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EXHIBIT 4.2
FOURTH AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
THIS FOURTH AMENDED AND RESTATED STOCKHOLDERS AGREEMENT (the
"Agreement") is made and entered into as of the 22nd day of December, 1999, by
and among INTELLIGENT INFORMATION INCORPORATED, a Delaware corporation (the
"COMPANY"), the Purchasers listed on Exhibit A to this Agreement (each, a
"SERIES F PURCHASER" and collectively, the "SERIES F PURCHASERS"), BG MEDIA
INVESTORS L.P., a Delaware limited partnership ("BG MEDIA"), APEX INVESTMENT
FUND III, L.P., a Delaware limited partnership, and APEX STRATEGIC PARTNERS,
LLC, a Delaware limited liability company ("APEX"), KEYSTONE VENTURE IV, L.P., a
Pennsylvania limited partnership ("KEYSTONE"), and ROBERT M. UNNOLD, STEPHEN G.
MALONEY, DONALD F. CHRISTINO and W. PETER DANIELS (the "FOUNDERS" and
collectively with the Series F Purchasers, BG Media, Apex and Keystone, the
"STOCKHOLDERS").
W I T N E S S E T H:
The Stockholders own substantially all of the issued and outstanding
shares of the Common Stock, par value $.01 per share (the "COMMON STOCK"), all
of the issued and outstanding shares of the Series B Preferred Stock, par value
$.01 per share (the "SERIES B PREFERRED STOCK"), 421 shares of the Series C
Preferred Stock par value $.01 per share (the "KEYSTONE SERIES C PREFERRED
STOCK"), all of the issued and outstanding shares of the Series D Preferred
Stock, par value $.01 per share (the "SERIES D PREFERRED STOCK") all of the
issued and outstanding shares of the Series E Preferred Stock, par value $.01
per share (the "SERIES E PREFERRED STOCK"), and all of the issued and
outstanding shares of the Series F Preferred Stock, par value $.01 per share
(the "SERIES F PREFERRED STOCK") of the Company, in the amounts set forth on
Exhibit A annexed hereto (such shares together with all shares of Common Stock
issued upon conversion of the Series B Preferred Stock, the Keystone Series C
Preferred Stock, the Series D Preferred Stock, the Series E Preferred Stock and
the Series F Preferred Stock being hereinafter referred to as the "SHARES").
The Stockholders and the Company consider it to be in their individual
and mutual best interests to set forth certain agreements with respect to (i)
board representation, (ii) certain corporate actions, (iii) restrictions on the
transfer of the Shares, and (iv) certain other matters as hereinafter set forth.
NOW THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
specifically agreed to and acknowledged, the parties hereby agree as follows:
1. Board of Directors and Related Matters.
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1.01 Series F Purchasers' Board Designee. For so long as the Series F
Purchasers own at least fifty percent (50%) of the aggregate number of shares of
Series F Preferred Stock, the Series F Purchasers, as a group, shall be entitled
to designate one person for election to the Company's Board of Directors (the
"BOARD"). Any person designated by the Series F Purchasers for election to the
Board pursuant to this Section 1.01 shall be referred to herein as the "SERIES F
PURCHASERS' DESIGNEE."
1.02 BG Media's Board Designee. For so long as BG Media owns at least
fifty percent (50%) of the aggregate number of shares of Series E Preferred
Stock, BG Media shall be entitled to designate one person for election to the
Board. Any person designated by BG Media for election to the Board pursuant to
this Section 1.02 shall be referred to herein as the "BG MEDIA DESIGNEE."
1.03 Keystone's Board Designee. For so long as Keystone owns at least
fifty percent (50%) of the aggregate number of shares of Series B Preferred
Stock outstanding on the date hereof, Keystone shall be entitled to designate
one person for election to the Board (the "KEYSTONE DESIGNEE").
1.04 Apex's Board Designee; Company Board Designee.
(a) For so long as Apex owns at least fifty percent (50%) of
the aggregate number of shares of Series D Preferred Stock outstanding on the
date hereof, Apex shall be entitled to designate one person for election to the
Board (the "APEX DESIGNEE");
(b) For so long as Apex owns at least fifty percent (50%) of
the aggregate number of shares of Series D Preferred Stock outstanding on the
date hereof, the President and Chief Executive Officer of the Company shall
designate and elect a director, who was not designated pursuant to Sections
1.01, 1.02, 1.03, 1.04(a) and 1.05 hereof, and who has relevant experience in
the Company's business and is acceptable to the President and Chief Executive
Officer of the Company, the Series F Purchasers, BG Media, Apex and Keystone
(the "COMPANY'S DESIGNEE"). Such designee shall be chosen and appointed on or
before June 30, 2000.
