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EXHIBIT 10.1
AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT
AGREEMENT, made as of the ___ day of January , 2000, by and among
blaxxun interactive, Inc., a Delaware corporation (the "Company"), those persons
listed on the signature page as the Series A Stockholders (the "Series A
Holders"), those persons listed on the signature page as the Series B
Stockholders (the "Series B Holders"), those persons listed on the signature
page as the Series C Stockholders (the "Series C Holders"), those persons listed
on the signature page as the Series D Stockholders (the "Series D Holders"),
those persons listed on the signature page as the Series E Stockholders (the
"Series E Holders"), and those persons listed on the signature page as the
Series F Stockholders (the "Series F Holders, and together with the Series A
Holders, the Series B Holders, the Series C Holders, the Series D Holders, and
the Series E Holders, the "Preferred Holders").
WHEREAS, the Company, the Series A Holders, the Series B Holders, the
Series C Holders, the Series D Holders and the Series E Holders are parties to
that certain Amended and Restated Registration Rights Agreement, dated as of
March 24 , 1999 (the "Old Agreement");
WHEREAS, the Series A Holders own 502,500 shares of the Company's
Series A Convertible Preferred Stock, par value $.01 per share (the "Series A
Preferred"), the Series B Holders own 400,000 shares of the Company's Series B
Convertible Preferred Stock, $.01 par value per share (the "Series B
Preferred"), the Series C Holders own 798,910 shares of the Company's Series C
Convertible Preferred Stock, $.01 par value per share (the "Series C
Preferred"), the Series D Holders own 1,976,000 shares of the Company's Series D
Preferred Stock, $.01 par value per share (the "Series D Preferred"), the Series
E Holders own 375,000 shares of the Company's Series E Preferred Stock , $.01
par value per share (the "Series E Preferred") and the Series F Holders are
acquiring up to 3,400,000 shares of Series F Preferred Stock, $.01 par value per
share (the "Series F Preferred, "and together with the Series A Preferred, the
Series B Preferred, the Series C Preferred, the Series D Preferred and the
Series E Preferred, the "Preferred Stock") pursuant to the Series F Preferred
Stock Purchase Agreement, dated as of January __, 2000, by and among the
Company and the Series F Holders (the "Purchase Agreement"),
WHEREAS, the Preferred Stock is convertible into shares of the
Company's Common Stock, $.01 par value per share (the "Common Stock"), under
certain circumstances as more fully set forth in the Company's Certificate of
Incorporation, as amended to date; and
WHEREAS, the Company and the Preferred Holders desire to amend and
restate the Old Agreement in connection with the consummation of the
transactions contemplated by the Purchase Agreement;
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein, the parties hereto agree as follows:
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1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
"Act" means the Securities Act of 1933, as amended, or any successor
federal statute, and the rules and regulations of the Commission thereunder, all
as the same shall be in effect at the time.
"Commission" means the Securities and Exchange Commission, or any other
Federal agency at the time administering the Act.
"Common Stock" shall mean the Company's Common Stock, $.01 par value
per share.
"Company" means blaxxun interactive, Inc., a Delaware corporation, and
its successors and assigns, including any successors by merger.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
"Holder" means any person who is then the record owner of Registrable
Securities which have not been sold to the public.
"Preferred Stock" shall mean the Company's (i) Series A Preferred Stock
, par value $.01 per share, (ii) Series B Preferred Stock, par value $.01 per
share, (iii) Series C Preferred Stock, par value $.01 per share, (iv) Series D
Preferred Stock, par value $.01 per share, (v) Series E Preferred Stock, par
value $.01 per share and (vi) Series F Preferred Stock, par value $.01 per
share.
"Registrable Securities" shall mean all shares of Common Stock of the
Company issued or issuable upon conversion of the Preferred Stock owned by the
Preferred Holders; excluding Common Stock which (a) has been registered under
the Securities Act pursuant to an effective registration statement filed
thereunder and disposed of in accordance with the registration statement
covering them, (b) has been publicly sold pursuant to Rule 144 under the
Securities Act or (c) is then immediately available for sale pursuant to Rule
144 under the Securities Act.
The term "register" means to register under the Act and applicable
state securities laws for the purpose of effecting a public sale of securities.
