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Exhibit 10.3
RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT
This RIGHT OF FIRST REFUSAL AND CO-SALE AGREEMENT is entered
into as of the 30th day of July, 1999 by and among XxxxXxxx.xxx, Inc., a
Delaware corporation (the "Company"), Let's Talk Cellular & Wireless, Inc., a
Florida corporation ("LTC"), H.I.G. Brickellbay, Inc., a Cayman Islands
corporation ("HIG"), Xxxxx Xxxxx and Xxxxx Xxxxxxxxx (each, a "Founder"), and
the undersigned holders (the "Purchasers") of Series A Preferred Stock of the
Company (the "Preferred Shares").
W I T N E S S E T H :
WHEREAS, the Company and the Purchasers are parties to the
Series A Preferred Stock Purchase Agreement of even date herewith, pursuant to
which the Purchasers are purchasing shares of the Company's Series A Preferred
Stock (the "Stock Purchase Agreement");
WHEREAS, the Company and LTC are parties to a license
agreement and a binding Letter of Intent with the Company which provide for,
among other things, the purchase of shares of Common Stock of the Company by
LTC, the license by LTC of certain technology to the Company and the provision
of certain services for the Company by LTC (collectively, the "LTC Agreements");
WHEREAS, the Company and HIG are parties to a Common Stock
Purchase Agreement of even date herewith (the "Common Stock Purchase
Agreement"), which provides for, among other things, the purchase by HIG of
shares of Common Stock of the Company;
WHEREAS, the Founders are the beneficial owners of shares of
Common Stock of the Company; and
WHEREAS, the Founders, LTC, HIG and each of the Purchasers
(each a "Stockholder") desire to enter into this Agreement to provide further
inducement to the Purchasers to purchase the Preferred Shares, and Purchasers
wish to provide further inducement to Founders to approve the Stock Purchase
Agreement, to provide further inducement to LTC to enter into the LTC Agreements
and purchase shares of Common Stock of the Company thereunder, and to provide
further inducement to HIG to enter into the Common Stock Purchase Agreement and
purchase shares of Common Stock of the Company thereunder.
NOW, THEREFORE, in consideration of the premises and the
mutual promises set forth in this Agreement;
THE PARTIES AGREE AS FOLLOWS:
1. Restrictions on Transfer of Shares by Holders. Except
as otherwise provided in this Agreement, each Holder (as defined below) agrees
that it will not sell, assign, transfer, pledge, hypothecate, or otherwise
encumber or dispose of in any way (a "Transfer"), all or any part of or any
interest in the Equity Securities (as defined below) now or hereafter owned
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or held by such Holder. Any Transfer of Equity Securities not made in
conformance with this Agreement shall be null and void, shall not be recorded on
the books of the Company and shall not be recognized by the Company.
2. Definitions.
(a) Equity Securities. For purposes of this
Agreement, the term "Equity Securities" shall mean any securities having voting
rights in the election of the Board of Directors of the Company not contingent
upon default, or any securities evidencing an ownership interest in the Company,
or any securities convertible into or exercisable for any shares of the
foregoing, or any agreement or commitment to issue any of the foregoing.
(b) Holders. For purposes of this Agreement, the
term "Holders" shall mean the Stockholders, or persons who have acquired shares
from any of such persons or their transferees or assignees in accordance with
the provisions of this Agreement.
3. Agreements Among the Company and the Holders.
3.1 Rights of Refusal.
(a) Transfer Notice. If at any time a Holder
proposes to Transfer Equity Securities to one or more third parties, then such
Holder (a "Transferring Holder") shall give the Company and each other Holder
written notice of such Transferring Holder's intention to make the Transfer (the
"Transfer Notice"), which Transfer Notice shall include (i) a description of the
Equity Securities to be transferred ("Offered Shares"), (ii) the identity of the
prospective transferee(s) and (iii) the consideration and the material terms and
conditions upon which the proposed Transfer is to be made. The Transfer Notice
shall certify that the Transferring Holder has received a firm offer from the
prospective transferee(s) and in good faith believes a binding agreement for the
Transfer is obtainable on the terms set forth in the Transfer Notice. The
Transfer Notice shall also include a copy of any written proposal, term sheet or
letter of intent or other agreement or draft thereof relating to the proposed
Transfer.
