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EXHIBIT 10.1
▇▇▇▇.▇▇▇, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
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TABLE OF CONTENTS
PAGE(S)
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SECTION 1. GENERAL........................................................................................2
1.1. DEFINITIONS....................................................................................2
SECTION 2. REGISTRATION; RESTRICTIONS ON TRANSFER.........................................................4
2.1. RESTRICTIONS ON TRANSFER.......................................................................4
2.2. DEMAND REGISTRATION............................................................................5
2.3. PIGGYBACK REGISTRATIONS........................................................................6
2.4. FORM S-3 REGISTRATION..........................................................................7
2.5. EXPENSES OF REGISTRATION.......................................................................8
2.6. OBLIGATIONS OF THE COMPANY.....................................................................9
2.7. TERMINATION OF REGISTRATION RIGHTS............................................................10
2.8. DELAY OF REGISTRATION; FURNISHING INFORMATION.................................................10
2.9. INDEMNIFICATION...............................................................................11
2.10. ASSIGNMENT OF REGISTRATION RIGHTS.............................................................13
2.11. LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS..................................................13
2.12. "MARKET STAND-OFF" AGREEMENT..................................................................13
2.13. RULE 144 REPORTING............................................................................14
SECTION 3. COVENANTS OF THE COMPANY......................................................................14
3.1. BASIC FINANCIAL INFORMATION AND REPORTING.....................................................14
3.2. MATERIAL CHANGES AND LITIGATION...............................................................15
3.3. INSPECTION RIGHTS.............................................................................15
3.4. CONFIDENTIALITY OF RECORDS....................................................................15
3.5. RESERVATION OF COMMON STOCK...................................................................16
3.6. TERMINATION OF COVENANTS......................................................................16
SECTION 4. RIGHT OF FIRST OFFER..........................................................................16
4.1. SUBSEQUENT OFFERINGS..........................................................................16
4.2. EXERCISE OF RIGHTS............................................................................17
4.3. ISSUANCE OF EQUITY SECURITIES TO OTHER PERSONS................................................17
4.4. TERMINATION OF RIGHT OF FIRST OFFER...........................................................17
4.5. TRANSFER OF RIGHT OF FIRST OFFER..............................................................17
4.6. EXCLUDED SECURITIES...........................................................................17
SECTION 5. CONFIDENTIAL INFORMATION......................................................................18
5.1. PROTECTION OF CONFIDENTIAL INFORMATION........................................................18
5.2. DISCLOSURE OF TERMS...........................................................................19
SECTION 6. MISCELLANEOUS.................................................................................19
6.1. GOVERNING LAW.................................................................................19
6.2. SURVIVAL......................................................................................19
6.3. SUCCESSORS AND ASSIGNS........................................................................19
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6.4. SEVERABILITY..................................................................................19
6.5. AMENDMENT AND WAIVER..........................................................................19
6.6. DELAYS OR OMISSIONS...........................................................................20
6.7. NOTICES.......................................................................................20
6.8. ATTORNEYS' FEES...............................................................................20
6.9. ENTIRE AGREEMENT; TERMINATION OF STOCK RIGHTS AGREEMENT AND TRW AGREEMENT.....................20
6.10. TITLES AND SUBTITLES..........................................................................20
6.11. COUNTERPARTS..................................................................................20
EXHIBITS
Exhibit A -- Schedule of Investors
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▇▇▇▇.▇▇▇, INC.
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
THIS AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT (this "AGREEMENT")
is entered into as of the 19th day of October, 1999, by and among ▇▇▇▇.▇▇▇,
Inc., a Delaware corporation (the "COMPANY"), and the investors listed on
EXHIBIT A hereto, each of which is referred to herein individually as an
"INVESTOR" and all of which are referred to herein collectively as the
"INVESTORS."
Reference is hereby made to (1) that certain Investor Rights Agreement,
dated as of May 26, 1999, by and among the Company and the other parties
signatory thereto (the "INVESTOR RIGHTS AGREEMENT") and (2) that certain
Securities Purchase Agreement, dated as of October 19, 1999, by and among the
Company and the Purchasers (as defined therein) signatory thereto (the
"SECURITIES PURCHASE AGREEMENT"). Capitalized terms not otherwise defined herein
shall have the meanings ascribed thereto in the Securities Purchase Agreement.
This Agreement shall be dated as of, and shall become effective on, the
date of the Second Closing as defined in the Securities Purchase Agreement (the
"EFFECTIVE DATE"). Prior to the Effective Date, the Investor Rights Agreement
shall remain in full force and effect. From and after the Effective Date, (1)
this Agreement shall supercede and replace the Investor Rights Agreement in its
entirety and (2) the Investor Rights Agreement shall no longer be of any force
and/or effect.
Notwithstanding anything herein to the contrary, if Liberty KASTR
Corp., a Purchaser, timely delivers a Notice Not to Close to the Company, then
Liberty shall cease to be an Investor for all purposes hereunder retroactive to
the date of the First Closing as if Liberty had never executed and delivered
this Agreement at the First Closing.
RECITALS
WHEREAS, at the First Closing the Purchasers will make certain loans to
the Company (the "LOANS"); and
WHEREAS, at the Second Closing, (a) the entire amount of the Loan held
by each Purchaser (other than Purchasers who have timely delivered Notices Not
to Close to the Company) shall be converted into the Preferred Shares set forth
opposite each Purchaser's name on Schedule II to the Securities Purchase
Agreement and (b) the Company shall sell and issue to the Purchasers (other than
Purchasers who have timely delivered Notices Not to Close to the Company), and
the Purchasers (other than Purchasers who have timely delivered Notices Not to
Close to the Company) shall purchase from the Company, the Additional Preferred
Shares set forth opposite each Purchaser's name on Schedule II to the Securities
Purchase Agreement, all on the terms and subject to the conditions set forth in
the Securities Purchase Agreement; and
WHEREAS, the First Closing is occurring on the date this Agreement is
executed; and
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WHEREAS, the Second Closing is scheduled to occur as set forth in
Section 4.2 of the Securities Purchase Agreement; and
WHEREAS, it is a condition to the Purchasers' and the Company's
obligations at the First Closing that the parties hereto execute and deliver
this Agreement at the First Closing; provided, however that this Agreement shall
not be dated and become effective unless and until the Second Closing occurs;
and
WHEREAS, in order to induce the Company and the Purchasers to enter
into the Securities Purchase Agreement and to consummate the transactions
contemplated therein, the Investors and the Company wish to amend and restate
the Investor Rights Agreement in its entirety to include the Purchasers as
parties hereto and so that this Agreement shall govern the rights of all the
Investors with respect to all matters previously governed by the Investor Rights
Agreement, including, but not limited to, the registration of the Company's
Common Stock ("COMMON STOCK") issuable upon conversion of the Shares (as defined
below) held by the Investors and certain other matters as set forth herein.
NOW, THEREFORE, in consideration of the mutual promises,
representations, warranties, covenants and conditions set forth in this
Agreement and in the Securities Purchase Agreement, the Investors and the
Company hereby agree that the Investor Rights Agreement shall be amended and
restated in its entirety by this Agreement, and the parties hereto further agree
as follows:
SECTION 1. GENERAL
1.1. DEFINITIONS. As used in this Agreement the following terms shall
have the following respective meanings:
"AFFILIATE" of a Holder means an entity which is controlled by,
controls or is under common control with such Holder. "CONTROL" shall be
presumed to exist where an entity holds the direct or indirect control of
thirty-five percent (35%) or more of the voting rights in such entity.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"FORM S-3" means such form under the Securities Act as in effect on the
date hereof or any successor registration form under the Securities Act
subsequently adopted by the SEC which permits inclusion or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
"HOLDER" means any person that is a party to this Agreement and that
owns of record Shares or Registrable Securities that have not been sold to the
public or any assignee of record of such Registrable Securities in accordance
with Section 2.10 hereof.
"INITIAL OFFERING" means the Company's first firm commitment
underwritten public offering of its Common Stock registered under the Securities
Act, the public offering price of which was not less than $15,000,000.00 in the
aggregate (prior to underwriters' discounts and
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expenses), with a price per share of at least $4.00 (subject to appropriate
adjustments for stock splits, stock dividends, combinations or other
recapitalizations).
"MAJOR INVESTOR" means each Investor who holds at least three million
(3,000,000) shares (as adjusted) of Series A Preferred Stock, at least one
hundred sixty-seven thousand one hundred twenty-five (167,125) shares (as
adjusted) of Series B Preferred Stock, or at least one million (1,000,000)
shares (as adjusted) of Series C Preferred Stock.
"PURCHASER" means each of the Purchasers signatory to the Securities
Purchase Agreement.
"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 effectiveness of such
registration statement or document.
