EXHIBIT 10.3
THIS AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT is made as of March
1, 1999, by and among JUNO ONLINE SERVICES, INC., a Delaware corporation (the
"Company"), and the investors listed on Annex I hereto, each of which is herein
referred to as an "Investor."
RECITALS
WHEREAS, certain of the Investors own the respective number of shares of
Series A Convertible Preferred Stock, $.01 par value ("Series A Preferred
Stock") of the Company, as set forth opposite each of their names in Annex I
hereto;
WHEREAS, the holders of Series A Preferred Stock possess registration
rights and other rights pursuant to that certain Registration Rights Agreement,
dated as of February 1, 1999, between the Company and such Investors (the "Prior
Agreement");
WHEREAS, the holders of Series A Preferred Stock desire to terminate the
Prior Agreement and to accept the rights created pursuant hereto in lieu of the
rights granted to them under the Prior Agreement;
WHEREAS, certain Investors are purchasing shares of the Company's Series B
Convertible Preferred Stock, $.01 par value per share or of the Company's Series
B Prime Preferred Stock, $.01 par value per share (together, the "Series B
Preferred Stock"), pursuant to the terms of the Series B Convertible Preferred
Stock Purchase Agreement of even date herewith between the Company and such
Investors (the "Series B Preferred Stock Purchase Agreement"), certain of the
Company's and such Investors' obligations under which are conditioned upon the
execution and delivery of this Agreement by such Investors, the holders of
Series A Preferred Stock and the Company; and
WHEREAS, the parties to the Series B Preferred Stock Purchase Agreement are
also entering into a Stockholders Agreement dated as of the date hereof (the
"Stockholders Agreement") in connection with the transactions contemplated by
the Series B Preferred Stock Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein, the holders of Series A Preferred Stock hereby agree that the
Prior Agreement shall be superseded and replaced in its entirety by this
Agreement, and the parties hereto further agree as follows:
1. CERTAIN DEFINITIONS. As used herein, the following terms shall have the
following respective meanings:
"COMMISSION" shall mean the Securities and Exchange Commission, or any
other federal agency at the time administering the Securities Act.
"COMMON STOCK" shall mean the Common Stock, $.01 par value per share, of
the Company, as constituted as of the date of this Agreement.
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"CONVERSION SHARES" shall mean the shares of Common Stock issued upon
conversion of the Series A Preferred Stock and/or upon conversion of the Series
B Preferred Stock.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as
amended, or any similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect from time to time.
"PREFERRED STOCK" shall mean the Series A Preferred Stock and the Series
B Preferred Stock.
"PUBLIC SALE" shall mean any sale of Common Stock to the public pursuant
to an offering registered under the Securities Act or to the public pursuant to
the provisions of Rule 144 (or any successor or similar rule) adopted under the
Securities Act.
"QUALIFIED PUBLIC OFFERING" shall mean the consummation of a firm
commitment underwritten public offering of shares of the Company's Common Stock
in which the aggregate net proceeds to the Company (after deduction of
underwriting discounts and commissions and expenses of the offering) shall be at
least $40,000,000.
"REGISTRATION EXPENSES" shall mean the expenses so described in Section
9 hereof.
"RESTRICTED STOCK" shall mean any shares of capital stock of the Company
held by the Investors, the certificates for which are required by the provisions
of Section 3 hereof to bear the legend set forth in such Section.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect from time to time.
"SELLING EXPENSES" shall mean the expenses so described in Section 9
hereof.
"SERIES A PREFERRED STOCK" shall have the meaning ascribed thereto in
the second recital paragraph to this Agreement.
"SERIES B PREFERRED STOCK" shall have the meaning ascribed thereto in
the fifth recital paragraph to this Agreement.
2. PRIOR AGREEMENT; WAIVER AND CONSENT.
(a) The parties hereto hereby acknowledge and agree that the Prior
Agreement is hereby amended, restated and superseded in all respects by this
Agreement.
(b) The holders of Series A Preferred Stock hereby waive any and all
rights granted to them in the Prior Agreement and hereby consent to the entering
by the Company into the Series B Preferred Stock Purchase Agreement and all of
the transactions contemplated thereby.
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3. RESTRICTIVE LEGEND. Each certificate representing the Series A Preferred
Stock, each certificate representing the Series B Preferred Stock, each
certificate representing the Conversion Shares, and, other than in a Public Sale
or as otherwise provided in Section 4 hereof, each certificate issued upon
exchange or transfer of any Series A Preferred Stock, Series B Preferred Stock
or Conversion Shares, as the case may be, shall be stamped or otherwise
imprinted with a legend substantially in the following form:
"THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS THEY HAVE BEEN REGISTERED
UNDER THAT ACT OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE."