1.05 Founders' Board Designees. Each Founder shall be entitled to serve
as a member of the Board for so long as such Founder owns at least 10% of the
outstanding voting stock of the Company; provided, however, that in the event
any Founder owns less than 10% of the outstanding voting stock of the Company,
but the Founders collectively own the amount of outstanding voting stock of the
Company set forth below, the Founders shall be entitled to designate the number
of members of the Board as follows:
Aggregate Number of
Ownership Founders'
Percentage Designees
---------- ---------
40% 4
30% 3
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20% 2
10% 1
Any person elected to the Board pursuant to this Section 1.05 shall be referred
to herein as a "FOUNDER DESIGNEE."
1.06 Size of the Board. Except in accordance with Section 2 hereof, the
number of members of the Board shall be set as follows:
(a) For so long as Apex, BG Media or the Series F Purchasers
own at least fifty percent (50%) of the aggregate number of shares of Series D
Preferred Stock, Series E Preferred Stock or Series F Preferred Stock,
respectively, outstanding on the date hereof, the Board shall not, without the
affirmative consent of Apex, BG Media or the Series F Purchasers, as the case
may be, consist of more than eight (8) members.
(b) Subject to Section 1.06(a), to the extent that the size of
the Board must be increased or decreased in order to accommodate the Series F
Purchasers' Designee, the BG Media Designee, the Keystone Designee, the Apex
Designee, the Company's Designee and the Founder Designees to which the Series F
Purchasers, BG Media, Keystone, Apex, the Company and the Founders,
respectively, are entitled pursuant to Sections 1.01, 1.02, 1.03, 1.04 and 1.05
hereof, the Board shall take all necessary action to increase or decrease its
size accordingly, without requiring further action on the part of the
Stockholders, and with ownership of the Common Stock, as reflected in the
Company's stock transfer ledger, being conclusive evidence of the number of
designees to which the Series F Purchasers, BG Media, Keystone, Apex, the
Company and the Founders are respectively entitled.
1.07 Election of Designees. The Company will at all times use its best
efforts to cause the Series F Purchasers' Designee, the BG Media Designee, the
Keystone Designee, the Apex Designee, the Company Designee and the Founder
Designees to be elected to the Board and will refrain from taking any action
that would diminish the prospects of the Series F Purchasers' Designee, the BG
Media Designee, the Keystone Designee, the Apex Designee, the Company Designee
and the Founder Designees being elected to the Board pursuant to Sections 1.01,
1.02, 1.03, 1.04 and 1.05 hereof. Each Stockholder agrees, for so long as this
Agreement remains in effect, to vote or cause to be voted, if applicable, all of
the shares of Common Stock, Series B Preferred Stock, Keystone Series C
Preferred Stock, Series D Preferred Stock, Series E Preferred Stock and Series F
Preferred Stock now owned or hereafter acquired by such Stockholder, or over
which such Stockholder has voting control, and to otherwise use its best
efforts, (a) to elect to the Board, at any time that directors are elected to
the Board, the Series F Purchasers' Designee, the BG Media Designee, the
Keystone Designee, the Apex Designee, the Company Designee and the Founder
Designees and (b) other than in accordance with Section 2 hereof, not to
increase or decrease or permit the Company to increase or decrease the number of
members of the Board except as is necessary to accommodate the Series F
Purchasers' Designee, the BG Media Designee, the Keystone Designee, the Apex
Designee, the Company Designee and the Founder Designees to which the Series F
Purchasers, BG Media, Keystone, Apex, the Company and the Founders,
respectively, are entitled pursuant to Sections 1.01, 1.02, 1.03, 1.04 and 1.05
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hereof. Upon any change in ownership of shares of the Company's stock, the
Company and each Stockholder will use their respective best efforts to ensure
compliance with the provisions of this Section 1.
1.08 Observer Rights. For so long as NBC Interactive Media, Inc. owns
at least fifty percent (50%) of the number of shares of Series F Preferred Stock
purchased by it hereunder, it shall have the right to designate one (1) person
to be an observer at each Board of Directors meeting. For so long as Sony
Corporation of America and Sony Music, a Group of Sony Music Entertainment Inc.
(collectively, "Sony") own at least fifty percent (50%) of the number of shares
of Series F Preferred Stock purchased by Sony hereunder, Sony shall also have
the right to designate one (1) person to be an observer at each Board of
Directors meeting. Each observer and GE Capital Equity Investments, Inc. shall
be entitled to receive all documents provided to the directors of the Company,
subject to any restrictions under applicable law.
