▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
AMENDED AND RESTATED
SERIES C PREFERRED STOCK
PURCHASE AGREEMENT
MARCH 15 , 2000
AMENDED AND RESTATED
SERIES C PREFERRED STOCK PURCHASE AGREEMENT
This Amended and Restated Series C Preferred Stock Purchase Agreement
(this "Agreement") is made as of this 15th day of March, 2000 by and among
▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation (the "Company"), and the Investors
identified on the signature pages hereto (each, an "Investor").
WHEREAS, the Company and the Investors have entered into that certain
Series C Preferred Stock Purchase Agreement, dated as of March 15, 2000 (the
"Original Agreement"), pursuant to which the Investors agreed to purchase shares
of Series C Preferred Stock, par value $.001 per share (the "Series C Stock"),
of the Company; and
WHEREAS, the Company and the Investors wish to amend and restate the
Original Agreement for the purpose of amending the number of shares of Series C
Stock purchased by Metropolitan Internet Partners I, LLC;
NOW, THEREFORE, in consideration of the covenants and agreements made
herein, the Company and the Investors, intending to be legally bound, hereby
agree to amend and restate in its entirety the Original Agreement, and hereby
agree as follows:
1. Purchase and Sale of Series C Preferred Stock.
1.1 Sale and Issuance of Series C Preferred Stock. Subject to the terms and
conditions of this Agreement, each Investor agrees to purchase at the Closing
(as hereinafter defined), and the Company agrees to sell and issue to each
Investor, the number of shares of Series C Stock set forth opposite such
Investor's name on Schedule I hereto, having the terms set forth in the amended
and restated certificate of incorporation of the Company in the form of Exhibit
A hereto and the certificate of designations of the Company in the form of
Exhibit B hereto (collectively, the "Certificate"), at a price of $7.81 per
share, for an aggregate purchase price in the amount set forth opposite such
Investor's name on Schedule I hereto.
The total amount of shares of Series C Stock sold to the Investors pursuant
to this Agreement is sometimes hereinafter referred to as the "Shares," and the
Class A Common Stock, par value $.001 per share, of the Company (the "Class A
Common Stock") issuable upon conversion of the Shares is sometimes hereinafter
referred to as the "Conversion Stock." The Shares and the Conversion Stock are
sometimes hereinafter collectively referred to as the "Securities."
1.2 Closing. The purchase and sale of the Shares shall take place at the
offices of the Company, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00
a.m., on the date hereof, or at such other time and place as the Company and the
Investors mutually agree upon orally or in writing (which time and place are
designated as the "Closing"). At the Closing, the Company shall deliver to each
Investor a certificate representing the Series C Stock to be purchased by such
Investor, against delivery to the Company by such Investor of a wire transfer of
immediately available funds to an account designated by the Company, or
certified check, in the amount of the aggregate purchase price therefor.
2. Representations and Warranties of the Company. The Company hereby
represents and warrants to each Investor, except as set forth on the Schedule of
Exceptions furnished to the Investors and attached hereto as Schedule II,
specifically identifying the relevant subsection hereof, which exceptions shall
be deemed to qualify the representations and warranties made hereunder, as
follows:
2.1 Organization, Good Standing and Qualification. The Company is a
corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware. The Company has all requisite corporate power
and authority to carry on its business as now conducted. The Company is duly
qualified to transact business and is in good standing in each jurisdiction in
which the failure so to qualify will have a material adverse effect on its
business, properties, operations, assets, liabilities or condition (financial
or otherwise) (collectively, "Condition").