4. NOTICE OF PROPOSED TRANSFER. Prior to any proposed transfer of any
Restricted Stock (other than under the circumstances described in Sections 5, 6
or 7 hereof), the holder thereof shall give written notice to the Company of its
intention to effect such transfer. Each such notice shall describe the manner of
the proposed transfer and, if requested by the Company, shall be accompanied by
an opinion of counsel reasonably satisfactory to the effect that the proposed
transfer of such Restricted Stock may be effected without registration under the
Securities Act, whereupon the holder of such Restricted Stock shall be entitled
to transfer such Restricted Stock in accordance with the terms of its notice;
PROVIDED, HOWEVER, that in the case of any holder of Preferred Stock that is a
partnership or limited liability company, no such opinion or other documentation
shall be required if such notice shall cover a pro-rata distribution by such
partnership or limited liability company to its partners or members; PROVIDED,
FURTHER, that no such opinion or other documentation shall be required if such
notice shall describe the transfer (i) from a holder of Restricted Stock to a
shareholder, affiliate, spouse or lineal descendant of such person or (ii) from
one News Group Company (as hereinafter defined) to another News Group Company,
provided that, in each such case, any such transferee shall agree in writing to
be bound by, and to comply with, all applicable provisions of the Agreement and
be deemed a Stockholder for purposes of this Agreement. For purposes of this
section, a "News Group Company" shall mean British Sky Broadcasting plc and any
other entity, affiliate, person or joint venture, including any successors, in
which News Corporation (X) holds at least a 25% voting or non-voting equity
interest and (Y) possesses the power, either directly or indirectly, to direct
or participate in the direction of management and policies of such entity,
affiliate, person or joint venture, whether through the ownership of voting
securities, by contract or otherwise. In addition to any legend required by the
Stockholders Agreement, each certificate representing the Restricted Stock
transferred as above provided shall bear the legend set forth in Section 3,
unless (i) such transfer is in accordance with the provisions of Rule 144 (or
any other rule permitting public sale without registration under the Securities
Act) or (ii) the opinion of counsel referred to above is to the further effect
that the transferee and any subsequent transferee (other than an affiliate of
the Company) would be entitled to transfer such securities without registration
under the Securities Act.
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The foregoing restrictions on transferability of Restricted Stock shall
terminate as to any particular shares of Restricted Stock when such shares shall
have been effectively registered under the Securities Act and sold or otherwise
disposed of in accordance with the intended method of disposition by the seller
or sellers thereof set forth in the registration statement concerning such
shares. Whenever a holder of Restricted Stock is able to demonstrate to the
reasonable satisfaction of the Company (and its counsel) that the provisions of
Rule 144(k) of the Securities Act (or subsequent similar rule) are available to
such holder without limitation, such holder of Restricted Stock shall be
entitled to receive from the Company, without expense, a new certificate not
bearing the restrictive legend set forth in Section 3.
5. REQUIRED REGISTRATION.
(a) At any time commencing on the date that is 180 days following the
consummation of the first public offering of shares of Common Stock by the
Corporation, the holders of at least 10% of the Series A Preferred Stock (or the
holders of shares of Common Stock issued upon conversion of the Series A
Preferred Stock) may request the Company to register under the Securities Act
shares of such stock held by such requesting holder or holders for sale in the
manner specified in such notice, PROVIDED, HOWEVER, that the only securities
which the Company shall be required to register pursuant hereto shall be shares
of Common Stock, and PROVIDED, FURTHER, that the value of such securities to be
registered is at least $5,000,000. The Company shall be obligated to register
Restricted Stock pursuant to this Section 5(a) on three occasions only.
(b) At any time commencing on the date that is 180 days following the
consummation of the first public offering of shares of Common Stock by the
Corporation, the holders of at least 10% of the Series B Preferred Stock (or the
holders of shares of Common Stock issued upon conversion of the Series B
Preferred Stock) may request the Company to register under the Securities Act
shares of such stock held by such requesting holder or holders for sale in the
manner specified in such notice, provided, however, that the only securities
which the Company shall be required to register pursuant hereto shall be shares
of Common Stock, and PROVIDED, FURTHER, that the value of such securities to be
registered is at least $5,000,000. The Company shall be obligated to register
Restricted Stock pursuant to this Section 5(b) on three occasions only.
(c) Promptly following receipt of any notice under Section 5(a) or under
Section 5(b), the Company shall immediately notify any holders of Restricted
Stock from whom notice has not been received and shall use its best efforts to
register under the Securities Act, for public sale in accordance with the method
of disposition specified in such notice from requesting holders, the number of
shares of Restricted Stock specified in such notice (and the number of shares of
Restricted Stock in any notices received from other holders within 10 days after
their receipt of such notice from the Company). If such method of disposition
shall be an underwritten public offering, (i) the Company may designate the
managing underwriter of such offering, such designation subject to the approval
of the party or parties making the request pursuant to this Section 5, such
approval not to be unreasonably withheld, and (ii) as and to the extent that, in
the opinion of the managing underwriter, the Restricted Stock so requested to be
registered would adversely affect the marketing of such Restricted Stock, the
number of shares
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of Restricted Stock included in such registration shall be reduced pro rata
among all the holders of Preferred Stock making such request under this Section
5, based upon the number of shares owned by such holders of Preferred Stock. In
the event that the number of shares of Restricted Stock included in such
registration shall be reduced for the requesting holders of Restricted Stock by
an amount equal to or greater than 37.5% of the aggregate number of shares of
Restricted Stock requested to be registered by such holders of Restricted Stock,
then such request to register Restricted Stock shall not be counted as one of
the permitted requests for registration pursuant to Section 5(a) or 5(b) above.
(d) Notwithstanding anything to the contrary contained herein, the
obligation of the Company under this Section 5 shall be deemed satisfied only
when a registration statement covering all shares of Restricted Stock specified
in notices received under paragraph (a) or (b) above, as reduced (if at all)
pursuant to the provisions of paragraph (c) above, for sale in accordance with
the method of disposition specified by the requesting holder, shall have become
effective and, if such method of disposition is a firm commitment underwritten
public offering, all such shares shall have been sold pursuant thereto.
(e) The Company shall be entitled to include in any registration
statement referred to in this Section 5, for sale in accordance with the method
of disposition specified by the requesting holders, shares of Common Stock to be
sold by the Company for its own account, except as and to the extent that, in
the opinion of the managing underwriter (if such method of disposition shall be
an underwritten public offering), such inclusion would adversely affect the
marketing of the Restricted Stock to be sold. In the event that a reduction of
shares of Restricted Stock being registered is necessary pursuant to the
provisions of paragraph (c) above, all shares of Common Stock to be sold by the
Company for its own account will get cut-back before any shares of Restricted
Stock to be sold by a holder of such Restricted Stock get cut-back. Except as
provided in this paragraph (e), the Company will not effect any other
registration of its Common Stock, whether for its own account or that of other
holders, from the date of receipt of a notice from requesting holders pursuant
to this Section 5 until the completion of the period of distribution of the
registration contemplated thereby.
