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Exhibit 4.4
INTERACTIVE PICTURES CORPORATION
AMENDED AND RESTATED RIGHTS AGREEMENT
March 22, 1999
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TABLE OF CONTENTS
Page
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SECTION 1 Restrictions on Transferability; Registration Rights................1
1.1 Certain Definitions.................................................1
1.2 Restrictions........................................................2
1.3 Restrictive Legend..................................................2
1.4 Notice of Proposed Transfers........................................4
1.5 Requested Registration..............................................4
1.6 Company Registration................................................6
1.7 Registration on Form S-3............................................7
1.8 Limitations on Subsequent Registration Rights.......................8
1.9 Expenses of Registration............................................8
1.10 Registration Procedures.............................................9
1.11 Indemnification.....................................................9
1.12 Information by Holder..............................................12
1.13 Rule 144 Reporting.................................................12
1.14 Transfer of Registration Rights....................................12
1.15 Standoff Agreement.................................................13
1.16 Termination of Rights..............................................13
1.17 Assumption of Obligations..........................................13
SECTION 2 Maintenance of Equity Position.....................................13
2.1 Notice of Transactions.............................................13
2.2 Right to Purchase Allotment........................................14
2.3 Purchase Price.....................................................14
2.4 Purchase at Closing................................................14
2.5 Exceptions.........................................................14
2.6 Termination of Rights..............................................15
SECTION 3 Miscellaneous......................................................15
3.1 Assignment.........................................................15
3.2 Third Parties......................................................15
3.3 Governing Law; Waiver of Jury Trial................................15
3.4 Counterparts.......................................................16
3.5 Notices............................................................16
3.6 Severability.......................................................16
3.7 Amendment and Waiver...............................................16
3.8 Effect of Amendment or Waiver......................................16
3.9 Rights of Holders..................................................17
3.10 Delays or Omissions................................................17
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AMENDED AND RESTATED RIGHTS AGREEMENT
This AMENDED AND RESTATED RIGHTS AGREEMENT (this "Agreement") is made
as of March 22, 1999 by and among INTERACTIVE PICTURES CORPORATION, a Tennessee
corporation (the "Company"), ▇.▇. ▇▇▇▇▇▇ VENTURES CORP., a Delaware corporation
("▇.▇. ▇▇▇▇▇▇"), GE CAPITAL EQUITY INVESTMENTS, INC., a Delaware corporation
("GE Capital") and the persons set forth on Exhibit "A" attached hereto
(collectively, along with ▇.▇. ▇▇▇▇▇▇ and GE Capital, the "Purchasers", and
individually a "Purchaser").
WHEREAS, the Company and ▇.▇. ▇▇▇▇▇▇ are parties to a Rights Agreement
dated January 14, 1999 (the "Original Agreement");
WHEREAS, the Company and ▇.▇. ▇▇▇▇▇▇ entered into the Original
Agreement in contemplation of subsequent sales of the Series D Preferred Stock
of the Company. The Company now desires to sell additional shares of its Series
D Preferred Stock; and
WHEREAS, the parties intend for the other Purchasers to become a party
to the Original Agreement and desire to amend and restate the Original
Agreement, all upon the terms and conditions set forth below:
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, the parties agree as follows:
SECTION 1
RESTRICTIONS ON TRANSFERABILITY;
REGISTRATION RIGHTS
1.1 CERTAIN DEFINITIONS. As used in this Agreement, the following
terms shall have the following respective meanings:
"Closing Price" shall mean, with respect to the Common Stock on any
Trading Day, the average of the reported closing bid and asked prices on the
NASDAQ National Market or, if the Common Stock is not listed or admitted to
trading on the NASDAQ National Market, the last reported sales price regular way
on the New York Stock Exchange or the American Stock Exchange or, if the Common
Stock is not listed or admitted to trading on the NASDAQ National Market, the
New York Stock Exchange or the American Stock Exchange, the average of the
closing bid and asked prices in the over-the-counter market as furnished by any
New York Stock Exchange member firm selected from time to time by the Company
for that purpose.
"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 shares of Common Stock of the Company,
with a par value of one-tenth of one cent ($.001) per share.
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"Conversion Shares" shall mean the shares of Common Stock of the
Company issued or issuable upon conversion of the Preferred Shares.
"Current Market Price" shall mean the current market price per share of
Common Stock. This figure shall be the average of the daily Closing Price for
the 20 Trading Days ending on the date in question.
"Holder" shall mean any Purchaser holding Registrable Securities and
any person holding Registrable Securities to whom the rights under this
Agreement have been transferred in accordance with Section 1.14 hereof.
"Initiating Holders" shall mean Holders in the aggregate of not less
than thirty percent (33%) of the Registrable Securities as defined for purposes
of that particular section.
"Preferred Shares" shall mean the Series D Preferred Stock of the
Company.
The terms "register," "registered" and "registration" 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.
"Registration Expenses" shall mean all expenses incurred by the Company
in connection with any registration pursuant to Sections 1.5, 1.6 and 1.7 of
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, and the expense of any
special audits incident to or required by any such registration (but excluding
the compensation of regular employees of the Company which shall be paid in any
event by the Company).
"Registrable Securities" means (i) the Preferred Shares and the
Conversion Shares; (ii) any shares of Common Stock, Preferred Shares or other
securities issued as (or issuable upon the conversion or exercise of any
warrant, right or other security which is issued as ) a dividend or other
distribution with respect to, or in exchange for or in replacement of the shares
referenced in clause (i); and (iii) any securities issued in exchange for Common
Stock or Preferred Shares in any merger or reorganization of the Company
excluding in all cases, however, any Registrable Securities sold or transferred
by a person in a transaction in which rights are not assigned under Section
1.14.