2.2 Capitalization. Immediately prior to the Closing, the capital stock of
the Company, as authorized by the Certificate, will consist of: (i) 155,000,000
shares of common stock, par value $.001 per share, of which (x) 150,000,000
shares will be designated as Class A Common Stock, of which 15,383,001 shares
will be issued and outstanding, and (y) 5,000,000 shares will be designated as
Class B Common Stock, par value $.001 per share (the "Class B Common Stock"
and, together with the Class A Common Stock, the "Common Stock"), all of which
will be issued and outstanding; and (ii) 30,000,000 shares of preferred stock,
par value $.001 per share, of which (x) 7,500,000 shares will be designated as
Series A Preferred Stock, par value $.001 per share (the "Series A Stock"), all
of which will be issued and outstanding, (y) 154,127 shares will be designated
as Series B Preferred Stock, par value $.001 per share (the "Series B Stock"),
of which 153,846 shares will be issued and outstanding, and (z) 5,000,000
shares will be designated as Series C Stock (together with the Series A Stock
and the Series B Stock, the "Preferred Stock"), none of which will be issued
and outstanding. Immediately prior to the Closing, 5,000,000 shares of Class A
Common Stock will be reserved for issuance upon conversion of issued and
outstanding shares of Class B Common Stock, 7,500,000 shares of Class A Common
Stock will be reserved for issuance upon conversion of issued and outstanding
shares of Series A Stock, 153,846 shares of Class A Common Stock will be
reserved for issuance upon conversion of issued and outstanding shares of
Series B Stock, and 6,000,000 shares of Class A Common Stock will be reserved
for issuance to key employees, officers and directors of, and consultants to,
the Company in respect of stock options, restricted stock and other awards
authorized under the Company's 2000 Long-Term Incentive Compensation Plan
(under which 190,000 options will be outstanding). The rights, privileges and
preferences of the Common Stock and the Preferred Stock are as stated in the
Certificate. Except as described in the first sentence of this Section 2.2, and
except for conversion rights of issued and outstanding shares of Preferred
Stock, as of the Closing, the Company will not (i) have outstanding any capital
stock or other securities convertible into or exchangeable for any shares of
its capital stock and, except for the preemptive rights contained in the
Stockholders' Agreement (as defined in Section 2.3), no Person (as defined in
Section 2.3(b)) will have any right to subscribe for or to purchase (including
conversion or preemptive rights), or any options for the purchase of, or any
agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or other claims of any character relating to, any capital
stock or any stock or securities convertible into or exchangeable for any
capital stock of the Company; (ii) have any capital stock, equity interests or
other securities reserved for issuance for any purpose; or (iii) be subject to
any obligation (contingent or otherwise) to repurchase or otherwise acquire or
retire any shares of its capital stock or any convertible securities, rights or
options of the type described in the preceding clause (i) (other than for
nominal consideration). All of the issued and outstanding shares of Common
Stock and Preferred Stock have been duly and validly issued and are fully paid
and nonassessable and all of the shares of Series C Stock, when issued as
contemplated hereby, and Class A Common Stock, when issued upon conversion of
the Preferred Stock, will be validly issued, fully paid and nonassessable.
There are no agreements to which the Company is a party with respect to the
voting or transfer of the Company's capital stock.
2.3 Authority; Execution and Delivery; Requisite Consents; Non-Violation.
(a) The Company has all requisite corporate power and authority to execute,
deliver and perform this Agreement, the Stockholders' Agreement in the form of
Exhibit C attached hereto (the "Stockholders' Agreement") and the Registration
Rights Agreement in the form of Exhibit D attached hereto (the "Registration
Rights Agreement" and, together with the Stockholders' Agreement, the
"Ancillary Agreements") and to consummate the transactions contemplated hereby
and thereby. The execution, delivery and performance of this Agreement
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and the Ancillary Agreements and the consummation of the transactions
contemplated hereby and thereby have been duly and validly authorized by all
necessary action on the part of the Company. This Agreement and each of the
Ancillary Agreements have been duly executed and delivered by the Company and
constitute the legal, valid and binding obligation of the Company, enforceable
against the Company in accordance with their respective terms.
(b) The execution, delivery and performance of this Agreement and the
Ancillary Agreements and the consummation by the Company of the transactions
contemplated hereby and thereby will not: (a) except for those that have been
or will timely be obtained or made, require any consent, license, permit,
waiver, approval, authorization or other action of or by, or registration,
declaration or filing with, any court or governmental authority, department,
commission, board, bureau, agency or instrumentality ("Governmental Authority")
or any other individual, partnership, corporation, unincorporated organization
or association, limited liability company, trust or other entity (each, a
"Person"); (b) violate or conflict with any provision of the Certificate or of
the By-Laws of the Company as in effect immediately prior to the execution and
delivery of this Agreement; or (c) with or without the giving of notice or the
lapse of time or both, constitute a default under, violate or conflict with, or
give rise to a right of termination, cancellation or acceleration under any Law
(as defined in Section 2.6 below), any Contract (as defined in Section 2.9
below) to which the Company is a party, or any Order (as defined in Section 2.5
below) by which the Company or any of its assets is bound.