2. Restrictions on Certain Corporate Actions.
Except with the affirmative vote of a majority of the Board (which
majority must include the affirmative vote of the Series F Purchasers' Designee,
the BG Media Designee and either the Keystone Designee or the Apex Designee (or
such other existing director designated by BG Media if either Keystone or Apex
is no longer represented on the Board (the "BG MEDIA REPLACEMENT DESIGNEE")) on
the actions specified in clauses (l) through (p) below), the Board will not:
(a) Amend the Certificate of Incorporation or By-laws of the
Company;
(b) Issue any additional shares of capital stock or securities
convertible into shares of capital stock, or options, warrants or other
commitments for the issuance of shares of capital stock or such securities
(other than pursuant to the Company's 1995 Stock Incentive Plan, as in effect on
the date hereof);
(c) Retire, redeem or otherwise repurchase, directly or
indirectly, any share of the capital stock or other equity securities of the
Company;
(d) Enter into any agreement, commitment or plan of merger,
reorganization or consolidation which would result in the issuance of any shares
of the capital stock of the Company or which would result in a disposition of
any shares of the capital stock of the Company held or owned by any Stockholder;
(e) Create, incur, or assume or suffer to exist, or guarantee,
endorse or otherwise become directly or contingently liable for, any
indebtedness or other obligation in excess of $75,000 with respect to any single
obligation or permit the aggregate amount of such indebtedness or obligation
outstanding at any given time to exceed $250,000;
(f) Sell, assign, lease or otherwise dispose of any of the
Company's material assets;
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(g) Declare or pay any dividends, in cash or property;
(h) Increase or enter into any agreement or arrangement to
increase the aggregate annual base compensation of any officer, director or
employee of the Company to any amount greater than $150,000;
(i) Commence, or cause to be commenced, any bankruptcy,
reorganization, debt arrangement or proceeding under any bankruptcy or
insolvency law, or any disposition or liquidation proceeding;
(j) File a registration statement, under the Securities Act of
1933, as amended, with respect to any securities of the Company, except pursuant
to the Third Amended and Restated Registration Rights Agreement of even date
herewith by and among the parties hereto;
(k) Enter into or materially amend any contract, agreement or
other arrangement with any officer, employee, director or holder of at least 5%
of the Company's outstanding voting stock;
(l) Commence any business not directly related to the present
(or presently proposed) business of the Company;
(m) Increase or decrease the size of the Board except as is
necessary to elect the Series F Purchasers' Designee, the BG Media Designee, the
Keystone Designee, the Apex Designee, the Company Designee and the Founder
Designees to which the Series F Purchasers, BG Media, Keystone, Apex and the
Founders, respectively, are entitled pursuant to Sections 1.01, 1.02, 1.03, 1.04
and 1.05 hereof, subject to Section 1.06(a) hereof;
(n) Approve the Company's annual budgets, business plan and
marketing plans;
(o) Approve compensation matters related to the Company's
Chairman of the Board and President and Chief Executive Officer; or
(p) Approve any other matter not in the ordinary course of
business.
3. Restrictions on Transfer of Shares.
3.01 Transfer of Stockholder Shares. Except as hereinafter provided, no
Stockholder shall sell, assign, transfer, give, pledge, encumber or otherwise
dispose of all or any part of such Stockholder's Shares to any person, trust,
association, partnership, firm, corporation or other legal entity (a
"Transfer"), except as expressly permitted pursuant to this Agreement and except
for any pledge, lien, security interest, control arrangement or other
encumbrance granted to, or arising by operation of law in favor of, any lender
(or other financing entity) or securities broker/dealer (or similar entity) to
or in respect of any Stockholder, or any transfers in connection with such
party's exercise of its rights therewith.
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3.02 Permitted Transferees. A Stockholder may Transfer all or any part
of his or its Shares in accordance with the redemption right contained in the
Restated Certificate of Incorporation, as amended, and the Certificate of
Designations of the Series F Preferred Stock or to a Permitted Transferee (as
hereinafter defined) without first complying with Section 4 or Section 5,
provided that prior to effecting such Transfer, the Permitted Transferee shall
execute a counterpart of this Agreement in accordance with Section 9 hereof,
thereby evidencing that the Shares to be held by such Permitted Transferee shall
remain subject to this Agreement and that such Permitted Transferee has become a
Stockholder for purposes of, and is bound as such by the terms of, this
Agreement. For purposes of this Agreement, the term "PERMITTED TRANSFEREE" of a
Stockholder shall mean (i) if such Stockholder is a corporation, any Affiliate
(as defined below) of such corporation, (ii) if such Stockholder is a limited
partnership, any current or former general or limited partner of such limited
partnership, (iii) if such Stockholder is a limited liability company, any
current or former member of such Stockholder, (iv) if such Stockholder is an
individual, such Stockholder's spouse or lineal descendants, or any trust or
other entity created and existing solely for the benefit, directly or
indirectly, of any such person or persons, or, upon the death of any such
Stockholder, such Stockholders' estate, administrator or executor, provided that
under the terms of such Stockholder's will or under the applicable laws of
intestate succession, such Stockholder's Shares are to be transferred solely to
a Permitted Transferee or Permitted Transferees in accordance with the
requirements of this Section 3.02, and (v) with regard to any of the foregoing,
the Company, if the Transfer is made pursuant to any redemption right contained
in the Restated Certificate of Incorporation, as amended, and the Certificate of
Designations of the Series F Preferred Stock. For purposes of this Agreement, an
"Affiliate" of an entity shall mean a person or entity that directly, or
indirectly through one or more intermediaries, controls or is controlled by, or
is under common control with, the entity. Notwithstanding the foregoing, a
Stockholder may, in one or a series of transactions, Transfer up to an aggregate
of 2.5% of the total number of Shares outstanding, without being subject to, or
complying with, the provisions of Sections 4 and 5, provided, however, that each
of Robert M. Unnold and Stephen G. Maloney shall not, so long as they are
employed by the Company in a management position, be permitted to Transfer more
than 20% of his individual holdings during the five (5) year period after the
date hereof except in the case of the sale by the Company of all or
substantially all of its business or assets, the sale of all or substantially
all of the capital stock by the Company's shareholders as a whole and
Board-approved changes to the Company's stock option plans or for estate
planning purposes.