6. FORM S-3 REGISTRATION.
(a) If the Company shall receive from any holder or holders of
Restricted Stock, a written request or requests that the Company effect a
registration on Form S-3 (or any successor form to Form S-3 regardless of its
designation), the Company will: (i) promptly give written notice of the proposed
registration, and any related qualification or compliance, to all other holders
of Restricted Stock from whom notice has not been received; and
(ii) as soon as practicable, effect such registration (including,
without limitation, the execution of an undertaking to file post-effective
amendments, appropriate qualifications under applicable blue sky or other
state securities laws and appropriate compliance with applicable
regulations issued under the Securities Act and any other government
requirements or regulations) as may be so requested and as would permit or
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facilitate the sale and distribution of all or such portion of such
holder's or holders' Restricted Stock as are specified in such request,
together with all or such portion of the Restricted Stock of any holder or
holders thereof joining in such request as are specified in a written
request given within thirty (30) days after receipt of such written notice
from the Company, PROVIDED that the Company shall not be obligated to
effect any such registration, qualification or compliance pursuant to this
Section 6(a) if (A) the Company is not entitled to use Form S-3 (or any
subsequent similar form) or (B) the aggregate amount of the Restricted
Stock requested to be registered pursuant to this Section is less than
$1,000,000, and PROVIDED, FURTHER, that the only securities which the
Company shall be required to register pursuant hereto shall be shares of
Common Stock. Subject to the foregoing, the Company shall file a
registration statement covering the Restricted Stock so requested to be
registered as soon as practicable after receipt of the request or requests
of the holders of the Restricted Stock.
(b) Registrations effected pursuant to this Section 6 shall not be
counted as requests for registration effected pursuant to Section 5.
7. INCIDENTAL REGISTRATION. If the Company, at any time following the
consummation of its initial public offering of equity securities (other than
pursuant to Section 5 or Section 6 hereof), proposes to register any of its
Common Stock under the Securities Act for sale to the public, whether for its
own account or for the account of other security holders or both (except with
respect to registration statements on Form S-4 or S-8 or another form not
available for registering the Restricted Stock for sale to the public), it will
give written notice at such time to all holders of outstanding Restricted Stock
of its intention to do so. Upon the written request of any such holder, given
within 10 days after receipt of any such notice by the Company, to register any
of its Restricted Stock (which request shall state the intended method of
disposition thereof), the Company will use its best efforts to cause the
Restricted Stock as to which registration shall have been so requested to be
included in the securities to be covered by the registration statement proposed
to be filed by the Company, all to the extent requisite to permit the sale or
other disposition by the holder (in accordance with its written request) of such
Restricted Stock so registered, PROVIDED, HOWEVER, that the only securities
which the Company shall be required to register pursuant hereto shall be shares
of Common Stock. In the event that any registration pursuant to this Section 7
shall be, in whole or in part, an underwritten public offering of Common Stock,
any request by a holder pursuant to this Section 7 to register Restricted Stock
shall specify that either (i) such Restricted Stock is to be included in the
underwriting on the same terms and conditions as the shares of Common Stock
otherwise being sold through underwriters under such registration or (ii) such
Restricted Stock is to be sold in the open market without any underwriting, on
terms and conditions comparable to those normally applicable to offerings of
common stock in reasonably similar circumstances. The number of shares of
Restricted Stock to be included in such an underwriting may be reduced (PRO RATA
among the requesting holders based upon the number of shares so requested to be
registered) if and to the extent that the managing underwriter shall be of the
opinion that such inclusion would adversely affect the marketing of the
securities to be sold by the Company therein, PROVIDED, HOWEVER, that such
number of shares of Restricted Stock shall not be reduced if any shares are to
be included in such underwriting for the account of any person other than the
Company or other than a holder of Restricted Stock and PROVIDED, FURTHER, that
no reduction in the number of shares
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of Restricted Stock requested to be included in such registration shall limit
the number of shares of Restricted Stock being offered pursuant to such
registration to less than thirty percent (30%) of the aggregate number of shares
offered under the registration.
