Support Agreement
This Agreement is made this 29th day of December 1998, by and
between Xxxxxx X. Xxxxxx ("Xxxxxx") and Xxxxxx X. Xxxxxx ("Xxxxxx")
(collectively, "G&M"), Rackspace, Ltd., a Texas limited partnership (the
"Partnership") and Xxxxxxx Xxx, Xxxx Xxxxxxxxx and Xxx Xxxxxx (collectively,
the "Class A Limited Partners").
G&M represent to the Class A Limited Partners that they own 100% of
the limited partner interests of Trout, Ltd. ("Trout") and are the sole
members of Macroweb, LC, which are Partners of the Partnership and as such,
G&M derive a benefit from the success of the Partnership. The Class A Limited
Partners of the Partnership have agreed to become limited partners of the
Partnership based in part upon the commitments made in this Agreement by G&M.
G&M agree as follows:
1. RIGHT OF FIRST REFUSAL. G&M may not propose to make any sale, transfer
(which shall include a merger, statutory exchange, consolidation or
recapitalization of Trout or Macroweb), assignment or other disposition of
all or any part of their membership interests in Macroweb, LC or the Trout
Interests in Trout (such interests desired to be sold, transferred, pledged
or assigned are referred to as the "Controlling Units offered for Sale")
except by sale of cash or a combination of cash and promissory notes. Prior
to making such disposition, Weston or Xxxxxx, as the case may be, shall first
offer the Controlling Units Offered for Sale to the Class A Limited Partners,
in proportion to their Ownership Interests in the Partnership under the same
terms and conditions as the proposed sale (the "Terms of Sale"). Xxxxxx
and/or Weston, as the case may be, shall provide to the Class A Limited
Partners all available information regarding the proposed sale and the
proposed purchaser, as may be reasonably requested by the Class A Limited
Partners. The Class A Limited Partners shall have four business days from the
receipt of such written offer to (i) elect in writing to purchase all of the
Controlling Units Offered for Sale (in proportion to their Ownership
Interests in the Partnership, or in whatever other proportion they may
otherwise agree), and (ii) make available to Xxxxxx and/or Weston, as the
case may be, at the offices of Macroweb, LC, an amount equal to ten (10%)
percent of the purchase price of the Controlling Units Offered for Sale as a
non-refundable deposit; provided that, in lieu of such deposit, the Class A
Limited Partners may pledge (under a pledge agreement reasonably acceptable
to Xxxxxx and/or Weston, as the case may be) their Units as security for
their obligation to pay an amount equal to 10% of the purchase price of the
Controlling Units Offered for Sale as a non-refundable deposit. Payment for
the Controlling Units Offered for Sale shall be made in accordance with the
Terms of Sale. To the extent that the Terms of Sale provide for a note or
notes, the Class A Limited Partners, to the extent they desire to purchase
all of the Controlling Units Offered for Sale, shall be required to provide
substantially the same credit worthiness as the proposed purchaser. If the
Class A Limited Partners do not elect to purchase all of the Controlling
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Units Offered for Sale, or otherwise fail to provide substantially the same
credit worthiness as the proposed purchaser, Xxxxxx and/or Weston, as the
case may be, shall be free to sell all the Controlling Units Offered for Sale
for a period of sixty (60) days after the expiration of the Class A Limited
Partners' option, provided that any such sale must be made under the same
terms and conditions as the Terms of Sale. In addition, G&M covenant that, so
long as G&M controls Macroweb and Trout and Macroweb is the General Partner
of the Partnership, Macroweb will not issue any additional membership
interests, and Trout will not issue any additional limited partner interest
that would result in it losing control of Trout, to anyone other than Xxxxxx
or Xxxxxx, so that Xxxxxx and Weston will own 100% of such interests in
Macroweb and control Trout.
2. TIME AND ATTENTION. Xxxxxx and Xxxxxx agree at such times as may be
requested by the Partnership from time to time, to provide the Partnership
with time and attention to assist the Partnership to succeed in its business
endeavors. The Partnership and the Class A Limited Partners acknowledge that
Xxxxxx and Weston have several additional business interests, and as such the
amount of time which may be spend by Xxxxxx and Xxxxxx for the benefit of the
Partnership is limited.
3. BOARD OF DIRECTORS. Xxxxxx and Weston agree to cause Macroweb, LC to have
a board of directors which will have a minimum of three positions. Xxxxxx and
Xxxxxx agree to name one of the Class A Limited Partners to Macroweb, LC's
board of directors for so long as they are employed by the Partnership or
own, in aggregate, 15% of the Ownership Percentage Interests of the
Partnership.