(b) Company's Option. The Company shall have an
option for a period of ten (10) days from receipt of the Transfer Notice to
elect to purchase the Offered Shares at the same price and subject to the same
material terms and conditions as described in the Transfer Notice. The Company
may, by vote of a majority of the Board of Directors not including directors
designated by such Transferring Holder, exercise such purchase option and,
thereby, purchase all (or a portion of) the Offered Shares by notifying the
Transferring Holder in writing before expiration of the such ten (10) day period
as to the number of such shares which it wishes to purchase. If the Company
gives the Transferring Holder notice that it desires to purchase such shares,
then payment for the Offered Shares shall be by check or wire transfer, against
delivery of the Offered Shares to be purchased at a place agreed upon between
the parties and at the time of the scheduled closing therefor, which shall be no
later than forty-five (45) days after the Company's receipt of the Transfer
Notice, unless the Transfer Notice contemplated a later closing with the
prospective third party transferee(s) or unless the value of the purchase price
has not yet been established pursuant to Section 3.1(e). If the Company fails to
purchase all of the Offered Shares by exercising the option granted in this
Section 3.1(b) within the period
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provided, the Offered Shares shall be subject to the options granted to the
non-transferring Holders (each, a "Non-Transferring Holder") pursuant to this
Agreement.
(c) Additional Transfer Notice. Subject to the
Company's right set forth in Section 3.1(b), if at any time the Transferring
Holder proposes a Transfer, then, after the Company has declined to purchase
all, or a portion of, the Offered Shares, the Transferring Holder shall give
each other Holder an "Additional Transfer Notice" which shall include all of the
information and certifications required in a Transfer Notice and shall
additionally identify the Offered Shares which the Company has declined to
purchase (the "Remaining Shares") and briefly describe such other Holders'
rights of first refusal and co-sale rights with respect to the proposed
Transfer.
(d) Holders' Option. The Non-Transferring
Holders shall have an option for a period of ten (10) days from the Holder's
receipt of the Additional Transfer Notice from the Transferring Holder set forth
in Section 3.1(c) to elect to purchase their respective pro rata shares of the
Remaining Shares at the same price and subject to the same material terms and
conditions as described in the Additional Transfer Notice. Each such
Non-Transferring Holder may exercise such purchase option and, thereby, purchase
all or any portion of his, her or its pro rata share (with any reallotments as
provided below) of the Remaining Shares, by notifying the Transferring Holder
and the Company in writing, before expiration of the twenty (20) day period as
to the number of such shares which he, she or it wishes to purchase (including
any reallotment). Each Non-Transferring Holder's pro rata share of the Remaining
Shares shall be a fraction of the Remaining Shares, of which the number of
shares of Common Stock (including shares of Common Stock issuable upon
conversion of Preferred Shares) owned by such Non-Transferring Holder on the
date of the Transfer Notice shall be the numerator and the total number of
shares of Common Stock (including shares of Common Stock issuable upon
conversion of Preferred Shares) held by the Transferring Holder and all other
Non-Transferring Holders on the date of the Transfer Notice shall be the
denominator. Each Non-Transferring Holder shall have a right of reallotment such
that, if any other Non-Transferring Holder fails to exercise the right to
purchase its full pro rata share of the Remaining Shares, the other
participating Non-Transferring Holders may exercise an additional right to
purchase, on a pro rata basis, the Remaining Shares not previously purchased.
Each Non-Transferring Holder shall be entitled to apportion Remaining Shares to
be purchased among its partners and affiliates, provided that such apportionment
does not cause the Company to be subject to the public company reporting
requirements under the Securities Exchange Act, of 1934, as amended) number of
partners and affiliates not exceed ten, and provided further that such
Non-Transferring Holder notifies the Transferring Holder of such allocation. If
a Non-Transferring Holder gives the Transferring Holder notice that it desires
to purchase its pro rata share of the Remaining Shares and, as the case may be,
its reallotment, then payment for the Remaining Shares shall be by check or wire
transfer, against delivery of the Remaining Shares to be purchased at a place
agreed upon between the parties and at the time of the scheduled closing
therefor, which shall be no later than forty-five (45) days after the Company's
receipt of the Transfer Notice, unless the Transfer Notice contemplated a later
closing with the prospective third party transferee(s) or unless the value of
the purchase price has not yet been established pursuant to Section 3.1(e).