4. Stockholder's First Offer Rights.
4.01 Except as permitted by Section 3.02 hereof, no Stockholder shall
Transfer all or any portion of the Shares owned by such Stockholder without, at
least forty-five (45) days prior to any such proposed Transfer, giving
concurrent written notice to the Company and the other Stockholders of (i) the
number and class of Shares he or it proposes to Transfer, (ii) the total number
of shares of such class then owned by the selling Stockholder, (iii) the name
and address of the proposed transferee and (iv) the terms of the proposed
Transfer (the "TRANSFER NOTICE"). The date on which the Company receives a
Transfer Notice is referred to as the "NOTICE DATE". The Stockholders agree
that, in the event they propose to sell any Shares for consideration other than
cash, the selling Stockholder shall, at his or its cost, obtain an appraisal of
the proposed
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consideration for the purpose of valuing such offer in connection with the First
Offer Rights hereunder.
4.02 The Transfer Notice shall constitute an offer to sell such portion
of the Shares to all remaining Stockholders at a price per share and on the same
terms as set forth in the Transfer Notice. Under such circumstances, each
remaining Stockholder shall have the option to purchase all or any portion of
his or its pro rata share (in relation to all of the other Stockholders and
assuming the conversion of all outstanding securities convertible into shares of
Common Stock) of the Shares proposed to be Transferred. A Stockholder who elects
to exercise such option must do so in writing, to the Stockholder proposing the
Transfer, within twenty (20) days of the Notice Date. Any stock with respect to
which the option is not exercised shall be subject to an option to purchase in
favor of the other remaining Stockholders, at the same price per share and on
the same terms, on a pro rata basis. Any remaining Stockholders electing to
exercise such option shall notify the Stockholder proposing the Transfer in
writing within ten (10) days after the expiration of the twenty (20)-day period
set forth above.
4.03 If the option under this Section 4 to purchase the Shares that are
proposed to be Transferred is not exercised in its entirety by one or more of
the remaining Stockholders within thirty (30) days of the Notice Date, then such
Stockholder shall, subject to Section 5 of this Agreement, be free to dispose of
all, but not less than all, of the Shares proposed to be Transferred; provided,
however, (i) that such Transfer shall be made in strict accordance with the
terms of the proposed Transfer described in the Transfer Notice, (ii) the
proposed transferee executes a counterpart of this Agreement in accordance with
Section 9 hereof, thereby evidencing that the Shares to be held by the proposed
transferee remain subject to this Agreement and that the proposed transferee has
become a Stockholder, for purposes of, and is bound as such by the terms of,
this Agreement and (iii) that such Transfer is consummated within ninety (90)
days after the Notice Date. After the expiration of such ninety (90)-day period,
all Shares then owned by the Stockholder that proposed the Transfer shall again
be subject to the provisions of this Agreement as though the offer pursuant to
this Section 4 had not previously been made. The certificates representing any
Shares registered in the name of such transferee shall bear the legend provided
for in Section 10 hereof.
4.04 If the offer of the selling Stockholder pursuant to this Section 4
is accepted, the closing of the purchase of the offered Shares shall be held at
the principal executive office of the Company within forty (40) days after the
Notice Date, on the date and at the hour set forth in a written notice given by
the Company to the selling Stockholder and the remaining Stockholders. The
purchasing party shall deliver to the selling Stockholder at the closing the
full purchase price payable for the Shares by means of any official bank check
or certified check, and the selling Stockholder shall deliver to the purchasing
party share certificates representing the Shares being purchased by the
purchasing party, duly endorsed in blank for transfer or with other documents as
may be necessary or appropriate, in the reasonable opinion of counsel for the
purchasing party, to effectuate the Transfer to the purchasing party.
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5. Tag-Along Rights.
5.01 In the event that any Stockholder other than any Series F
Purchaser (a "SELLING STOCKHOLDER") proposes to Transfer Shares which either
alone or together with all other Shares Transferred by such Stockholder
represent in excess of 7.5% of the total Shares owned by such Selling
Stockholder, and if the remaining Stockholders have not exercised their rights
under Section 4.02 hereof, then at least fifteen (15) days prior to any such
Transfer, the Selling Stockholder shall give concurrent written notice (the
"TAG-ALONG TRANSFER NOTICE") to the Company and the remaining Stockholders of
(i) the number and class of Shares proposed to be transferred, (ii) the total
number of Shares then owned by the Selling Stockholder, (iii) the name and
address of the proposed transferee and (iv) the terms of the proposed Transfer.