4. LOCATION OF SERVERS AND OFFICE. Xxxxxx and Weston agree to use their
reasonable best efforts to secure a location for the Partnership's data
center and offices at favorable rent.
5. INDEMNITY. Xxxxxx and Xxxxxx agree to take whatever action is necessary to
ensure that Xxxxxxx Xxx incurs no financial loss or expense related to the
office lease at 0000 Xxxxxx Xxxx, Xxx Xxxxxxx, Xxxxx 00000, including
indemnifying him for any amounts he is required to pay thereon.
6. NON-COMPETITION. Xxxxxx and Weston agree that they will not, directly or
indirectly (whether through any affiliate, family member or otherwise),
compete with the core business of the Partnership (whatever such core
business shall be at such time) anywhere in the world for so long as they
control the general partner of the Partnership, and for a period of one year
thereafter.
7. PROPRIETARY INFORMATION/BUSINESS OPPORTUNITIES. Xxxxxx and Xxxxxx
acknowledge and agree that the Partnership has and will continue to develop
proprietary information which is essential for the success of the
Partnership. Such information, includes but is not limited to marketing
plans, strategies, financial data, customer lists, supplier lists, source
code, business ideas (collectively, the "Confidential Information", whether
oral or embodied in documents (including writings, drawings, graphs, charts,
photographs, phonorecords, video recordings,
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and other data compilations from which information can be obtained) or
tangible things. Xxxxxx and Weston agree to keep the Confidential Information
secret at all times, and not to disclose such information to any third party
without the consent of the General Partner of the Partnership. Xxxxxx and
Xxxxxx shall be prohibited from using the Confidential Information for any
purpose other than the purpose of the Partnership.
Xxxxxx and Weston agree to promptly bring to the attention of the General
Partner and the Partnership, any business opportunity which become known to
them which relates to Partnership's core business activity at the time, which
is currently, commercially developing the Concept (as defined in the
Agreement of Limited Partnership of Rackspace, Ltd.).
8. SEVERABILITY. If any covenant contained in this agreement, or any part
thereof, is hereafter construed to be invalid or unenforceable, the same
shall not affect the remainder of the covenant or covenants, which shall be
given full effect, without regard to the invalid portion or portions. If any
covenant in this agreement, or any part thereof, is held to be unenforceable
because of its duration or its geographic scope, the parties agree that the
court making such determination shall have the power to reduce the duration
and/or area of such covenant to the longest duration and to the greatest
geographical scope which is permitted, and, in said reduced form, such
covenant shall then be enforced.
9. NOTICE. Any notice required in this Agreement shall be provided in the
manner and to the parties set forth in the Agreement of Limited Partnership
of Rackspace, Ltd. of even date herewith.
10. PERSONAL LIABILITY OF WESTON AND XXXXXX. The parties hereto agree that
under no circumstances shall Xxxxxx or Weston have any personal liability to
any of the parties hereto, except to the extent under an agreement executed
individually by Xxxxxx or Xxxxxx. With the exception of this agreement and
the "Credit Agreement" executed contemporaneously herewith, there are no
agreements between Xxxxxx and/or Weston, individually, and the parties
hereto. Therefore, no oral agreement between Xxxxxx or Xxxxxx and any of the
parties hereto shall be valid unless evidenced in writing and signed by the
parties hereto.
Rackspace, Ltd.
By: Macroweb, LC
By: /s/ Xxxxxx Xxxxxx
----------------------
Its: member
----------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxx Xxxxxx
------------------------
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Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
------------------------
Xxxxxxx Xxx
/s/ Xxxxxxx Xxx
------------------------
Xxxx Xxxxxxxxx
/s/ Xxxx Xxxxxxxxx
------------------------
Xxx Xxxxxx
/s/ Xxx Xxxxxx
------------------------
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AMENDMENT TO SUPPORT AGREEMENT
This Amendment to Support Agreement is made this 30th day of
November, 1999, by and between Xxxxxx X. Xxxxxx ("Weston"), Xxxxxx X. Xxxxxx
("Xxxxxx") (collectively, "G&M") and Xxxxxxx Xxx ("Yoo"), MiniPat & Company,
Ltd. ("MiniPat") and Xxxx Xxxxxxxxx ("Xxxxxxxxx) (collectively, the "Class A
Limited Partners") and The Xxxxxxxx Companies, LLC ("Xxxxxxxx"), Xxxxxx
Investment Interests, LLC. ("Weston"), Xxxx Capital Partners I, L.P.