2.4 Subsidiaries. The Company does not control, directly or indirectly,
any partnership, stock or other equity interests in any partnership,
corporation or other entity or have any voting rights or right to control the
policies and direction of any partnership, corporation or other entity.
2.5 Litigation. There is no action, suit or proceeding (collectively,
"Actions") pending or, to the knowledge of the Company, threatened against the
Company, or affecting any of the properties or assets of the Company, which is
reasonably likely to have a material adverse effect on the Company's Condition.
To the knowledge of the Company, there is no Action against any director,
officer or employee of the Company in connection with the business of the
Company. Neither the Company nor any of its assets or properties, nor, to the
knowledge of the Company, in connection with its business, any director,
officer or employee of the Company, is subject to any order, judgment, writ,
injunction, decree, ruling or decision (collectively, an "Order") of any
Governmental Authority which is material to the Condition of the Company. There
is no Action by the Company currently pending or which the Company currently
intends to initiate.
2.6 Compliance with Laws; Permits. To the knowledge of the Company, the
Company has not violated or failed to comply with, in any material respect, any
statute, law, ordinance, rule or regulation of any Governmental Authority that
is material to it or any of its properties or assets (collectively, "Laws").
The Company has all permits, licenses, orders, certificates, authorizations and
approvals of any Governmental Authority that are material to the conduct of its
business as presently conducted (collectively, the "Permits"); all such Permits
are in full force and effect; no violations or notices of failure to comply
have been issued or recorded in respect of any such Permits; and the Company
does not know of any reason why such Permits may be revoked or suspended.
2.7 Taxes. All material federal, state, city, county, local and foreign
income, franchise, sales, use and value added tax returns and reports
(collectively, "Returns") have been timely filed. All such Returns are true,
correct and complete in all material respects. All material taxes, assessments,
fees, interest, penalties and other charges with respect thereto (collectively,
"Taxes") due from the Company have been paid. No income tax return of the
Company has been audited by the applicable Governmental Authority, and there
are in effect no waivers of the applicable statute of limitations for Taxes in
any jurisdiction for the Company for any period.
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2.8 Title to Assets. The Company has good and marketable title to all of
its assets and properties, free and clear of any liens, pledges, security
interests, claims, encumbrances or other restrictions of any kind whatsoever
(collectively, "Liens"), except for Liens which individually and in the
aggregate are not material in amount, do not materially detract from the value
of such assets and properties and do not impair the use of such assets and
properties. With respect to any assets or properties it leases, the Company
holds a valid and subsisting leasehold interest therein, free and clear of any
Liens (except for Liens which individually and in the aggregate are not
material in amount, do not materially detract from the value of such assets and
properties and do not impair the use of such assets and properties), is in
compliance, in all material respects, with the terms of the applicable lease,
and enjoys peaceful and undisturbed possession under such lease. All of the
assets and properties of the Company that are material to the conduct of
business as presently conducted or as presently contemplated to be conducted by
the Company are in good operating condition and repair, subject to ordinary
wear and tear.
2.9 Contracts. Section 2.9 of Schedule II contains a true and complete
list of each contract to which the Company is a party that is material to the
business of the Company and which obligates the Company to pay, or contemplates
payment by the Company of, $250,000 or more (each, a "Contract"). True and
complete copies of all Contracts have been made available to the Investors. All
of the Contracts are in full force and effect and constitute legal, valid and
binding obligations of the Company and, to the knowledge of the Company, the
other parties thereto. The Company and, to the knowledge of the Company, each
other party thereto has performed in all material respects all obligations
required to be performed by it under the Contracts, and no violation exists in
respect thereof on the part of the Company or, to the knowledge of the Company,
any other party thereto. None of the Contracts is currently being renegotiated,
and the validity, effectiveness and continuation of all Contracts will not be
materially adversely affected by the transactions contemplated by this
Agreement.