(e) Valuation of Property. Should the purchase
price specified in the Transfer Notice or Additional Transfer Notice be payable
in property other than cash or
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evidences of indebtedness, the Company (or the Non-Transferring Holders) shall
have the right to pay the purchase price in the form of cash equal in amount to
the value of such property. If the Transferring Holder and the Company (or the
Non-Transferring Holders) cannot agree on such cash value within ten (10) days
after the Company's receipt of the Transfer Notice (or the Non-Transferring
Holders' receipt of the Additional Transfer Notice), the valuation shall be made
by an appraiser of recognized standing selected by the Transferring Holder and
the Company (or the Non-Transferring Holders) or, if they cannot agree on an
appraiser within twenty (20) days after the Company's receipt of the Transfer
Notice (or the Non-Transferring Holders' receipt of the Additional Transfer
Notice), each shall select an appraiser of recognized standing and the two
appraisers shall designate a third appraiser of recognized standing, whose
appraisal shall be determinative of such value. The cost of such appraisal shall
be shared equally by the Transferring Holder and the Company (or the
Non-Transferring Holders), with the half of the cost borne by the Company and
the Non-Transferring Holders borne pro rata by each based on the number of
shares such parties were interested in purchasing pursuant to this Section 3. If
the time for the closing of the Company's purchase or the Non-Transferring
Holders' purchase has expired but for the determination of the value of the
purchase price offered by the prospective transferee(s), then such closing shall
held on or prior to the fifth business day after such valuation shall have been
made pursuant to this subsection.
3.2 Right of Co-Sale.
(a) To the extent the Company and the
Non-Transferring Holders do not exercise their respective rights of refusal as
to all of the Offered Shares pursuant to Section 3.1, then each Non-Transferring
Holder (a "Selling Holder" for purposes of this subsection 3.2) which notifies
the Transferring Holder in writing within thirty (30) days after receipt of the
Transfer Notice referred to in Section 3.1(a), shall have the right to
participate in such sale of Equity Securities on the same terms and conditions
as specified in the Transfer Notice and for the same total consideration per
share as is received by other Holders. Such Selling Holder's notice to the
Transferring Holder shall indicate the number of shares of Equity Securities the
Selling Holder wishes to sell under his, her or its right to participate. To the
extent one or more of the Non-Transferring Holders exercise such right of
participation in accordance with the terms and conditions set forth below, the
number of shares of Equity Securities that the Transferring Holder may sell in
the Transfer shall be correspondingly reduced.
(b) Each Selling Holder may sell all or any part
of that number of shares of Equity Securities equal to the product obtained by
multiplying (i) the aggregate number of shares of Equity Securities covered by
the Transfer Notice by (ii) a fraction, the numerator of which is the number of
shares of Common Stock (including shares of Common Stock issuable upon
conversion of Preferred Shares) owned by the Selling Holder on the date of the
Transfer Notice and the denominator of which is the total number of shares of
Common Stock (including shares of Common Stock issuable upon conversion of
Preferred Shares) owned by Transferring Holder and all of the Selling Holders on
the date of the Transfer Notice.
(c) Each Selling Holder shall effect its
participation in the sale by promptly delivering to the Transferring Holder for
transfer to the prospective purchaser one or more certificates, properly
endorsed for transfer, which represent:
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(i) the type and number of shares of
Equity Securities which such Selling Holder elects to sell; or
(ii) that number of shares of Equities
Securities which are at such time convertible into the number of shares of
Common Stock which such Selling Holder elects to sell; provided, however, that
if the prospective third-party purchaser objects to the delivery of Equity
Securities in lieu of Common Stock, such Selling Holder shall convert such
Equity Securities into Common Stock and deliver Common Stock as provided in this
Section 3.2. The Company agrees to make any such conversion concurrent with the
actual transfer of such shares to the purchaser and contingent on such transfer.