2. Required Registration.
(a) At any time after the earlier of the initial public
offering of the Company's Common Stock or three years after the date hereof, the
Holders of Registrable Shares constituting at least 20% of the Registrable
Shares then outstanding may request that the Company register under the
Securities Act all or any portion of the Registrable Shares held by such
requesting Holder or Holders for sale in the manner specified in such notice
provided, however, that the Registrable Shares for which registration has been
requested shall constitute at
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least 20% of the total Registrable Shares outstanding (or any lesser percentage
if the reasonably anticipated aggregate price to the public of such public
offering would exceed $5,000,000). Notwithstanding anything to the contrary
contained herein, no request may be made under this Section 2 within 180 days
after the effective date of a registration statement filed by the Company
covering a firm commitment underwritten public offering in which the Holders of
Registrable Shares shall have been entitled to join pursuant to Sections 3 or 4
hereof and in which there shall have been effectively registered all shares of
Registrable Shares as to which registration shall have been requested.
(b) Following receipt of any notice under this Section 2, the
Company shall immediately notify all Holders of Registrable Shares from whom
notice has not been received and shall use its best efforts to register under
the Securities Act, for public sale in accordance with the method of disposition
specified in such notice from requesting Holders, the number of Registrable
Shares specified in such notice (and in all notices received by the Company from
other Holders within 30 days after the giving of such notice by the Company). If
such method of disposition shall be an underwritten public offering, the Holders
of a majority of the Registrable Shares to be sold in such offering may
designate the managing underwriter of such offering, subject to the approval of
the Company, which approval shall not be unreasonably withheld or delayed. The
Company shall be obligated to register Registrable Shares pursuant to this
Section 2 on two occasions only; provided, however, that unless (i) the
registration statement is withdrawn and such withdrawal is not attributable to
adverse information concerning the Company's operations, condition or prospects
or (ii) the number of Registrable Shares covered thereby is reduced, in either
case at the request of Holders of Registrable Shares covered thereby, such
obligation shall be deemed satisfied only when the registration statement
covering all Registrable Shares specified in notices received as aforesaid, for
sale in accordance with the method of disposition specified by the requesting
Holders, shall have become effective and, if such method of disposition is a
firm commitment underwritten public offering, all such Registrable Shares shall
have been sold pursuant thereto. The Company, not more than once in any period
of twelve consecutive months, may defer the effectiveness of such registration
for up to one hundred eighty (180) days from the date of the notice of request
is received, upon determination by the Board of Directors that such registration
would be detrimental to the Company.
(c) The Company shall be entitled to include in any
registration statement referred to in this Section 2, for sale in accordance
with the method of disposition specified by the requesting Holders, shares of
Common Stock to be sold by the Company for its own account, except as and to the
extent that, in the opinion of the managing underwriter (if such method of
disposition shall be an underwritten public offering), such inclusion would
adversely affect the marketing of the Registrable Shares to be sold. If Common
Stock is included by the Company for its own account and such Common Stock
constitutes at least 51% of the total shares covered by the registration
statement filed pursuant to this Section 2, such registration will be deemed to
have been completed pursuant to Section 3 hereof and not this Section 2. Except
for registration statements on Form S-4 or Form S-8 or any successor thereto,
the Company will not file with the Commission any other registration statement
with respect to its Common Stock, whether for its own account or that of other
Holders, from the date of receipt of a notice from requesting
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Holders pursuant to this Section 2 until the completion of the period of
distribution of the registration contemplated thereby.
3. Incidental Registration. If the Company at any time (other
than pursuant to Section 2 or Section 4) proposes to register any of its
securities under the Securities Act for sale to the public, whether for its own
account or for the account of other security holders or both (except with
respect to registration statements on Form S-4, Form S-8, their respective
successor forms, or another form not available for registering the Registrable
Shares for sale to the public), each such time it will give written notice to
all Holders of outstanding Registrable Shares of its intention so to do. For a
period of five (5) years following such registration, the Company shall, upon
the written request of any such Holder, received by the Company within 20 days
after the giving of any such notice by the Company, to register any of its
Registrable Shares (which request shall state the intended method of disposition
thereof), use its best efforts to cause the Registrable Shares as to which
registration shall have been so requested to be included in the securities to be
covered by the registration statement proposed to be filed by the Company all to
the extent requisite to permit the sale or other disposition by the Holder (in
accordance with its written request) of such Registrable Shares so registered.