2.10 Intellectual Property.
(a) The Company has exclusive ownership of, with the exclusive right to
use, sell, license, dispose of and bring actions for infringement of, all
Intellectual Property Rights (as defined in this Section 2.10) material to the
conduct of its business as presently conducted, and as presently contemplated
to be conducted, including, without limitation, all rights to the Company name
"▇▇▇▇▇▇▇▇▇▇.▇▇▇" (the "Company Rights").
(b) The business of the Company as presently conducted, and as presently
contemplated to be conducted, and the provision of services by the Company do
not, and will not, violate any agreements which the Company has with any third
party or infringe any Intellectual Property Rights of any third party.
(c) No claim is pending or, to the knowledge of the Company, threatened
against the Company, nor has the Company received any notice from any Person,
asserting that any of the Company's present or contemplated activities infringe
or may infringe any Intellectual Property Rights of such Person, and the
Company is not aware of any infringement by any other Person of any of the
Company Rights.
(d) The Company has taken all commercially reasonable steps required to
establish and preserve its ownership of all of the Company Rights. Each
employee of the Company, and each of the Company's consultants and independent
contractors involved in development of any of the Company Rights, has executed
an agreement regarding confidentiality and proprietary information, and, to the
knowledge of the Company, none of such employees, consultants or independent
contractors is in violation of any agreement or in breach of any agreement or
arrangement with former or present employers relating to confidentiality or
proprietary information.
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As used herein, the "Intellectual Property Rights" of a Person shall mean
all intellectual property rights necessary for the operation of such Person's
business, including, without limitation, all patents, patent applications,
patent rights, trademarks, trademark applications, trade names, service marks,
service ▇▇▇▇ applications, copyrights, copyright applications, domain names,
URLs, computer programs and other computer software, inventions, designs,
samples, specifications, schematics, know-how, trade secrets, proprietary
processes and formulae, including production technology and processes, all
source and object code, algorithms, promotional materials, customer lists,
supplier and dealer lists and marketing research, and all documentation and
media constituting, describing or relating to the foregoing, including, without
limitation, manuals, memoranda and records.
2.11 Minute Books. The minute books of the Company fully set forth all
action taken by the Board of Directors (including any committee thereof) and
the stockholders of the Company.
2.12 Registration Rights. Except as provided in the Registration Rights
Agreement and in the registration rights agreement that the Company has entered
into with i-Hatch Ventures, LLC and i-Hatch Advisors, LLC relating to the
Series B Stock, no Person has demand, "piggy-back" or other rights to cause the
Company to file any registration statement under the Securities Act of 1933, as
amended (the "Securities Act"), relating to any securities of the Company or to
participate in any such registration statement.
2.13 No Brokers or Finders. Neither the Company nor any of its affiliates
has entered or will enter into any agreement pursuant to which the Company or
the Investors will be liable, as a result of the transactions contemplated by
this Agreement or the Ancillary Agreements, for any claim of any Person for any
commission, fee or other compensation as finder or broker.
2.14 Investment Company Act. The Company is not an "investment company"
nor is the Company directly or indirectly controlled by or acting on behalf of
any Person which is an "investment company" within the meaning of the
Investment Company Act of 1940, as amended.
2.15 Use of Proceeds. The Company will use the proceeds from the sale of
the Shares to the Investors for general corporate purposes arising in the
ordinary course of business, including, without limitation, the development of
the Company's web site and broadband service offerings and the marketing,
advertising and promotion thereof, and may be required to use a portion of such
proceeds to repay funds loaned to it by Insignia Financial Group, Inc.
("Insignia") to finance the organization and operations of the Company.
3. Representations and Warranties of the Investors. Each Investor hereby
severally represents and warrants to the Company as follows:
3.1 Organization. The Investor is duly organized, validly existing and in
good standing under the laws of its jurisdiction of organization.