The Tag-Along Transfer Notice shall be signed both by the Selling Stockholder
and by the proposed transferee and must constitute a binding commitment of both
such parties for the transfer of such Shares, subject only to the Tag-Along
Right (as hereinafter defined). The date on which the Company receives a
Tag-Along Transfer Notice is referred to as the "TAG-ALONG NOTICE DATE." Total
Shares outstanding shall include all Shares on a converted or exercised basis.
5.02 The Tag-Along Transfer Notice shall constitute an offer by the
proposed transferee to purchase a portion of the Shares proposed to be so
Transferred from each remaining Stockholder. Under such circumstances, each
remaining Stockholder may elect to sell to the proposed transferee, at a per
share price and on the same terms as were offered to the Selling Stockholder as
set forth in the Tag-Along Transfer Notice, a percentage of the Shares proposed
to be so Transferred, such percentage equal to the percentage which the Shares
owned by such remaining stockholder represent of the total Shares outstanding,
in each case assuming the conversion of any securities convertible into shares
of Common Stock (the "Tag-Along Right"). A Stockholder who elects to exercise
his or its Tag-Along Right must do so in writing, to the Selling Stockholder,
within five (5) days of the Tag-Along Notice Date. The consummation of the
purchase of the Selling Stockholder's Shares and any remaining Stockholders'
Shares being sold pursuant to the Tag-Along Right, if any, shall be made
contemporaneously by the proposed transferee.
6. Pre-emptive Purchase Rights.
In the event of any offering of shares of Common Stock or other
security of the Company convertible into or exercisable for the Common Stock
other than pursuant to an underwritten public offering (excluding (i) issuances
of shares of Common Stock pursuant to conversion of the shares of Series B
Preferred Stock, Series C Preferred Stock, Series D Preferred Stock, Series E
Preferred Stock or Series F Preferred Stock, (ii) shares issuable pursuant to
warrants outstanding on the date hereof or options to purchase up to 2,264,000
shares of Common Stock granted or to be granted under the Company's 1995
Incentive Stock Plan or any successor plan or (iii) other securities outstanding
as of the date hereof), the Company shall send written notice thereof to each
Stockholder not less than forty-five (45) days prior to such public or private
offering, which notice shall set forth all material terms of the proposed
transaction, including, without limitation, the manner of sale and the per share
sale price or the amount and type of other consideration to be received by the
Company. In the event that the Company offers shares
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or other securities where the value of such shares or other securities is based
upon a valuation of the Company that is equal to or greater than $47.5 million,
then each of the Series F Purchasers, as a group, and BG Media shall have the
first right, by sending irrevocable written notice thereof to the Company within
twenty (20) days after receipt of the Company's notice, to purchase up to Ten
Million Dollars ($10,000,000) of such shares or other securities being offered
by the Company at the same price offered to the public or in the private
offering (or, if the sale is not for cash, at the fair market value of the
property or other consideration received by the Company (as determined by an
independent third party appraiser selected by a majority vote of the shares held
by the Series F Purchasers, BG Media, Keystone and Apex)), of which up to Two
Million Dollars ($2,000,000) of the shares or other securities purchased by BG
Media may be allocated and transferred, in BG Media's sole discretion, to Banque
Paribas or its affiliates, and the other Stockholders shall have the right, by
sending irrevocable written notice thereof to the Company within thirty (30)
days after receipt of the Company's notice, to purchase their pro rata portion
of the remaining shares or other securities, if any, in the offering on the same
basis as the Series F Purchasers, as a group, and BG Media. In the event that
the Company offers shares or other securities where the value of such shares or
other securities is based upon a valuation of the Company that is less than
$47.5 million, then each Stockholder shall have the right, by sending
irrevocable written notice thereof to the Company within twenty (20) days after
receipt of the Company's notice, to purchase at the same price sold to the
public or in the private offering (or, if the sale is not for cash, at the fair
market value of the property or other consideration received by the Company (as
determined by an independent third party appraiser selected by a majority vote
of the shares held by the Series F Purchasers, BG Media, Keystone and Apex)),
such number of shares of Common Stock or other securities as is necessary to
maintain its or his respective percentage ownership of Shares as it existed
immediately prior to such offering. A closing for the purchase of Common Stock
or other securities pursuant to this Section 6 shall occur on the later of (i)
the date on which such public or private offering occurs and (ii) such later
date as may be agreed to by the Stockholders who have exercised their rights
hereunder and the Company, at a time and place specified by such Stockholders in
a notice provided to the Company at least ten (10) days prior to such closing.
In connection with such closing, the Company and such Stockholders shall provide
such customary closing certificates and opinions as such Stockholders or the
Company, as appropriate, shall reasonably request.
7. Anti-Dilution Protections.
In the event that the relative ownership percentages of Shares, as
among the Stockholders, should be altered, as a result of a stock split, stock
dividend or combination of Shares or any reclassification, reorganization,
redesignation, merger, consolidation, recapitalization, split-up, spin-off,
distribution to stockholders, combination of Shares or otherwise (other than
pursuant to a transaction to which Section 6 would apply or as a result of any
Transfer of Shares by any Stockholder), the number of Shares held by the
Stockholders shall be appropriately and proportionately adjusted to maintain,
after giving effect to such action, among the Stockholders, the same relative
ownership percentages of Shares as existed immediately prior to such action.