In the event that any registration pursuant to this Section 3 shall be, in whole
or in part, an underwritten public offering of Common Stock, the number of
shares of Common Stock to be included in such an underwriting may be reduced
(pro rata among the requesting Holders based upon the number of shares of Common
Stock owned by such Holders) if and to the extent that the managing underwriter
shall be of the opinion that such inclusion would adversely affect the marketing
of the securities to be sold by the Company therein. Notwithstanding the
foregoing provisions, the Company may withdraw any registration statement
referred to in this Section 3 without thereby incurring any liability to the
Holders of Registrable Shares (other than as provided in Section 6).
4. Registration on Form S-3.
(a) If at any time (i) a Holder or Holders of Registrable
Shares requests that the Company file a registration statement on Form S-3 or
any successor thereto for a public offering of all or any portion of the
Registrable Shares held by such requesting Holder or Holders, the reasonably
anticipated aggregate price to the public of which would exceed $1,000,000, and
(ii) the Company is a registrant entitled to use Form S-3 or any successor
thereto to register such shares, then the Company shall use its reasonable best
efforts to register under the Securities Act on Form S-3 or any successor
thereto, for public sale in accordance with the method of disposition specified
in such notice, the number of Registrable Shares specified in such notice.
Whenever the Company is required by this Section 4 to use its reasonable best
efforts to effect the registration of Registrable Shares, each of the procedures
and requirements of Section 2 (including but not limited to the requirement that
the Company notify all Holders of Registrable Shares from whom notice has not
been received and provide them with the opportunity to participate in the
offering) shall apply to such registration; provided, however, that there shall
be no limitation on the number or registrations on Form S-3 which may be issued
and obtained under this Section 4; and provided, further, however, that the
requirements contained in the first sentence of Section 2(a) shall not apply to
any registration on Form S-3 which may be requested under this Section 4.
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(b) The Company shall not be obliged to effect any
registration, qualification or compliance, pursuant to this Section 4 if: (i)
Form S-3 (or any successor form to Form S-3 regardless of its designation) is
not available for such offering by the Holders; (ii) the aggregate net offering
price (after deduction of underwriting discounts and commissions) of the
Registrable Securities specified in such request is not at least $1,000,000;
(iii) the Company has already effected one registration on Form S-3 within the
previous six-month period; or (iv) the Company shall furnish to the Holders a
certificate signed by the president of the Company stating that, in the good
faith judgment of the Board of Directors, it would not be in the best interests
of 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 for a period of not more than one
hundred eighty (180) days after receipt of the request of the Holder or Holders
under this Section 4; provided, however, that the Company shall not utilize this
right more than once in any twelve-month period.
5. Expenses. The Company shall pay all out-of-pocket costs in
connection with any registration pursuant to this Agreement. The costs and
expenses of any such registration shall include, without limitation, the fees
and expenses of the Company's counsel and its accountants and all other
out-of-pocket costs and expenses of the Company incident to the preparation,
printing and filing under the Securities Act of the registration statement and
all amendments and supplements thereto and the cost of furnishing copies of each
preliminary prospectus, each final prospectus and each amendment or supplement
thereto to underwriters, dealers and other purchasers of the securities so
registered, the costs and expenses incurred in connection with the qualification
of such securities so registered under the "blue sky" laws of various
jurisdictions, the fees and expenses of the Company's transfer agent, the fees
and expenses of one counsel for the Holders, expenses of all marketing and
promotional efforts requested by the managing underwriter and all other costs
and expenses of complying with the foregoing provisions hereof with respect to
such registration. The Holders shall bear underwriting discounts, selling
commissions and transfer taxes with respect to the shares sold by them pursuant
to the registration.