"REGISTRABLE SECURITIES" means (i) Common Stock issued or issuable upon
conversion of the Shares; and (ii) any Common Stock 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, such above-described securities. Notwithstanding the
foregoing, Registrable Securities shall not include any securities sold by a
person to the public either pursuant to a registration statement or Rule 144 or
sold in a private transaction in which the transferor's rights under Section 2
of this Agreement are not assigned.
"REGISTRABLE SECURITIES THEN OUTSTANDING" shall be the number of shares
determined by calculating the total number of shares of Common Stock that are
Registrable Securities and either (1) are then issued and outstanding or (2) are
issuable pursuant to then exercisable or convertible securities.
"REGISTRATION EXPENSES" shall mean all expenses incurred by the Company
in complying with Sections 2.2, 2.3 and 2.4 hereof, including, without
limitation, all registration and filing fees, printing expenses, 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 (i) the compensation of regular employees of the Company which
shall be paid in any event by the Company, (ii) underwriting discounts relating
to the Registrable Securities and (iii) commissions relating to the Registrable
Securities), as well as the reasonable fees and disbursements of a single
special counsel for the Holders.
"RULE 144" shall mean Rule 144 promulgated by the SEC pursuant to the
Securities Act, as it may be amended from time to time, or any successor rule or
regulation.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SELLING EXPENSES" shall mean all underwriting discounts and selling
commissions applicable to the sale.
"SERIES A PREFERRED STOCK" shall mean the Company's Series A Preferred
Stock.
"SERIES B PREFERRED STOCK" shall mean the Company's Series B Preferred
Stock.
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"SERIES C PREFERRED STOCK" shall mean the Company's Series C Preferred
Stock.
"SHARES" shall mean all of the Series A Preferred Stock, Series B
Preferred Stock, and Series C Preferred Stock owned by any Holder.
"SEC" OR "COMMISSION" means the Securities and Exchange Commission.
SECTION 2.REGISTRATION; RESTRICTIONS ON TRANSFER
2.1. RESTRICTIONS ON TRANSFER.
(a) Each Holder agrees not to make any disposition of all or any
portion of the Shares or Registrable Securities unless and until:
(i) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such registration statement; or
(ii) (A) The transferee has agreed in writing to be bound by
the terms of this Agreement, (B) such Holder shall have notified the Company of
the proposed disposition and shall have furnished the Company with a detailed
statement of the circumstances surrounding the proposed disposition, and (C) if
reasonably requested by the Company, such Holder shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration of such shares under the
Securities Act; provided, however, that it is agreed that the Company will not
require opinions of counsel for transactions made pursuant to Rule 144 except in
unusual circumstances.
(b) In addition to the requirements of paragraph (a) above, prior
to any disposition of all or any portion of the Shares or Registrable
Securities, the Company shall have received any consents or approvals of the
Federal Communications Commission as, in the reasonable opinion of special
regulatory counsel to the Company, may be necessary prior to effectuating such
disposition and all other governmental regulatory requirements shall have been
satisfied.
(c) Notwithstanding the provisions of paragraph (a) above, no such
registration statement or opinion of counsel shall be necessary for a transfer
by a Holder which is (i) a partnership to or among its partners or former
partners in accordance with partnership interests, (ii) a corporation to an
Affiliate or to its shareholders in accordance with their interest in the
corporation, (iii) a limited liability company to its members or former members
in accordance with their interest in the limited liability company, or (iv) to
the Holder's family member or trust for the benefit of an individual Holder,
provided each transferee agrees in writing to be subject to the terms of this
Agreement to the same extent as if he were an original Holder hereunder.
(d) Each certificate representing Shares or Registrable Securities
shall (unless otherwise permitted by the provisions of this Agreement) be
stamped or otherwise imprinted with a legend substantially similar to the
following (in addition to any legend required under applicable state securities
laws or as provided elsewhere in this Agreement):
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THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT") AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR
HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT OR UNLESS
THE COMPANY HAS RECEIVED AN OPINION OF COUNSEL REASONABLY
SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT SUCH
REGISTRATION IS NOT REQUIRED.
(e) The Company shall be obligated to reissue promptly unlegended
certificates at the request of any Holder if the Holder shall have obtained an
opinion of counsel (which counsel may be counsel to the Company) reasonably
acceptable to the Company to the effect that the securities proposed to be
disposed of may lawfully be so disposed of without registration, qualification
or legend.
(f) Any legend endorsed on an instrument pursuant to applicable
state securities laws and the stop-transfer instructions with respect to such
securities shall be removed upon receipt by the Company of an order of the
appropriate blue sky authority authorizing such removal.
2.2. DEMAND REGISTRATION.
(a) Subject to the conditions of this Section 2.2, if the Company
shall receive a written request from the Holders of more than a majority of the
Registrable Securities then outstanding (the "INITIATING HOLDERS") that the
Company file a registration statement under the Securities Act covering the
registration of Registrable Securities having an aggregate offering price to the
public in excess of $5,000,000 (a "QUALIFIED PUBLIC OFFERING"), then the Company
shall, within thirty (30) days of the receipt thereof, give written notice of
such request to all Holders, and subject to the limitations of this Section 2.2,
use its best efforts to effect, as soon as practicable, the registration under
the Securities Act of all Registrable Securities that the Holders request to be
registered.
(b) If the Initiating Holders intend to distribute the Registrable
Securities covered by their request by means of an underwriting, they shall so
advise the Company as a part of their request made pursuant to this Section 2.2
and the Company shall include such information in the written notice referred to
in Section 2.2(a). In such event, the right of any Holder to include its
Registrable Securities in such registration shall be conditioned upon such
Holder's participation in such underwriting and the inclusion of such Holder's
Registrable Securities in the underwriting (unless otherwise mutually agreed by
a majority in interest of the Initiating Holders and such Holder) to the extent
provided herein. All Holders proposing to distribute their securities through
such underwriting shall enter into an underwriting agreement in customary form
with the underwriter or underwriters selected for such underwriting by a
majority in interest of the Initiating Holders (which underwriter or
underwriters shall be reasonably acceptable to the Company). Notwithstanding any
other provision of this Section 2.2, if the underwriter advises the Company that
marketing factors require a limitation of the number of securities to be
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underwritten (including Registrable Securities) then the Company shall so advise
all Holders of Registrable Securities which would otherwise be underwritten
pursuant hereto, and the number of shares that may be included in the
underwriting shall be allocated to the Holders of such Registrable Securities on
a pro rata basis based on the number of Registrable Securities held by all such
Holders (including the Initiating Holders); provided, however, that the number
of shares of Registrable Securities to be included in such underwriting shall
not be reduced unless all other securities are first entirely excluded from the
underwriting. Any Registrable Securities excluded or withdrawn from such
underwriting shall be withdrawn from the registration.
(c) The Company shall not be required to effect a registration
pursuant to this Section 2.2:
(i) prior to May 26, 2004 (except that this period shall be
reduced to match any shorter demand registration period granted by the Company
to any other party and shall be reduced to the date that is one hundred eighty
(180) days after the effective date of a registration statement in connection
with the Initial Offering); or
(ii) after the Company has effected two (2) registrations
pursuant to this Section 2.2, and such registrations have been declared or
ordered effective; or
(iii) during the period starting with the date of filing of,
and ending on the date one hundred eighty (180) days following the effective
date of the registration statement pertaining to the Initial Offering; provided
that the Company makes reasonable good faith efforts to cause such registration
statement to become effective; or
(iv) if within thirty (30) days of receipt of a written
request from Initiating Holders pursuant to Section 2.2(a), the Company gives
notice to the Holders of the Company's intention to make its Initial Offering
within ninety (90) days; or
(v) if the Company shall furnish to Holders requesting a
registration statement pursuant to this Section 2.2, a certificate signed by the
Chairman of the Board stating that in the good faith judgment of the Company's
Board of Directors (the "BOARD OF DIRECTORS"), it would be seriously detrimental
to the Company and its stockholders for such registration statement to be
effected at such time, in which event the Company shall have the right to defer
such filing for a period of not more than ninety (90) days after receipt of the
request of the Initiating Holders; provided that such right to delay a request
shall be exercised by the Company not more than once in any twelve (12) month
period.
