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EXHIBIT 10.5
THIRD AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
▇▇▇▇▇▇▇.▇▇▇, INC.
JULY 15, 1999
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TABLE OF CONTENTS
PAGE
CERTAIN DEFINITIONS............................................................................................ 1
ARTICLE 2 REGISTRATION RIGHTS.........................................................................3
2.1 Demand Registrations............................................................................3
2.2 Piggyback Registration..........................................................................5
2.3 Expenses of Registration........................................................................6
2.4 Registration Procedures.........................................................................6
2.5 Indemnification.................................................................................7
2.6 Other Obligations...............................................................................9
2.7 Hold-Back Agreements...........................................................................10
2.8 Termination of Registration Rights.............................................................10
ARTICLE 3 TRANSFER AND BUY-BACK RESTRICTIONS.........................................................10
3.1 Prohibition on Transfer........................................................................10
3.2 Right of First Offer...........................................................................10
3.3 Exempt Transactions............................................................................11
3.4 Termination of Rights..........................................................................11
ARTICLE 4 COVENANTS OF THE COMPANY...................................................................11
4.1 Basic Financial Information....................................................................11
4.2 Additional Information Rights..................................................................12
4.3 Prompt Payment of Taxes, etc...................................................................13
4.4 Maintenance of Properties and Leases...........................................................13
4.5 Insurance......................................................................................13
4.6 Accounts and Records...........................................................................13
4.7 Independent Accountants........................................................................13
4.8 Compliance with Laws...........................................................................14
4.9 Maintenance of Corporate Existence, etc........................................................14
4.10 Preemptive Rights..............................................................................14
4.11 Proprietary Information and Inventions Agreement...............................................15
4.12 Controls.......................................................................................15
4.13 Termination of Covenants.......................................................................15
i.
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TABLE OF CONTENTS
(CONTINUED)
PAGE
ARTICLE 5 CORPORATE GOVERNANCE.......................................................................15
5.1 Board of Directors.............................................................................15
5.2 Meetings of the Board..........................................................................16
5.3 Committees.....................................................................................16
5.4 Reimbursement of Expenses......................................................................17
5.5 Termination....................................................................................17
ARTICLE 6 MISCELLANEOUS..............................................................................17
6.1 Governing Law..................................................................................17
6.2 Successors and Assigns.........................................................................17
6.3 Entire Agreement; Amendment and Waiver.........................................................17
6.4 Notices, etc...................................................................................17
6.5 Delays or Omissions............................................................................17
6.6 Severability...................................................................................18
6.7 Counterparts...................................................................................18
6.8 Termination....................................................................................18
6.9 Specific Enforcement...........................................................................18
6.10 Amendment and Restatement of Prior Agreement...................................................18
ii.
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THIRD AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
THIS THIRD AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (this
"Agreement") dated as of July 15, 1999 by and among (i) ▇▇▇▇▇▇▇.▇▇▇, INC., a
Delaware corporation (the "COMPANY"), (ii) THE HOLDERS OF THE COMPANY'S SERIES E
PREFERRED STOCK AND WARRANTS TO PURCHASE SHARES OF SERIES E PREFERRED STOCK
identified on Exhibit A hereto (the "SERIES E HOLDERS"), (iii) THE HOLDERS OF
THE COMPANY'S SERIES D PREFERRED STOCK AND WARRANTS TO PURCHASE SHARES OF SERIES
D PREFERRED STOCK identified on Exhibit A hereto (the "SERIES D HOLDERS"), (iv)
THE HOLDERS OF THE COMPANY'S SERIES C PREFERRED STOCK AND WARRANTS TO PURCHASE
SHARES OF SERIES C PREFERRED STOCK identified on Exhibit A hereto (the "SERIES C
HOLDERS"), (v) THE HOLDERS OF THE COMPANY'S SERIES B PREFERRED STOCK AND
WARRANTS TO PURCHASE SERIES B PREFERRED STOCK identified on Exhibit A hereto
(the "SERIES B HOLDERS" and, collectively with the Series C Holders, Series D
Holders and the Series E Holders, the "INVESTORS" and each individually an
"INVESTOR") and (v) THE HOLDERS OF THE COMPANY'S SERIES A PREFERRED STOCK
identified on Exhibit A hereto (the "SERIES A HOLDERS"). The Series E Holders,
the Series D Holders, the Series C Holders, the Series B Holders and the Series
A Holders are referred to collectively as the "STOCKHOLDERS."
RECITALS
A. The Company, the Series D Holders, the Series C Holders, the Series
B Holders, ▇▇▇▇ ▇▇▇▇ and the Series A Holders are parties to that certain Second
Amended and Restated Stockholders Agreement, dated as of June 8, 1998 (the
"STOCKHOLDERS AGREEMENT").
B. The Series E Holders purchased from the Company shares of Series E
Preferred Stock and warrants to purchase Series E Preferred Stock pursuant to
that certain Series E Preferred Stock and Warrant Purchase Agreement, dated as
of the date hereof (the "SERIES E PURCHASE AGREEMENT"). In connection therewith,
the Company and the Stockholders have entered into this Agreement to amend and
restate the prior Stockholders Agreement as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants
set forth herein, the parties agree as follows:
ARTICLE 1
CERTAIN DEFINITIONS
As used in this Agreement, the following terms shall have the following
respective meanings:
1.1 "AFFILIATE" of a person means any other person that controls, is
controlled by, or is under common control with, such person.
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1.2 "COMMISSION" shall mean the Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
1.3 "COMMON STOCK" shall mean the Company's Common Stock, $.01 par
value per share.
1.4 "EXCHANGE ACT" shall mean the Securities Exchange Act of 1934 (or
any similar successor federal statute), as amended, and the rules and
regulations thereunder, all as the same shall be in effect from time to time.
1.5 "INITIATING HOLDERS" shall have the meaning provided in Section
2.1(a)(ii).