6. Registration Procedures. In the case of each registration
effected by the Company pursuant to this Agreement, the Company will keep each
Holder of Registrable Securities included in such registration advised in
writing as to the initiation of each registration and as to the completion
thereof. At its expense, the Company will do the following for the benefit of
such Holders:
(a) Keep such registration effective for a period of 90 days
or until the Holder or Holders have completed the distribution described in the
registration statement relating thereto, whichever first occurs, and amend or
supplement such registration statement and the prospectus contained therein from
time to time to the extent necessary to comply with the Act and applicable state
securities laws. If at any time the Commission should institute or threaten to
institute any proceedings for the purpose of issuing, or should issue a stop
order suspending the effectiveness of any such registration statement, the
Company will promptly notify the Holder and will use reasonable efforts to
prevent the issuance of any such stop order or to obtain the withdrawal thereof
as soon as possible;
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(b) Use its best efforts to register or qualify the
Registrable Securities covered by such registration under the applicable
securities or "blue sky" laws of such jurisdictions as the selling shareholders
may reasonably request; provided, that the Company shall not be obligated to
qualify to do business in any jurisdiction where it is not then so qualified or
otherwise required to be so qualified or to take any action which would subject
it to the service of process in suits other than those arising out of such
registration;
(c) Furnish such number of prospectuses and other documents
incident thereto as a Holder or the underwriter from time to time may reasonably
request;
(d) In connection with any underwritten offering pursuant to a
registration statement filed pursuant to Section 2 hereof, the Company will
enter into any underwriting agreement reasonably necessary to effect the offer
and sale of Common Stock, provided such underwriting agreement contains
customary underwriting provisions and is entered into by the Holder and provided
further that, if the underwriter so requests, the underwriting agreement will
contain customary contribution provisions on the part of the Company;
(e) To the extent then permitted under applicable professional
guidelines and standards, use its best efforts to obtain a comfort letter from
the Company's independent public accountants in customary form and covering such
matters of the type customarily covered by comfort letters and an opinion from
the Company's counsel in customary form and covering such matters of the type
customarily covered in a public issuance of securities, in each case addressed
to the Holders, and provide copies thereof to the Holders; and
(f) Permit the counsel to the selling shareholders whose
expenses are being paid pursuant to Section 4 hereof to inspect and copy such
corporate documents as he may reasonably request.
7. Indemnification.
(a) The Company will, and hereby does, indemnify and hold
harmless each Holder, each of its officers, directors and partners, and each
person controlling such Holder within the meaning of the Act, with respect to
which registration, qualification or compliance has been effected pursuant to
this Agreement, and each underwriter, if any, and each person who controls such
underwriter within the meaning of the Act, against all claims, losses, damages
and liabilities (or actions in respect thereof) arising out of or based on any
untrue statement (or alleged untrue statement) of a material fact contained in
any prospectus, offering circular or other document (including any related
registration statement, notification or the like) incident to any such
registration, qualification or compliance, or based on any omission (or alleged
omission) to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, or any violation by the
Company of the Act or the Exchange Act or securities act of any state or any
rule or regulation thereunder applicable to the Company and relating to action
or inaction required of the Company in connection with any such registration,
qualification or compliance, and will reimburse each such Holder, each of its
officers, directors and partners, and each person controlling such Holder, each
such underwriter and each person
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who controls any such underwriter, for any legal and any other expenses
reasonably incurred in connection with investigating and defending any such
claim, loss, damage, liability or action, whether or not resulting in any
liability; provided that the Company will not be liable in any such case to the
extent that any such claim, loss, damage, liability or expense arises out of or
is (x) based upon any such untrue statement or omission or alleged untrue
statement or omission made in reliance upon information furnished in writing to
the Company by the Holders or any underwriter or any controlling person of the
Holders or any such underwriter specifically for use therein, or (v) made in any
preliminary prospectus, if the prospectus contained in the registration
statement as declared effective or in the form filed by the Company with the
Commission pursuant to Rule 424 under the Securities Act shall have corrected
such statement or omission, ample copies of such prospectus (together with a
statement that such corrected prospectus must be used in lieu of all prior
prospectuses) shall have been provided by the Company to the Holders or
underwriter, and a copy of such prospectus shall not have been sent or otherwise
delivered to such person by the Holders or underwriter at or prior to the
confirmation of such sale to such person.