"Restricted Securities" shall mean the securities of the Company
required to bear the legend set forth in Section 1.3 of this Agreement.
"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 at the time.
"Selling Expenses" shall mean all underwriting discounts, selling
commissions and stock transfer taxes applicable to the securities registered by
the Holders and all fees and disbursements of counsel for the Holders (except as
provided by Section 1.9).
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"Trading Day" shall mean each Monday, Tuesday, Wednesday, Thursday and
Friday, other than any day on which securities are generally not traded on the
applicable securities exchange or in the applicable securities market.
1.2 RESTRICTIONS. The Preferred Shares shall not be sold, assigned,
transferred or pledged except upon the conditions specified in this Agreement,
which conditions are intended to ensure compliance with the provisions of the
Securities Act. Each Purchaser will cause any proposed purchaser, assignee,
transferee or pledgee of its Preferred Shares to agree to take and hold such
securities subject to the provisions and upon the conditions specified in this
Agreement.
1.3 RESTRICTIVE LEGEND. Each certificate representing the Preferred
Shares and any other securities issued in respect of the Preferred Shares, upon
any stock split, stock dividend, recapitalization, merger, consolidation or
similar event, shall (unless otherwise permitted by the provisions of Section
1.4 below) be stamped or otherwise imprinted with legends in the following form
(in addition to any legend required under applicable state securities laws):
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED
FOR INVESTMENT AND HAVE BEEN ISSUED IN A TRANSACTION EXEMPT FROM
REGISTRATION UNDER THE SECURITIES ACT, AND THE SHARES MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION, PURSUANT TO RULE 144, IN COMPLIANCE WITH REGULATION S
UNDER THE SECURITIES ACT, OR ANOTHER AVAILABLE EXEMPTION UNDER THE
SECURITIES ACT."
"THE PURCHASER OF THE SHARES AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) THE SHARES WILL BE OFFERED, RESOLD, OR OTHERWISE
TRANSFERRED (I) ONLY OUTSIDE THE UNITED STATES IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULES 904 AND 905 UNDER THE SECURITIES
ACT, (II) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER OR ANOTHER AVAILABLE
EXEMPTION THEREUNDER OR (III) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND, IN EACH OF CASES (I) THROUGH
(III), IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT
HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE."
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE TRANSFERRED
ONLY IN ACCORDANCE WITH THE TERMS OF AN AGREEMENT BETWEEN THE COMPANY
AND THE STOCKHOLDER, AND IS SUBJECT TO THE TERMS OF A VOTING AGREEMENT,
COPIES OF WHICH ARE ON FILE WITH THE SECRETARY OF THE COMPANY."
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IF THE PURCHASER IS A FOREIGN INVESTOR, HIS, HER OR ITS
CERTIFICATE REPRESENTING THE PREFERRED SHARES WILL ALSO INCLUDE THE
FOLLOWING LANGUAGE IN ITS LEGEND:
"THE PURCHASER OF THE SHARES AGREES NOT TO ENGAGE IN HEDGING
TRANSACTIONS INVOLVING THE SHARES UNLESS IN ACCORDANCE WITH THE
SECURITIES ACT."
Each Purchaser and Holder consents to the Company making a notation on
its records and giving instructions to any transfer agent of the Restricted
Securities in order to implement the restrictions on transfer established in
this Section 1.
1.4 NOTICE OF PROPOSED TRANSFERS. The holder of each certificate
representing Restricted Securities, by acceptance thereof, agrees to comply in
all respects with the provisions of this Section 1. Prior to any proposed sale,
assignment, transfer or pledge of any Restricted Securities, unless there is in
effect a registration statement under the Securities Act covering the proposed
transfer, the holder thereof shall give written notice to the Company of such
holder's intention to effect such transfer, sale, assignment or pledge. Each
such notice shall describe the manner and circumstances of the proposed
transfer, sale, assignment or pledge in sufficient detail, and shall be
accompanied at such holder's expense by either (i) a written opinion of legal
counsel who shall, and whose legal opinion shall be, reasonably satisfactory to
the Company, addressed to the Company, to the effect that the proposed transfer
of the Restricted Securities may be effected without registration under the
Securities Act, or (ii) a "no action" letter from the Commission to the effect
that the transfer of such securities without registration will not result in a
recommendation by the staff of the Commission that action be taken with respect
thereto, whereupon the holder of such Restricted Securities shall be entitled to
transfer such Restricted Securities in accordance with the terms of the notice
delivered by the holder to the Company. The Company will not require such a
legal opinion or "no action" letter (a) in any transaction in compliance with
Rule 144 or Regulation S, (b) in any transaction in which a Purchaser which is a
corporation distributes Restricted Securities after six (6) months after the
purchase thereof solely to its majority-owned subsidiaries or affiliates for no
consideration, or (c) in any transaction in which a Purchaser which is a
partnership distributes Restricted Securities after six (6) months after the
purchase thereof solely to partners thereof for no consideration, provided that
each transferee agrees in writing to be subject to the terms of this Section
1.4. Each certificate evidencing the Restricted Securities transferred as above
provided shall bear, except if such transfer is made pursuant to Rule 144, the
appropriate restrictive legend set forth in Section 1.3 above, except that such
certificate shall not bear such restrictive legend if, in the opinion of counsel
for such holder and the Company, such legend is not required in order to
establish compliance with any provisions of the Securities Act.