1.6 "INVESTOR STOCK" shall mean (i) shares of Common Stock owned by the
Series B Holders, the Series C Holders, the Series D Holders and the Series E
Holders or any transferee thereof; (ii) shares of Common Stock issued or
issuable upon the conversion or exercise of any stock (including, without
limitation, the Series A Preferred Stock, Series B Preferred Stock, Series C
Preferred Stock, Series D Preferred Stock and Series E Preferred Stock),
warrants (including, without limitation, those certain warrants to purchase
Series B Preferred Stock held by Silicon Valley Bank and MMC/GATX Partnership
No. 1, those certain warrants to purchase Series C Preferred Stock held by the
Series C Holders, those certain warrants to purchase Series D Preferred Stock
held by Sony Music, a Group of Sony Music Entertainment Inc. and those certain
warrants to purchase Series E Preferred Stock held by the Series E Holders),
options or other securities of the Company owned by the Investors or any
transferee thereof; and (iii) any shares of Common Stock issued as a dividend or
other distribution with respect to or in exchange for or in replacement of the
shares referenced in (i) and (ii) above.
1.7 "PERMITTED TRANSFEREE" shall mean, with respect to a holder of
Investor Stock, any Affiliate of such Stockholder, any partner, shareholder or
other equity owner of such Stockholder or any affiliated investment funds.
1.8 "QUALIFIED PUBLIC OFFERING" shall mean an underwritten public
offering of Common Stock resulting in proceeds to the Company of not less than
$20 million (prior to expenses and underwriting commissions) and at an offering
price per share equal to at least $19.50 (as appropriately adjusted for future
stock splits, stock dividends, recapitalizations and similar transactions
affecting the Common Stock).
1.9 "REGISTRABLE SECURITIES" shall mean the Investor Stock and the
shares of Common Stock issuable upon conversion of the Series A Preferred Stock
held by the Series A Holders; provided, however, that Registrable Securities
shall not include any shares that have previously been registered under the
Securities Act or that have otherwise been sold to the public in an open-market
transaction under Rule 144.
1.10 The terms "REGISTERS," "REGISTERED" and "REGISTRATION" shall refer
to a registration effected by preparing and filing a registration statement in
compliance with the Securities Act and the declaration or ordering of the
effectiveness of such registration statement by the Commission.
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1.11 "REGISTRATION EXPENSES" shall mean all expenses incurred in
effecting any registration pursuant to this Agreement, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company, blue sky fees
and expenses, expenses of any regular or special audits incident to or required
by any such registration and the fees and expenses of one counsel for the
selling holders of Registrable Securities, but excluding Selling Expenses.
1.12 "RULE 144" shall mean Rule 144 as promulgated by the Commission
under the Securities Act, as such Rule may be amended from time to time, or any
similar successor rule that may be promulgated by the Commission.
1.13 "SECURITIES ACT" shall mean the Securities Act of 1933 (or any
similar successor federal statute), as amended, and the rules and regulations
thereunder, all as the same shall be in effect from time to time.
1.14 "SELLING EXPENSES" shall mean all underwriting discounts and
selling commissions applicable to the sale of Registrable Securities.
1.15 "SERIES A PREFERRED STOCK" shall mean the Company's Series A
Preferred Stock, $.01 par value per share.
1.16 "SERIES B PREFERRED STOCK" shall mean the Company's Series B
Preferred Stock, $.01 par value per share.
1.17 "SERIES C PREFERRED STOCK" shall mean the Company's Series C
Preferred Stock, $.01 par value per share.
1.18 "SERIES D PREFERRED STOCK" shall mean the Company's Series D
Preferred Stock, $.01 par value per share.
1.19 "SERIES E PREFERRED STOCK" shall mean the Company's Series E
Preferred Stock, $.01 par value per share.
ARTICLE 2
REGISTRATION RIGHTS
2.1 DEMAND REGISTRATIONS.
(a) REQUEST FOR REGISTRATION. At any time or times after the
earlier of (x) July 24, 2000 or (y) the effective date of the first registration
statement filed by the Company under the Securities Act, (i) holders of
Registrable Securities representing not less than a majority of the
then-outstanding Registrable Securities (the "LONG-FORM HOLDERS") may require
that the Company effect a registration under the Securities Act in the case of a
requested registration on Form S-1 or any similar form (a "LONG FORM
REGISTRATION"), with respect to at least twenty-five percent (25%) of the
Registrable Securities then outstanding, or (ii) any holder of Registrable
Securities (each a "SHORT-FORM HOLDER" and, together with the Long-Form Holders,
the
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"INITIATING HOLDERS") may require that the Company effect a registration under
the Securities Act in the case of a requested registration on Form S-3 or any
similar form, if available (a "SHORT-FORM REGISTRATION"), with respect to
Registrable Securities with an anticipated offering price of $1,000,000 or more
(each a "DEMAND REGISTRATION"). Upon receipt of written notice of such demand,
the Company will promptly give written notice of the proposed registration to
all other holders of Registrable Securities and will include in such
registration all Registrable Securities specified in such demand, together with
all Registrable Securities of any other holder of Registrable Securities joining
in such demand as are specified in a written request received by the Company
within twenty (20) days after delivery of the Company's notice. No Demand
Registration may be requested within 180 days after the date of consummation of
any previous registration under the Securities Act relating to an underwritten
offering of Common Stock without the Company's consent, which will not be
unreasonably withheld. The Company shall not be obligated to effect any such
Demand Registration in any particular jurisdiction in which the Company would be
required to qualify to do business or to execute a general consent to service or
process in effecting such registration.
(b) DEFERRAL OF DEMAND REGISTRATION. The Company shall file a
registration statement with respect to each Demand Registration requested
pursuant to Section 2.1(a) as soon as practicable after receipt of the demand of
the Initiating Holders; provided, however, that if in the good faith judgment of
the Board of Directors of the Company, deferral of such Demand Registration
would be in the best interests of the Company in that such registration would
interfere with a proposed primary registration of securities by the Company or
any other material corporate transaction (as evidenced by an appropriate
resolution of the Board), then the Company shall have the right to defer such
filing in order to effect such primary registration or other material corporate
transaction; provided, however, that (i) the Company may not defer the filing
for a period of more than one hundred eighty (180) days after receipt of the
demand of the Initiating Holders, (ii) the Company shall not exercise its right
to defer a Demand Registration more than once in any 24-month period and (iii)
if the Company undertakes a primary registration within 180 days following an
exercise of its deferral right, the holders of Registrable Securities shall have
"piggyback" rights under Section 2.2 hereof with respect to not less than
one-third (1/3) of the number of shares of Common Stock to be sold in such
offering.