(b) By requesting registration under this Agreement each
Holder shall agree in the same manner and to the same extent as set forth in the
preceding paragraph, to indemnify and to hold harmless the Company and its
directors and officers and each person, if any, who controls the Company within
the meaning of the Securities Act and any underwriter (as defined in the
Securities Act) of any shares offered by the Holders, against any such claim,
loss, damage, liability or expense, joint or several, to which any of such
persons may be subject under the Securities Act or otherwise, and to reimburse
any of such persons for any legal or other expenses reasonably incurred by them
in connection with investigating or defending against any such claim, loss,
damage, liability or expense, but only to the extent it arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission of a material fact in any registration statement under which
the Holders' shares were registered under the Securities Act pursuant to this
Agreement, any prospectus contained therein, or any amendment or supplement
thereto, which was based upon and made in conformity with information furnished
in writing to the Company by the Holders or such underwriter expressly for use
therein; provided however, that the obligations of each Holder hereunder shall
be limited to an amount equal to the net proceeds received by such Holder upon
the sales of the securities.
(c) Each party entitled to indemnification under this Section
6 (the "Indemnified Party") shall give notice to the party required to provide
indemnification (the "Indemnifying Party") promptly after such Indemnified Party
has actual knowledge of any claim as to which indemnity may be sought. The
failure of any Indemnified Party to give such notice shall not relieve the
Indemnifying Party of its obligations under this Section 6, except and to the
extent the Indemnifying Party has been prejudiced as a consequence thereof and
in no event shall such failure relieve the underlying party from any other
liability which it may have to such indemnified party. The Indemnifying Party
will be entitled to participate in, and to the extent that it may elect by
written notice delivered to the Indemnified Party promptly after receiving the
aforesaid notice from such Indemnified Party, at its expense to assume, the
defense of any such claim or any litigation resulting therefrom, with counsel
reasonably satisfactory to such Indemnified Party, provided that the Indemnified
Party may participate in such defense at its
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expense, notwithstanding the assumption of such defense by the Indemnifying
Party, and provided, further, that if the defendants in any such action shall
include both the Indemnified Party and the Indemnifying Party and the
Indemnified Party shall have reasonably concluded that there may be legal
defenses available to it and/or other Indemnified Parties which are different
from or additional to those available to the Indemnifying Party, the Indemnified
Party or Parties shall have the right to select separate counsel to assert such
legal defenses and to otherwise participate in the defense of such action on
behalf of such Indemnified Party or Parties and the fees and expenses of such
counsel shall be paid by the Indemnifying Party. 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. Each Indemnified Party shall (i) furnish
such information regarding itself or the claim in question as an Indemnifying
Party may reasonably request in writing and as shall be reasonably required in
connection with defense of such claim and litigation resulting therefrom and
(ii) shall reasonably assist the Indemnifying Party in any such defense,
provided that the Indemnified Party shall not be required to expend its funds in
connection with such assistance.
(d) No Holder shall be required to participate in a
registration pursuant to which it would be required to execute an underwriting
agreement in connection with a registration effected under Section 2 or 3 which
imposes indemnification or contribution obligations on such Holder more onerous
than those imposed hereunder; provided, however, that the Company shall not be
deemed to breach the provisions of Section 2 or 3 if a Holder is not permitted
to participate in a registration on account of his refusal to execute an
underwriting agreement on the basis of this subsection (d).
8. Lock-up Agreement. If requested by the underwriter in any
registered public offering by the Company, the Holder agrees not to sell or
otherwise transfer any Registrable Securities for such period of time after the
date of such offering as may be requested by the underwriter, but in no event to
exceed 180 days from the close of the initial registered public offering and 90
days from the close of any subsequent registered public offering, provided that
all executive officers and directors of the Company enter into similar
agreements.
9. Information by Holder. Each Holder of Registrable Securities
included in any registration shall furnish to the Company such information
regarding such Holder and the distribution proposed by such Holder as the
Company may reasonably request in writing and as shall be reasonably required in
connection with any registration, qualification or compliance referred to in
this Agreement or otherwise required by applicable state or federal securities
laws.