1.5 REQUESTED REGISTRATION.
(a) Request for Registration. In case the Company shall receive from
Initiating Holders a written request that the Company effect any qualification,
compliance or registration of Registrable Securities with an aggregate value of
at least $10.0 million, the Company shall:
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(i) promptly give written notice of the proposed registration,
qualification or compliance to all other Holders; and
(ii) use its best efforts to effect such registration,
qualification or compliance (including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate qualification under
applicable blue sky or other state securities laws and appropriate compliance
with applicable regulations issued under the Securities Act and any other
governmental requirements or regulations) as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together with all or
such portion of the Registrable Securities of any Holder or Holders joining in
such request as are specified in a written request received by the Company
within twenty (20) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to take any action to
effect any such registration, qualification or compliance pursuant to this
Section 1.5:
(1) In any particular jurisdiction in which the Company would be
required to execute a general consent to service of process in
effecting such registration, qualification or compliance unless the
Company is already subject to service in such jurisdiction and except
as may be required by the Securities Act;
(2) Prior to the earlier of (i) six (6) months following the
Company's initial public offering or (ii) January 1, 2002;
(3) During the period ending on the date three (3) months
immediately following the effective date of, any registration statement
pertaining to securities of the Company (other than a registration of
securities in a Rule 145 transaction or with respect to an employee
benefit plan);
(4) After the Company has effected two (2) such registrations
pursuant to this subparagraph 1.5(a), such registrations have been
declared or ordered effective and the securities offered pursuant to
such registrations have been sold; or
(5) If the Company shall furnish to such Holders a certificate,
signed by an executive officer of the Company, stating that in the good
faith judgment of the Board of Directors it would be seriously
detrimental to the Company or its shareholders for a registration
statement to be filed in the near future, then the Company's obligation
to use its best efforts to register, qualify or comply under this
Section 1.5 shall be deferred for a single period not to exceed one
hundred-twenty (120) days from the date of receipt of written request
from the Initiating Holders.
Subject to the foregoing clauses (1) through (5), the Company shall
file a registration statement covering the Registrable Securities so requested
to be registered as soon as practicable after receipt of the request or requests
of the Initiating Holders, and in any case, not later than seventy-five (75)
days thereafter.
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(b) Valuation. The $10.0 million referred to in Section 1.5(a) above
shall be computed as follows:
(i) if the Common Stock of the Company is listed on the New York Stock
Exchange, the American Stock Exchange or the NASDAQ National Market, then the
$10.0 million is measured as the product of the Current Market Price on such
date of determination times the number of shares of Common Stock and securities
convertible into or exchangeable or exercisable for Common Stock of the Holders
(in the aggregate) outstanding on such date.
(ii) if the Common Stock of the Company is not listed on the New York
Stock Exchange, the American Stock Exchange or the NASDAQ National market, then
the $10.0 million is measured as the aggregate offering price of the Registrable
Securities at the date request is made.
(c) Underwriting. In the event that a registration pursuant to Section
1.5 is for a registered public offering involving an underwriting, the Company
shall so advise the Holders as part of the notice given pursuant to Section
1.5(a)(i). The right of any Holder to registration pursuant to Section 1.5 shall
be conditioned upon such Holder's participation in the underwriting arrangements
required by this Section 1.5 and the inclusion of such Holder's Registrable
Securities in the underwriting, to the extent requested, to the extent provided
in this Agreement.
The Company shall (together with all Holders proposing to distribute
their securities through such underwriting) enter into an underwriting agreement
in customary form with the managing underwriter selected for such underwriting
by a majority in interest of the Initiating Holders (which managing underwriter
shall be reasonably acceptable to the Company). Notwithstanding any other
provision of this Section 1.5, if the managing underwriter advises the
Initiating Holders in writing that marketing factors require a limitation of the
number of shares to be underwritten, then the Company shall so advise all
Holders of Registrable Securities and the number of shares of Registrable
Securities that may be included in the registration and underwriting shall be
allocated among all Holders thereof in proportion, as nearly as practicable, to
the respective amounts of Registrable Securities held by such Holders at the
time of filing the registration statement. No Registrable Securities excluded
from the underwriting by reason of the underwriter's marketing limitation shall
be included in such registration. To facilitate the allocation of shares in
accordance with the above provisions, the Company or the underwriters may round
the number of shares allocated to any Holder to the nearest 100 shares.
If any Holder of Registrable Securities disapproves of the terms of the
underwriting, such person may elect to withdraw therefrom by written notice to
the Company, the managing underwriter and the Initiating Holders. The
Registrable Securities and/or other securities so withdrawn shall also be
withdrawn from registration, and such Registrable Securities shall not be
transferred in a public distribution prior to one hundred eighty (180) days
after the effective date of such registration.
1.6 COMPANY REGISTRATION.
(a) Notice of Registration. If at any time or from time to time, the
Company shall determine to register any of its securities, either for its own
account or the account of a security holder or
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holders other than (i) a registration relating solely to employee benefit plans,
or (ii) a registration relating solely to a Commission Rule 145 transaction, the
Company will:
(i) promptly give to each Holder written notice thereof, and
(ii) include in such registration (and any related qualification
under blue sky laws or other compliance), and in any underwriting involved in
such registration, all the Registrable Securities specified in a written request
or requests received within twenty (20) days after receipt of such written
notice from the Company by any Holder, but only to the extent that such
inclusion will not diminish the number of securities included by the Company or
by holders of the Company's securities who have demanded such registration
pursuant to Section 1.5 hereof.