3.2 Authorization; Execution and Delivery; Requisite Consents;
Non-Violation. (a) The Investor has all requisite power and authority to
execute, deliver and perform this Agreement and the Ancillary Agreements and to
consummate the transactions contemplated hereby and thereby. The execution,
delivery and performance of this Agreement and the Ancillary Agreements, and
the consummation of the transactions contemplated hereby and thereby, have been
duly and validly authorized by all necessary action on the part of the
Investor. This Agreement and each of the Ancillary Agreements have been duly
executed and delivered by the Investor and constitute the legal, valid and
binding obligation of the Investor, enforceable against the Investor in
accordance with their respective terms.
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(b) The execution, delivery and performance of this Agreement and the
Ancillary Agreements and the consummation by the Investor of the transactions
contemplated hereby and thereby will not: (a) except for those that have been
or will timely be obtained or made, require any consent, license, permit,
waiver, approval, authorization or other action of or by, or registration,
declaration or filing with, any Governmental Authority or Person; (b) violate
or conflict with any provision of the organizational documents of the Investor
as in effect immediately prior to the execution and delivery of this Agreement;
or (c) with or without the giving of notice or the lapse of time or both,
constitute a default under, violate or conflict with, or give rise to a right
of termination, cancellation or acceleration under any material law to which
the Investor is subject, any material contract to which the Investor is a
party, or any Order by which the Investor or any of its assets is bound.
3.3 No Intended Resale. The Shares are being acquired by the Investor
solely for its own account for investment purposes only and not with a view to
or in connection with any resale or distribution thereof in violation of the
Securities Act.
3.4 Investment Experience; Accredited Investor. The Investor understands
that the Company is recently formed and has only a limited operating history.
The Investor can bear the economic risk (including the complete loss) of its
investment and has such knowledge and experience in financial or business
matters that it is capable of evaluating the merits and risks of the investment
in the Shares. The Investor is an "accredited investor" within the meaning of
Rule 501 of Regulation D promulgated under the Securities Act.
3.5 Restricted Securities. The Investor understands that the Shares it is
purchasing are characterized as "restricted securities" under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Securities Act only in certain limited circumstances. In this connection,
the Investor represents that it is familiar with Rule 144 under the Securities
Act, as presently in effect, and understands the resale limitations imposed
thereby and by the Securities Act.
3.6 Conflicts of Interest. The Investor acknowledges that: (a) the Company
and Insignia are parties to an Advisory and Administrative Services Agreement,
pursuant to which the Company will pay Insignia to perform management,
financial and legal advisory services on behalf of the Company and will
reimburse Insignia for related out-of-pocket expenses, and that, because
Insignia is the parent of the Company, such agreement was not negotiated on an
arm's-length basis; (b) Insignia and/or one or more of its affiliates and the
Company may in the future enter into various other agreements that could be
deemed to benefit Insignia and that, because Insignia is the parent of the
Company, such agreements would not be negotiated on an arm's-length basis; and
(c) Insignia may require the Company to use a portion of the proceeds from the
sale of the Shares to repay funds loaned by Insignia to the Company to finance
the organization and operations of the Company.
3.7 Legends. The Investor understands that the certificates evidencing the
Shares will bear the legends set forth in the Stockholders' Agreement.
3.8 No Brokers or Finders. The Investor has not entered and will not enter
into any agreement pursuant to which the Company or the Investors will be
liable, as a result of the transactions contemplated by this Agreement or the
Ancillary Agreements, for any claim of any Person for any commission, fee or
other compensation as finder or broker.
4. Conditions of each Investor's Obligations at Closing. The obligation of
each Investor to purchase the Shares to be purchased by it at the Closing is
subject to the fulfillment, prior to or at the Closing, of each of the following
conditions, any of which may be waived by the Investor:
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4.1 Representations and Warranties. The representations and warranties of
the Company contained in this Agreement shall be true and correct in all
material respects on and as of the date of the Closing as if made on and as of
such date.
4.2 Performance. The Company shall have performed or complied with all
agreements and conditions required by this Agreement to be performed or
complied with by it prior to or at the Closing.
4.3 Compliance Certificate. The Investor shall have received a certificate
dated as of the date of the Closing executed by a senior officer of the Company
certifying that, to such officer's knowledge, the conditions specified in
Sections 4.1 and 4.2 have been fulfilled.