8. Enforceability.
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8.01 Specific Performance. The parties hereto recognize and hereby
acknowledge that it is impossible to measure in money the damages which would
result to a party hereto by reason of a failure of any of the parties hereto to
perform any of the obligations imposed upon it or him under this Agreement.
Therefore, if any party hereto should institute an action or proceeding to
enforce the provisions hereof, any person, including the Company, against whom
such action or proceeding is thereby brought hereby waives the claim or defense
that such party has an adequate remedy at law, and such person shall not urge in
any action or proceeding the claim or defense that such a remedy at law exists.
8.02 Separate Agreement. The parties hereto recognize, acknowledge and
agree that this Agreement constitutes a separate agreement independently
supported by good and adequate consideration, the receipt and sufficiency of
which are hereby acknowledged, and that this Agreement shall be interpreted,
construed and enforced separate and apart from any other agreements between or
among the parties hereto. The parties hereto further agree that no claim or
cause of action of any party hereto against any other party hereto arising under
any other agreement between or among the parties hereto or out of any set of
facts shall constitute a defense to the enforcement of this Agreement.
9. Additional Parties Hereto.
9.01 Permitted Transferees. Any Permitted Transferee of a Stockholder
who hereafter becomes a holder of Shares shall and must become a party hereto by
signing a counterpart signature page. Any such party executing this Agreement
shall thereafter be a party to this Agreement as fully and to the same extent as
if he or it had been an original signatory party hereof and shall be deemed to
be a "Stockholder" for the purposes hereof.
9.02 Other Transferees. Unless this provision is expressly waived in
writing by all Stockholders, any person who hereafter acquires shares from the
Stockholders in excess of 2.5% of the total Shares outstanding shall and must
become a party hereto by executing a counterpart signature page. Any such party
executing this Agreement shall thereafter be a party to this agreement as fully
and to the same effect as if he or it had been an original signatory party
hereof and shall be deemed to be a Stockholder for the purposes hereof.
10. Legends on Stock Certificates.
10.01 In addition to compliance with the terms of this Agreement, no
Transfer of Shares may be made except in compliance with applicable federal and
state securities laws. Accordingly, each certificate representing Shares now or
hereafter held by or issued to any Stockholder shall have placed thereon a
legend in substantially the following form:
"THE SECURITIES ACT OF 1933 AND STATE SECURITIES LAWS
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, or
any applicable state securities laws and cannot be sold or
transferred
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unless (i) a Registration Statement under the Securities Act
of 1933, as amended, and any applicable state securities laws
is then in effect with respect to the securities represented
hereby; or (ii) a written opinion from legal counsel
reasonably acceptable to the issuer is obtained to the effect
that an exemption from registration under the Securities Act
of 1933, as amended, and any applicable state securities laws
is available with respect to the proposed sale or transfer and
that no such registration is required; or (iii) a no action
letter or its then equivalent with respect to such sale or
transfer has been issued by the Staff of the Securities and
Exchange Commission and any applicable state securities
governmental body."
10.02 In addition to the foregoing, each certificate representing
shares of stock of the Company subject to this Agreement shall bear in
conspicuous type the following legend:
"The shares of stock represented by this certificate (and all
transfers thereof) are subject to the terms of a Fourth
Amended and Restated Stockholders Agreement, dated as of
December 22, 1999 (and all amendments thereto), by and among
certain stockholders of the Company and the Company, a copy of
which is on file at the main office of the Company. Any sale,
assignment, transfer, gift, pledge, encumbrance or other
disposition of the shares evidenced by this certificate not in
conformity with said Agreement shall be invalid."
11. Termination. Unless earlier terminated by agreement of the parties hereto,
including all of the Stockholders and their Permitted Transferees who may
hereafter become party hereto, this Agreement shall terminate upon the earlier
to occur of (a) the twentieth (20th) anniversary of the date hereof and (b) such
time as the Company shall have successfully completed an underwritten public
offering of its Common Stock.
12. Notices. All communications in connection with this Agreement shall be in
writing and shall be deemed properly given if hand delivered or sent by
telecopier (provided that such communication is confirmed by same-day deposit in
the United States mail) or overnight courier with adequate evidence of delivery
or sent by registered or certified mail, return receipt requested, and, if to a
Stockholder, addressed to such Stockholder's address as shown on the signature
page or other such address or persons as such Stockholder may designate from
time to time, and if to the Company, at its offices at:
Intelligent Information Incorporated
181 Harbor Drive
Third Floor
Stamford, CT 06902
Attention: Stephen G. Maloney
- 11 -
12
President and Chief Executive Officer
with a copy to:
Piper Marbury Rudnick & Wolfe LLP
1251 Avenue of the Americas
New York, NY 10020
Attention: Michael Hirschberg, Esq.
or such other addresses or persons as the recipient shall have designated to the
sender by a written notice given in accordance with this Section. Any notice
called for hereunder shall be deemed given when received.