(c) UNDERWRITING. If the Initiating Holders intend to distribute
the Registrable Securities covered by a Demand Registration by means of an
underwriting, they shall so advise the Company as a part of their demand made
pursuant to Section 2.1 and the Company shall include such information in its
written notice to holders of Registrable Securities. The Initiating Holders
shall have the right to select the managing underwriter(s) for an underwritten
Demand Registration, subject to the approval of the Company's Board of Directors
(which will not be unreasonably withheld or delayed). The right of any holder of
Registrable Securities to participate in an underwritten Demand Registration
shall be conditioned upon such holder's participation in such underwriting in
accordance with the terms and conditions thereof, and the Company and such
holders will enter into an underwriting agreement in customary form.
(d) PRIORITIES. The holders of Registrable Securities will have
absolute priority over any other securities included in a Demand Registration.
If other securities are included in any Demand Registration that is not an
underwritten offering, all Registrable Securities included
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in such offering shall be sold prior to or concurrently with the sale of any of
such other securities. If other securities are included in any Demand
Registration that is an underwritten offering, and the managing underwriter for
such offering advises the Company that in its opinion the amount of securities
to be included exceeds the amount of securities which can be sold in such
offering without adversely affecting the marketability thereof, the Company will
include in such registration all Registrable Securities requested to be included
therein prior to the inclusion of any other securities. If the number of
Registrable Securities requested to be included in such registration exceeds the
amount of securities which in the opinion of such underwriter can be sold
without adversely affecting the marketability of such offering, such Registrable
Securities shall be included pro rata among the holders thereof based on the
percentage of the outstanding Common Stock held by each such Stockholder
(assuming the conversion of the Series A, Series B, Series C, Series D and
Series E Preferred Stock and the exercise of all options, warrants and similar
rights held by such Stockholder).
2.2 PIGGYBACK REGISTRATION.
(a) REQUEST FOR INCLUSION. If the Company shall determine to
register any Common Stock for its own account or for the account of other
security holders of the Company on any registration form (other than Form S-4 or
S-8) which permits the inclusion of Registrable Securities (a "PIGGYBACK
REGISTRATION"), the Company will promptly give each holder of Registrable
Securities written notice thereof and, subject to Section 2.2(c), shall include
in such registration all the Registrable Securities requested to be included
therein pursuant to the written requests of holders of Registrable Securities
received within twenty (20) days after delivery of the Company's notice.
(b) UNDERWRITING. If the Piggyback Registration relates to an
underwritten public offering, the Company shall so advise the holders of
Registrable Securities as a part of the written notice given pursuant to Section
2.2(a). In such event, the right of any holder of Registrable Securities to
participate in such registration shall be conditioned upon such holder's
participation in such underwriting in accordance with the terms and conditions
thereof. All holders of Registrable Securities proposing to distribute their
securities through such underwriting shall (together with the Company) enter
into an underwriting agreement in customary form with the representative of the
underwriter or underwriters selected by the Company.
(c) PRIORITIES. If such proposed Piggyback Registration is an
underwritten offering and the managing underwriter for such offering advises the
Company that the securities requested to be included therein exceeds the amount
of securities that can be sold in such offering, except as provided in Section
2. l(b), any securities to be sold by the Company in such offering shall have
priority over any Registrable Securities, and the number of shares to be
included by a holder of Registrable Securities in such registration shall be
reduced pro rata on the basis of the percentage of the outstanding Common Stock
held by such Stockholder (assuming the conversion of the Series A Preferred
Stock, Series B Preferred Stock, Series C Preferred Stock, Series D Preferred
Stock and Series E Preferred Stock and the exercise of all options, warrants and
similar rights held by such Stockholder) and all other holders exercising
similar registration rights.
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2.3 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with up to two (2) Long-Form Registrations and five (5) Short-Form
Registrations and all Piggyback Registrations shall be borne by the Company;
provided, however, that (x) no registration shall count as one of the
Company-paid Long Form Registrations unless the holders of Registrable
Securities are able to register and sell at least 90% of the Registrable
Securities requested to be included therein, (y) the holders of Registrable
Securities shall be entitled to up to two (2) additional Long-Form Registrations
and five additional Short-Form Registrations so long as such holders agree to
bear all Registration Expenses associated therewith, and (z) no Short-Form
Holder shall be entitled to request more than one Company-paid Short-Form
Registration. All Selling Expenses relating to Registrable Securities included
in any Demand or Piggyback Registration shall be borne by the holders of such
securities pro rata on the basis of the number of shares sold by them.
2.4 REGISTRATION PROCEDURES. In the case of each registration effected
by the Company pursuant to this Article II, the Company will keep each holder of
Registrable Securities advised in writing as to the initiation of such
registration and as to the completion thereof. At its expense, the Company will
use its best efforts to:
(a) cause such registration to be declared effective by the
Commission and, in the case of a Demand Registration, keep such registration
effective for a period of one hundred eighty (180) days or until the holders of
Registrable Securities included therein have completed the distribution
described in the registration statement relating thereto, whichever first
occurs;
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
with such registration statement (including post-effective amendments) as may be
necessary to comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such registration statement;
(c) obtain appropriate qualifications of the securities covered by
such registration under state securities or "blue sky" laws in such
jurisdictions as may be requested by the holders of Registrable Securities;
provided, however, that the Company shall not be required to file a general
consent to service of process in any jurisdiction in which it is not otherwise
subject to service in order to obtain any such qualification;
(d) furnish such number of prospectuses and other documents
incident thereto, including any amendment of or supplement to the prospectus, as
a holder of Registrable Securities from time to time may reasonably request;
(e) notify each holder of Registrable Securities covered by such
registration statement, 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 included in such registration statement, as
then in effect, includes an untrue statement of a material fact or omits to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or incomplete in the light of the
circumstances then existing, and at the request of any such holder, prepare and
furnish to such holder a reasonable number of copies of a supplement to
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or an amendment of such prospectus as may be necessary so that, as thereafter
delivered to the purchasers of such shares, such prospectus shall not include an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading or
incomplete in the light of the circumstances then existing;
(f) cause all Registrable Securities covered by such registration
to be listed on each securities exchange or inter-dealer quotation system on
which similar securities issued by the Company are then listed;
(g) provide a transfer agent and registrar for all Registrable
Securities covered by such registration and a CUSIP number for all such
Registrable Securities, in each case not later than the effective date of such
registration;
(h) otherwise comply with all applicable rules and regulations of
the Commission, and make available to its security holders, as soon as
reasonably practicable, an earnings statement covering the period of at least
twelve months, but not more than 18 months, beginning with the first month after
the effective date of the registration statement, which earnings statement shall
satisfy the provisions of Section 11(a) of the Securities Act; and
(i) in connection with any underwritten Demand Registration, the
Company will enter into an underwriting agreement reasonably satisfactory to the
Initiating Holders containing customary underwriting provisions, including
indemnification and contribution provisions.