4.4 Stock Certificates. At the Closing, the Company shall have tendered to
the Investor a certificate representing the Shares to be purchased by the
Investor pursuant to this Agreement, in form and substance reasonably
satisfactory to the Investor and sufficient to transfer to and vest in the
Investor good and valid title to the Shares.
4.5 Consents. The Company shall have obtained all consents, approvals or
waivers from Governmental Authorities and Persons necessary for the execution,
delivery and performance of this Agreement and the Ancillary Agreements and the
consummation of the transactions contemplated hereby and thereby, all without
material cost to the Company.
4.6 No Litigation. There shall not be any Action of or before any
Governmental Authority pending with respect to this Agreement, the Ancillary
Agreements or the transactions contemplated hereby or thereby that might
materially adversely affect the Condition of the Company or that would
restrain, enjoin or otherwise prohibit such transactions.
4.7 Ancillary Agreements; Certificate. The Ancillary Agreements shall have
been executed and delivered by each of the parties thereto (other than other
Investors) and shall be in full force and effect. The Certificate shall have
been duly filed and shall be in full force and effect.
4.8 Proceedings and Documents. All proceedings in connection with the
transactions contemplated hereby and all documents and instruments incident to
such transactions shall be reasonably satisfactory in substance and form to the
Investor and its counsel, and the Investor shall have received all such
counterpart originals or certified or other copies of such documents as the
Investor may reasonably request.
5. Conditions of the Company's Obligations at Closing. The obligations of
the Company to each Investor under this Agreement are subject to the
fulfillment, prior to or at the Closing, of each of the following conditions,
any of which may be waived by the Company:
5.1 Representations and Warranties. The representations and warranties of
each Investor contained in this Agreement shall be true and correct in all
material respects on and as of the date of the Closing as if made on and as of
such date.
5.2 Performance. Each Investor shall have performed or complied with all
agreements and conditions required by this Agreement and the Ancillary
Agreements to be performed or complied with by it prior to or at the Closing.
5.3 Payment of Purchase Price. Each Investor shall have delivered to the
Company the aggregate purchase price payable for the Shares purchased by the
Investor pursuant to this Agreement.
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6. Miscellaneous.
6.1 Expenses. All fees and expenses incurred by any party hereto in
connection with this Agreement shall be borne by such party.
6.2 Survival. All representations, warranties, covenants and agreements
contained in or made pursuant to this Agreement or contained in any certificate
delivered pursuant to this Agreement shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of any party
hereto, and shall survive the transfer and payment for the Shares and the
consummation of the transactions contemplated hereby; provided, however, that
the representations and warranties contained in Sections 2 and 3 (other than
the representations and warranties contained in Sections 2.1 through 2.4, 2.7
and 2.12, which shall survive so long as any Investor or any of its successors
or permitted assigns holds any Securities) shall terminate on the later to
occur of (i) two years from the date hereof and (ii) the consummation of a
Qualified Initial Public Offering (as such term is defined in the Registration
Rights Agreement), provided further, however, that no representation or
warranty shall terminate until after the final non-appealable resolution of any
claim relating to such representation or warranty, which claim shall have been
made prior to the expiration of such representation or warranty.
6.3 Further Assurances. Each party hereto shall do and perform or cause to
be done and performed all such further acts and things and shall execute and
deliver all such other agreements, certificates, instruments and documents as
any other party hereto reasonably may request in order to carry out the intent
and accomplish the purposes of this Agreement.
6.4 Amendment; Waiver. Any term, covenant, agreement or condition of this
Agreement may be amended, and compliance therewith may be waived (either
generally or in a particular circumstance and either retroactively or
prospectively), by a written instrument signed by the Company and the
applicable Investor. Any amendment or waiver effected in accordance with this
paragraph shall be binding upon such Investor and the Company.
6.5 Assignment; Binding Effect. This Agreement shall be binding on and
inure to the benefit of the parties hereto and their respective legal
representatives, successors and permitted assigns, except that neither this
Agreement nor any rights or obligations hereunder shall be assigned or
delegated by (a) the Company without the prior written consent of the Investors
or (b) by any Investor without the prior written consent of the Company.
Nothing in this Agreement, express or implied, is intended to confer upon any
Person, other than the parties hereto and their respective legal
representatives, successors and permitted assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement, except as
expressly provided herein.