13. Entire Agreement. This Agreement, that certain Stock Purchase Agreement of
even date herewith between the Series F Purchasers and the Company (the "SERIES
F PURCHASE AGREEMENT"), that certain Stock Purchase Agreement dated as of
February 1, 1999 between BG Media and the Company (the "BG MEDIA PURCHASE
AGREEMENT"), that certain Third Amended and Restated Registration Rights
Agreement of even date herewith, those certain Put Option Agreements of even
date herewith, dated as of February 12, 1999 and as of August 11, 1998 by and
among the parties thereto, that certain Preferred Stock Purchase Agreement dated
August 30, 1996 between Keystone and the Company and that certain Series D
Preferred Stock Purchase Agreement dated as of August 11, 1998 between Apex and
the Company constitute the entire agreement between the parties hereto
pertaining to the subject matter hereof and are the final, complete and
exclusive expression of the terms and conditions thereof; provided, however,
that to the extent that any provisions in the foregoing agreements are contrary
to the provisions of the Related Agreements dated as of the date hereof, the
provisions of the Related Agreements dated as of the date hereof shall control.
All prior agreements, representations, negotiations and understandings of the
parties hereto, oral or written, express or implied, are hereby superseded and
merged herein.
14. Modification. No addition to or modification of any provision contained in
this Agreement shall be effective unless fully set forth in writing signed by
the parties hereto.
15. Governing Law. This Agreement shall be governed and construed under the laws
of the State of New York (without giving effect to principles of conflicts of
law).
16. Successors and Assigns. The rights and obligations set forth in this
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective legal representatives, permitted transferees, successors
and assigns.
17. Captions. The captions of the several sections and paragraphs of this
Agreement are included for reference only and shall not limit or otherwise
affect the meaning thereof.
18. Amendments. Neither this Agreement nor any term or provision hereof may be
amended, waived, discharged or terminated except in writing signed by all
parties to this Agreement.
- 12 -
13
19. Arbitration. Any dispute arising in connection with this Agreement shall be
submitted to binding arbitration in accordance with Section 9.10 of that certain
Stock Purchase Agreement of even date herewith between the Company and the
Series F Purchasers.
20. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which taken together shall
constitute but one and the same instrument.
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14
IN WITNESS WHEREOF, the parties hereto have executed this Shareholders
Agreement as of the date and year first above written.
INTELLIGENT INFORMATION INCORPORATED
By: /s/ Stephen G. Maloney
-------------------------------------
Stephen G. Maloney
President and Chief Executive Officer
BG MEDIA INVESTORS L.P.
399 Park Avenue
19th Floor
New York, NY 10022
By: BG Media Investors LLC,
its General Partner
By: /s/ J. William Grimes
-------------------------------------
J. William Grimes
Member
KEYSTONE VENTURE IV, L.P.
1601 Market Street
Philadelphia, PA 19103
By: Keystone Venture IV
Management Company L.P.,
its General Partner
By: Keystone MCGP, Inc.,
its General Partner
By: /s/ Kerry J. Dale
-------------------------------------
Kerry J. Dale
Vice President
- 14 -
15
APEX INVESTMENT FUND III, L.P.
233 South Wacker Drive
Suite 9600
Chicago, IL 60606
By: Apex Management III, LLC
By: Stellar Investment Co.
By: /s/ James A. Johnson
-------------------------------------
James A. Johnson
President
APEX STRATEGIC PARTNERS
233 South Wacker Drive
Suite 9600
Chicago, IL 60606
By: Apex Management III, LLC
By: Stellar Investment Co.
By: /s/ James A. Johnson
-------------------------------------
James A. Johnson
President
/s/ Robert M. Unnold
-----------------------------------------
ROBERT M. UNNOLD
52 Lanark Road
Stamford, CT 06902
/s/ Stephen G. Maloney
-----------------------------------------
STEPHEN G. MALONEY
1766 Shippan Avenue
Stamford, CT 06902
/s/ Donald F. Christino
-----------------------------------------
DONALD F. CHRISTINO
57 Mitchell Street
Stamford, CT 06902
/s/ W. Peter Daniels
-----------------------------------------
W. PETER DANIELS
21 Susan Place
Katonah, NY 10536
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16
INTELLIGENT INVESTMENT PARTNERS, INC.
By: /s/ [illegible]
------------------------------------
Name:
Title:
Address:
City, State:
Phone:
Fax:
- 16 -
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GE CAPITAL EQUITY INVESTMENTS, INC.
By: /s/ Brian Graff
-------------------------------------
Brian Graff
Vice President
120 Long Ridge Road
Stamford, CT 06927
Phone: 203-357-3982
Fax: 203-961-2088
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18
NBC INTERACTIVE MEDIA, INC.