("Xxxx"), and First Inning Investors, L.P. ("First Inning") (Isom, Weston,
Xxxxxxxx, MiniPat and First Inning are sometimes referred to herein as the
"New Limited Partners"). This Agreement amends the Support Agreement dated
December 29, 1998 between the Existing Partners (the "Support Agreement").
Except as amended by this Agreement, the terms of the Support Agreement shall
continue in full force and effect.
1. Additional Parties. The parties hereby amend the Support
Agreement to include the New Limited Partners as parties to the Support
Agreement.
2. Amendment to Paragraph 1. For the purposes of paragraph 1, in all
instances which refer to the Class A Limited Partners or to a Class A Limited
Partner, it shall read to include both the Class A Limited Partners and the
Class C Limited Partners. In addition, any sale or transfer between Xxxxxx
and Weston of the membership interests in Macroweb or the Trout Interests
shall not be subject to the right of first refusal and may be made without
restriction. Xxxxxx and Xxxxxx shall also have the right to make transfers to
their family members ("Transferees", which include spouses, children,
parents, grandparents, grandchildren, and including family members by
adoption) without subjecting the transfer to the right of first refusal,
however, any transfer made by such Transferee shall be subject to the rights
of first refusal contained herein. Xxxxxx and Weston shall also have the
right to make transfers of Trout Interests (in addition to transfers made to
Transferees) up to an amount equal to forty percent (40%) of the outstanding
Trout Interests and such transfers shall not be subject to the rights of
first refusal contained in Paragraph 1. In addition, any holder of a right of
first refusal under Paragraph 1 shall have 15 days, rather than 4 business
days to accept or reject the offer to purchase the Controlling Units offered
for Sale.
3. New Paragraph 11. This Agreement shall terminate upon the
dissolution or termination of Rackspace, Ltd., including but not limited to
any dissolution or termination resulting from the merger of Rackspace, Ltd.
into any other entity, or any dissolution or termination resulting from the
sale of all or substantially all of the assets of Rackspace, Ltd. In
addition, the rights of first refusal contained in Paragraph 1 shall no
longer apply to the Trout Interests if Trout is no longer a limited partner
of Rackspace, Ltd. and shall no longer apply to the membership interests in
Macroweb, LC if Macroweb, LC is no longer the general partner of Rackspace,
Ltd. The above notwithstanding, to the extent that Rackspace, Ltd. is
dissolved or terminated as a result of a merger or other combination wherein
the same or substantially the same owners own the successor entity (the
"Successor") as own Rackspace, Ltd., this Agreement shall continue in effect,
and shall continue until the earlier to occur of the dissolution or
termination of the Successor, or a public offering of the shares of the
Successor.
4. First Inning agrees that it will not permit any of its ownership
interests (whether represented as stock, membership interests, partnership
interests or otherwise) to be transferred to a third party unless after such
transfer, Xxxxxx Xxx (either directly or through his control over Trango
Capital, L.L.C.) will continue to have the right to exercise control over all
matters pertaining to First Inning. Xxxx agrees that it will not permit any
of its ownership interests (whether represented as stock, membership
interests, partnership interests or otherwise) to be transferred to a third
party unless after such transfer, S. Xxxxx Xxxxxxx (either directly or
through his control over BESK Funding, Inc.) will continue to have the right
to exercise control over all matters pertaining to Xxxx. MiniPat agrees that
it will not permit any of its ownership interests (whether represented as
stock, membership interests, partnership interests or otherwise) to be
transferred to a third party unless after such transfer, Xxxxxx (either
directly or through his control over MiniPat, will continue to have the right
to exercise control over all matters pertaining to MiniPat. Weston agrees
that it will not permit any of its ownership interests (whether represented
as stock, membership interests, partnership interests or otherwise) to be
transferred to a third party unless after such transfer, Xxxxxx X. Xxxxxx
(either directly or through his control over Weston will continue to have the
right to exercise control over all matters pertaining to Weston.
5. This agreement may be signed in multiple original counterparts,
each of which shall be deemed an original and all of which shall constitute
one agreement, and the signatures of any party to any counterpart shall be
deemed to be a signature to, and may be appended to, any other counterpart.
6. Notwithstanding anything in this Agreement to the contrary, a
party to this Amendment to Support Agreement ("Existing Party") may assign
any right of first refusal it has to acquire an interest in Trout or
Macroweb to any (i) current limited partner, partner, shareholder or member
of such Existing Party, or an Affiliate of such Person, or an entity
controlled by such Persons or their Affiliates, or (ii) another Person upon
the prior consent of Macroweb and Trout in their sole discretion (a "Current
Affiliate") and provide Macroweb and Trout written notice of such assignment
within five (5) Business Days. Upon any such assignment, the Current
Affiliate shall be subject to the rights, obligations, and restrictions
provided in the Support Agreement (as amended) with respect to exercising any
such rights.