2.5 INDEMNIFICATION.
(a) The Company will indemnify each holder of Registrable
Securities, each of such holders' officers, directors, partners, agents,
employees and representatives, and each person controlling such holder within
the meaning of Section 15 of the Securities Act, and each underwriter, if any,
of such Registrable Securities and each person who controls any such
underwriter, with respect to each registration, qualification or compliance
effected pursuant to this Article II, against all expenses, claims, losses,
damages and liabilities (or actions, proceedings or settlements in respect
thereof) arising out of or based on any untrue statement (or alleged untrue
statement) of a material fact contained in any prospectus, offering circular or
other document (including any related registration statement, notification or
the like) incident to any such registration, qualification or compliance, or
based on any omission (or alleged omission) to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation by the Company of the Securities Act or any rule or
regulation thereunder applicable to the Company and relating to action or
inaction required of the Company in connection with any such registration,
qualification or compliance, and will reimburse each such indemnified person for
any legal and any other expenses reasonably incurred in connection with
investigating and defending or settling any such claim, loss, damage, liability
or action; provided, however, that the Company will not be liable in any such
case to the extent that any such claim, loss, damage, liability or expense
arises out of or is based on any untrue statement or omission based upon written
information furnished to the Company by such holder of Registrable Securities
and stated to be specifically for use therein. It is agreed that the indemnity
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agreement contained in this Section 2.5(a) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of the Company (which consent shall
not be unreasonably withheld).
(b) Each holder of Registrable Securities included in any
registration effected pursuant to this Article II shall indemnify the Company,
each of its directors, officers, agents, employees and representatives, and each
person who controls the Company within the meaning of Section 15 of the
Securities Act, each other such holder of Registrable Securities and each of
their officers, directors and partners, and each person controlling such
holders, and each underwriter, if any, of such Registrable Securities and each
person who controls any such underwriter, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any such registration statement, prospectus, offering circular or other
document, or any 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 such indemnified persons for any legal or any
other expenses reasonably incurred in connection with investigating or defending
any such claim, loss, damage, liability or action, in each case to the extent,
but only to the extent, that such untrue statement (or alleged untrue statement)
or omission (or alleged omission) is made in such registration statement,
prospectus, offering circular or other document in reliance upon and in strict
conformity with written information furnished to the Company by such holder of
Registrable Securities and stated to be specifically for use therein; provided,
however, that (x) no holder of Registrable Securities shall be liable hereunder
for any amounts in excess of the net proceeds received by such holder pursuant
to such registration, and (y) the obligations of such holder of Registrable
Securities hereunder shall not apply to amounts paid in settlement of any such
claims, losses, damages or liabilities (or actions in respect thereof) if such
settlement is effected without the consent of such holder (which consent shall
not be unreasonably withheld).
(c) Each party entitled to indemnification under this Section 2.5
(the "INDEMNIFIED PARTY") shall give notice to the party required to provide
indemnification (the "A") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought, and shall
permit the Indemnifying Party to assume the defense of any such claim or any
litigation resulting therefrom, provided that counsel for the Indemnified Party,
who shall conduct the defense of such claim or any litigation resulting
therefrom, shall be approved by the Indemnified Party (whose approval shall not
unreasonably be withheld), and the Indemnified Party may participate in such
defense at such party's expense, and provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 2.5 to the extent such
failure is not prejudicial. No Indemnifying Party in the defense of any such
claim or litigation shall, except with the consent of each Indemnified Party,
consent to entry of any judgment or enter into any settlement which does not
include an unconditional release of such Indemnified Party from all liability in
respect to such claim or litigation. Each Indemnified Party shall furnish such
information regarding itself or the claim in question as an Indemnifying Party
may reasonably request in writing and as shall be reasonably required in
connection with defense of such claim and litigation resulting therefrom.
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(d) If the indemnification provided for in this Section 2.5 is
held by a court of competent jurisdiction to be unavailable to an Indemnified
Party with respect to any loss, liability, claim, damage or expense referred to
therein, then the Indemnifying Party, in lieu of indemnifying such Indemnified
Party hereunder, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such loss, liability, claim, damage or expense
in such proportion as is appropriate to reflect the relative fault of the
Indemnifying Party on the one hand and of the Indemnified Party on the other in
connection with the statements or omissions which resulted in such loss,
liability, claim, damage or expense as well as any other relevant equitable
considerations. The relative fault of the Indemnifying Party and of the
Indemnified Party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission to state a material fact relates to information supplied by the
Indemnifying Party or by the Indemnified Party and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
(e) Notwithstanding the foregoing, to the extent that the
provisions on indemnification and contribution contained in an underwriting
agreement entered into in connection with an underwritten public offering are in
conflict with the foregoing provisions, the provisions in the underwriting
agreement shall control.