8. REGISTRATION PROCEDURES AND EXPENSES. If and whenever the Company is
required by the provisions of Sections 5, 6 or 7 hereof to effect the
registration of any of the Restricted Stock under the Securities Act, the
Company will, as expeditiously as possible:
(a) prepare (and afford counsel for the selling holders reasonable
opportunity to review and comment thereon) and file with the Commission a
registration statement (which, in the case of an underwritten public offering
pursuant to Section 5 hereof, shall be on Form S-1 or other form of general
applicability satisfactory to the managing underwriter selected as therein
provided) with respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for the period of the
distribution contemplated thereby (determined as hereinafter provided);
(b) prepare (and afford counsel for the selling holders reasonable
opportunity to review and comment thereon) and file with the Commission such
amendments and supplements to such registration statement and the prospectus
used in connection therewith as may be necessary to keep such registration
statement effective for the period specified in paragraph (a) above and as shall
comply with the provisions of the Securities Act with respect to the disposition
of all Restricted Stock covered by such registration statement in accordance
with the sellers' intended method of disposition set forth in such registration
statement for such period;
(c) furnish to each seller and to each underwriter such number of copies
of the registration statement and the prospectus included therein (including
each preliminary prospectus) as such persons may reasonably request in order to
facilitate the public sale or other disposition of the Restricted Stock covered
by such registration statement;
(d) use its best efforts to register or qualify the Restricted Stock
covered by such registration statement under the securities or blue sky laws of
such jurisdictions as the sellers of Restricted Stock or, in the case of an
underwritten public offering, the managing underwriter, shall reasonably
request;
(e) immediately notify each seller under such registration statement and
each underwriter, at any time when a prospectus relating thereto is required to
be delivered under the Securities Act, of the happening of any event as a result
of which the prospectus contained in such registration statement, as then in
effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing;
(f) use its best efforts (if the offering is underwritten) to furnish,
at the request of any seller, on the date that Restricted Stock is delivered to
the underwriters for sale pursuant to such registration: (i) an opinion, in
customary form, dated as of such date, of counsel representing the Company for
the purposes of such registration, addressed to the underwriters and to such
seller, stating that such registration statement has become effective under the
Securities Act and that (A) to the best knowledge of such counsel, no stop order
suspending the
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effectiveness thereof has been issued and no proceedings for that purpose have
been instituted or are pending or contemplated under the Securities Act, (B) the
registration statement, the related prospectus, and each amendment or supplement
thereof, comply as to form in all material respects with the requirements of the
Securities Act and the applicable rules and regulations of the Commission
thereunder (except that such counsel need express no opinion as to financial
statements contained therein or any information provided by the underwriters or
the sellers) and (C) to such other effects as may reasonably be requested by
counsel for the underwriters or by such seller or its counsel (including a
so-called 10b-5 opinion), and (ii) a letter, dated as of such date, from the
independent public accountants retained by the Company, addressed to the
underwriters and to such seller, stating that they are independent public
accountants within the meaning of the Securities Act and that, in the opinion of
such accountants, the financial statements of the Company included in the
registration statement or the prospectus, or any amendment or supplement
thereof, comply as to form in all material respects with the applicable
accounting requirements of the Securities Act, and such letter shall
additionally cover such other financial matters (including information as of the
period ending no more than five business days prior to the date of such letter)
with respect to the registration in respect of which such letter is being given
as such underwriters or seller may reasonably request; and
(g) make available for inspection by each seller, any underwriter
participating in any distribution pursuant to such registration statement, and
any attorney, accountant or other agent retained by such seller or underwriter,
all financial and other records, pertinent corporate documents and properties of
the Company, and cause the Company's officers, directors and employees to
supply, subject to any confidentiality agreement reasonably required by the
Company, all information reasonably requested by any such seller, underwriter,
attorney, accountant or agent in connection with such registration statement and
permit such seller, attorney, accountant or agent to participate in the
preparation of such registration statement.
For purposes of paragraphs (a) and (b) above and of Section 5(d) hereof,
the period of distribution of Restricted Stock in a firm commitment underwritten
public offering shall be deemed to extend until each underwriter has completed
the distribution of all securities purchased by it, and the period of
distribution of Restricted Stock in any other registration shall be deemed to
extend until the earlier of the sale of all Restricted Stock covered thereby or
six months after the effective date thereof.
In connection with each registration hereunder, the selling holders of
Restricted Stock will furnish to the Company in writing such information with
respect to themselves and the proposed distribution by them as shall be
reasonably necessary in order to assure compliance with federal and applicable
state securities laws.
In connection with each registration pursuant to Sections 5, 6 and 7
hereof covering an underwritten public offering, the Company agrees to enter
into a written agreement with the managing underwriter selected in the manner
herein provided in such form and containing such provisions as are customary in
the securities business for such an arrangement between major underwriters and
companies of the Company's size and investment stature (including, without
limitation, customary provisions providing for indemnification of the selling
security-holders by the underwriters), PROVIDED that (i) such agreement shall
not contain any such
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provision applicable to the Company which is inconsistent with the provisions
hereof, (ii) the time and place of the closing under said agreement shall be as
mutually agreed upon among the Company, such managing underwriter and the
selling holders of Restricted Stock and (iii) the selling holders of Restricted
Stock shall be obligated to agree, pursuant to the terms of such underwriting
agreement, not to sell, pledge or otherwise transfer the remaining shares of
Common Stock or Preferred Stock held by such selling holders for the lock-up
period specified in such underwriting agreement; PROVIDED, HOWEVER, that such
period shall not exceed the lesser of (i) 180 days or (ii) the number of days
which officers and directors of the Company are contractually restricted from
selling stock in the Company.
The Company may postpone, for a period not to exceed three months, the
filing or the effectiveness of a Registration Statement pursuant to the
provisions of Sections 5 or 6 hereof if the Company, by action of its Board of
Directors, determines in good faith that such demand registration might
reasonably be expected to have a material adverse effect on the Company's
ability to consummate any proposal or plan by the Company or any of its
subsidiaries to engage in any acquisition of assets or any merger,
consolidation, tender offer or similar transaction. Under no circumstances may
the Company avail itself of the postponement provision set forth in the
preceding sentence more than once every 12 months.
9. EXPENSES. All expenses incurred by the Company in complying with
Sections 5, 6 and 7 hereof, including, without limitation, all registration and
filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, fees of the National Association
of Securities Dealers, Inc. or any successor thereto, transfer taxes, fees of
transfer agents and registrars, costs of insurance and fees and expenses of one
counsel reasonably acceptable to the Company for all sellers of Restricted
Stock, but excluding any Selling Expenses, are herein called "Registration
Expenses." All underwriting discounts and selling commissions applicable to the
sale of Restricted Stock are herein called "Selling Expenses."