2.3. PIGGYBACK REGISTRATIONS. The Company shall notify all Holders of
Registrable Securities in writing at least thirty (30) days prior to the filing
of any registration statement under the Securities Act for purposes of a public
offering of securities of the Company (including, but not limited to,
registration statements relating to secondary offerings of securities of the
Company, but excluding registration statements relating to employee benefit
plans or with respect to corporate reorganizations or other transactions under
Rule 145 of the Securities Act) and will afford each such Holder an opportunity
to include in such registration statement all or part of such Registrable
Securities held by such Holder. Each Holder desiring to include in any such
registration statement all or any part of the Registrable Securities held by it
shall, within
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fifteen (15) days after the above-described notice from the Company, so notify
the Company in writing. Such notice shall state the intended method of
disposition of the Registrable Securities by such Holder. The Company shall,
subject to the provisions of Sections 2.3(a) and (b) below, cause to be
registered under the Securities Act all of the Registrable Securities that each
such Holder has requested to be registered. If a Holder decides not to include
all of its Registrable Securities in any registration statement thereafter filed
by the Company, such Holder shall nevertheless continue to have the right to
include any Registrable Securities in any subsequent registration statement or
registration statements as may be filed by the Company with respect to offerings
of its securities, all upon the terms and conditions set forth herein.
(a) UNDERWRITING. If the registration statement under which the
Company gives notice under this Section 2.3 is for an underwritten offering, the
Company shall so advise the Holders of Registrable Securities at the time of the
Company's notice described above in this Section 2.3. In such event, the right
of any such Holder to be included in a registration pursuant to this Section 2.3
shall be conditioned upon such Holder's participation in such underwriting and
the inclusion of such Holder's Registrable Securities in the underwriting to the
extent provided herein. All Holders proposing to distribute their Registrable
Securities through such underwriting shall enter into an underwriting agreement
in customary form with the underwriter or underwriters selected for such
underwriting by the Company. Notwithstanding any other provision of this
Agreement, if the underwriter determines in good faith that marketing factors
require a limitation of the number of shares to be underwritten, the number of
shares that may be included in the underwriting shall be allocated, first, to
the Company; second, to the Holders on a pro rata basis based on the total
number of Registrable Securities held by the Holders; and third, to any
stockholder of the Company (other than a Holder) on a pro rata basis. In no
event shall the amount of securities of the selling Holders included in the
registration be reduced below thirty percent (30%) of the total amount of
securities included in such registration, unless such offering is the Initial
Offering and such registration does not include shares of any other selling
stockholders, in which event any or all of the Registrable Securities of the
Holders may be excluded in accordance with the immediately preceding sentence.
In no event will shares of any other selling stockholder be included in such
registration which would reduce the number of shares which may be included by
Holders without the written consent of Holders of not less than a majority of
the Registrable Securities proposed to be sold in the offering.
(b) RIGHT TO TERMINATE REGISTRATION. The Company shall have the
right to terminate or withdraw any registration initiated by it under this
Section 2.3 prior to the effectiveness of such registration whether or not any
Holder has elected to include securities in such registration. The Registration
Expenses of such withdrawn registration shall be borne by the Company in
accordance with Section 2.5 hereof.
2.4. FORM S-3 REGISTRATION. In case the Company shall receive from any
Holder or Holders of at least twenty percent (20%) of the Registrable Securities
a written request or requests that the Company effect a registration on Form S-3
or any similar short-form registration statement and any related qualification
or compliance with respect to all or a part of the Registrable Securities owned
by such Holder or Holders, the Company will:
(a) promptly give written notice of the proposed registration, and
any related qualification or compliance, to all other Holders; and
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(b) as soon as practicable, effect such registration and all such
qualifications and compliances as may be so requested and as would permit or
facilitate the sale and distribution of all or such portion of such Holder's or
Holders' Registrable Securities as are specified in such request, together with
all or such portion of the Registrable Securities of any other Holder or Holders
joining in such request as are specified in a written request given within
fifteen (15) days after receipt of such written notice from the Company;
provided, however, that the Company shall not be obligated to effect any such
registration, qualification or compliance pursuant to this Section 2.4:
(i) if Form S-3 (or any successor or similar form) is not
available for such offering by the Holders, or
(ii) if the Holders, together with the holders of any other
securities of the Company entitled to inclusion in such registration, propose to
sell Registrable Securities and such other securities (if any) at an aggregate
price to the public of less than $1,000,000, or
(iii) if the Company has effected two registrations on Form
S-3 (or any similar short-form registration) in the twelve month period
immediately preceding the request, or
(iv) if the Company shall furnish to the Holders a certificate
signed by the Chairman of the Board of Directors stating that in the good faith
judgment of the Board of Directors, it would be seriously detrimental to the
Company and its stockholders for such Form S-3 registration to be effected at
such time, in which event the Company shall have the right to defer the filing
of the Form S-3 registration statement for a period of not more than ninety (90)
days after receipt of the request of the Holder or Holders under this Section
2.4: provided, that such right to delay a request shall be exercised by the
Company not more than once in any twelve (12) month period, or
(v) in any particular jurisdiction in which the Company would
be required to qualify to do business or to execute a general consent to service
of process in effecting such registration, qualification or compliance.
(c) Subject to the foregoing, the Company shall file a Form S-3
registration statement covering the Registrable Securities and other securities
so requested to be registered as soon as practicable after receipt of the
request or requests of the Holders. Registrations effected pursuant to this
Section 2.4 shall not be counted as demands for registration pursuant to Section
2.2 hereof.
2.5. EXPENSES OF REGISTRATION.
(a) All Registration Expenses incurred in connection with the
first two (2) registrations by the Holders pursuant to Section 2.2 shall be
borne by the Company.
(b) All Registration Expenses incurred in connection with the
registrations by the Holders pursuant to Sections 2.3 and 2.4 shall be borne by
the Company.
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(c) All Selling Expenses incurred in connection with any
registrations hereunder, shall be borne by the Holders of the securities so
registered pro rata on the basis of the number of shares so registered.
(d) The Company shall not be required to pay for expenses of any
registration proceeding begun pursuant to Section 2.2 or 2.4, the request of
which has been subsequently withdrawn by the Initiating Holders unless the
withdrawal of the registration results from either (i) intentional actions by
the Company outside the normal course of business or (ii) the discovery of
material adverse information concerning the Company that is not known by the
Initiating Holders at the time of such request, or unless, in the case of a
registration pursuant to Section 2.2 hereof, a majority of the Registrable
Securities to be registered agree to forfeit one (1) of their demand
registrations under Section 2.2 hereof.
2.6. OBLIGATIONS OF THE COMPANY. Whenever required to effect the
registration of any Registrable Securities, the Company shall, as expeditiously
as reasonably possible:
(a) Prepare and file with the SEC a registration statement with
respect to such Registrable Securities and use all reasonable efforts to cause
such registration statement to become effective, and, upon the request of the
Holders of a majority of the Registrable Securities registered thereunder, keep
such registration statement effective for up to ninety (90) days or, if earlier,
until the Holder or Holders have completed the distribution related thereto,
provided, however, that such ninety (90) day period shall be extended for a
period of time equal to the period the Holder refrains from selling any
securities included in such registration at the request of an underwriter of
Common Stock.
(b) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection with such
registration statement 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) Furnish to the Holders such number of copies of a prospectus,
including a preliminary prospectus, in conformity with the requirements of the
Securities Act, and such other documents as they may reasonably request in order
to facilitate the disposition of Registrable Securities owned by them.
(d) Use all reasonable efforts to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such jurisdictions as shall be reasonably requested by the
Holders, provided that the Company shall not be required in connection therewith
or as a condition thereto to qualify to do business or to file a general consent
to service of process in any such states or jurisdictions.
(e) In the event of any underwritten public offering, enter into
and perform its obligations under an underwriting agreement, in usual and
customary form, with the managing underwriter(s) of such offering. Each Holder
participating in such underwriting shall also enter into and perform its
obligations under such an agreement.
(f) 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
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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 in the
light of the circumstances then existing.
(g) Cause all such Registrable Securities registered hereunder to
be listed on each securities exchange on which similar securities issued by the
Company are then listed.
(h) Provide a transfer agent and registrar for all Registrable
Securities registered hereunder and a CUSIP number for all such Registrable
Securities, in each case not later than the effective date of such registration.
(i) Furnish, at the request of a majority in interest of the
Holders participating in the registration, on the date that such Registrable
Securities are delivered to the underwriters for sale, if such securities are
being sold through underwriters, or, if such securities are not being sold
through underwriters, on the date that the registration statement with respect
to such securities becomes effective, (i) an opinion, dated as of such date, of
the counsel representing the Company for the purposes of such registration, in
form and substance as is customarily given to underwriters in an underwritten
public offering and reasonably satisfactory to a majority in interest of the
Holders requesting registration, addressed to the underwriters, if any, and to
the Holders requesting registration of Registrable Securities and (ii) a letter
dated as of such date, from the independent certified public accountants of the
Company, in form and substance as is customarily given by independent certified
public accountants to underwriters in an underwritten public offering and
reasonably satisfactory to a majority in interest of the Holders requesting
registration, addressed to the underwriters, if any, and if permitted by
applicable accounting standards, to the Holders requesting registration of
Registrable Securities.