2.6 OTHER OBLIGATIONS. With a view to making available the benefits of
certain rules and regulations of the Commission which may effectuate the
registration of Registrable Securities or permit the sale of Registrable
Securities to the public without registration, the Company agrees to:
(a) after its initial registration under the Securities Act,
exercise best efforts to cause the Company to be eligible to utilize Form S-3
(or any similar form) for the registration of Registrable Securities;
(b) at such time as any Registrable Securities are eligible for
transfer under Rule 144(k), upon the request of the holder of such Registrable
Securities, remove any restrictive legend from the certificates evidencing such
securities at no cost to such holder;
(c) make and keep available public information as defined in Rule
144 under the Securities Act at all times from and after ninety (90) days
following its initial registration under the Securities Act;
(d) file with the Commission in a timely manner all reports and
other documents required of the Company under the Securities Act and the
Exchange Act at any time after it has become subject to such reporting
requirements; and
(e) furnish any holder of Registrable Securities upon request a
written statement by the Company as to its compliance with the reporting
requirements of Rule 144 (at any time from and after ninety (90) days following
the effective date of the first registration statement filed by the Company for
an offering of its securities to the general public), and of the Securities Act
and the Exchange Act (at any time after it has become subject to such reporting
requirements), a copy of the most recent annual or quarterly report of the
Company, and such
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other reports and documents as a holder of Registrable Securities may reasonably
request in availing itself of any rule or regulation of the Commission
(including Rule 144A) allowing a holder of Registrable Securities to sell any
such securities without registration.
2.7 HOLD-BACK AGREEMENTS. If requested by the Company or any
underwriter of Common Stock of the Company, a holder of Registrable Securities
shall not sell or otherwise transfer or dispose of any Common Stock (other than
pursuant to such registration) during (a) in the case of the Company's initial
public offering of Common Stock for its own account, the one hundred eighty
(180) day period following the effective date of such registration statement (or
such longer period as may be agreed to by the holders of not less than
two-thirds of the Registrable Securities), and (b) in the case of all subsequent
registrations of the Company's Common Stock, the ninety (90) day period
following the effective date of such registration statement; provided, however,
that if holders of Registrable Securities representing at least five percent
(5%) of the then-outstanding Common Stock are subjected to hold-back
restrictions of shorter duration or are released from such restrictions
entirely, such shorter periods or such release, as the case may be, shall apply
to all holders of Registrable Securities. The obligations described in this
Section 2.7 shall not apply to a registration on Form S-4 or Form S-8 or similar
forms which may be promulgated in the future and, except in the case of the
Company's initial public offering, shall not apply to a holder of Registrable
Securities representing less than one percent (1%) of the then-outstanding
Common Stock.
2.8 TERMINATION OF REGISTRATION RIGHTS. The right of any holder of
Registrable Securities to request inclusion of Registrable Securities in any
registration pursuant to this Article II shall survive until (i) all Registrable
Securities beneficially owned by such holder of Registrable Securities may
immediately be sold under Rule 144(k) without restriction as to volume and (ii)
the Company's Common Stock is listed on a national securities exchange or traded
in The Nasdaq Stock Market; provided, however, that the registration rights of
any holder of Registrable Securities representing more than five percent (5%) of
the Company's then-outstanding Common Stock shall survive until the tenth (10th)
anniversary of the date of this Agreement.
ARTICLE 3
TRANSFER AND BUY-BACK RESTRICTIONS
3.1 PROHIBITION ON TRANSFER. No Stockholder shall sell, transfer,
assign, pledge or otherwise dispose of any interest in any Investor Stock (a
"TRANSFER") other than in compliance with this Article III. Each Stockholder
agrees not to consummate any transfer (other than a transfer to a Permitted
Transferee pursuant to Section 3.3) until the expiration of a 30-day period (the
"ELECTION PERIOD") following delivery by such Stockholder of an Offer Notice
pursuant to Section 3.2.
3.2 RIGHT OF FIRST OFFER. Prior to any transfer of Investor Stock, the
transferring Stockholder shall deliver a written notice (the "OFFER NOTICE") to
the Company and the other holders of Investor Stock disclosing in reasonable
detail the number of shares of Investor Stock proposed to be transferred (the
"OFFERED SHARES") and the terms and conditions of such proposed transfer. Each
other holder of Investor Stock shall have the right, exercisable by delivery of
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written notice to the transferring Stockholder within 20 days after delivery of
the Offer Notice, to purchase all (but not less than all) of its pro rata share
(equal to such electing holder's percentage interest in the outstanding Investor
Stock) of the Offered Shares on the terms and conditions set forth in the Offer
Notice. In the event that any holder of Investor Stock declines to exercise its
right of first offer, the remaining unpurchased portion of the Offered Shares
shall be reoffered to the electing holders of Investor Stock on a pro rata basis
for a period of 10 days following the expiration of such 20-day period. To the
extent that the holders of Investor Stock have not elected to purchase all of
the Offered Shares prior to the expiration of the Election Period, the
transferring Stockholder may, within 90 days after the expiration of the
Election Period, transfer such Offered Shares to one or more third parties at a
price not less that 95% of the price per share specified in the Offer Notice.
Any Offered Shares not transferred during such 90-day period shall again be
subject to the provisions of this Section 3.2 upon subsequent transfer.
3.3 EXEMPT TRANSACTIONS. Any purported transfer of Investor Stock in
violation of the restrictions of this Article III shall be void, and the Company
shall not be obligated to give effect to such transfer on the books and records
of the Company. The restrictions set forth in this Article III shall not apply
to transfers of Investor Stock to a Permitted Transferee of the transferring
Stockholder or to transfers of Investor Stock made in connection with the
liquidation of a Stockholder; provided, however, that such Permitted Transferee
shall agree in writing to be bound by such restrictions in connection with
subsequent transfers.
3.4 TERMINATION OF RIGHTS. The rights of first offer of each holder of
Investor Stock under this Section 3 shall not apply to and shall terminate upon
the closing of a Qualified Public Offering.
ARTICLE 4
COVENANTS OF THE COMPANY
The Company hereby covenants and agrees, so long as any Registrable
Securities are outstanding, as follows:
4.1 BASIC FINANCIAL INFORMATION. The Company will furnish the following
reports to each holder of Registrable Securities:
(a) As soon as practicable after the end of each fiscal year of
the Company, and in any event within ninety (90) days thereafter, a consolidated
balance sheet of the Company and its subsidiaries, if any, as of the end of such
fiscal year, and consolidated statements of income and cash flow of the Company
and its subsidiaries, if any, for such year, prepared in accordance with
generally accepted accounting principles consistently applied and setting forth
in each case in comparative form the figures for the previous fiscal year, all
in reasonable detail and certified by independent public accountants of
recognized national standing selected by the Company.