The Company will pay all Registration Expenses in connection with each
registration statement filed pursuant to Sections 5, 6 or 7 hereof. All Selling
Expenses in connection with any registration statement filed pursuant to
Sections 5, 6 or 7 hereof shall be borne by the participating sellers in
proportion to the number of shares sold by each, or by such persons other than
the Company (except to the extent the Company shall be a seller) as they may
agree.
10. INDEMNIFICATION AND CONTRIBUTION. In the event of a registration of any
of the Restricted Stock under the Securities Act pursuant to Sections 5, 6 or 7
hereof, to the extent permitted by law, the Company will indemnify and hold
harmless each seller of such Restricted Stock thereunder and each underwriter of
Restricted Stock thereunder and each officer, director and each other person, if
any, who controls such seller or underwriter within the meaning of the
Securities Act, against any losses, claims, damages or liabilities, joint or
several, to which such seller or underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Restricted Stock was
registered under the Securities Act pursuant to Sections 5, 6 or 7, any
preliminary prospectus or final
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prospectus contained therein, or any amendment or supplement thereof, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse each such seller, each such
underwriter and each such controlling person for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; PROVIDED, HOWEVER, that the
Company will not be liable in any such case if and to the extent that any such
loss, claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission so made in
conformity with information furnished by such seller, such underwriter or such
controlling person in writing specifically identified for use in such
registration statement or prospectus and, PROVIDED FURTHER, that the indemnity
agreement provided in this Section 10 with respect to any preliminary prospectus
shall not inure to the benefit of any underwriter of Restricted Stock from whom
the person asserting any losses, claims, damages, liabilities or actions based
upon any untrue statement or alleged untrue statement of material fact or
omission or alleged omission to state therein a material fact purchased such
shares, if a copy of the final prospectus in which such untrue statement or
alleged untrue statement or omission or alleged omission was corrected had not
been sent or given to such person within the time required by the Securities Act
and the rules and regulations promulgated thereunder, unless such failure is the
result of noncompliance by the Company with its obligations in connection with
such underwriting.
In the event of a registration of any of the Restricted Stock under the
Securities Act pursuant to Sections 5, 6 or 7 hereof, to the extent permitted by
law, each seller of such Restricted Stock thereunder, severally and not jointly,
will indemnify and hold harmless the Company and each officer, director and each
other person, if any, who controls the Company within the meaning of the
Securities Act, each officer of the Company who signs the registration
statement, each director of the Company, each underwriter of Restricted Stock
and each person who controls any such underwriter within the meaning of the
Securities Act, against all losses, claims, damages or liabilities, joint or
several, to which the Company or such officer or director or underwriter or
controlling person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement under
which such Restricted Stock was registered under the Securities Act pursuant to
Sections 5, 6 or 7 hereof, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereof, or arise out of or
are based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, and will reimburse the Company and each such officer, director,
underwriter and controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; PROVIDED, HOWEVER, that such seller will be
liable hereunder in any such case if and only to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance upon
and in conformity with information pertaining to such seller, as such, furnished
in writing to the Company by such seller specifically identified for use in such
registration statement or prospectus; PROVIDED, FURTHER, HOWEVER, that the
liability of each seller hereunder shall be limited to the proportion of any
such loss, claim, damage, liability or expense which is equal to the proportion
that the public offering price of shares sold by such seller under
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such registration statement bears to the total public offering price of all
securities sold thereunder, but not to exceed the proceeds received by such
seller from the sale of Restricted Stock covered by such registration statement.
Promptly after receipt by an indemnified party hereunder of notice of
the commencement of any action, such indemnified party shall, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party in writing thereof, but the omission so to notify the
indemnifying party shall not relieve it from any liability which it may have to
any indemnified party other than under this Section 10. In case any such action
shall be brought against any indemnified party and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate in and, to the extent it shall wish, to assume and
undertake the defense thereof with counsel reasonably satisfactory to such
indemnified party, and, after notice from the indemnifying party to such
indemnified party of its election so to assume and undertake the defense
thereof, the indemnifying party shall not be liable to such indemnified party
under this Section 10 for any legal expenses subsequently incurred by such
indemnified party in connection with the defense thereof other than reasonable
costs of investigation and of liaison with counsel so selected; provided,
HOWEVER, that, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably
concluded (on advice of counsel) that there may be reasonable defenses available
to it which are different from or additional to those available to the
indemnifying party, or if the interests of the indemnified party reasonably may
be deemed to conflict with the interests of the indemnifying party, the
indemnified party shall have the right to select a separate counsel with the
consent of the indemnifying party (which consent shall not be unreasonably
withheld) and to assume such legal defenses and otherwise to participate in the
defense of such action, with the reasonable expenses and fees of such separate
counsel and other reasonable expenses related to such participation to be
reimbursed by the indemnifying party as incurred.
Notwithstanding the foregoing, any indemnified party shall have the
right to retain its own counsel in any such action, but the fees and
disbursements of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party shall have failed to retain counsel for the
indemnified person as aforesaid or (ii) the indemnifying party and such
indemnified party shall have mutually agreed to the retention of such counsel.
It is understood that, except as noted above with respect to conflicts, the
indemnifying party shall not, in connection with any action or related actions
in the same jurisdiction, be liable for the fees and disbursements of more than
one separate firm qualified in such jurisdiction to act as counsel for the
indemnified parties hereunder. The indemnifying party shall not be liable for
any settlement of any proceeding for which indemnification is provided for
hereunder effected without its prior written consent, but if settled with such
consent or if there be a final judgment in any such proceeding for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment.