(b) Underwriting. If the registration of which the Company gives notice
is for a registered public offering involving an underwriting, the Company shall
so advise the Holders as a part of the written notice given pursuant to Section
1.6(a)(i). In such event, the right of any Holder to registration pursuant to
Section 1.6 shall be conditioned upon such Holder's participation in such
underwriting and the inclusion of Registrable Securities in the underwriting to
the extent provided herein. All Holders proposing to distribute their securities
through such underwriting shall (together with the Company and the other holders
distributing their securities through such underwriting) enter into an
underwriting agreement in customary form with the managing underwriter selected
for such underwriting by the Company (or by the holders who have demanded such
registration). Notwithstanding any other provision of this Section 1.6, if the
managing underwriter determines that marketing factors require a limitation of
the number of shares to be underwritten, the managing underwriter, with the
Company's permission, may reduce the Registrable Securities to be included in
such registration, pro rata among the Holders; provided, however, that the
Company's shares shall be given priority. The Company shall so advise all
Holders and the other holders distributing their securities through such
underwriting pursuant to piggyback registration rights similar to this Section
1.6, and the number of shares of Registrable Securities and other securities
that may be included in the registration and underwriting shall be first
allocated among all Purchasers in proportion, as nearly as practicable, to the
respective amounts of Registrable Securities held by such Purchasers at the time
of filing the registration statement, and after satisfaction of the requirements
of the Purchasers, the remaining shares that may be included in the registration
and underwriting shall be allocated among the remaining Holders in proportion,
as nearly as practicable, to the respective amounts of Registrable Securities
held by such Holders at the time of filing of the registration statement. To
facilitate the allocation of shares in accordance with the above provisions, the
Company or the underwriters may round the number of shares allocated to any
Holder or other holder to the nearest 100 shares. If any Holder or other holder
disapproves of the terms of any such underwriting, he or she may elect to
withdraw therefrom by written notice to the Company and the managing
underwriter. Any securities excluded or withdrawn from such underwriting shall
be withdrawn from such registration, and shall not be transferred in a public
distribution prior to one hundred eighty (180) days after the effective date of
the registration statement relating thereto (the "Lock-Up Period"); provided,
however, that if such registration is not the Company's initial public offering
such Lock-Up Period shall be one hundred twenty (120) days unless the managing
underwriter determines that marketing factors require a longer period in which
case the Lock-Up
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period shall be specified by the managing underwriter but shall not exceed one
hundred eighty (180) days. Affiliates of the Purchasers shall be deemed to be
Purchasers for purposes of this provision.
(c) Right to Terminate Registration. The Company shall have the right
to terminate or withdraw any registration initiated by it under this Section 1.6
prior to the effectiveness of such registration, whether or not any Holder has
elected to include securities in such registration.
1.7 REGISTRATION ON FORM S-3.
(a) If a Purchaser requests in writing that the Company file a
registration statement on Form S-3 (or any successor form to Form S-3) for a
public offering of shares of the Registrable Securities, the reasonably
anticipated aggregate price to the public of which, net of underwriting
discounts and commissions, would exceed $1,000,000, and the Company is a
registrant entitled to use Form S-3 to register the Registrable Securities for
such an offering, the Company shall use its best efforts to cause such
Registrable Securities to be registered for the offering on such form; provided,
however, that the Company shall not be required to effect more than two (2)
registrations pursuant to this Section 1.7 in any twelve (12) month period. The
Company will (i) promptly give written notice of the proposed registration to
all other Holders, and (ii) as soon as practicable, use its best efforts to
effect such registration (including, without limitation, the execution of an
undertaking to file post-effective amendments, appropriate qualification under
applicable blue sky or other state securities laws and appropriate compliance
with applicable regulations issued under the Securities Act and any other
governmental requirements or regulations) as may be so requested and as would
permit or facilitate the sale and distribution of all or such portion of such
Registrable Securities as are specified in such request, together with all or
such portion of the Registrable Securities of any Holder or Holders joining in
such request as are specified in a written request received by the Company
within twenty (20) days after receipt of such written notice from the Company.
The substantive provisions of Section 1.5(c) shall be applicable to each
registration initiated under this Section 1.7.
(b) Notwithstanding the foregoing, the Company shall not be obligated
to take any action pursuant to this Section 1.7: (i) in any particular
jurisdiction in which the Company would be required to execute a general consent
to service of process in effecting such registration, qualification or
compliance unless the Company is already subject to service in such jurisdiction
and except as may be required by the Securities Act, (ii) during the period
ending on a date three (3) months following the effective date of, a
registration statement (other than with respect to a registration statement
relating to a Rule 145 transaction, an offering solely to employees or any other
registration which is not appropriate for the registration of Registrable
Securities), or (iii) if the Company shall furnish to such Holder a certificate
signed by the President of the Company stating that, in the good faith judgment
of the Board of Directors, it would be seriously detrimental to the Company or
its shareholders for registration statements to be filed in the near future,
then the Company's obligation to use its best efforts to file a registration
statement shall be deferred for a single period not to exceed one hundred twenty
(120) days from the receipt of the request to file such registration by such
Holder or Holders.
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1.8 LIMITATIONS ON SUBSEQUENT REGISTRATION RIGHTS.
(a) From and after the date of this Agreement, the Company shall not
enter into any agreement granting any holder or prospective holder of any
securities of the Company registration rights with respect to such securities
without the prior written consent of a majority of the Registrable Securities
then outstanding (on a Common Stock equivalent basis) unless (1) such new
registration rights, including standoff obligations, are on a pari passu basis
with those rights of the Holders hereunder, or (2) such new registration rights,
including standoff obligations, are subordinate to the registration rights
granted the Holders hereunder; provided, that the inclusion of such holder's
securities shall not reduce the amount of Registrable Securities which are
included in any registration for which the Holders hold registration rights
pursuant to this Agreement.
(b) Where the Company determines to grant any holder or prospective
holder of any securities of the Company registration rights that are on a pari
passu basis with those rights of the Holders hereunder and determines that the
grant of such rights shall be made pursuant to this Agreement, then such grant
shall be evidenced by the execution of an additional signature page to this
Agreement by the Company and such holder, without any requirement on the part of
the Company to seek the consent or approval of the Holders.