2.7. TERMINATION OF REGISTRATION RIGHTS. All registration rights
granted under this Section 2 shall terminate and be of no further force and
effect three (3) years after the date of the Initial Offering. In addition, a
Holder's registration rights shall expire if both of the following conditions
occur: (i) the Company has completed its Initial Offering and is subject to the
provisions of the Exchange Act and (ii) all Registrable Securities held by and
issuable to such Holder may be sold under Rule 144 during any ninety (90) day
period.
2.8. DELAY OF REGISTRATION; FURNISHING INFORMATION.
(a) No Holder shall have any right to obtain or seek an injunction
restraining or otherwise delaying any such registration as the result of any
controversy that might arise with respect to the interpretation or
implementation of this Section 2.
(b) It shall be a condition precedent to the obligations of the
Company to take any action pursuant to Section 2.2, 2.3 or 2.4 that the selling
Holders shall furnish to the Company such information regarding themselves, the
Registrable Securities held by them and the intended method of disposition of
such securities as shall be required to effect the registration of their
Registrable Securities.
(c) The Company shall have no obligation with respect to any
registration requested pursuant to Section 2.2 or Section 2.4 if, due to the
operation of subsection 2.8(b), the
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number of shares or the anticipated aggregate offering price of the Registrable
Securities to be included in the registration does not equal or exceed the
number of shares or the anticipated aggregate offering price required to
originally trigger the Company's obligation to initiate such registration as
specified in Section 2.2 or Section 2.4, whichever is applicable.
2.9. INDEMNIFICATION. In the event any Registrable Securities are
included in a registration statement under Sections 2.2, 2.3 or 2.4:
(a) To the extent permitted by law, the Company will indemnify and
hold harmless each Holder, the partners, officers, directors and legal counsel
of each Holder, any underwriter (as defined in the Securities Act) for such
Holder and each person, if any, who controls such Holder or underwriter within
the meaning of the Securities Act or the Exchange Act, against any losses,
claims, damages, or liabilities (joint or several) to which they may become
subject under the Securities Act, the Exchange Act or other federal or state
law, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any of the following statements,
omissions or violations (collectively a "VIOLATION") by the Company: (i) any
untrue statement or alleged untrue statement of a material fact contained in
such registration statement, including any preliminary prospectus or final
prospectus contained therein or any amendments or supplements thereto, (ii) the
omission or alleged omission to state therein a material fact required to be
stated therein, or necessary to make the statements therein not misleading, or
(iii) any violation or alleged violation by the Company of the Securities Act,
the Exchange Act, any state securities law or any rule or regulation promulgated
under the Securities Act, the Exchange Act or any state securities law in
connection with the offering covered by such registration statement; and the
Company will reimburse each such Holder, partner, officer or director,
underwriter or controlling person for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, damage, liability or action; provided however, that the indemnity
agreement contained in this subsection 2.9(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, nor shall the Company be liable in any such case
for any such loss, claim, damage, liability or action to the extent that it
arises out of or is based upon a Violation which occurs in reliance upon and in
conformity with written information furnished expressly for use in connection
with such registration by such Holder, partner, officer, underwriter or
controlling person of such Holder.
(b) To the extent permitted by law, each selling Holder will, if
Registrable Securities held by such Holder are included in the securities as to
which such registration qualifications or compliance is being effected,
indemnify and hold harmless the Company, each of its directors, its officers,
and legal counsel and each person, if any, who controls the Company within the
meaning of the Securities Act, any underwriter and any other Holder selling
securities under such registration statement or any of such other Holder's
partners, directors or officers or any person who controls such Holder, against
any losses, claims, damages or liabilities (joint or several) to which the
Company or any such director, officer, controlling person, underwriter or other
such Holder, or partner, director, officer or controlling person of such other
Holder may become subject under the Securities Act, the Exchange Act or other
federal or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent (and only to the extent) that such Violation
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occurs in reliance upon and in conformity with written information furnished by
such Holder under an instrument duly executed by such Holder and stated to be
specifically for use in connection with such registration; and each such Holder
will reimburse any legal or other expenses reasonably incurred by the Company or
any such director, officer, controlling person, underwriter or other Holder, or
partner, officer, director or controlling person of such other Holder in
connection with investigating or defending any such loss, claim, damage,
liability or action if it is judicially determined that there was such a
Violation; provided, however, that the indemnity agreement contained in this
subsection 2.9(b) 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 Holder, which consent shall not be unreasonably withheld;
provided further, that in no event shall any indemnity under this Section 2.9
exceed the net proceeds from the offering received by such Holder.
(c) Promptly after receipt by an indemnified party under this
Section 2.9 of notice of the commencement of any action (including any
governmental action), such indemnified party will, if a claim in respect thereof
is to be made against any indemnifying party under this Section 2.9, deliver to
the indemnifying party a written notice of the commencement thereof and the
indemnifying party shall have the right to participate in, and, to the extent
the indemnifying party so desires, jointly with any other indemnifying party
similarly noticed, to assume the defense thereof with counsel mutually
satisfactory to the parties; provided, however, that an indemnified party shall
have the right to retain its own counsel, with the fees and expenses to be paid
by the indemnifying party, if representation of such indemnified party by the
counsel retained by the indemnifying party would be inappropriate due to actual
or potential differing interests between such indemnified party and any other
party represented by such counsel in such proceeding. The failure to deliver
written notice to the indemnifying party within a reasonable time of the
commencement of any such action shall relieve such indemnifying party of any
liability to the indemnified party under this Section 2.9 only if such failure
is materially prejudicial to the indemnifying party's ability to defend such
action, but the omission so to deliver written notice to the indemnifying party
will not relieve it of any liability that it may have to any indemnified party
otherwise than under this Section 2.9.
(d) If the indemnification provided for in this Section 2.9 is
held by a court of competent jurisdiction to be unavailable to an indemnified
party with respect to any losses, claims, damages or liabilities referred to
herein, the indemnifying party, in lieu of indemnifying such indemnified party
thereunder, shall to the extent permitted by applicable law contribute to the
amount paid or payable by such indemnified party as a result of such loss,
claim, damage or liability 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 Violation(s) that resulted in such
loss, claim, damage or liability, as well as any other relevant equitable
considerations. The relative fault of the indemnifying party and of the
indemnified party shall be determined by a court of law 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; provided, that in no event shall any contribution by a
Holder hereunder exceed the proceeds from the offering received by such Holder.
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(e) The obligations of the Company and Holders under this Section
2.9 shall survive completion of any offering of Registrable Securities in a
registration statement. 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.
2.10. ASSIGNMENT OF REGISTRATION RIGHTS. The rights to cause the
Company to register Registrable Securities pursuant to this Section 2 may be
assigned by a Holder to a transferee or assignee of Registrable Securities which
(i) is an Affiliate, subsidiary, parent, general partner, limited partner or
retired partner of a Holder, (ii) is a Holder's family member or trust for the
benefit of an individual Holder, or (iii) acquires at least three million one
hundred sixty-seven thousand one hundred twenty-five (3,167,125) shares of
Registrable Securities (as adjusted for stock splits and combinations);
provided, however, (A) the transferor shall, within ten (10) days after such
transfer, furnish to the Company written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned and (B) such transferee shall agree in
writing to be subject to all terms, conditions and restrictions set forth in
this Agreement. For the purposes of determining the number of shares of
Registrable Securities held by a transferee or assignee, the holdings of
transferees and assignees of a partnership who are partners or retired partners
of such partnership (including spouses and ancestors, lineal descendants, and
siblings of such partners or spouses who acquire Registrable Securities by gift,
will, or intestate succession) shall be aggregated together with the
partnership; provided that all assignees and transferees who would not qualify
individually for assignment of registration rights shall have a single
attorney-in-fact for the purpose of exercising any rights, receiving notices, or
taking any action under this Section 2.
2.11. LIMITATION ON SUBSEQUENT REGISTRATION RIGHTS. From and after the
date of this Agreement, the Company shall not, without the prior written consent
of the Holders of a majority of the outstanding Registrable Securities, enter
into any agreement with any holder or prospective holder of any securities of
the Company which would allow such holder or prospective holder (a) to include
such securities in any registration filed under Section 2.2, 2.3 or 2.4 hereof,
unless under the terms of such agreement, such holder or prospective holder may
include such securities in any such registration only to the extent that the
inclusion of his securities will not reduce the amount of the Registrable
Securities of the Holders which is included, or (b) to make a demand
registration which could result in such registration statement being declared
effective prior to the earlier of either of the dates set forth in Section 2.2
hereof or within one hundred eighty (180) days of the effective date of any
registration effected pursuant to Section 2.2 hereof.