10. Limitations on Registration Rights. From and after the date of
this Agreement, the Company shall not, without the prior written consent by the
holders of at least a majority of the then outstanding shares of Preferred
Stock, enter into any agreement with any holder or prospective holder of any
securities of the Company which would give any such holder or prospective holder
(a) the right to require the Company, upon any registration of any of its
securities, to include, among the securities which the Company is then
registering, securities
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owned by such holder, 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 its securities will not limit the number of
Registrable Securities sought to be included by the Holders of Registrable
Securities or reduce the offering price thereof; or (b) the right to require the
Company to initiate any registration of any securities of the Company.
11. Exception to Registration. The Company shall not be required
to effect a registration under this Agreement if (i) in the written opinion of
counsel for the Company, which counsel and the opinion so rendered shall be
reasonably acceptable to the Holders of Registrable Securities, such Holders may
sell without registration under the Act all Registrable Securities for which
they requested registration under the provisions of the Act and in the manner
and in the quantity in which the Registrable Securities were proposed to be
sold, or (ii) the Company shall have obtained from the Commission a "no-action"
letter to that effect; provided that this Section 10 shall not apply to sales
made under Rule 144(k) or any successor rule promulgated by the Commission until
after the effective date of the Company's initial registration of shares under
the Act. Notwithstanding the foregoing, in no event shall the provisions of this
Section 10 be construed to preclude a Holder of Registrable Securities from
exercising rights under Section 3 for a period of three years after the
effective date of the Company's initial registration of shares under the Act.
12. Rule 144 Reporting. With a view to making available the
benefits of certain rules and regulations of the Commission which may permit the
sale of restricted securities (as that term is used in Rule 144 under the Act)
to the public without registration, the Company agrees to:
(a) make and keep public information available as those terms
are understood and defined in Rule 144 under the Act, at all times from and
after ninety days following the effective date of the first registration under
the Act filed by the Company for an offering of its securities to the general
public;
(b) use its best efforts to file with the Commission in a
timely manner all reports and other documents required of the Company under the
Act and the Exchange Act at any time after it has become subject to such
reporting requirements; and
(c) so long as a Holder owns any restricted securities,
furnish to the Holder forthwith upon request a written statement by the Company
as to its compliance with the reporting requirements of Rule 144 (at any time
from and after ninety days following the effective date of the first
registration statement filed by the Company for an offering of its securities to
the general public), and of the Act and 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 so
filed by the Company as the Holder may reasonably request in availing itself of
any rule or regulation of the Commission allowing the Holder to sell any such
securities without registration.
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13. Listing Application. If shares of any class of stock of the
Company shall be listed on a national securities exchange, the Company shall, at
its expense, include in its listing application all of the shares of the listed
class then owned by any Holder.
14. Damages. The Company recognizes and agrees that the Holder of
Registrable Securities shall not have an adequate remedy if the Company fails to
comply with the provisions of this Agreement, and that damages will not be
readily ascertainable, and the Company expressly agrees that in the event of
such failure any Holder of Registrable Securities shall be entitled to seek
specific performance of the Company's obligations hereunder and that the Company
will not oppose an application seeking such specific performance.
15. Representations and Warranties of the Company. The Company
represents and warrants to the Holder as follows:
(a) The execution, delivery and performance of this Agreement
by the Company have been duly authorized by all requisite corporate action and
will not violate any provision of law, any order of any court or other agency of
government by which the Company or any of its properties or assets is bound, the
Certificate of Incorporation or By-laws of the Company or any provision of any
indenture, agreement or other instrument to which the Company or any or its
properties or assets is bound, conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any such
indenture, agreement or other instrument or result in the creation or imposition
of any lien, charge or encumbrance of any nature whatsoever upon any of the
properties or assets of the Company.
(b) This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms.
16. Miscellaneous.
(a) All covenants and agreements contained in this Agreement
by or on behalf of any of the parties hereto shall bind and inure to the benefit
of the respective successors and assigns of the parties hereto (including
without limitation transferees of any Registrable Securities), whether so
expressed or not.
(b) All notices, requests, consents and other communications
hereunder shall be in writing and shall be mailed by certified or registered
mail, return receipt requested, postage prepaid, or telecopied or sent by other
facsimile method addressed as follows:
If to the Company, or a Holder, at the address of such party
set forth on Schedule I hereto or the most recent address as is shown
on the stock records of the Company; and
If to any subsequent Holder of Registrable Securities, to it
at such address as may have been furnished to the Company in writing by
such Holder; or, in any case, at such other address or addresses as
shall have been furnished in writing to the Company (in the
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case of a Holder of Registrable Securities) or to the Holders of
Registrable Securities (in the case of the Company) in accordance with
the provisions of this paragraph.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Massachusetts, without giving
effect to the conflicts of laws principles thereof.