1.9 EXPENSES OF REGISTRATION. All Registration Expenses incurred in
connection with any registration pursuant to Sections 1.5 and 1.6 and with up to
four registrations pursuant to Section 1.7 and the reasonable cost of one
special legal counsel to represent all of the Holders together in any such
registration shall be borne by the Company, provided that the Company shall not
be required to pay the Registration Expenses of any registration proceeding
begun pursuant to Section 1.5, the request of which has been subsequently
withdrawn by the Initiating Holders. In such case, the Holders of Registrable
Securities to have been registered shall bear all such Registration Expenses pro
rata on the basis of the number of shares to have been registered unless the
Holders of a majority of the Registrable Securities agree to forfeit their right
to one demand registration pursuant to Section 1.5. Notwithstanding the
foregoing, however, if at the time of the withdrawal, the Holders have learned
of a material adverse change in the condition, business or prospects of the
Company from that known to the Holders at the time of their request, then the
Holders shall not be required to pay any of said Registration Expenses or to
forfeit the right to one demand registration.
1.10 REGISTRATION PROCEDURES. In the case of each registration,
qualification or compliance effected by the Company pursuant to this Section 1,
the Company will keep each Holder advised in writing as to the initiation of
each registration, qualification and compliance and as to the completion
thereof. At its expense the Company will:
(a) Prepare and file with the Commission a registration statement with
respect to such securities and use its best efforts to cause such registration
statement to become and remain effective for at least ninety (90) days or until
the distribution described in the registration statement has been completed; and
(b) Furnish to the Holders participating in such registration and to
the underwriters of the securities being registered such reasonable number of
copies of the registration statement, preliminary
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prospectus, final prospectus and such other documents as such underwriters may
reasonably request in order to facilitate the public offering of such
securities.
1.11 INDEMNIFICATION.
(a) The Company will indemnify each Holder, each of its officers and
directors and partners, and each person controlling such Holder within the
meaning of Section 15 of the Securities Act, with respect to which registration,
qualification or compliance has been effected pursuant to this Section 1, and
each underwriter, if any, and each person who controls any underwriter within
the meaning of Section 15 of the Securities Act, against all expenses, claims,
losses, damages or liabilities (or actions in respect thereof), including any of
the foregoing incurred in settlement of any litigation, commenced or threatened,
arising out of or based on any untrue statement (or alleged untrue statement) of
a material fact contained in any registration statement, prospectus, offering
circular or other document, or any amendment or supplement thereto, incident to
any such registration, qualification or compliance, on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in which
they were made, not misleading, or any violation by the Company of any rule or
regulation promulgated under the Securities Act applicable to the Company in
connection with any such registration, qualification or compliance, and the
Company will reimburse each such Holder, each of its officers and directors, and
each person controlling such Holder, each such underwriter and each person who
controls any such underwriter, for any legal and any other expenses reasonably
incurred in connection with investigating, preparing or defending any such
claim, loss, damage, liability or action, provided 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 or alleged untrue statement or omission, made in reliance upon and in
conformity with written information furnished to the Company by an instrument
duly executed by such Holder, controlling person or underwriter and stated to be
specifically for use therein; and provided, further, that the Company will not
be liable to any such person or entity with respect to any such untrue statement
or omission or alleged untrue statement or omission made in any preliminary
prospectus that is corrected in the final prospectus filed with the Commission
pursuant to Rule 424(b) promulgated under the Securities Act (or any amendment
or supplement to such prospectus) if the person asserting any such loss, claim,
damage or liability purchased securities but was not sent or given a copy of the
prospectus (as amended or supplemented) at or prior to the written confirmation
of the sale of such securities to such person in any case where such delivery of
the prospectus (as amended or supplemented) is required by the Securities Act,
unless such failure to deliver the prospectus (as amended or supplemented) was a
result of the Company's failure to provide such prospectus (as amended or
supplemented).
(b) Each Holder will, if Registrable Securities held by such Holder are
included in the securities as to which such registration, qualification or
compliance is being effected, indemnify the Company, each of its directors and
officers, each underwriter, if any, of the Company's securities covered by such
a registration statement, each person who controls the Company or such
underwriter within the meaning of Section 15 of the Securities Act, and each
other such Holder, each of its officers and directors and each person
controlling such Holder within the meaning of Section 15 of the Securities Act,
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
10
13
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 the Company, such Holders, such
directors, officers, persons, underwriters or control 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 conformity with written information furnished to the Company by an instrument
duly executed by such Holder and stated to be specifically for use therein;
provided, however, that the liability of a Holder for indemnification under this
Section 1.11(b) shall not exceed the net proceeds from the offering received by
such Holder.
(c) Each party entitled to indemnification under this Section 1.11 (the
"Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") 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 Indemnifying
Party, who shall conduct the defense of such claim or litigation, 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 1 unless the failure to give such notice is
materially prejudicial to an Indemnifying Party's ability to defend such action.
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 as an unconditional
term thereof the giving by the claimant or plaintiff to such Indemnified Party
of a release from all liability in respect to such claim or litigation.
(d) If the indemnification provided for in this Section 1.11 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 or
if the indemnification provided for in this Section 1.11 is insufficient to hold
harmless an indemnified party, then the indemnifying party, in lieu of, or in
addition to, 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
that 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 any indemnifiable act has been committed by, or 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 indemnifiable act. The amount paid or payable by a
party as a result of the losses, claims, damages, liabilities and expenses
referred to above shall be deemed to include, subject to the limitations set
forth in this Section 1.11, any legal or other fees or expenses reasonably
incurred by such party in connection with any investigation or proceeding. The
parties hereto agree that it would not be just and equitable if
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contribution pursuant to this Section 1.11(d) were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in the first sentence of this Section
1.11(d). No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(e) If indemnification is available under this Section 1.11, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in this Section 1.11 without regard to the relative fault of such
indemnifying party or indemnified party or any other equitable consideration
referred to in Section 1.11(d) hereof.