(d) The stock certificate or certificates that
the Selling Holder delivers to the Transferring Holder pursuant to Section
3.2(d) shall be transferred to the prospective purchaser in consummation of the
sale of the Equity Securities pursuant to the terms and conditions specified in
the Transfer Notice, and the Transferring Holder shall concurrently therewith
remit to such Selling Holder that portion of the sale proceeds to which such
Selling Holder is entitled by reason of its participation in such sale. To the
extent that any prospective purchaser or purchasers prohibits such assignment or
otherwise refuses to purchase shares or other securities from a Selling Holder
exercising its rights of co-sale hereunder, the Transferring Holder shall not
sell to such prospective purchaser or purchasers any Equity Securities unless
and until, simultaneously with such sale, the Transferring Holder shall purchase
such shares or other securities from such Selling Holder for the same
consideration and on the same terms and conditions as the proposed transfer
described in the Transfer Notice and for the same total consideration per share
as received by all other Holders.
3.3 Non-Exercise of Rights. To the extent that the
Company and the Holders have not exercised their rights to purchase the Offered
Shares or the Remaining Shares within the time periods specified in Section 3.1
and the Holders have not exercised their rights to participate in the sale of
the Offered Shares or the Remaining Shares within the time periods specified in
Section 3.2, the Transferring Holder shall have a period of thirty (30) days
from the expiration of such rights in which to sell the Offered Shares or the
Remaining Shares, as the case may be, upon terms and conditions (including the
purchase price) no more favorable than those specified in the Transfer Notice to
the third-party transferee(s) identified in the Transfer Notice. The third-party
transferee(s) shall acquire the Remaining Shares subject to this Agreement. In
the event a Transferring Holder does not consummate the sale or disposition of
the Remaining Shares within the thirty (30) day period from the expiration of
these rights, the Company's first refusal rights and the Holders' first refusal
rights and co-sale rights shall continue to be applicable to any subsequent
disposition of the Offered Shares or the Remaining Shares by Transferring Holder
until such right lapses in accordance with the terms of this Agreement.
Furthermore, the exercise or non-exercise of the rights of the Company and the
Holders under this Section 3 to purchase Equity Securities from the Transferring
Holder or participate in sales of Equity Securities by the Transferring Holder
shall not adversely affect their rights to make subsequent purchases from the
Transferring Holder of Equity Securities or subsequently participate in sales of
Equity Securities by the Transferring Holder.
3.4 Limitations to Rights of Refusal and Co-Sale.
Notwithstanding the provisions of Section 3.1 and 3.2 of this Agreement, a
Transferring Holder may sell or otherwise
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assign, with or without consideration, Equity Securities to (i) a subsidiary,
parent, partner, limited partner, retired partner, affiliated partnership or
stockholder of such Transferring Holder, (ii) a transferee who is a pledgee, or
assignee of such pledgee, of Holder pursuant to a bona fide loan transaction, or
(iii) any spouse or member of Transferring Holder's immediate family, or to a
custodian, trustee (including a trustee of a voting trust), executor, or other
fiduciary for the account of the Transferring Holder's spouse or members of the
Transferring Holder's immediate family, or to a trust for the Transferring
Holder's own self, or a charitable remainder trust, provided that each such
transferee or assignee, prior to the completion of the sale, transfer, or
assignment shall have executed documents assuming the obligations of the
Transferring Holder under this Agreement with respect to the transferred
securities.
3.5 Prohibited Transfers.
(a) In the event the Transferring Holder should
sell any Equity Securities in contravention of the co-sale rights of the
Non-Transferring Holders under Section 3.2 (a "Prohibited Transfer"), the
Non-Transferring Holders, in addition to such other remedies as may be available
at law, in equity or hereunder, shall have the put option provided below, and
the Transferring Holder shall be bound by the applicable provisions of such
option.
(b) In the event of a Prohibited Transfer, each
Non-Transferring Holder shall have the right to sell to the Transferring Holder
the type and number of shares of Equity Securities equal to the number of shares
each Non-Transferring Holder would have been entitled to transfer to the
third-party transferee(s) under Section 3.2 hereof had the Prohibited Transfer
been effected pursuant to and in compliance with the terms hereof. Such sale
shall be made on the following terms and conditions:
(i) The price per share at which the
shares are to be sold to the Transferring Holder shall be equal to the price per
share paid by the third-party transferee(s) to the Transferring Holder in the
Prohibited Transfer. The Transferring Holder shall also reimburse each
Non-Transferring Holder for any and all fees and expenses, including legal fees
and expenses, incurred pursuant to the exercise or the attempted exercise of the
Non-Transferring Holder's rights under Section 3.