(b) As soon as practicable after the end of each quarterly
accounting period in each fiscal year of the Company, and in any event within
forty-five (45) days thereafter, a consolidated balance sheet of the Company and
its subsidiaries, if any, as of the end of each such
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quarterly period and consolidated statements of income and cash flow of the
Company and its subsidiaries, if any, for such period and for the current fiscal
year to date, prepared in accordance with generally accepted accounting
principles consistently applied and setting forth in comparative form the
figures for the corresponding periods of the previous fiscal year, subject to
changes resulting from normal year-end audit adjustments, all in reasonable
detail and certified by the chief financial officer of the Company (or the
president if no CFO is in place), except that such statements need not contain
the notes required by generally accepted accounting principles.
(c) As soon as practicable after the end of each monthly
accounting period and in any event within thirty (30) days thereafter, a
consolidated balance sheet of the Company and its subsidiaries, if any, as of
the end of such month and consolidated statements of income and of cash flow of
the Company and its subsidiaries, if any, for each month and for the current
fiscal year of the Company to date, all subject to normal year-end audit
adjustments, prepared in accordance with generally accepted accounting
principles consistently applied and certified by the chief financial officer of
the Company (or the president if no CFO is in place), except that such
statements need not contain the notes required by generally accepted accounting
principles.
4.2 ADDITIONAL INFORMATION RIGHTS.
(a) The Company will permit each holder of Registrable Securities
representing at least seven and one-half percent (7.5%) of the fully-diluted
Common Stock (a "SIGNIFICANT HOLDER") to visit and inspect any of the properties
of the Company, including its books of account and other records (and make
copies thereof and take extracts therefrom), and to discuss its affairs,
finances and accounts with the Company's officers and its independent public
accountants, all at such reasonable times and as often as any such person may
reasonably request.
(b) The Company will deliver the reports described below in this
Section 4.2(b) to each Significant Holder:
(i) Annually (but in any event at least thirty (30) days
prior to the commencement of each fiscal year of the Company) the financial plan
of the Company, in such manner and form as approved by the Board of Directors of
the Company, which financial plan shall include an operating budget for such
fiscal year and an updated five-year strategic plan for the Company.
(ii) Concurrently with delivery thereof, copies of all
reports and other written material submitted to the Board of Directors.
(iii) Concurrently with delivery thereof, copies of any
reports or communications delivered to the financial community, including all
press releases.
(c) Each Significant Holder hereby agrees to hold in confidence
and trust and not to misuse or disclose any confidential information provided
pursuant to this Section 4.2; provided, however, that an Investor shall not be
prohibited from using any such information for the purpose of generating and
delivering portfolio valuation information to its investors.
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4.3 PROMPT PAYMENT OF TAXES, ETC. The Company will promptly pay and
discharge, or cause to be paid and discharged, when due and payable, all lawful
taxes, assessments and governmental charges or levies imposed upon the income,
profits, property or business of the Company or any subsidiary; provided,
however, that any such tax, assessment, charge or levy need not be paid if the
validity thereof shall currently be contested in good faith by appropriate
proceedings and if the Company shall have set aside on its books adequate
reserves with respect thereto; and provided, further, that the Company will pay
all such taxes, assessments, charges or levies forthwith upon the commencement
of proceedings to foreclose any lien which may have attached as security
therefor. The Company will promptly pay or cause to be paid when due, in
conformance with customary trade terms, all other obligations incident to the
operations of the Company.
4.4 MAINTENANCE OF PROPERTIES AND LEASES. The Company will keep its
properties and those of its subsidiaries, if any, in good repair, working order
and condition, reasonable wear and tear excepted, and from time to time make all
needful and proper repairs, renewals, replacements, additions and improvements
thereto; and the Company and its subsidiaries will at all times comply with each
material provision of all leases to which any of them is a party or under which
any of them occupies property if the breach of such provision might have a
material and adverse effect on the condition, financial or otherwise, or
operations of the Company.
4.5 INSURANCE. The Company will keep its assets and those of its
subsidiaries which are of an insurable character insured by financially sound
and reputable insurers against loss or damage by fire, explosion and other risks
customarily insured against by companies in the Company's line of business, and
the Company will maintain, with financially sound and reputable insurers,
insurance against other hazards and risks and liability to persons and property
to the extent and in the manner customary for companies in similar businesses
similarly situated.
4.6 ACCOUNTS AND RECORDS. The Company will keep true records and books
of which full, true and correct entries will be made of all dealings or
transactions in its business and affairs in accordance with generally accepted
accounting principles a consistent basis.
4.7 INDEPENDENT ACCOUNTANTS. The Company will retain a "Big Five"
national accounting firm as its independent public accountants who shall certify
the Company's financial statements at the end of each fiscal year. In the event
the services of the independent public accountants so selected are terminated,
the Company will promptly thereafter notify the holders of Investor Stock and
will request the firm of independent public accountants whose services are
terminated to deliver to the Investors a letter from such firm setting forth the
reasons for the termination of their services. In the event of such termination,
the Company will promptly thereafter engage another "Big Five" national
accounting firm as its independent public accountants. In its notice to the
holders of Investor Stock the Company shall state whether the change of
accountants was recommended or approved by the Board of Directors of the Company
or any committee thereof.
4.8 COMPLIANCE WITH LAWS. The Company and all its subsidiaries shall
duly observe and conform to all applicable laws and valid requirements of
governmental authorities relating to the conduct of their businesses or to their
properties or assets.
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4.9 MAINTENANCE OF CORPORATE EXISTENCE, ETC. The Company shall maintain
in full force and effect its corporate existence, rights and franchises and all
licenses and other rights in or to use patents, processes, licenses, trademarks,
trade names or copyrights owned or possessed by it or any subsidiary and deemed
by the Company to be necessary to the conduct of their business.