(f) The obligations of the Company and selling Holders under this
Section 1.11 shall be in addition to any other rights to indemnification or
contribution which any indemnified party may have pursuant to law or contract
and shall survive the completion of any offering of Registrable Securities in a
registration statement under this Section 1, and otherwise.
(g) The indemnification and contribution required by this Section 1.11
shall be made by periodic payments of the amount thereof during the course of
the investigation or defense, as and when bills are received or expense, loss,
damage or liability is incurred.
1.12 INFORMATION BY HOLDER. The Holder or Holders of Registrable
Securities included in any registration shall furnish to the Company such
information regarding such Holder or Holders, the Registrable Securities held by
them and the distribution proposed by such Holder or Holders as the Company may
request in writing and as shall be required in connection with any registration,
qualification or compliance referred to in this Section 1.
1.13 RULE 144 REPORTING. With a view to making available the benefits
of certain rules and regulations of the Commission which may at any time permit
the sale of the Restricted Securities to the public without registration, after
such time as a public market exists for the Common Stock of the Company, the
Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act, at all times after
the effective date that the Company becomes subject to the reporting
requirements of the Securities Act or the Securities Exchange Act of 1934, as
amended (the "Exchange Act");
(b) 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
(c) So long as a Purchaser owns any Restricted Securities, to furnish
to the Purchaser forthwith upon request a written statement by the Company as
to its compliance with the reporting requirements of said Rule 144 (at any time
after ninety (90) days after 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
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requirements), a copy of the most recent annual or quarterly report of the
Company, and such other reports and documents of the Company and other
information in the possession of or reasonably obtainable by the Company as a
Purchaser may reasonably request in availing itself of any rule or regulation of
the Commission allowing a Purchaser to sell any such securities without
registration.
1.14 TRANSFER OF REGISTRATION RIGHTS. The rights to cause the Company
to register securities granted Purchasers under Sections 1.5, 1.6 and 1.7 may be
assigned to a transferee or assignee in connection with any transfer or
assignment of Registrable Securities by a Purchaser (together with any
affiliate); provided that (a) such transfer may otherwise be effected in
accordance with applicable securities laws, (b) notice of such assignment is
given to the Company, and (c) such transferee or assignee (i) is a wholly-owned
subsidiary or constituent partner (including limited partners) of such
Purchaser, or (ii) acquires from such Purchaser the lesser of (a) 500,000 or
more shares of Registrable Securities (as appropriately adjusted for stock
splits and the like) or (b) one-half (1/2) of the Registrable Securities then
owned by such Purchaser. In the event of a proposed transfer by a Holder to any
person whom the Company deems, in its reasonable discretion, to be a competitor
of the Company, such transfer shall not be made without the prior written
consent of the Company; provided, however, that the foregoing shall not apply to
a transfer by GE Capital to any of its affiliates, if such transfer is made
solely for tax or related purposes.
1.15 STANDOFF AGREEMENT. Each Holder agrees in connection with the
initial registration of the Company's securities that, upon request of the
Company or the underwriters managing any underwritten initial public offering of
the Company's securities, not to sell, make any short sale of, loan, grant any
option for the purchase of, or otherwise dispose of any Registrable Securities
(other than those included in the registration) without the prior written
consent of the Company or such underwriters, as the case may be, for such period
of time (not to exceed one hundred eighty (180) days from the effective date of
such registration) as may be requested by the Company or such managing
underwriters; provided, however, that the officers and directors of the Company
who own stock of the Company also agree to such restrictions.
1.16 TERMINATION OF RIGHTS. No Holder shall be entitled to exercise any
right provided for in this Section 1:
(a) after five (5) years following the consummation of the sale of
securities pursuant to a registration statement filed by the Company under the
Act in connection with the initial firm commitment underwritten offering of its
securities to the general public, or
(b) on or after the closing of a public offering of the Common Stock of
the Company, initiated by the Company, when all shares of the Holder's
Registrable Securities may be sold under Rule 144 during any 90-day period;
provided, however, that the provisions of this subsection (b) shall not apply
where the Holder owns more than one percent (1%) of the Company's outstanding
stock until such time as such Holder owns less than one percent (1%) of the
outstanding stock.
1.17 ASSUMPTION OF OBLIGATIONS. The Company shall not, directly or
indirectly, (x) enter into any merger, consolidation or reorganization in which
the Company shall not be the surviving corporation, unless prior to such merger,
consolidation, or reorganization, the surviving corporation
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shall have agreed in writing to assume the obligations of the Company under this
Agreement, and for that purpose references hereunder to "Registrable Securities"
shall be deemed to include the securities which the Holders of Registrable
Securities would be entitled to receive in exchange for Registrable Securities
pursuant to any such merger, consolidation or reorganization.
SECTION 2
MAINTENANCE OF EQUITY POSITION
It is the intent of the Company to provide each Purchaser with an
ongoing right to maintain each Purchaser's initial equity interest in the
Company as follows:
2.1 NOTICE OF TRANSACTIONS. The Company shall notify each Purchaser of
its bona fide intention to issue (A) any equity securities or (B) any notes or
debt securities containing equity features (including, without limitation, any
notes or debt securities convertible into or exchangeable or exercisable for
equity securities, issued in connection with the issuance of such features), or
any securities convertible into, or exchangeable or exercisable for, any equity
securities (collectively, "Convertible Securities"). The Company shall deliver
written notice (the "Equity Notice") of its intention to issue any of the
securities described above (the "Issued Securities"). The Equity Notice will be
deemed to be an offer to each Purchaser to purchase its Allotment (as defined in
Section 2.2) of the securities described in the Equity Notice (the "Offer"), at
the purchase price set forth below and with the same rights, privileges and
preferences as the Issued Securities, and on the same terms and conditions as
those set forth or referenced, as the case may be, in the Equity Notice.