2.12. "MARKET STAND-OFF" AGREEMENT. If requested by the Company or the
representative of the underwriters of Common Stock (or other securities) of the
Company, each Holder shall not sell or otherwise transfer or dispose of any
Common Stock (or other securities) of the Company held by such Holder (other
than those included in the registration) for a period specified by the
representative of the underwriters not to exceed one hundred eighty (180) days
following the effective date of a registration statement of the Company filed
under the Securities Act in connection with the Initial Offering and not to
exceed one hundred twenty (120) days following the effective date of each
registration statement following the Initial Offering,
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provided that all officers and directors of the Company and all other persons
with registration rights (whether or not pursuant to this Agreement) enter into
similar agreements.
The obligations described in this Section 2.12 shall not apply to a
registration relating solely to employee benefit plans on Form S-1 or Form S-8
or similar forms that may be promulgated in the future, or a registration
relating solely to a Commission Rule 145 transaction on Form S-4 or similar
forms that may be promulgated in the future. The Company may impose
stop-transfer instructions with respect to the shares of Common Stock (or other
securities) subject to the foregoing restriction until the end of the periods
referenced in the preceding paragraph.
2.13 RULE 144 REPORTING. With a view to making available to the Holders
the benefits of certain rules and regulations of the SEC which may permit the
sale of the Registrable Securities to the public without registration, the
Company agrees to use its best efforts to:
(a) Make and keep public information available, as those terms are
understood and defined in SEC Rule 144 or any similar or analogous rule
promulgated under the Securities Act, at all times after the closing of the
first registered sale of the Company's securities, and file with the SEC, in a
timely manner, all reports and other documents required of the Company under the
Exchange Act; and
(b) So long as a Holder owns any Registrable Securities, furnish
to such Holder forthwith upon request: a written statement by the Company as to
its compliance with the reporting requirements of Rule 144, and of 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
other reports and documents as a Holder may reasonably request in availing
itself of any rule or regulation of the SEC allowing it to sell any such
securities without registration.
SECTION 3. COVENANTS OF THE COMPANY
3.1. BASIC FINANCIAL INFORMATION AND REPORTING.
(a) The Company will maintain true books and records of account in
which full and correct entries will be made of all its business transactions
pursuant to a system of accounting established and administered in accordance
with generally accepted accounting principles consistently applied, and will set
aside on its books all such proper accruals and reserves as shall be required
under generally accepted accounting principles consistently applied.
(b) As soon as practicable after the end of each fiscal year of
the Company and until the closing of the Initial Offering, and in any event
within one hundred twenty (120) days thereafter, the Company will furnish each
Major Investor a consolidated balance sheet of the Company, as at the end of
such fiscal year, a consolidated statement of income of the Company for such
year, a consolidated statement of cash flows of the Company for such year and a
statement of stockholders' equity as of the end of such year, all 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.
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(c) The Company will also furnish each Major Investor, as soon as
practicable after the end of the first, second and third quarterly accounting
periods in each fiscal year of the Company, and in any event within sixty (60)
days thereafter, a consolidated balance sheet of the Company as of the end of
each such quarterly period, a consolidated statement of income for such
quarterly period, a consolidated statement of cash flows of the Company for such
quarterly period and for the current fiscal year to date and a statement of
stockholders' equity as of the end of such quarterly period, prepared in
accordance with generally accepted accounting principles, with the exception
that no notes need be attached to such statements and year-end audit adjustments
may not have been made.
(d) The Company will also furnish each Major Investor (i) at least
thirty (30) days prior to the beginning of each fiscal year, an annual budget
and operating plans for such fiscal year and (ii) within thirty (30) days after
the end of each month, an unaudited balance sheet and statements of income and
cash flow, prepared in accordance with generally accepted accounting principles,
with the exception that no notes need be attached to such statements and
year-end audit adjustments may not have been made, which also set forth
applicable budget figures and variances from budget.
3.2. MATERIAL CHANGES AND LITIGATION. The Company shall notify each
Major Investor as soon as practicable, and in any event within fourteen (14)
days of becoming aware thereof, of (i) any litigation or governmental proceeding
or investigation ("LITIGATION") pending or, to the knowledge of the Company,
threatened against the Company (but excluding governmental proceedings affecting
the satellite industry in general), if such Litigation, if adversely determined,
could materially adversely affect the present or presently proposed business,
properties, assets, liabilities or prospects of the Company, or (ii) any
Litigation pending or, to the knowledge of the Company, threatened against any
officer of the Company, if such Litigation, if adversely determined, could
materially adversely affect the present or presently proposed business, assets,
properties, assets, liabilities or prospects of the Company, or (iii) the
occurrence of any other event which, if adversely determined, could materially
adversely affect, the present or presently proposed business, assets,
properties, assets, liabilities or prospects of the Company (but excluding
governmental proceedings affecting the satellite industry in general).
3.3. INSPECTION RIGHTS. Each Major Investor shall have the right, upon
written notice given not less than three business days prior to a proposed
visit, to visit and inspect any of the properties of the Company or any of its
subsidiaries, and to discuss the affairs, finances and accounts of the Company
or any of its subsidiaries with its officers, and to review such information as
is reasonably requested all at such reasonable times and as often as may be
reasonably requested; provided, however, that the Company shall not be obligated
under this Section 3.3 with respect to a competitor of the Company or with
respect to information which the Board of Directors determines in good faith is
confidential and should not, therefore, be disclosed.
3.4. CONFIDENTIALITY OF RECORDS. Each Investor agrees to use, and to
use its best efforts to insure that its authorized representatives use, the same
degree of care as such Investor uses to protect its own confidential information
to keep confidential any information furnished to it which the Company
identifies as being confidential or proprietary (so long as such information is
not in the public domain), except that such Investor may disclose such
proprietary or
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confidential information to any partner, subsidiary or parent of such Investor
for the purpose of evaluating its investment in the Company as long as such
partner, subsidiary or parent is advised of the confidentiality provisions of
this Section 3.4.
3.5. RESERVATION OF COMMON STOCK. The Company will at all times reserve
and keep available, solely for issuance and delivery upon the conversion of the
Shares, all Common Stock issuable from time to time upon such conversion.
3.6. TERMINATION OF COVENANTS. All covenants of the Company contained
in Section 3 of this Agreement shall expire and terminate as to each Investor on
the effective date of the registration statement pertaining to the Initial
Offering.
SECTION 4. RIGHT OF FIRST OFFER.
4.1. SUBSEQUENT OFFERINGS. Each Major Investor shall have a right of
first offer to purchase its pro rata share of all Equity Securities, as defined
below, that the Company may, from time to time, propose to sell and issue after
the date of this Agreement, other than the Equity Securities excluded by Section
4.6 hereof; provided, that prior to the consummation of any such purchase
transaction, the Company shall have obtained any required approvals of the
Federal Communications Commission or other applicable governmental agencies.
Each Investor's pro rata share is equal to the ratio of (A) the number of shares
of Common Stock (including all shares of Common Stock issued or issuable upon
conversion of the Shares) of which such Investor is deemed to be a holder
immediately prior to the issuance of such Equity Securities to (B) the total
number of shares of outstanding Common Stock (including all shares of Common
Stock issued or issuable upon conversion of the Shares or upon the exercise of
any outstanding warrants or options or other securities convertible into Common
Stock) immediately prior to the issuance of the Equity Securities. The term
"EQUITY SECURITIES" shall mean (i) any Common Stock, Preferred Stock or other
security of the Company, (ii) any security convertible, with or without
consideration, into any Common Stock, Preferred Stock or other security of the
Company (including any option to purchase such a convertible security), (iii)
any security carrying any warrant or right to subscribe to or purchase any
Common Stock, Preferred Stock or other security of the Company or (iv) any such
warrant or right. An Investor shall be entitled to apportion the right of first
offer hereby granted it among itself, its partners, and its affiliates in such
proportions as it deems appropriate.
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4.2. EXERCISE OF RIGHTS. If the Company proposes to issue any Equity
Securities, it shall give each Major Investor written notice of its intention,
describing the number and type of Equity Securities, the price and the terms and
conditions upon which the Company proposes to issue the same. Each Major
Investor shall have fifteen (15) days from its receipt of such notice to agree
to purchase up to its pro rata share of the Equity Securities for the price and
upon the terms and conditions specified in the notice by giving written notice
to the Company and stating therein the quantity of the Equity Securities to be
purchased. Notwithstanding the foregoing, the Company shall not be required to
offer or sell such Equity Securities to any Investor who would cause the Company
to be in violation of applicable federal securities laws by virtue of such offer
or sale.
4.3. ISSUANCE OF EQUITY SECURITIES TO OTHER PERSONS. If the Major
Investors fail to exercise in full the right of first offer, the Company shall
have ninety (90) days thereafter to sell the Equity Securities in respect of
which the Major Investor's rights were not exercised, at a price and upon
general terms and conditions materially no more favorable to the purchasers
thereof than specified in the Company's notice to the Major Investors pursuant
to Section 4.2 hereof. If the Company has not sold such Equity Securities within
ninety (90) days of the notice provided pursuant to Section 4.2, the Company
shall not thereafter issue or sell any Equity Securities, without first offering
such securities to the Major Investors in the manner provided above.