(ii) Within ninety (90) days after the
later of the dates on which the Non-Transferring Holder (A) received notice of
the Prohibited Transfer or (B) otherwise become aware of the Prohibited
Transfer, each Non-Transferring Holder shall, if exercising the option created
hereby, deliver to the Transferring Holder the certificate or certificates
representing shares to be sold, each certificate to be properly endorsed for
transfer.
(iii) The Transferring Holder shall, upon
receipt of the certificate or certificates for the shares to be sold by a
Non-Transferring Holder, pursuant to this Section 3.5, pay the aggregate
purchase price therefor and the amount of reimbursable fees and expenses, as
specified in subparagraph 3.5(b)(i), in cash or by other means acceptable to the
Holder.
(iv) Notwithstanding the foregoing, any
attempt by the Transferring Holder to transfer Equity Securities in violation of
Section 3 hereof shall be void
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and the Company agrees it will not effect such a transfer nor will it treat any
alleged transferee(s) as the holder of such shares without the written consent
of a majority in interest of the Non-Transferring Holders.
4. Bring Along Provision In the event that (i) a
consolidation or merger of the Company with or into any other corporation or
corporations in which 100% of the voting securities are disposed of, or (ii) a
sale of all or substantially all of the assets or business of the Company in one
or more related transactions (such events referred to herein collectively as a
"Sale of the Company"), is approved by (A) two-thirds of the Board of Directors
of the Company and (B) holders of at least 50% of the voting securities of the
Company, then, provided that (x) the consideration to be received by the
stockholders of the Company is cash or freely tradable marketable securities
(not including any escrowed securities) of a Company with a market
capitalization of at least $200,000,000, and (y) each stockholder of the Company
receives the same consideration per share (including any fees or compensation
paid to other stockholders of the Company except as specifically provided in
bona fide employment agreements between such stockholders and the acquiring
entity but not including any liquidation preferences paid on shares of Preferred
Stock of the Company) each of the parties hereto hereby agree to:
(a) vote that number of shares of the capital
stock of the Company as to which they have beneficial ownership as of the time
of the record date in favor of such Sale of the Company;
(b) not exercise any dissenters' rights under
applicable law at any time for such Sale of the Company;
(c) refrain from transferring any securities of
the Company, the acquirer, or any other applicable company during any period
prohibited by then applicable "pooling of interests" accounting treatment rules,
whether before or after the Sale of the Company, provided that such period of
restriction prior to the closing of a Sale of the Company shall not exceed one
hundred twenty (120) days; and
(d) after receiving proper notice of such
meeting, be present, in person or by proxy, along with any of their respective
affiliated entities, as holders of shares of voting securities, at all meetings
of stockholders of the Company to vote on the approval of a Sale of the Company
so that all shares of voting securities beneficially owned by such stockholders
and/or their affiliated entities may be counted for the purposes of determining
the presence of a quorum at such meetings.
5. Assignments and Transfers; No Third Party
Beneficiaries. This Agreement and the rights and obligations of the parties
hereunder shall inure to the benefit of, and be binding upon, their respective
successors, assigns and legal representatives, but shall not otherwise be for
the benefit of any third party. The rights of the Holders hereunder are only
assignable (i) by each of such Holders to any other Holder, (ii) to a partner or
other affiliate of such Holder or (iii) to an assignee or transferee who
acquires all of the Equity Securities purchased by a Stockholder or at least
100,000 shares of Common Stock (including shares of Common Stock issuable upon
conversion of Preferred Shares).
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6. Legend. Each existing or replacement certificate for
shares now owned or hereafter acquired by each Holder shall bear the following
legend upon its face:
"THE SALE, PLEDGE, HYPOTHECATION, ASSIGNMENT OR TRANSFER OF
THE SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO
THE TERMS AND CONDITIONS OF A CERTAIN RIGHT OF FIRST REFUSAL
AND CO-SALE AGREEMENT BY AND BETWEEN THE STOCKHOLDER, THE
CORPORATION AND CERTAIN HOLDERS OF STOCK OF THE CORPORATION.
COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON WRITTEN REQUEST
TO THE SECRETARY OF THE CORPORATION."
7. Effect of Change in Company's Capital Structure.
Appropriate adjustments shall be made in the number and class of shares in the
event of a stock dividend, stock split, reverse stock split, combination,
reclassification or like change in the capital structure of the Company.
8. Notices. Unless otherwise provided, any notice
required or permitted under this Agreement shall be given in writing and shall
be deemed effectively given upon personal delivery to the party to be notified
or upon delivery by confirmed facsimile transmission, nationally recognized
overnight courier service, or upon deposit with the United States Post Office,
by registered or certified mail, postage prepaid and addressed to the party to
be notified at the address indicated for such party on the signature page
hereof, or at such other address as such party may designate by ten (10) days'
advance written notice to the other parties.
9. Further Instruments and Actions. The parties agree to
execute such further instruments and to take such further action as may
reasonably be necessary to carry out the intent of this Agreement. Each party
hereto agrees to cooperate affirmatively with each other party hereto to the
extent reasonably requested by such other parties to enforce rights and
obligations pursuant hereto.
10. Term. This Agreement shall terminate upon the earlier
of (i) the Company's sale of its Common Stock in a firm commitment underwritten
public offering at a market valuation of at least $100,000,000 immediately prior
to effectiveness of the Company's registration statement and pursuant to a
registration statement on Form S-1 or Form SB-2 under the Securities Act of
1933, as amended, the public offering price of which is not less than
$15,000,000 in the aggregate), and (ii) the closing of the Company's sale of all
or substantially all of its assets or the acquisition of the Company by another
entity by means of merger, consolidation or other transaction or series of
related transactions resulting in the exchange of the outstanding shares of the
Company's capital stock such that the stockholders of the Company prior to such
transaction own, directly or indirectly, less than 50% of the voting power of
the surviving entity.
11. Entire Agreement. This Agreement contains the entire
understanding of the parties hereto with respect to the subject matter hereof,
supersedes all other agreements between or among any of the parties with respect
to the subject matter hereof and cannot be
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altered or otherwise amended except pursuant to an instrument in writing signed
by each of the parties to this Agreement. This Agreement shall be interpreted
under the laws of the State of California without reference to conflicts of law
provisions.
12. Amendments and Waivers. Any term of this Agreement
may be amended and the observance of any term of this Agreement may be waived
(either generally or in a particular instance and either retroactively or
prospectively), only with the written consent of the Company, the written
consent of the holders of more than 50% of the Common Stock issued and held by
the Founders and the written consent of the holders of more than 50% of the
Common Stock issued or issuable upon conversion of the Preferred Shares then
outstanding. Any amendment or waiver effected in accordance with this paragraph
shall be binding upon, the Company, the Founders and all Purchasers and their
respective successors and assigns.
13. Separability. In case any provision of the Agreement
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
14. Attorney's Fees. In the event that any dispute among
the parties to this Agreement should result in litigation, the prevailing party
in such dispute shall be entitled to recover from the losing party all fees,
costs and expenses of enforcing any right of such prevailing party under or with
respect to this Agreement, including without limitation, such reasonable fees
and expenses of attorneys and accountants, which shall include, without
limitation, all fees, costs and expenses of appeals.
15. Counterparts. 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.
16. Governing Law. This Agreement shall be governed by
and construed under the laws of the State of California as applied to agreements
among California residents entered into and to be performed entirely within
California.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
XXXXXXXX.XXX, INC.
By: /s/ Xxxxx Xxxxx
-----------------------------------------
Xxxxx Xxxxx,
President and Chief Executive Officer
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
SIGNATURE PAGE TO XXXXXXXX.XXX, INC.
CO-SALE AGREEMENT
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LET'S TALK CELLULAR & WIRELESS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxxxxxx
---------------------------------------
Title: CEO
--------------------------------------
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
SIGNATURE PAGE TO XXXXXXXX.XXX, INC.
CO-SALE AGREEMENT
12
LET'S TALK CELLULAR & WIRELESS, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
000 Xxxxxxxx Xxxxxx, Xxxxx 000
Xxxxx, Xxxxxxx 00000
H.I.G. BRICKELLBAY, INC.