/s/ Xxxxxx X. Xxxxxx
-----------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
-----------------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
-----------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx Xxx
-----------------------------
Xxxxxxx Xxx
/s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx
MiniPat & Company, Ltd.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------
General Partner
Trout, Ltd.
By: Knightsbridge, L.C.,
General Partner
By: /s/ Xxxxxx Xxxxxx, member
--------------------------
Its: member
--------------------------
Xxxx Capital Partners I, L.P.
By: BESK Funding, Inc.,
General Partner
By: /s/ S. Xxxxx Xxxxxxx
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S. Xxxxx Xxxxxxx
President
SECOND AMENDMENT TO SUPPORT AGREEMENT
This Second Amendment to Support Agreement is made this 22nd day of
February, 2000, by and between Xxxxxx X. Xxxxxx ("Xxxxxx"), Xxxxxx X. Xxxxxx
("Xxxxxx") (collectively, "G&M") and Xxxxxxx Xxx ("Yoo"), MiniPat & Company,
Ltd. ("MiniPat") and Xxxx Xxxxxxxxx (AElmendorf) (collectively, the "Class A
Limited Partners") and The Xxxxxxxx Companies LLC ("Xxxxxxxx"), Xxxxxx
Investment Interest, L.L.C. ("Weston"), Xxxx Capital Partners I, L.P.
("Xxxx"), and First Inning Investors, L.P. ("First Inning") (Isom, Weston,
Xxxxxxxx, MiniPat and First Inning are sometimes referred to herein as the
"Class C Limited Partners") and 2M Technology Ventures, L.P. ("2M"). This
Agreement amends the Support Agreement dated December 29, 1998, as amended
(the "Support Agreement"). Except as amended by this Agreement and the
Amendment to Support Agreement dated November 30, 1999, the terms of the
Support Agreement shall continue in full force and effect.
1. Additional Party. The parties hereby amend the Support Agreement
to include 2M as a Class C Limited Partner under the terms of the Support
Agreement, as amended.
2. 2M agrees that it will not permit any of its ownership interests
(whether represented as stock, membership interests, partnership interests or
otherwise) to be transferred to a third party unless after such transfer,
Xxxxxx X. Xxxxxxxx or Xxxxxx X. Xxxxx (either directly or indirectly), or
their respective heirs or beneficiaries under their respective xxxxx
(including without limitation any trusts thereunder), will continue to have
the right to exercise control over all matters pertaining to 2M; provided,
however, that the restriction contained in this paragraph 2 shall terminate
upon the earlier to occur of (i) June 30, 2001, or (ii) immediately before
the effective date of an initial public offering of (x) any successor entity
of the Partnership, or (y) any entity that holds a majority of the
outstanding equity interest in the Partnership.
3. This agreement may be signed in multiple original counterparts,
each of which shall be deemed an original and all of which shall constitute
one agreement, and the signatures of any party to any counterpart shall be
deemed to be a signature to, and may be appended to, any other counterpart.
/s/ Xxxxxx X. Xxxxxx
----------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
----------------------
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
----------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxxx Xxx
----------------------
Xxxxxxx Xxx
/s/ Xxxx Xxxxxxxxx
----------------------
Xxxx Xxxxxxxxx
MiniPat & Company, Ltd.
By: /s/ Xxxxxxx X. Xxxxxx
----------------------
General Partner
Trout, Ltd.
By: Knightsbridge, L.C.,General
Partner
By: /s/ Xxxxxx X. Xxxxxx
---------------------
Its: Member
---------------------
Xxxx Capital Partners I, L.P.
By: BESK Funding, Inc.,
General Partner
By: /s/ S. Xxxxx Xxxxxxx
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S. Xxxxx Xxxxxxx
President
First Inning Investors, L.P.
By: Trango Capital L.L.C.,
General Partner
By: /s/ Xxxxxx X. Xxx
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Xxxxxx X. Xxx, Manager
The Xxxxxxxx Companies LLC
By: /s/ Xxxxxxxx X. Xxxxxxxx
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Its: President
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Weston Investment Interest, L.L.C.
By: /s/ Xxxxxx X. Xxxxxx
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Its: Manager
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2M Technology Ventures, L.P.
By: 2M Technology Group, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxx
----------------------