4.10 PREEMPTIVE RIGHTS. In the event that the Company proposes to issue
any Common Stock or any other equity securities or securities convertible into
equity securities (excluding options to purchase Common Stock pursuant to the
Company's Stock Option Plan), the Company shall give not less than 30 days'
prior written notice to the Investors setting forth the terms and conditions of
such proposed issuance (the "ISSUANCE NOTICE"). The Investors shall have the
preemptive right to purchase up to 80% of the securities so offered on the terms
and conditions set forth in the Issuance Notice by giving written notice to the
Company within fifteen days after receipt of the Issuance Notice (the
"PREEMPTIVE RIGHTS ELECTION PERIOD"). Each electing Investor shall have the
right to purchase its pro rata share of the offered securities (determined by
dividing such Investor's percentage interest in the Common Stock on a
fully-diluted basis by the aggregate percentage interest of all electing
Investors and multiplying such quotient by 80% of the offered securities);
provided, however, that if any Investor declines to exercise its preemptive
right in full, the remaining electing Investors shall be entitled to purchase
such Investor's unpurchased portion of the offered securities on a pro rata
basis. The Company may issue and sell all offered securities not purchased by
the Investors on the terms and conditions set forth in the Issuance Notice
within 90 days after the expiration of the Preemptive Rights Election Period;
provided, however, that any offered securities not sold within such 90-day
period or any offered securities that are proposed to be sold on terms and
conditions less favorable to the Company than those set forth in the Issuance
Notice shall again be subject to the procedure set forth in this Section 4.10
prior to issuance. The provisions of this Section 4.10 shall not apply to any
Permitted Issuance (as defined in Section 6 of Article IV of the Company's
Certificate of Incorporation), any issuance of equity securities for non-cash
consideration to non-Affiliates of the Company on commercially reasonable terms,
issuances in connection with a Qualified Public Offering or to the issuance of
shares of Series E Preferred Stock pursuant to the Series E Purchase Agreement.
An Investor may assign its rights pursuant to this Section 4.10 to one or more
of its Affiliates, subject only to compliance with applicable securities laws.
4.11 PROPRIETARY INFORMATION AND INVENTIONS AGREEMENT. The Company
shall cause each key employee and consultant to execute and deliver a
Proprietary Information and Inventions Agreement in the form set forth as
Exhibit F to the Series E Purchase Agreement.
4.12 CONTROLS. The Company currently maintains and will maintain a
system of accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorizations; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles; (iii) access to assets is permitted only in accordance
with management's general or specific authorizations; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences.
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4.13 TERMINATION OF COVENANTS. Each of the covenants of the Company
contained in Sections 4.1, 4.2 and 4.10 of this Agreement shall expire and
terminate as to each Stockholder on the closing date of the Qualified Public
Offering.
ARTICLE 5
CORPORATE GOVERNANCE
5.1 BOARD OF DIRECTORS.
(a) Effective January 20, 1999, and at all times thereafter, each
Stockholder agrees to vote all securities of the Company over which such
Stockholder has voting control and to take all other necessary or desirable
actions within its control (whether as a stockholder, director or officer of the
Company or otherwise, and including without limitation attendance at meetings in
person or by proxy for purposes of obtaining a quorum and execution of written
consents in lieu of meetings), and the Company shall take all necessary and
desirable actions within its control (including, without limitation, calling
special board and stockholder meetings). so that:
(i) the Company shall have a Board of Directors comprised of
no more than six (6) members;
(ii) the following persons shall be elected to the Board of
Directors:
(A) two (2) representatives of management who shall
consist of the following persons: (1) the person serving as the Company's chief
executive officer and (2) a person who shall be acceptable to a majority of the
Investor Directors (as defined in Section 5.1(a)(ii)(B) below); and
(B) four (4) representatives designated by the holders
of the outstanding Preferred Stock of the Company (the "INVESTOR DIRECTORS"),
one of whom shall be designated by Centennial Fund IV, L.P. ("CENTENNIAL"), one
of whom shall be designated by American Express Travel Related Services Company,
Inc., one of whom shall be designated by Tribune Company and one of whom shall
be designated by Global Retail Partners, L.P., in each case (1) so long as such
designating entity and/or its Affiliates continue to hold at least 50% of the
Registrable Securities held by such entity on the date hereof, and (2) upon
approval of the Board of Directors (such approval not to be unreasonably
withheld) such designating entity and/or its Affiliates may transfer the right
to designate its respective Investor Director to a transferee of more than 50%
of the Registrable Securities held by such entity on the date hereof, provided,
however, that the designating entity transferring such Registrable Securities
holds at least five percent (5%) of the fully-diluted Common Stock immediately
prior to such transfer and that the transferee is an Affiliate of the
transferor;
(iii) in the event that any director for any reason ceases to
serve as a member of the Board during his term of office, the resulting vacancy
on the Board shall be
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filled by a majority vote of the Stockholders entitled to elect such director as
provided in this Section 5.1; and
(iv) if the Stockholders fail to designate a representative
to fill a directorship pursuant to the terms of this Section 5.1, except as
otherwise provided in the Company's Restated Certificate of Incorporation, as
amended, the election of such director shall be accomplished in accordance with
the Company's Restated Certificate of Incorporation, as amended, and bylaws and
applicable law.
(b) To the extent that such Stockholder does not have a
representative on the Board of Directors, each Significant Holder shall have the
right to designate a non-voting observer to attend all meetings of the Board.
(c) To the extent that any provision of the Company's Restated
Certificate of Incorporation, as amended, or bylaws is inconsistent with the
provisions of this Agreement, the Stockholders agree to take all actions
necessary to effect such amendments to the Restated Certificate of
Incorporation, as amended, or bylaws as may be necessary and appropriate to give
full effect to the provisions of this Agreement.
5.2 MEETINGS OF THE BOARD. The Board of Directors will meet at least
six times each year in accordance with an agreed-upon schedule. One such meeting
will be held at the same time and place that a national trade conference is held
for the Company's industry. In the event that the Company's principal executive
offices are located outside of the Denver/Boulder, Colorado metropolitan area,
the Company will implement video teleconferencing (specifically, one which is
compatible with Centennial's video teleconferencing system) to facilitate board,
committee and other meetings with the Investors.