By: /s/ Margaret T. Murphy
-------------------------------------
Margaret T. Murphy
Vice President
30 Rockefeller Plaza
New York, NY 10020
Phone: 212-664-6163
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19
SPINNAKER CROSSOVER INSTITUTIONAL FUND,
L.P.
By: /s/ Eric Moore
-------------------------------------
Title: Controller
Address: 1875 S. Grant St. Ste. 600
San Mateo, CA 94402City, State, Zip:
Phone: (650) 287-2200
Fax: (650) 522-8497
SPINNAKER CROSSOVER FUND, L.P.
By: /s/ Eric Moore
-------------------------------------
Title: Controller
Address: 1875 S. Grant St. Ste. 600
San Mateo, CA 94402City, State, Zip:
Phone: (650) 287-2200
Fax: (650) 522-8497
SPINNAKER CLIPPER FUND, L.P.
By: /s/ Eric Moore
-------------------------------------
Title: Controller
Address: 1875 S. Grant St. Ste. 600
San Mateo, CA 94402City, State, Zip:
Phone: (650) 287-2200
Fax: (650) 522-8497
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20
KEYSTONE VENTURE V, L.P.
By: Keystone V Partners, L.P.,
Its General Partner
By: Keystone Management Co., Inc.,
the General Partner of Keystone
V Partners, L.P.
By: /s/ Kerry J. Dale
-------------------------------------
Kerry J. Dale, Managing Director
- 20 -
21
SONY CORPORATION OF AMERICA
By: /s/ Marinus N. Henny
-------------------------------------
Name: Marinus N. Henny
Title: CFO
SONY MUSIC, A GROUP OF SONY MUSIC
ENTERTAINMENT, INC.
By: /s/ Ron Wilcox
-------------------------------------
Name: Ron Wilcox
Title: Senior Vice President
Business Affairs and Administration
- 21 -
22
SUSQUEHANNA PARTNERS, GP
By: /s/ Joel Greenberg
-------------------------------------
Joel Greenberg
Managing Director
401 City Line Ave., Suite 220
Bala Cynwyd, PA 19004-1122
Phone: 610-617-2614
Fax: 610-617-2908
with copies to:
Michael J. Howe
Associate Director
Susquehanna Financial Group
401 City Line Ave., Suite 220
Bala Cynwyd, PA 19004-1122
Phone: 610-617-2702
Fax: 610-617-2707
and
Michael L. Spolan, Esq.
General Counsel and Secretary
Susquehanna Financial Group
425 California Street, Suite 1100
San Francisco, CA 94104
Phone: 415-403-6500
Fax: 415-403-6525
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23
CLEARNET COMMUNICATIONS, INC.
By: /s/ John H. Phillips
-------------------------------------
John H. Phillips
Executive Vice President, Carrier
Relations & General Counsel
200 Consilium, Suite 1600
Scarborough, Ont. M1H 3J3
Phone: 416-279-3009
Fax: 416-279-2995
- 23 -
24
BT INVESTMENT PARTNERS, INC.
By: /s/ Kristine Cicardo
-------------------------------------
Kristine Cicardo
Vice President
130 Liberty Street
New York, NY 10006
Phone: 212-250-2500
Fax: 212-669-1530
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CONNECTICUT DEVELOPMENT AUTHORITY
By: /s/ Donald G. Reed
--------------------
Donald G. Reed
Senior Vice President and Managing
Director
999 West Street
Rocky Hill, CT 06067
Phone: 860-258-7812
Fax: 860-257-7582
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EXHIBIT A
Common Stock
------------
Robert M. Unnold 2,145,000 Shares
Stephen G. Maloney 1,471,666 Shares
Donald F. Christino 1,065,000 Shares
W. Peter Daniels 220,000 Shares
Keystone Venture IV, L.P. 62,858 Shares
Series B Preferred Stock
------------------------
Keystone Venture IV, L.P. 1,705 Shares
Series C Preferred Stock
------------------------
Keystone Venture IV, L.P. 421 Shares
Series D Preferred Stock
------------------------
Apex Investment Fund III, L.P. 802 Shares
Apex Strategic Partners, LLC 41 Shares
Series E Preferred Stock
------------------------
BG Media Investors L.P. 9,643.2 Shares
- 26 -
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Series F Preferred Stock
Intelligent Investment Partners, Inc. 1,262.50 Shares
GE Capital Equity Investments, Inc. 1,262.50 Shares
NBC Interactive Media, Inc. 1,262.50 Shares
Spinnaker Crossover Institutional Fund, L.P. 1,229.50 Shares
Spinnaker Crossover Fund, L.P. 17 Shares
Spinnaker Clipper Fund, L.P. 16 Shares
Keystone Venture V, L.P. 757.50 Shares
SONY Corporation of America 757.50 Shares
SONY Music, A Group of
SONY Music Entertainment, Inc. 505 Shares
Susquehanna Partners, GP 378.75 Shares
Clearnet Communications, Inc. 340.87 Shares
BT Investment Partners, Inc. 252.50 Shares
Connecticut Development Authority 206.21 Shares
- 27 -