4.4. TERMINATION OF RIGHT OF FIRST OFFER. The right of first offer
established by this Section 4 shall terminate upon the closing of the Initial
Offering.
4.5. TRANSFER OF RIGHT OF FIRST OFFER. The right of first offer of each
Major Investor under this Section 4 may be transferred to the same parties,
subject to the same restrictions as any transfer of registration rights pursuant
to Section 2.10.
4.6. EXCLUDED SECURITIES. The right of first offer established by this
Section 4 shall have no application to any of the following Equity Securities:
(a) (i) up to an aggregate amount of 10,000,000 shares of Common
Stock (and/or options, warrants or other Common Stock purchase rights issued
pursuant to such options, warrants or other rights) issued or to be issued to
employees, officers or directors of, or consultants or advisors to the Company
or any subsidiary, pursuant to stock purchase or stock option plans or other
arrangements that are approved by the Board of Directors, or (ii) stock or
options of any class or series issued pursuant to the Amended and Restated Stock
Option Agreements dated as of May 26, 1999 by and between the Company and each
of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇;
(b) any Equity Securities issued for consideration other than cash
pursuant to a merger, consolidation, acquisition or similar business
combination;
(c) shares of Common Stock issued in connection with any stock
split, stock dividend or recapitalization by the Company;
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(d) the issuance of securities pursuant to the conversion or
exercise of convertible or exercisable securities outstanding on the date hereof
or with respect to which the right of first offer has previously been offered;
(e) the issuance of securities in connection debt financings,
credit agreements or issuance of debt securities (including the issuance of
options, warrants or other rights to acquire securities of the Company to
underwriters in connection with the placement of such debt securities) upon the
express approval of the Board of Directors;
(f) any Equity Securities issued pursuant to any equipment leasing
arrangement, the sale by the Company of capacity on a satellite owned or
controlled by the Company or their Affiliates upon the express approval of the
Board of Directors; and
(g) any Equity Securities that are issued by the Company pursuant
to a registration statement filed under the Securities Act.
SECTION 5. CONFIDENTIAL INFORMATION.
5.1. PROTECTION OF CONFIDENTIAL INFORMATION. Confidential or
proprietary information disclosed by any party under this Agreement, as well as,
the terms of this Agreement, shall be considered confidential information (the
"CONFIDENTIAL INFORMATION") and shall not be disclosed by the Company or any
other party to this Agreement to any third party, subject to Section 5.2 below.
Notwithstanding the preceding sentence, no party hereto shall be prohibited by
this Section 5 from disclosing its own Confidential Information (other than the
terms of this Agreement). The term "CONFIDENTIAL INFORMATION" shall not be
deemed to include information which: (a) is now, or hereafter becomes, through
no act or failure to act on the part of the receiving party, generally known or
available; (b) is known by the receiving party at the time of receiving such
information as evidenced by its records; (c) is hereafter furnished to the
receiving party by a third party, as a matter of right and without restriction
on disclosure; (d) is independently developed by the receiving party without any
breach of this Agreement; or (e) is the subject of a written permission to
disclose provided by the disclosing party to the receiving party. Each party
shall immediately notify the other parties of any information that comes to its
attention which might indicate that there has been a loss of confidentiality
with respect to the Confidential Information protected by this Section 5. In the
event that the Company or any other party is requested or becomes legally
compelled (by statute or regulation or by oral questions, interrogatories,
request for information or documents, subpoena, criminal or civil investigative
demand or similar process, including without limitation, in connection with any
public or private offering of the Company's capital stock) to disclose any of
the Confidential Information, such party (the "DISCLOSING PARTY") shall provide
the other party (the "NON-DISCLOSING PARTY") with prompt written notice of that
fact and shall seek (with the cooperation and reasonable efforts of the
Non-Disclosing Party) a protective order, confidential treatment or other
appropriate remedy. In such event, the Disclosing Party shall furnish only that
portion of the Confidential Information which is legally required and shall
exercise reasonable efforts to obtain reliable assurance that confidential
treatment will be accorded the Confidential Information to the extent reasonably
requested by the Non-Disclosing Party. The provisions of this Section 5.1 shall
be in addition to, and not in substitution for, the provisions of any separate
nondisclosure agreement executed by the parties hereto with respect to the
transaction contemplated hereby. Any party to this
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Agreement may disclose Confidential Information as necessary to establish rights
or enforce obligations under this Agreement, but only to the extent that any
such disclosure is necessary.
5.2. DISCLOSURE OF TERMS. Notwithstanding the provisions of Section 5.1
above, the Company and each of the Investors may disclose the existence of this
Agreement and the general terms hereof solely to the Company's and each
Investor's investors, investment bankers, lenders, accountants, legal counsel,
business partners, and bona fide prospective investors, employees, lenders and
business partners, in each case only where such persons or entities are under
confidentiality obligations to the Company or the Investor, as applicable.
SECTION 6. MISCELLANEOUS.
6.1. GOVERNING LAW. This Agreement shall be governed by and construed
under the laws of the State of Colorado as applied to agreements among Colorado
residents entered into and to be performed entirely within Colorado.
6.2. SURVIVAL. The representations, warranties, covenants, and
agreements made herein shall survive any investigation made by any Holder and
the closing of the transactions contemplated hereby. All statements as to
factual matters contained in any certificate or other instrument delivered by or
on behalf of the Company pursuant hereto in connection with the transactions
contemplated hereby shall be deemed to be representations and warranties by the
Company hereunder solely as of the date of such certificate or instrument.
6.3. 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 and shall inure to the benefit of and be enforceable by each
person who shall be a holder of Registrable Securities from time to time;
provided, however, that prior to the receipt by the Company of adequate written
notice of the transfer of any Registrable Securities specifying the full name
and address of the transferee, the Company may deem and treat the person listed
as the holder of such shares in its records as the absolute owner and holder of
such shares for all purposes, including the payment of dividends or any
redemption price.
6.4. SEVERABILITY. In case any provision of this 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.
6.5. AMENDMENT AND WAIVER. Except as otherwise expressly provided
herein, this Agreement may be amended or modified and the observance of any term
of this Agreement may be waived (either generally or in a particular instance
and either retroactively or prospectively) only upon the written consent of the
Company and the holders of at least fifty-eight percent (58%) of the Registrable
Securities; provided that no such amendment or waiver shall adversely affect any
holder in a manner in which the other holders are not adversely affected in a
manner that is proportionate to the number of Registrable Securities held
without the consent of such holder. Each Investor acknowledges and agrees that
any amendment or waiver effected in accordance with this Section 6.5 shall be
binding upon all holders of Registrable Securities then
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outstanding, each future holder of all such Registrable Securities, and the
Company, whether or not such holder in fact consented to such amendment or
waiver.
6.6. DELAYS OR OMISSIONS. It is agreed that no delay or omission to
exercise any right, power, or remedy accruing to any Holder, upon any breach,
default or noncompliance of the Company under this Agreement shall impair any
such right, power, or remedy, nor shall it be construed to be a waiver of any
such breach, default or noncompliance, or any acquiescence therein, or of any
similar breach, default or noncompliance thereafter occurring. All remedies,
either under this Agreement, by law, or otherwise afforded to Holders, shall be
cumulative and not alternative.
6.7. NOTICES. All notices required or permitted hereunder shall be in
writing and shall be deemed effectively given: (i) upon personal delivery to the
party to be notified, (ii) when sent by confirmed facsimile transmission if sent
during normal business hours of the recipient; if not, then on the next business
day, (iii) five (5) days after having been sent by registered or certified mail,
return receipt requested, postage prepaid, or (iv) one (1) day after deposit
with a nationally recognized overnight courier, specifying next day delivery,
with written verification of receipt. All communications shall be sent to the
party to be notified at the address as set forth on the signature pages hereof
or Exhibit A hereto or at such other address as such party may designate by ten
(10) days advance written notice to the other parties hereto.
6.8. ATTORNEYS' FEES. In the event that any dispute among the parties
to this Agreement should result in litigation, the prevailing party in such
dispute shall be entitled to recover from the losing party all fees, costs and
expenses of enforcing any right of such prevailing party under or with respect
to this Agreement, including without limitation, such reasonable fees and
expenses of attorneys and accountants, which shall include, without limitation,
all fees, costs and expenses of appeals.
6.9. ENTIRE AGREEMENT. This Agreement (including the Schedules and
Exhibits to this Agreement, if any) constitutes the full and entire
understanding and agreement between the parties with regard to the subject
matter hereof, and supersedes all prior agreements and understandings with
respect to the subject matter hereof.