5.3 COMMITTEES. The Board of Directors will maintain audit, nominating
and compensation committees and shall delegate to such committees those duties
and powers as are customarily performed by committees of such type. The audit
committee shall not include any representatives of the Company's management.
Centennial's representative on the Board of Directors shall be a member of the
nominating committee.
5.4 REIMBURSEMENT OF EXPENSES. The reasonable travel expenses of each
Investor Director incurred in attending or observing Board or committee meetings
shall be reimbursed by the Company. If following the Company's initial public
offering the Company maintains any plan or arrangement to compensate its
directors generally for service as a director with stock options, then such
options shall be freely transferable by the Investor Directors to their
respective firms.
5.5 TERMINATION. The provisions of Sections 5.1, 5.2 and 5.3 shall
expire and terminate on the closing date of the Qualified Public Offering.
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ARTICLE 6
MISCELLANEOUS
6.1 GOVERNING LAW. This Agreement shall be governed in all respects by
the laws of the State of Colorado as such laws are applied to agreements between
Colorado residents entered into and performed entirely in Colorado, except that
the General Corporation Law of the State of Delaware shall govern as to matters
of corporate law.
6.2 SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto.
6.3 ENTIRE AGREEMENT; AMENDMENT AND WAIVER. This Agreement and the
Series B, Series C, Series D and Series E Purchase Agreements, together with any
amendments to such agreements, constitute the full and entire understanding and
agreement among the parties with regard to the subjects hereof. Neither this
Agreement nor any term hereof may be amended, waived, discharged or terminated
except by a written instrument signed by the Company and the holders of at least
two-thirds of the outstanding Investor Stock, and any such amendment, waiver,
discharge or termination shall be binding on all the Stockholders; provided,
however, that an amendment to Section 5.1 hereof may not be made to affect a
party's right to designate a director without the prior approval of such party
in writing.
6.4 NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by United States
first-class mail, postage prepaid, or delivered personally addressed by hand or
special courier (a) if to a Stockholder, to the address reflected in the
Company's stock ledger, or at such other address as such Stockholder shall have
furnished to the Company in writing or (b) if to the Company, at ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or at such other address as the
Company shall have furnished to each Stockholder in writing. All such notices
and other written communications shall be effective (i) if mailed, five (5) days
after mailing and (ii) if delivered, upon delivery.
6.5 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any Stockholder under this Agreement shall impair
any such right, power or remedy of such Stockholder nor shall it be construed to
be a waiver of any such breach or default, or an acquiescence therein, or of or
in any similar breach or default thereafter occurring; nor shall any waiver of
any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of
any kind or character on the part of any Stockholder of any breach or default
under this Agreement or any waiver on the part of any Stockholder of any
provisions or conditions of this Agreement must be made in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to any
Stockholder, shall be cumulative and not alternative.
6.6 SEVERABILITY. Unless otherwise expressly provided herein, a
Stockholder's rights hereunder are several rights, not rights jointly held with
any of the other Stockholders. In case any provision of the Agreement shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
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6.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
6.8 TERMINATION. Except where otherwise specified elsewhere in this
Agreement, the provisions of this Agreement shall terminate upon consummation of
a Qualified Public Offering.
6.9 SPECIFIC ENFORCEMENT. Any holder of Investor Stock shall be
entitled to specific enforcement of its rights under this Agreement. The parties
acknowledge that money damages would be an inadequate remedy for a breach of
this Agreement and consent to an action for specific performance or other
injunctive relief in the event of any such breach.
6.10 AMENDMENT AND RESTATEMENT OF PRIOR AGREEMENT. Effective and
contingent upon execution of this Agreement and upon the closing of the
transactions contemplated by the Series E Purchase Agreement, the Stockholders
Agreement is hereby amended and restated as set forth herein, and the Company
and the Stockholders hereby agree to be bound by the provisions hereof as the
sole agreement of the Company and the Stockholders with respect to registration
rights and the other rights and obligations set forth herein. Additionally, the
undersigned parties agree that any application of preemptive rights (including
the notice requirements) set forth in Section 4.10 of the Stockholders'
Agreement as to the issuance of the Series E Preferred Stock and warrants under
the Series E Purchase Agreement, including the issuance of Series E Preferred
Stock and warrants in the Rights Offering (as defined in the Series E Purchase
Agreement) pursuant to Section 2.2 of the Series E Purchase Agreement, is
waived.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth in the first paragraph hereof.
COMPANY:
▇▇▇▇▇▇▇.▇▇▇, INC.
By:
-------------------------------------
Title:
---------------------------------
STOCKHOLDERS:
---------------------------------------
Name of Stockholder
By:
------------------------------------
Title:
---------------------------------
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EXHIBIT A
SERIES E HOLDERS
----------------
Global Retail Partners, L.P.
DLJ Diversified Partners, L.P.
DLJ Diversified Partners-A, L.P.
GRP Partners, L.P.
Global Retail Partners Funding, Inc.
DLJ ESC II L.P.
Centennial Funds IV, L.P.
Tribune Company
Boulder Ventures II, L.P.
SERIES D HOLDERS
----------------
Boulder Ventures Ltd.
Global Retail Partners, L.P.
DLJ Diversified Partners, L.P.
DLJ Diversified Partners-A, L.P.
GRP Partners, L.P.
Global Retail Partners Funding, Inc.
DLJ ESC II L.P.
▇▇▇▇▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇, ▇▇.
Sony Music, a Group of Sony Music Entertainment Inc.
SERIES C PREFERRED HOLDERS
--------------------------
Centennial Fund IV, L.P.
Telecom Partners, L.P.
Boulder Ventures Ltd.
Tribune Company
Flatiron Partners LLC
AMEX Travel Related Services Company
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SERIES B HOLDERS
----------------
Centennial Fund IV, L.P.
Telecom Partners, L.P.
Boulder Ventures Ltd.
Softven No.2 Investment Enterprise Partnership
Tribune Company
Silicon Valley Bank
MMC/GATX Partnership No.1
SERIES A HOLDERS
----------------
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ Stake
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Centennial Fund IV, L.P.
Telecom Partners, L.P.
Boulder Ventures Ltd.