(d) This Agreement may not be amended or modified, and no
provision hereof may be waived, without the written consent of the Company and
the holders of at least a majority of the then outstanding Registrable
Securities, except that any amendment or waiver to Section 3 hereof which does
not similarly affect all Holders will require the written consent of all Holders
of at least two-thirds of the outstanding Registrable Securities.
(e) This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(f) If any provision of this Agreement shall be held to be
illegal, invalid or unenforceable, such illegality, invalidity or
unenforceability shall attach only to such provision and shall not in any manner
affect or render illegal, invalid or unenforceable any other provision of this
Agreement, and this Agreement shall be carried out as if any such illegal,
invalid or unenforceable provision were not contained herein.
(g) This Agreement contains the entire agreement between the
Company and the Preferred Holders with respect to registration rights and
supersedes all prior agreements relating to the same subject matter (in
particular, this Agreement shall supersede and replace (i) Section 8 of the
Second Amended and Restated Founders' Agreement, entered into as of July 31,
1996, as amended from time to time, by and among the Company, CMG Information
Services, Inc., CMG@Ventures, Inc., certain founders of the Company and EBIT
Eigenkapital Beteiligungsgesellschaft fuer Innovative Techologieunterneehmen
Gesellschaft Buergerlichen Rechts, with limitation of liability and (ii) the Old
Agreement).
[Remainder of the Page Intentionally Left Blank]
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IN WITNESS WHEREOF, this Agreement has been executed by duly authorized
representation of each of the signatories hereto as of the date and year first
above written.
COMPANY:
BLAXXUN INTERACTIVE, INC.
By: ________________________
Name:
Title:
SERIES A HOLDERS:
CMG@VENTURES, INC.
By: ________________________
Name:
Title:
SERIES B HOLDERS:
EBIT EIGENKAPITAL
BETEILIGUNGSGESELLSCHAFT FUER INNOVATIVE
TECHOLOGIEUNTERNEHMEN GESELLSCHAFT
BUERGERLICHEN RECHTS,
WITH LIMITATION OF LIABILITY
By:________________________________
Name: Klaus Hufnagel/Heydan von
Frankenberg
Title: Directors
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SERIES C HOLDERS:
BLAXXUN BETEILIGUNGSGESELLSCHAFT
BUERGERLICHEN RECHTS MIT
HAFTUNGSBESCHRAENKUNG
By:________________________________
Name: Stefan Graber
Title: Chief Executive Officer
BLAXXUN VERMOEGENSVERWALTUNGS-
GESELLSCHAFT BUERGERLICHEN RECHTS
MIT HAFTUNGSBESCHRAENKUNG
By:________________________________
Name: Heydan von Frankenberg
Title: Chief Executive Officer
KLINK, JELKO, DR. DEHMEL
WERTPAPIERDIENSTLEISTUNGS AG
By:________________________________
Name: Dr. Dehmel
Title: Chief Executive Officer
-----------------------------------
Moni Malek, individually
-----------------------------------
Christian Sprenger, individually
CMG@VENTURES, INC.
By: ________________________
Name:
Title:
KONSORTIUM AG
By:__________________________
Name:
Title:
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SERIES D HOLDERS:
-----------------------------------
Franz W. Buchenberger
-----------------------------------
Bernd-Michael Habermeyer
-----------------------------------
Ingrid Buchenberger
-----------------------------------
Rainer Heigenmoser
-----------------------------------
Kristof Nast-Kolb
-----------------------------------
Robert Schoeller
-----------------------------------
Thilo Schwerdfeger
-----------------------------------
Claudia Rockwell
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SERIES E HOLDERS:
------------------------------
Otto Dauer
------------------------------
Thomas Metz
------------------------------
Siegfried Piel
------------------------------
PRIME ASSET MANAGEMENT
------------------------------
Dieter Pfundt
SERIES F HOLDERS:
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