6.10. TITLES AND SUBTITLES. The titles of the sections and subsections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
6.11. 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.
6.12. INTRODUCTORY PARAGRAPHS AND RECITALS. The introductory paragraphs
hereof and the Recitals contained herein are hereby incorporated as substantive
provisions of this Agreement and are intended by the parties to be given full
force and effect as such.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
20
24
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the First Closing (as defined in the Securities Purchase
Agreement) and this Agreement is dated and effective as of the Effective Date.
COMPANY:
▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Its: Vice President
---------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
INVESTORS:
KPCB HOLDINGS, INC., as nominee
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Its: Senior Vice President
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
TELEVERDE COMMUNICATIONS, L.P.
By: TELEVERDE COMMUNICATIONS, CORP.,
general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Its: President
---------------------------------------
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
DIRECTCOM NETWORKS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Its: V.P. Corp. Dev.
----------------------------------------
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
25
TRW, INC.
By: /s/ ▇.▇. ▇▇▇▇▇▇▇▇▇
--------------------------------------
Its: Executive Vice President
-------------------------------------
--------------------------------------
--------------------------------------
▇▇▇▇▇▇▇, PHLEGER & ▇▇▇▇▇▇▇▇ LLP
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------
Its: Partner
-------------------------------------
--------------------------------------
--------------------------------------
UMB BANK AS TRUSTEE OF THE ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ RETIREMENT SAVINGS
PLAN FBO ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇
--------------------------------------
Its: Asst. Vice President
-------------------------------------
------------------------------------------
------------------------------------------
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------------
------------------------------------------
LIBERTY KASTR CORP.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Its: Executive Vice President
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
[SIGNATURE PAGE TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
26
EXHIBIT A
SCHEDULE OF INVESTORS
KPCB Holdings, Inc.
Televerde Communications L.P.
DirectCom Networks, Inc.
TRW, Inc.
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
UMB Bank as Trustee of the ▇▇▇▇▇▇▇,
Phleger & ▇▇▇▇▇▇▇▇ LLP Retirement Savings
Plan FBO ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Liberty KASTR Corp.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
A-1
27
By signature below, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ hereby agree to be
bound by the terms and conditions of the AMENDED AND RESTATED INVESTOR RIGHTS
AGREEMENT dated October 19, 1999, a copy of which each signatory below hereby
acknowledges receipt, by and among iSKY, Inc. (formerly known as ▇▇▇▇.▇▇▇, Inc.)
and KPCB Holdings, Inc., Televerde Communications, L.P., DirectCom Networks,
Inc., TRW, Inc., ▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇ LLP, UMB Bank as Trustee of the
▇▇▇▇▇▇▇ Phleger & ▇▇▇▇▇▇▇▇ LLP Retirement Savings Plan FBO ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Liberty KASTR Corp., and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
Dated this 1st day of February, 2000.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
28
By signature below, the following parties hereby agree to be bound by the terms
and conditions of the AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT dated
October 19, 1999, a copy of which each signatory below hereby acknowledges
receipt, by and among iSKY, Inc. (formerly known as ▇▇▇▇.▇▇▇, Inc.) and KPCB
Holdings, Inc., Televerde Communications, L.P., DirectCom Networks, Inc., TRW,
Inc., ▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇ LLP, UMB Bank as Trustee of the ▇▇▇▇▇▇▇
Phleger & ▇▇▇▇▇▇▇▇ LLP Retirement Savings Plan FBO ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇, Liberty KASTR Corp., and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
Dated this 1st day of February, 2000.
SEGALOFF GROUP, LLC ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ by By: /s/ ▇.▇. ▇▇▇▇▇
------------------------------ -----------------------------
▇.▇. ▇▇▇▇▇ his attorney in fact ▇.▇. ▇▇▇▇▇, Trustee
---------------------------------
▇.▇. ▇▇▇▇▇, Attorney in Fact for
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ AND SONS JOINT VENTURE ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ by By: /s/ ▇.▇. ▇▇▇▇▇
------------------------------ -----------------------------
▇.▇. ▇▇▇▇▇ his attorney in fact ▇.▇. ▇▇▇▇▇, Trustee
---------------------------------
▇.▇. ▇▇▇▇▇, Attorney in Fact for
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
HASHEM PROVIDES, LLC SEGALOFF FAMILY, L.P.
By: /s/ ▇.▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ by
------------------------------ -----------------------------
▇.▇. ▇▇▇▇▇, Manager ▇.▇. ▇▇▇▇▇ his attorney in fact
-------------------------------
▇.▇. ▇▇▇▇▇, Attorney-in-Fact for
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ FAMILY TRUST ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ TRUSTEE OF
THE ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ REVOCABLE
TRUST
By: /s/ ▇.▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ by
------------------------------ -----------------------------
▇.▇. ▇▇▇▇▇, Trustee ▇.▇. ▇▇▇▇▇, his attorney in fact
--------------------------------
▇.▇. ▇▇▇▇▇, Trustee
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ FAMILY TRUST
By: /s/ ▇.▇. ▇▇▇▇▇ /s/ ▇.▇. ▇▇▇▇▇
------------------------------ --------------------------------
▇.▇. ▇▇▇▇▇, Trustee ▇.▇. ▇▇▇▇▇, INDIVIDUALLY
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇ TRUST
By: /s/ ▇.▇. ▇▇▇▇▇
---------------------------------
▇.▇. ▇▇▇▇▇, Trustee
29
By signature below, the following parties hereby agree to be bound by the terms
and conditions of the AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT dated
October 19, 1999, a copy of which each signatory below hereby acknowledges
receipt, by and among iSKY, Inc. (formerly known as ▇▇▇▇.▇▇▇, Inc.) and KPCB
Holdings, Inc., Televerde Communications, L.P., DirectCom Networks, Inc., TRW,
Inc., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, UMB Bank as Trustee of the ▇▇▇▇▇▇▇
Phleger & ▇▇▇▇▇▇▇▇ LLP Retirement Savings Plan FBO ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Liberty
KASTR Corp., and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇.
Dated this 1st day of February, 2000.
▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Attorney-in-Fact
▇▇▇▇ ▇. ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Attorney-in-Fact
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------- ---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Attorney-in-fact ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Attorney-in-Fact
▇▇▇▇▇▇ FAMILY TRUST
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Attorney-in-Fact
▇▇▇▇▇▇▇ FAMILY TRUST
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Attorney-in-Fact
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Attorney-in-Fact
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, INDIVIDUALLY
30
By signature below, Liberty Satellite, LLC hereby agrees to be bound by the
terms and conditions of the AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
dated October 19, 1999, as the same may have been amended, or may be amended
from time to time, in accordance with its terms, a copy of which Liberty
Satellite, LLC hereby acknowledges receipt, by and among iSKY, Inc. (formerly
known as ▇▇▇▇.▇▇▇, Inc.) and the stockholders of iSky, Inc. signatory
thereto.
Dated this 16th day of March, 2000.
LIBERTY SATELLITE, LLC
BY: TSAT HOLDING 1, INC.,
as the Managing Member
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Title: CFO
--------------------------------
31
FIRST AMENDMENT TO
AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
THIS AMENDMENT TO THE AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT
DATED FEBRUARY 2, 2000 (this "Amendment") is made as of the 16th day of March ,
2000, by and among iSKY, Inc., a Delaware corporation (f/k/a ▇▇▇▇.▇▇▇, Inc. the
"COMPANY") and each of the parties signatory hereto (the "SIGNATORY PARTIES").
RECITALS
1. On May 26, 1999, the Company (formerly known as KaSTAR Satellite
Communications Corporation) entered into an Investor Rights Agreement with KPCB
Holdings; Inc.; Televerde Communications, L.P.; DirectCom Networks, Inc.; TRW
Inc.; ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP; UMB Bank as Trustee of the ▇▇▇▇▇▇▇,
Phleger & ▇▇▇▇▇▇▇▇ LLP Retirement Savings Plan FBO ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇; and ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇ (the "Investor Rights Agreement"). 2. On October 19, 1999, the
Company (then known as ▇▇▇▇.▇▇▇, Inc.), entered into an Amended and Restated
Investor Rights Agreement with KPCB Holdings, Inc., Televerde Communications,
L.P., DirectCom Networks, Inc., TRW Inc.; ▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇ LLP; UMB
Bank as Trustee of the ▇▇▇▇▇▇▇, Phleger & ▇▇▇▇▇▇▇▇ LLP Retirement Savings Plan
FBO ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇; Liberty KASTR Corp., and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (the
"Agreement"). The Amended and Restated Investor Rights Agreement superceded the
Investor Rights Agreement.
3. On February 1, 2000, the Agreement was executed by shareholders who
had acquired an equity interest in the Company subsequent to October 19, 1999.