By: /s/
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
0000 Xxxxxxxx Xxx Xxxxx
Xxxxxx-Xxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
SIGNATURE PAGE TO XXXXXXXX.XXX, INC.
CO-SALE AGREEMENT
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FOUNDERS:
/s/ Xxxxx Xxxxx
--------------------------------------------
Xxxxx Xxxxx
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
/s/ Xxxxx Xxxxxxxxx
--------------------------------------------
Xxxxx Xxxxxxxxx
0000 Xxxx Xx.
Xxxxx, XX. 00000
SIGNATURE PAGE TO XXXXXXXX.XXX, INC.
CO-SALE AGREEMENT
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FOUNDERS:
/s/ Xxxxx Xxxxx
--------------------------------------------
Xxxxx Xxxxx
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
/s/ Xxxxx Xxxxxxxxx
--------------------------------------------
Xxxxx Xxxxxxxxx
000 Xxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
SIGNATURE PAGE TO XXXXXXXX.XXX, INC.
CO-SALE AGREEMENT
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PURCHASERS:
H.I.G. WIRELESS INTERNET, INC.
By: /s/
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
c/o Xxxx Xxxxxx
0000 Xxxxxxxx Xxx Xxxxx
Xxxxxx-Xxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
------------------------------------------
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
c/o Xxxxx Xxxxxxx
0000 Xxxx Xxxx Xxxx
Xxxx. 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
SIGNATURE PAGE TO XXXXXXXX.XXX, INC.
CO-SALE AGREEMENT
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PURCHASERS:
HIG WIRELESS, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
c/o Xxxx Xxxxxx
0000 Xxxxxxxx Xxx Xxxxx
Xxxxxx-Xxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Brentwood Associates IX, LP
By: Brentwood IX Ventures, LLC
Its General Partner
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
---------------------------------------
Title: Managing Member
--------------------------------------
c/o Xxxxx Xxxxxxx
0000 Xxxx Xxxx Xxxx
Xxxx. 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx, 00000
SIGNATURE PAGE TO XXXXXXXX.XXX, INC.
CO-SALE AGREEMENT
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PURCHASERS:
HIG WIRELESS, INC.
By:
-----------------------------------------
Name:
---------------------------------------
Title:
--------------------------------------
c/o Xxxx Xxxxxx
0000 Xxxxxxxx Xxx Xxxxx
Xxxxxx-Xxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Brentwood Affiliates Fund III LP
By: Brentwood IX Ventures, LLC
Its General Partner
By: /s/ Xxxxxxx Xxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxx
---------------------------------------
Title: Managing Member
--------------------------------------
c/o Xxxxx Xxxxxxx
0000 Xxxx Xxxx Xxxx
Xxxx. 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx, 00000
SIGNATURE PAGE TO XXXXXXXX.XXX, INC.
CO-SALE AGREEMENT
18
PURCHASERS:
G & H Partners
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
By: /s/ Gay X. Xxxx
-----------------------------------------
Name: Gay X. Xxxx
---------------------------------------
Title: Partner
--------------------------------------
SIGNATURE PAGE TO XXXXXXXX.XXX, INC.
CO-SALE AGREEMENT
19
PURCHASERS:
Accel VII L.P.
By: Accel VII Associates L.L.C.
Its General Partner
By: /s/ X. Xxxxxx Sednaoui
-----------------------------------------
X. Xxxxxx Sednaoui
Managing Member
Accel Internet Fund III L.P.
By: Accel Internet Fund III
Associates L.L.C.
Its General Partner
By: /s/ X. Xxxxxx Sednaoui
-----------------------------------------
X. Xxxxxx Sednaoui
Managing Member
Accel Investor '99 L.P.
By: /s/ X. Xxxxxx Sednaoui
-----------------------------------------
X. Xxxxxx Sednaoui
General Partner
Addresses for Notices:
Accel Partners
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxxxx Xxxx Ranzetta and
Xxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
and
Accel Partners
Xxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: X. Xxxxxx Sednaoui
Tel: (000) 000-0000
Fax: (000) 000-0000
SIGNATURE PAGE TO XXXXXXXX.XXX, INC.
CO-SALE AGREEMENT
