall be offered the right to
purchase such Allocation Purchaser's respective pro-rata portion of the
Allocation Shares that other Purchasers have not indicated an interest in
purchasing. Company will give the Allocation Purchasers notice of the
then-remaining number of Allocation Shares that other Purchasers were not
interested in purchasing ("Available Allocation Shares") promptly following the
expiration of the aforesaid forty-eight (48) hour period. Such notice may be by
telephone.
4. AVAILABLE ALLOCATION SHARES; PRO-RATA PORTION OF AVAILABLE
ALLOCATION SHARES. The Allocation Purchasers shall have twenty-four (24) hours
from the date of such notice to indicate their interest in purchasing up to
their respective pro-rata portion of the Available Allocation Shares; for
purposes of determining the pro-rata portion of the Available Allocation Shares
available for purchase by the Allocation Purchasers, the number of Available
Allocation Shares shall be multiplied by a fraction, the numerator of which
shall be the number of shares of Series D Preferred (determined on an
as-converted basis) held by a particular Allocation Purchaser who shall have
indicated its interest in purchasing Available Allocation Shares, and the
denominator of which shall be the total number of shares of Series D Preferred
(determined on an as-converted basis) then outstanding held by all of the
Allocation Purchasers who shall have indicated their interest in purchasing the
Available Allocation Shares.
5. SHARES AVAILABLE TO TECHNOLOGY CROSSOVER VENTURES.
Notwithstanding the foregoing the number of Allocation Shares offered to
Technology Crossover Ventures II, L.P. and its affiliated funds (collectively,
"TCV") shall in no event be less than that number of Allocation Shares that when
multiplied by the Offering Price equals $1,500,000, rounded to the nearest whole
number.
6. MISCELLANEOUS PROVISIONS.
(a) Any notice required or permitted to be given to a
party pursuant to the provisions of this Agreement shall be in writing and shall
be effective upon personal delivery or upon deposit in the U.S. mail, registered
or certified, with postage prepaid and properly addressed to the party to be
notified as set forth on Exhibit A attached hereto or at such other address as
such party may designate by ten (10) days advance written notice to the other
parties hereto.
(b) This Agreement and the rights and obligations of
the parties hereunder shall inure to the benefit of, and be binding upon, their
respective successors, assigns and legal representatives.
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(c) In the event one or more of the provisions of
this Agreement should, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been contained herein.
(d) Any amendment, modification or waiver of any
provision of this Agreement shall be effective if in writing and approved by the
Company and the holder or holders of at least a majority of the shares of Series
D Preferred held by Purchasers; provided, however, that the provisions of
Section 5, and the Company's obligations with respect thereto, may be amended,
modified or waived only with the written consent of TCV.
(e) This Agreement shall be governed by and construed
in accordance with the laws of the State of California, without giving effect to
the conflicts of laws principles thereof.
(f) This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed an
original; and all such counterparts together shall constitute one and the same
instrument.
(g) Notwithstanding anything in the foregoing to the
contrary, all actions taken pursuant to this Agreement shall be in accordance
with all federal and state securities laws, including Rule 134 of the Securities
Act of 1933, as amended.
(h) Each Purchaser shall have the right to apportion
its participation herein among any of its partners, members or affiliates.
[SIGNATURE PAGES FOLLOW.]
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IN WITNESS WHEREOF, the parties hereto have executed this Allocation
Agreement as of the date first set forth above.
"COMPANY"
VIANT CORPORATION
a California corporation
Xxxxxx Xxxx, President and
Chief Executive Officer
(ALLOCATION AGREEMENT SIGNATURE PAGE)