The additional parties to the Agreement are: ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇
(the "▇▇▇▇▇▇▇ Group"); Segaloff Group, LLC; Segaloff and Sons Joint Venture;
Hashem Provides, LLC; ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust; ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Trust; Segaloff
Family, L.P.; ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Family Trust; ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Family Trust; J.
▇▇▇▇▇▇▇ ▇▇▇▇▇ Trust; ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Revocable Trust; and ▇.▇. ▇▇▇▇▇ (the
"▇▇▇▇▇▇▇▇ Group"); ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; ▇▇▇▇▇ ▇▇▇▇▇; ▇▇▇▇ ▇. ▇▇▇▇▇; ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇;
▇▇▇▇▇▇▇ ▇▇▇▇▇; ▇▇▇▇▇▇ Family Trust; ▇▇▇▇▇▇▇ Family Trust; ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (the
"▇▇▇▇▇ Group").
4. The Company and the Signatory Parties desire to amend the Agreement
as set forth below.
AGREEMENT
In consideration of the mutual promises and covenants contained herein,
and other good and valuable consideration, the sufficiency and receipt of which
are hereby acknowledged, the Company and the Signatory Parties agree as follows:
1. DEFINITIONS. The following definitions hereby are added to Section
1.1 of the Agreement, or amended and restated in their entirety (as
appropriate):
a. "MAJOR INVESTOR" means each Investor who holds at least three
million (3,000,000) shares (as adjusted) of Series A Preferred Stock, at least
one hundred sixty-seven
32
thousand one hundred twenty-five (167,125) shares (as adjusted) of Series B
Preferred Stock, at least one million (1,000,000) shares (as adjusted) of Series
C Preferred Stock, at least ten million (10,000,000) shares (as adjusted) of
Series D Preferred Stock, at least ten million (10,000,000) shares (as adjusted)
of Series E Preferred Stock, or at least ten million (10,000,000) shares (as
adjusted) of Series F Preferred Stock.
b. "SERIES D PREFERRED STOCK" shall mean the Company's Series D
Non Voting Preferred Stock.
c. "SERIES E PREFERRED STOCK" shall mean the Company's Series E
Preferred Stock.
d. "SERIES F PREFERRED STOCK" shall mean the Company's Series F
Preferred Stock.
e. "SHARES" shall mean all of the Series A Preferred Stock, Series
B Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock and Series F Preferred Stock (or any warrant convertible into
any of the foregoing or into Common Stock) owned by any Holder.
2. WAIVER OF RIGHTS UNDER SECTION 4. The undersigned for themselves and
for all Major Investors, hereby waive any and all rights to acquire any Equity
Securities pursuant to Section 4 of the Agreement in connection with the
issuance by the Company of a warrant to purchase 7,200,000 shares of the Series
F Stock to EchoStar Communications Corporation.
3. SECTION 2.4. Section 2.4 of the Agreement is amended as follows:
a. The first sentence is amended and restated in its entirety as
follows: "In case the Company shall receive from any Holder a written request or
requests that the Company effect a registration on Form S-3 or any similar
short-form registration statement and any related qualification or compliance
with respect to all or a part of the Registrable Securities owned by such Holder
or Holders, the Company will:"
b. Section 2.4(b)(ii) is amended and rested in its entirety as
follows: (ii) if the Holders, together with the holders of any other securities
of the Company entitled to inclusion in such registration, propose to sell
Registrable Securities and such other securities (if any) at an aggregate price
to the public of less than $5,000,000, or"
4. SECTION 2.7 Section 2.7 of the Agreement is amended and restated in
its entirety as follows:
"2.7 TERMINATION OF REGISTRATION RIGHTS. All registration rights
granted under this Section 2 shall terminate and be of no further
force and effect three (3) years after the date of the Initial
Offering; provided, however, that no such rights shall terminate
(x) with respect to any Registrable Security issuable pursuant to
a warrant until such Registrable Security shall have been issued
for at least one year, or (y) with respect to Shares held by
Telesat Canada until one year after the date on which such Shares
are no longer subject to the restriction on transfer pursuant to
that certain Share Purchase Agreement between the Company and
Telesat Canada. In addition, a Holder's
-2-
33
registration rights shall expire if both of the following
conditions occur: (i) the Company has completed its Initial
Offering and is subject to the provisions of the Exchange Act and
(ii) all Registrable Securities held by and issuable to such
Holder may be sold under Rule 144 during any ninety (90) day
period.
5. EFFECTIVENESS OF AMENDMENT. Pursuant to Section 6.5 of the
Agreement, this Amendment and the waivers contained herein shall be binding upon
the Company and all holders of Registrable Securities (regardless of whether
such holder executes this Amendment) upon the execution of this Amendment by the
Company and the holders of at least fifty-eight percent (58%) of the Registrable
Securities.
-3-
34
IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
ISKY, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ECHOSTAR SATELLITE CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its: Chief Executive Officer
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
TELESAT CANADA
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇▇▇▇
---------------------------------
Its: Secretary, Vice President
Corporate Development
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇
KPCB HOLDINGS, INC., AS NOMINEE
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇,
Senior Vice President
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
DIRECTCOM NETWORKS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
Its: Vice President
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
[SIGNATURE PAGE TO AMENDMENT TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
35
TRW, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
Its: Vice President
Address:
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▇▇▇▇▇▇▇, PHLEGER & ▇▇▇▇▇▇▇▇ LLP
By:
Its: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Address:
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▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ AS ▇▇▇ ROLLOVER
CUST FOR ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
Its: Assistant Branch Manager
Address:
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/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Address:
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LIBERTY KASTR CORP.
By:
----------------------------------
Its:
---------------------------------
Address: ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[SIGNATURE PAGE TO AMENDMENT TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
36
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, AS VOTING TRUSTEE,
UNDER VOTING TRUST AGREEMENT, DATED AS
OF MAY 26, 1999:
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------- -------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇. #▇▇▇ Address: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇., #▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SEGALOFF GROUP, LLC ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇.▇. ▇▇▇▇▇
-------------------------------- ----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇, Trustee
Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇. ▇ Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇., #▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
SEGALOFF AND SONS JOINT VENTURE ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ TRUST
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇.▇. ▇▇▇▇▇
-------------------------------- ----------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇.▇. ▇▇▇▇▇, Trustee
Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇. ▇ Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇., #▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
HASHEM PROVIDES, LLC SEGALOFF FAMILY, L.P.
By: WSS GP, Inc., general partner
By: /s/ ▇.▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------- ----------------------------------
▇.▇. ▇▇▇▇▇, Manager ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇., #▇▇▇ Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
[SIGNATURE PAGE TO AMENDMENT TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
37
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ FAMILY TRUST ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ TRUSTEE OF THE
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ REVOCABLE TRUST
By: /s/ ▇.▇. ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------- ----------------------------------
▇.▇. ▇▇▇▇▇, Trustee ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇., #▇▇▇ Address: ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇. ▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ FAMILY TRUST ▇.▇. ▇▇▇▇▇, INDIVIDUALLY
By: /s/ ▇.▇. ▇▇▇▇▇ /s/ ▇.▇. ▇▇▇▇▇
-------------------------------- -------------------------------------
▇.▇. ▇▇▇▇▇, Trustee ▇.▇. ▇▇▇▇▇, individually
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇, #▇▇▇ Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇., #▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇
J. ▇▇▇▇▇▇▇ ▇▇▇▇▇ TRUST
BY: /s/ ▇.▇. ▇▇▇▇▇
--------------------------------
▇.▇. ▇▇▇▇▇, Trustee
Address: ▇▇▇ ▇▇▇▇▇ ▇▇▇▇., #▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
[SIGNATURE PAGE TO AMENDMENT TO AMENDED AND RESTATED INVESTOR RIGHTS AGREEMENT]
38
▇▇▇▇▇ ▇▇▇▇▇, INDIVIDUALLY
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- ----------------------------------
▇▇▇▇▇ ▇▇▇▇▇, Attorney-in-Fact ▇▇▇▇▇ ▇▇▇▇▇, Attorney-in-Fact
Address: Address:
--------------------------- -----------------------------
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇, Attorney-in-Fact ▇▇▇▇▇ ▇▇▇▇▇, Attorney-in-Fact
Address: Address:
--------------------------- -----------------------------
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▇▇▇▇▇▇ FAMILY TRUST ▇▇▇▇▇▇▇ FAMILY TRUST
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
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▇▇▇▇▇ ▇▇▇▇▇, Attorney-in-Fact ▇▇▇▇▇ ▇▇▇▇▇, Attorney-in-Fact
Address: Address:
--------------------------- -----------------------------
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇ ▇▇▇▇▇, Attorney-in-Fact
Address:
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[SIGNATURE PAGE TO AMENDMENT TO SECOND AMENDED AND RESTATED VOTING AGREEMENT]