If the indemnification provided for in the first two paragraphs of this
Section 10 is unavailable or insufficient to hold harmless an indemnified party
under such paragraphs in respect of any losses, claims, damages or liabilities
or actions in respect thereof referred to therein, then each indemnifying party
shall in lieu of indemnifying such indemnified party
11
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or actions in such proportion as
appropriate to reflect the relative fault of the Company, on the one hand, and
the sellers of such Restricted Stock, on the other, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or actions as well as any other relevant equitable considerations,
including without limitation the failure to give any notice under the third
paragraph of this Section 10. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact relates to information supplied by the Company, on the one
hand, or the sellers of such Restricted Stock, on the other, and to the parties'
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Company and the sellers of Restricted
Stock agree that it would not be just and equitable if contributions pursuant to
this paragraph were determined by PRO RATA allocation (even if all of the
sellers of such Restricted Stock were treated as one entity for such purpose) or
by any other method of allocation which did not take account of the equitable
considerations referred to above in this paragraph. The amount paid or payable
by an indemnified party as a result of the losses, claims, damages, liabilities
or action in respect thereof, referred to above in this paragraph, shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this paragraph, the sellers of
Restricted Stock shall not be required to contribute any amount in excess of the
amount, if any, by which the total price at which the Common Stock sold by each
of them was offered to the public exceeds the amount of any damages which they
would have otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission. No person guilty of fraudulent misrepresentations
(within the meaning of Section 11(f) of the Securities Act), shall be entitled
to contribution from any person who is not guilty of such fraudulent
misrepresentation.
The indemnification of underwriters provided for in this Section 10
shall be on such other terms and conditions as are at the time customary and
reasonably required by such underwriters. In the event that such indemnification
of underwriters is on such other terms and conditions, the indemnification of
the sellers of Restricted Stock in such underwriting shall, at the sellers'
request, be modified to conform to such terms and conditions.
11. CHANGES IN COMMON STOCK. If, and as often as, there are any changes in
the Common Stock by way of stock split, stock dividend, combination or
reclassification, or through merger, consolidation, reorganization or
recapitalization, or by any other means, appropriate adjustment shall be made in
the provisions hereof, as may be required, so that the rights and privileges
granted hereby shall continue with respect to the Common Stock as so changed and
shall apply to any securities received in any such transaction.
12. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company represents
and warrants to the Investors as follows:
(a) The execution, delivery and performance of this Agreement by the
Company have been duly authorized by all requisite corporate action and will not
violate any provision of law, any order of any court or other agency of
government, the Certificate of Incorporation or By-Laws of the Company, or any
provision of any indenture, agreement or other instrument to
12
which it or any of its properties or assets is bound, or conflict with, result
in a breach of or constitute (with due notice or lapse of time or both) a
default under any such indenture, agreement or other instrument, or result in
the creation or imposition of any lien, charge or encumbrance of any nature
whatsoever upon any of the properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the Company
and constitutes the legal, valid and binding obligation of the Company,
enforceable in accordance with its terms, subject as to enforcement of remedies
to (i) applicable bankruptcy, reorganization, insolvency, moratorium and similar
laws affecting the rights of creditors generally, (ii) a limitation by laws
relating to the availability of specific performance, injunctive relief or other
equitable remedies and (iii) the extent the indemnification provisions contained
herein may be limited by applicable federal or state securities laws.
13. RULE 144 REPORTING. The Company agrees with the Investors as follows:
(a) The Company shall make and keep public information available, as
those terms are understood and defined in Rule 144 (and subsequent similar
rules) under the Securities Act, at all times from and after the date the
Company becomes subject to the periodic reporting requirements of the Exchange
Act.
(b) The Company shall use its best efforts to file with the Commission,
prior to the filing deadline for such reports and other documents, all reports
and other documents as the Commission may prescribe under Section 13(a) or 15(d)
of the Exchange Act at any time after the Company has become subject to such
reporting requirements of the Exchange Act.
(c) The Company shall furnish to such holder of Restricted Stock
forthwith upon request (i) a written statement by the Company as to its
compliance with the reporting requirements of Rule 144 (at any time from and
after the date it first becomes subject to the reporting requirements of the
Exchange Act), and of the Securities Act and the Exchange Act (at any time after
it has become subject to such reporting requirements), (ii) a copy of the most
recent annual or quarterly report of the Company, and (iii) such other reports
and documents so filed as a holder may reasonably request to avail itself of any
rule or regulation of the Commission allowing a holder of Restricted Stock to
sell any such securities without registration.
14. MERGERS, ETC. The Company shall not, directly or indirectly, enter into
any merger, consolidation or reorganization in which the Company shall not be
the surviving corporation unless the proposed surviving corporation shall, prior
to such merger, consolidation or reorganization, agree in writing to assume the
obligations of the Company under this Agreement, and for that purpose references
hereunder to "Restricted Stock" shall be deemed to be references to the
securities which the holders of Preferred Stock would be entitled to receive in
exchange for Restricted Stock under any such merger, consolidation or
reorganization; provided, however, that the provisions of this Agreement shall
not apply to any holder of Preferred Stock, in the event of any merger,
consolidation or reorganization in which the Company is not the surviving
corporation if such stockholder is entitled to receive in exchange therefor (i)
cash or
13
(ii) securities all of which may be immediately sold to the public without
registration under the Securities Act.
15. MISCELLANEOUS.
(a) All covenants and agreements contained in this Agreement by or on
behalf of any of the parties hereto, including, without limitation, the rights
to indemnification under Section 10 hereof, shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto whether so
expressed or not. Without limiting the generality of the foregoing, the
registration rights conferred herein on the holders of Restricted Stock shall
inure to the benefit of any and all subsequent transferees of such stock who
individually acquire not less than 50,000 shares of such stock (appropriately
adjusted to reflect stock splits, stock dividends, combinations of shares or the
like after the date hereof); provided the transfer of such stock complies in all
material respects with the terms and conditions in the Stockholders Agreement.