6.6 APPLICABLE LAW. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE
INTERPRETATION, VALIDITY AND PERFORMANCE OF THE TERMS OF THIS AGREEMENT,
REGARDLESS OF THE LAW THAT MIGHT BE APPLIED UNDER PRINCIPLES OF CONFLICTS OF
LAW.
6.7 JUDICIAL PROCEEDINGS. ANY JUDICIAL PROCEEDING INVOLVING ANY DISPUTE,
CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE RIGHTS
OR INTERESTS OF ANY INVESTOR OR THE COMPANY OR THE BREACH OR ALLEGED BREACH OF
THIS AGREEMENT, WHETHER ARISING DURING, AT OR AFTER THE TERMINATION OF THIS
AGREEMENT (EACH OF THE FOREGOING DISPUTES, CONTROVERSIES AND CLAIMS HEREINAFTER
REFERRED TO AS AN "AGREEMENT DISPUTE"), SHALL BE
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BROUGHT ONLY IN A FEDERAL OR STATE COURT LOCATED IN THE COUNTY, CITY AND STATE
OF NEW YORK, AND EACH OF THE PARTIES HERETO (i) UNCONDITIONALLY ACCEPTS THE
EXCLUSIVE JURISDICTION OF SUCH COURTS AND ANY RELATED APPELLATE COURT AND
IRREVOCABLY AGREES TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY AND (ii)
IRREVOCABLY WAIVES ANY OBJECTION SUCH PARTY MAY NOW HAVE OR HEREAFTER HAS AS TO
THE VENUE OF ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS
AN INCONVENIENT FORUM. EACH OF THE PARTIES HERETO HEREBY WAIVES TRIAL BY JURY
IN ANY JUDICIAL PROCEEDING TO WHICH THEY ARE PARTIES INVOLVING AN AGREEMENT
DISPUTE.
6.8 Notices. All notices and other communications required or permitted
hereunder shall be in writing and shall be personally delivered, mailed by
registered or certified mail, postage prepaid, return receipt requested, or
otherwise delivered by a nationally recognized overnight courier, addressed to
the applicable party at its address set forth under its name on the signature
page hereto (or such other address as such party shall hereafter specify by
written notice in writing to the other parties hereto). Any such notice or
communication shall be deemed to have been received (A) in the case of personal
delivery, on the date of such delivery, (B) in the case of a nationally
recognized overnight courier, on the next business day after the date when
sent, and (C) in the case of mailing, on the third business day following that
on which the piece of mail containing such communication is posted.
6.9 Entire Agreement. This Agreement and the documents referred to herein
or delivered pursuant hereto or pursuant to such documents, including all
exhibits and schedules, contain the entire understanding of the parties with
respect to their subject matter and supersede all prior agreements and
understandings among the parties with respect to their subject matter.
6.10 Severability. Each provision of this Agreement shall be interpreted
in such manner as to be effective and valid under applicable law, but if any
provision of this Agreement is held to be prohibited or invalid under
applicable law, such provision will be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of this
Agreement.
6.11 Descriptive Headings. The section and other headings contained in
this Agreement are for convenience of reference only and shall not affect the
meaning or interpretation of this Agreement.
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6.12 Counterparts. This Agreement may be executed in one or more
counterparts, each of which when so executed and delivered shall be deemed to
be an original and all of which together shall be deemed to be one and the same
agreement.
[Signature page(s) follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
▇▇▇▇▇▇▇▇▇▇.▇▇▇, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Executive Vice President
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
METROPOLITAN INTERNET PARTNERS I, LLC
By: MIP I, LLC, its Managing Member
By: Insignia Internet Initiatives, Inc.,
its Managing Member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
Address:
c/o Insignia Internet Initiatives, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
BLACKACRE CAPITAL MANAGEMENT, LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Managing Director
Address:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇
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SCHEDULE I
March 15, 2000
Name of Investor Number of Shares Purchase Price
of Series C
Preferred Stock
Purchased
---------------------------------------- ------------------ --------------------
Metropolitan Internet Partners I, LLC 4,543,040 $35,481,142.40
Blackacre Capital Management, LLC 52,309 $408,533.29
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