2.2 RIGHT TO PURCHASE ALLOTMENT.
(a) Each Purchaser shall be entitled to purchase up to that number of
securities described in the Equity Notice such that (x) the percentage of the
outstanding shares of Series D Preferred Stock owned by such Purchaser and its
affiliates after the issuance of the Issued Securities on an as converted basis
(assuming full conversion of all convertible securities) equals (y) the
percentage of the outstanding shares of Series D Preferred Stock owned by such
Purchaser and its affiliates prior to the issuance of the Issued Securities on
an as converted basis (assuming full conversion of all convertible securities)
("Allotment").
(b) If all securities referred to in the Equity Notice which the
Purchasers are entitled to purchase pursuant to subsection (a) are not elected
to be purchased as provided in subsection (a), the Company may, during the sixty
(60) day period following the expiration of the anticipated closing date set
forth in the Equity Notice, offer the remaining unsubscribed portion of such
securities to any person or persons at a price not less than the Purchase Price
set forth in the Equity Notice, and upon terms no more favorable to the offeree
than those specified in the Equity Notice. If the Company does not enter into an
agreement for the sale of such securities within such sixty (60) day period, or
if such agreement is not consummated within thirty (30) days of the execution of
the agreement, the right provided thereunder shall be deemed to be revived and
such securities shall not be offered unless first reoffered in accordance with
this Section.
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2.3 PURCHASE PRICE. The Purchase Price of securities described in an
Equity Notice shall be the agreed upon price set forth in the Equity Notice.
2.4 PURCHASE AT CLOSING. Purchaser may purchase its Allotment
contemporaneously with the closing of the transaction giving rise to the right
to acquire the Allotment; provided that Purchaser has notified the Company, in
writing, of its intent to make such a purchase, not less than fifteen (15) days
prior to the anticipated closing date set forth in the Equity Notice.
2.5 EXCEPTIONS. The provisions of this Section 2 shall not apply with
respect to (i) the sale of additional shares of Series D Preferred Stock and
warrants to purchase Series D Preferred Stock pursuant to, and in accordance
with, the Preferred Stock Purchase Warrant dated March 22, 1999 between the
Company and GE Capital, (ii) the issuance of shares of Common Stock pursuant to
approval of the Board of Directors of the Company (as proportionally adjusted
for any split, stock dividend or recapitalization affecting the Common Stock),
including options or warrants to acquire Common Stock, in connection with any
employee stock option or stock ownership plan, any consulting agreement or
arrangement, any restricted stock agreement providing for the issuance of Common
Stock to an employee or employees of the Company or any shares granted or
options granted to directors or advisory board members of the Company, in
existence as of the date hereof or entered into following the date of this
Agreement, or (iii) the issuance of shares in connection with the acquisition of
or merger with other companies which have been approved by the Board of
Directors of the Company.
2.6 TERMINATION OF RIGHTS The rights provided in this Section 2 shall
terminate upon the consummation of the Company's sale of its Common Stock in an
underwritten public offering pursuant to an effective registration statement
filed under the Securities Act.
SECTION 3
MISCELLANEOUS
3.1 ASSIGNMENT. Except as otherwise provided in this Agreement, the
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the respective successors and assigns of the parties to this
Agreement.
3.2 THIRD PARTIES. Nothing in this Agreement, express or implied, is
intended to confer upon any party, other than the parties to this Agreement, and
their respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
3.3 GOVERNING LAW; WAIVER OF JURY TRIAL. This Agreement shall be
governed by and construed under the laws of the State of New York and the United
States of America without giving effect to the conflicts of laws principles
thereof. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
CONSENTS TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE COURTS OF THE STATE OF
NEW YORK AND OF THE UNITED STATES OF AMERICA, IN EACH CASE LOCATED IN THE COUNTY
OF NEW YORK, FOR
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ANY ACTION, PROCEEDING OR INVESTIGATION IN ANY COURT OR BEFORE ANY GOVERNMENTAL
AUTHORITY ("LITIGATION") ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE
TRANSACTIONS CONTEMPLATED HEREBY (AND AGREES NOT TO COMMENCE ANY LITIGATION
RELATING THERETO EXCEPT IN SUCH COURTS), AND FURTHER AGREES THAT SERVICE OF ANY
PROCESS, SUMMONS, NOTICE OR DOCUMENT BY U.S. REGISTERED MAIL TO ITS RESPECTIVE
ADDRESS SET FORTH IN THIS AGREEMENT SHALL BE EFFECTIVE SERVICE OF PROCESS FOR
ANY LITIGATION BROUGHT AGAINST IT IN ANY SUCH COURT. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY OBJECTION TO THE LAYING OF
VENUE OF ANY LITIGATION ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY IN THE COURTS OF THE STATE OF NEW YORK OR THE UNITED STATES
OF AMERICA, IN EACH CASE LOCATED IN THE COUNTY OF NEW YORK, AND HEREBY FURTHER
IRREVOCABLY AND UNCONDITIONALLY WAIVES AND AGREES NOT TO PLEAD OR CLAIM IN ANY
SUCH COURT THAT ANY SUCH LITIGATION BROUGHT IN ANY SUCH COURT HAS BEEN BROUGHT
IN ANY INCONVENIENT FORUM.
TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED,
EACH OF THE COMPANY AND THE PURCHASERS WAIVES, AND COVENANTS THAT IT WILL NOT
ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY
JURY IN ANY FORM IN RESPECT OF ANY ISSUE, CLAIM OR PROCEEDING ARISING OUT OF
THIS AGREEMENT OR ANY OTHER AGREEMENT RELATED THERETO OR THE SUBJECT MATTER
HEREOF OR THEREOF, IN EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING AND
WHETHER IN CONTRACT, TORT OR OTHERWISE.
3.4 COUNTERPARTS. This Agreement may be executed in counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
3.5 NOTICES. All notices and other communications required or permitted
under this Agreement shall be mailed by registered or certified mail, postage
prepaid, or otherwise delivered by hand or by messenger, addressed (a) if to a
Purchaser, at such Purchaser's address set forth on Exhibit A, or, at such other
address as such Purchaser shall have furnished to the Company in writing, or (b)
if to any other holder of any Shares, at such address as such holder shall have
furnished the Company in writing, or, until any such holder so furnishes an
address to the Company, then to and at the address of the last holder of such
Shares who has so furnished an address to the Company, or (c) if to the Company,
one copy should be sent to its offices and addressed to the attention of the
President, or at such other address as the Company shall have furnished to the
Purchaser.
Each such notice or other communication shall for all purposes of this
Agreement be treated as effective or having been given when delivered if
delivered personally, or, if sent by mail, at the earlier of its receipt or 72
hours after the same has been deposited in a regularly maintained receptacle for
the deposit of the United States mail, addressed and postage prepaid as
aforesaid.
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3.6 SEVERABILITY. If one or more provisions of this Agreement are held
to be unenforceable under applicable law, portions of such provisions, or such
provisions in their entirety, to the extent necessary, shall be severed from
this Agreement, and the balance of this Agreement shall be enforceable in
accordance with its terms.
3.7 AMENDMENT AND WAIVER. Any provision of this Agreement may be
amended or waived with the written consent of the Company and the Holders of at
least a majority of the outstanding shares of the Registrable Securities, so
long as the effect is to treat all Holders equally, which consent shall not be
unreasonably withheld. Any amendment or waiver of this Agreement shall require
the written consent of any Holder who is disproportionately adversely affected
by such amendment or waiver. Any amendment or waiver effected in accordance with
this paragraph shall be binding upon each Holder of Registrable Securities and
the Company. In addition, the Company may waive performance of any obligation
owing to it, as to some or all of the Holders of Registrable Securities, or
agree to accept alternatives to such performance, without obtaining the consent
of any Holder of Registrable Securities. In the event that an underwriting
agreement is entered into between the Company and any Holder, and such
underwriting agreement contains terms differing from this Agreement, as to any
such Holder the terms of such underwriting agreement shall govern.
3.8 EFFECT OF AMENDMENT OR WAIVER. The Purchasers and their successors
and assigns acknowledge that by the operation of Section 3.7 of this Agreement
the holders of a majority of the outstanding Registrable Securities, acting in
conjunction with the Company, will have the right and power to diminish or
eliminate any or all rights or increase any or all obligations pursuant to this
Agreement.
3.9 RIGHTS OF HOLDERS. Each holder of Registrable Securities shall have
the absolute right to exercise or refrain from exercising any right or rights
that such holder may have by reason of this Agreement, including, without
limitation, the right to consent to the waiver or modification of any obligation
under this Agreement, and such holder shall not incur any liability to any other
holder of any securities of the Company as a result of exercising or refraining
from exercising any such right or rights.
3.10 DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any party to this Agreement, upon any breach or
default of the other party, shall impair any such right, power or remedy of such
non-breaching party 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 party of any breach or default under this
Agreement, or any waiver on the part of any party 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 holder, shall be
cumulative and not alternative.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
COMPANY:
INTERACTIVE PICTURES CORPORATION,
a Tennessee corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title: Vice President and Chief
Financial Officer
-------------------------------
PURCHASERS:
▇.▇. ▇▇▇▇▇▇ VENTURES CORP. EDEN CAPITAL LIMITED
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------- ----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------- --------------------------------
Title: Vice President Title: Chairman
------------------------------- -------------------------------
GE CAPITAL EQUITY INVESTMENTS, INC. ONEIDA & WESTERN LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ By: /s/ B. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
---------------------------------- ----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇ Name: B. ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇.
-------------------------------- --------------------------------
Title: Department Operations Manager Title: Authorized Member
------------------------------- -------------------------------
AMERICAN EXPRESS TRAVEL
RELATED SERVICES COMPANY, INC. INVISION AG
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ Dr. ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------- ----------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Name: Dr. ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- --------------------------------
Title: Vice President, Relationship
Services Title: Sole Director
------------------------------- -------------------------------
▇▇▇▇▇▇▇▇ HOLDING COMPANY THC CENTURY AG
By: /s/ C. ▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------- ----------------------------------
Name: C. ▇▇▇ ▇▇▇▇ Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------- --------------------------------
Title: Vice President
-------------------------------
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
LIBERTY IP, INC. -------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------------- -------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Title: Senior Vice President
------------------------------- /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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EXHIBIT A
SCHEDULE OF PURCHASERS
GE Capital Equity Investments, Inc.
c/o General Electric Capital Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Interactive Pictures Corporation
Account Manager
and to:
General Electric Capital Corporation
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Interactive Pictures Corporation
Account Manager
Liberty IP, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇.▇. ▇▇▇▇▇▇ Ventures Corp.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Motorola, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
American Express Travel Related Services
Company, Inc.
World Financial Center
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Invision AG
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇
▇▇-▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇
THC Century AG
▇▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇
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Oneida & Western, LLC
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▇▇▇▇ Capital Limited
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▇▇▇▇▇▇▇▇ Holding Company
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Discovery Communications, Inc.
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The ▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ Company
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A-2