(b) Notwithstanding any provision to the contrary contained herein, the
rights relating to registration of Restricted Stock set forth herein shall
terminate with respect to any holder of Restricted Stock at the date which is
the latest of (i) when such holder, together with its affiliates, owns less than
5% of the Company's outstanding Common Stock, (ii) when such Holder would be
entitled to sell within a single three-month period all of the Restricted Stock
then held by such Holder, under the provisions of Rule 144 (or subsequent
similar rule) under the Securities Act, and (iii) the fifth anniversary of the
date of this Agreement.
(c) All notices, requests, consents and other communications hereunder
shall be in writing and shall be sent by telecopier or overnight courier,
addressed as follows:
if to the Company, to it at:
Juno Online Services, Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxx, Esq.
with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxx, Esq.
if to any Investor (other than NAI, Offshore Online Investors, PW
Partners 1998 L.P., Xxxxxxxx Communications and Information Fund), to it at its
address set forth in Annex I hereto,
14
with a copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
if to NAI, to it at its address set forth in Annex I hereto,
with a copy to:
Squadron, Ellenoff, Plesent & Xxxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
if to Offshore Online Investors, Inc., to it at its address set
forth in Annex I hereto,
with a copy to:
Xxxxxxx Xxxx & Xxxxxxxxx
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx Xxxxxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
if to PW Partners 1998 L.P., to it at its address set forth in
Annex I hereto,
with a copy to:
Xxxxx Xxxxxxxxxxx LLC
One Citicorp Center
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
15
if to Xxxxxxxx Communications and Information Fund, to it at its
address set forth in Annex I hereto,
with a copy to:
Xxxxxx & Xxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx, Esq.
if to any subsequent holder of Preferred Shares, to such
holder at its address appearing on the stock transfer
records of the Company; or, in any such case, at such other
address or addresses as shall have been furnished in
writing by such party to the others, and
if to any Common Stockholder, to the addresses of such stockholder
set forth in Annex I hereto;
or, in any case, at such other address or addresses as shall have been furnished
in writing to the Company (in the case of a holder of Restricted Stock) or to
the holders of Restricted Stock (in the case of the Company). Any notice or
other communication pursuant to this Agreement shall be deemed to have been duly
given or made and to have become effective when delivered to the Party to which
directed.
(d) This Agreement shall be governed by and construed in accordance with
the laws of the State of New York, without giving effect to the principles
thereof governing conflict of laws.
(e) This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and may not be modified or amended except
in a writing executed by the Company, the holders of a majority of the
outstanding shares of Series A Preferred Stock (including shares of Common Stock
issued upon conversion thereof), and the holders of at least 66-2/3% of the
shares of Series B Preferred Stock (including shares of Common Stock issued upon
conversion thereof).
(f) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
16
IN WITNESS WHEREOF, the Company and each of the Investors has executed this
Agreement as of the day and year first above written.
JUNO ONLINE SERVICES, INC.
By: /S/ XXXXXXX XXXXX
--------------------------------------
Name: Xxxxxxx Xxxxx
Title: President
[Investor Signature Pages]
ANNEX I
INVESTORS AND AMOUNT OF SECURITIES OWNED
NAME AND ADDRESS OF PURCHASER NUMBER OF SHARES
COMMON STOCK
XXXXX X. XXXX 100
c/o DESCO
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
SERIES A PREFERRED STOCK
D.E. SHAW DEVELOPMENT, L.P. 48,431,999
c/o DESCO
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. XXXX & CO., L.P. 25,000,000
c/o DESCO
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
D.E. SHAW INVESTMENT GROUP, L.P. 3,515,298
c/o DESCO
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXX-JUNO TRUST 1,050,000
c/o DESCO
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXX XXXXXXX 749,167
c/o DESCO
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXX XXXXXXX 549,166
c/o DESCO
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXX XXXXX 146,500
c/o DESCO
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX XXXXXXXX 100,000
c/o DESCO
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX XXXXXXXX 7,500
c/o DESCO
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX XXXXXXX 7,500
c/o DESCO
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXXXXX XXXXXXX 20,000
c/o DESCO
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
SERIES B PREFERRED STOCK
PROSPECT STREET NYC CO-DISCOVERY FUND, L.P. 3,158,595
Xxxxxx
Xxxxx
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
PROSPECT STREET NYC CO-INVESTMENT FUND, L.P. 350,955
Xxxxxx
Xxxxx
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
CG ASIAN-AMERICAN FUND, LP 1,754,775
c/o Sycamore Ventures
000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attention: Kit X. Xxxx
CITI GROWTH FUND II OFFSHORE, LP 701,910
c/o Sycamore Ventures
000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attention: Kit X. Xxxx
PRINCETON GLOBAL FUND, LP 1,052,865
c/o Sycamore Ventures
000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attention: Kit X. Xxxx
KILIN TO
c/o Sycamore Ventures 70,191
000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attention: Kit X. Xxxx
XXXX X. XXXXXXX 70,191
c/o Sycamore Ventures
000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attention: Kit X. Xxxx
KIT X. XXXX 33,692
c/o Sycamore Ventures
000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attention: Kit X. Xxxx
XXXXX X. XXXXX 17,548
c/o Sycamore Ventures
000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attention: Kit C. Xxxx
XXXX XXXXXXX XXXXXX 17,548
c/o Sycamore Ventures
000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attention: Kit X. Xxxx
XXXXXXX X. XXXXX 14,038
c/o Sycamore Ventures
000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attention: Kit X. Xxxx
XXXXX XXX 7,019
c/o Sycamore Ventures
000 Xxxxx Xxxxx
Xxxxx 000
Xxxxxxxxxxxxx, XX 00000
Attention: Kit X. Xxxx
TAISHIN VENTURE CAPITAL INVESTMENT CO. LTD. 839,353
Xxxxxxx Xxx , Director
0X 00 Xxxxx Xxxx X. Xxxx, Xxx. 0., Xxxxxx,
Xxxxxx
GOLDEN J&N INVESTMENT INC. 839,353
x/x Xx. Xxxx Xxx
X.X. Xxx 00-000
Xxxxxx, XXXXXX
FEDERATED LIMITED 839,353
c/o Xx. Xx-Hong Chen
0X 000 Xxxxxxx X. Xxxx, Xxx. 0
Xxxxxx, XXXXXX
WIN GROUP INVESTMENT CO., INC. 294,576
Lin, Xx Xxxx
00X 000 Xxxx Xxx Xxxxx Xxxx., Xxxxxx, Xxxxxx
MR. CHIH XXXX XXX 294,576
00X 000 Xxxx Xxx Xxxxx Xxxx Xxx.0
Xxxxxx, XXXXXX
X. XXXXX MGF. CO., LTD. 294,576
Xxxxx Xxxxx, Director
7F 325 Fushin North Road
Taipei, Taiwan
FAITH HOLDINGS INTERNATIONAL, LTD. 294,576
Xxxxxx Xxxxx
0X 0 Xxxx 000
Xxxxxx Xxxx
Xxxxxx, Xxxxxx
XXXXX INVESTMENT & DEVELOPMENT CORP. 587,561
Xx. X.X. Xxxx
00X 000 Xxxxxxxxx X. Xx. Xxx 0
Xxxxxx, Xxxxxx
GLOBAL INVESTMENT LTD. 589,152
Xxxxx Hassonah
c/o Rana Investment Co.
P.O. Box 60148
Xxxxxx 00000, XXXXX XXXXXX
THE INDIANAPOLIS COMPANY LTD. 1,178,304
Xxx Xxxxx
President
c/o Worms & Co., Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
APPLEWOOD ASSOCIATES, L.P. 1,403,820
Xxxxxxx Xxxxxx
Applewood Associates, L.P.
00 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
WINFIELD CAPITAL CORP. 1,178,304
Xxxx X. Xxxxxx
000 Xxxxxxxxxx Xxxxxx
Xxxxx Xxxxxx, XX 00000
PEAK PARTNERS 589,152
Xx. Xxx Xxx
00 Xxxxxxx Xxxxx
Xxxxxxxxx 0 Xxxxx
Xxxxxx, XX 00000
22
CLEMENTE CAPITAL, INC. 294,576
Xxxxx Xxxxxxxx
Carnegie Hall Towers
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
PW PARTNERS 1998 L.P. 1,930,252
Dhan Pai
1285 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
OFFSHORE ONLINE INVESTORS, INC. 4,713,216
Xxxxx Xxxxx
Xxxxxxxxx Xxxxxxxx
X.X. Xxx 00
Xxxx Xxxx
Xxxxxxx, Xxxxxxx Xxxxxx Xxxxxxx
SELIGMAN COMMUNICATIONS AND INFORMATION FUND, INC. 3,509,549
Storm Boswick
J. & X. Xxxxxxxx & Co., Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
XXXXXX X. XXXXXXX 294,576
00000 Xxxxxxxx Xxxx
Xxx Xxxxx Xxxxx, XX 00000-0000
XXXXXX X. XXXXXXXX 52,643
00 Xxxxxxxx Xxxx
Xx. Xxxxx, XX 00000-0000
XXXXXX XXXXX XXXXXX 52,643
000 Xxxxx Xxxxxx, Xxxxxx Xxxxx
Xxx Xxxx, XX 00000
ELIOT XXXX XXXXXXXX 7,019
00 Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
XXXX XXXXXXXX 100,022
000 X. 00xx Xxxxxx #00X
Xxx Xxxx, XX 00000
23
MONY RUEVEN 50,011
0 Xxxxxx Xx.
Xxxxxxxx, XX 00000
XXXXXX XXXXXXXX 70,191
00 Xxxxx Xxxx
Xxxxx Xxxxxx Xxxxx, XX 00000
MAXIMILIAN XXXX XXXXX 35,095
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
XXXXXXX XXXXXXX 21,057
c/o D. E. Shaw Securities International
Finsbury Dials
00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
XXXXXX XXXXXX 42,115
c/o D. E. Shaw Securities International
Finsbury Dials
00 Xxxxxxxx Xxxxxx
Xxxxxx XX0X 0XX
Xxxxxx Xxxxxxx
XXXXXX X. XXXXXXXXX 21,057
C/O X'XXXXXXXX GRAEV & KARABELL, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
XXXXXXXX X. XXXXX 14,038
C/O X'XXXXXXXX GRAEV & KARABELL, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
XXXXXX X. XXXXXX 10,529
C/O X'XXXXXXXX GRAEV & KARABELL, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
X'XXXXXXXX GRAEV & KARABELL, LLP PROFIT SHARING PLAN 10,529
C/O X'XXXXXXXX GRAEV & KARABELL, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
24
XXXXXX XXXXX 7,019
C/O X'XXXXXXXX GRAEV & KARABELL, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
XXXXXXX X. XXXXXX 3,510
C/O X'XXXXXXXX GRAEV & KARABELL, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
NEWS AMERICA INCORPORATED 10,527,946
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
NEWS AMERICA INCORPORATED 3,580,442 (Series B Prime)
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
25
