EXHIBIT 10.17
STOCKHOLDERS' AGREEMENT
This Stockholders' Agreement is made as of the 11th day of
January, 2001 by and among m-Wise, Inc., a Delaware corporation (the "Company"),
the investors listed on Schedule A hereto (each, a "Series A Investor" and
collectively, the "Series A Investors"), the investors listed on Schedule B
hereto (or any subsidiary thereof, any entity into which any such investor shall
merge or any subsidiary of such entity) (each, a "Series B Investor" and
collectively, the "Series B Investors"), Proton Marketing Associates LLC,
Xxxxxxxx.xxx LLC, Chinese Whispers LLC and Ogen LLC (each, a "Founder" and
collectively, the "Founders"), each of which owns the number of shares set forth
opposite its name on Schedule C hereto, and the stockholders listed on Schedule
D hereto (the "Other Stockholders"). The Founders, the Other Stockholders, the
Series A Investors and the Series B Investors shall be referred to collectively
herein as the "Stockholders."
WHEREAS, the Series A Investors possess certain first refusal,
co-sale, bring-along and board representation rights pursuant to a Subscription
Agreement dated as of April 12, 2000, as amended, among the Company and the
Series A Investors (the "Subscription Agreement") and as set forth in the
Certificate of Designation, Preferences and Rights of the Series A Preferred
Stock, par value $0.01 per share (the "Series A Preferred Stock"), of the
Company;
WHEREAS, pursuant to a waiver and termination agreement dated
as of the date hereof (the "Waiver"), the Series A Investors have agreed, among
other things, to terminate such rights under the Subscription Agreement and as
set forth in the Certificate of Designation, Preferences and Rights of the
Series A Preferred Stock, and to accept the rights created pursuant hereto in
lieu thereof;
WHEREAS, the Series A Investors are the beneficial owners of
the number of shares of Series A Preferred Stock and warrants to purchase shares
of Series A Preferred Stock of the Company set forth opposite their names on
Schedule A attached hereto;
WHEREAS, the Company and the Series B Investors are parties to
a Purchase Agreement of even date herewith (the "Purchase Agreement"), pursuant
to which the Series B Investors are purchasing shares of Series B Preferred
Stock, par value $0.01 per share (the "Series B Preferred Stock") of the Company
and warrants to purchase shares of Series B Preferred Stock, in the amounts and
for the aggregate exercise price set forth opposite their names on Schedule B
attached hereto;
WHEREAS, the Founders are the beneficial owners of the number
of shares of Common Stock of the Company set forth opposite their names on
Schedule C attached hereto;
WHEREAS, the Other Stockholders are the beneficial owners of
the number of shares of Common Stock of the Company set forth opposite their
names on Schedule D attached hereto; and
WHEREAS, it is a condition precedent to the transactions
contemplated by the Purchase Agreement that the Company, the Founders, the Other
Stockholders, the Series A Investors and the Series B Investors enter into this
agreement;
NOW, THEREFORE, in consideration of the mutual covenants set
forth herein, the parties agree as follows:
1. Definitions.
(a) "Common Stock" shall mean the Company's Common Stock,
including, without limitation, shares of Common Stock issued or issuable upon
conversion of (i) the Company's Preferred Stock or (ii) any other security
convertible into shares of the Company's Common Stock.
(b) "Founder Stock" shall mean shares of the Company's
Common Stock now owned or subsequently acquired by the Founders.
(c) "Preferred Stock" shall mean the Company's
outstanding Series A Preferred Stock and Series B Preferred Stock.
(d) "Investor Stock" shall mean shares of the Company's
Common Stock and Preferred Stock now owned or subsequently acquired by the
Series A Investors and the Series B Investors.
(e) "Preferred Stockholder" shall mean the holders of the
Company's Preferred Stock.
2. Restrictions on Transfer. None of the Founders, the Other
Stockholders, the Series A Investors or the Series B Investors will sell,
assign, transfer, pledge, hypothecate or otherwise encumber or dispose of in any
way ("Transfer"), all or any part of or any interest in the Founder Stock,
Common Stock or Investor Stock, as the case may be, now or hereafter owned or
held by any of them in violation of the terms of this Agreement. Any Transfer of
Founder Stock, Common Stock or Investor Stock 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.
3. Sales by Founders.
(a) Restrictions. None of the Founders shall Transfer any
shares of Founder Stock prior to January 11, 2005, except as specifically
provided for in Section 8, without the prior written consent of the holders of
at least a majority of the Series B Preferred Stock; provided, however, that
each of the Founders may Transfer (i) at any time after January 11, 2003 and
prior to January 11, 2005, a number of shares of Founder Stock not in excess of
ten percent (10%) of the number of shares set forth opposite its name on
Schedule C and (ii) at any time after January 11, 2004 and prior to January 11,
2005, an additional number of shares of Founder Stock not in excess of the sum
of (A) fifteen percent (15%) of the number of shares set forth opposite its name
on Schedule C and (B) such number of shares of Founder Stock permitted to be
Transferred pursuant to clause (i) above and not so Transferred. Any Transfers
made by the Founders pursuant to this Section 3(a) shall be subject to the
remaining terms and conditions of this Agreement.
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(b) Series B Right of First Refusal.
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(i) If a Founder proposes to Transfer any shares of
Founder Stock, whether prior to January 11, 2005 in accordance with Section 3(a)
or thereafter, then such Founder shall offer such shares first to the Series B
Investors, by sending written notice (the "Notice") to the Series B Investors,
with a copy to the Company and the Series A Investors, which shall state (A) the
number of shares proposed to be Transferred (the "Offered Stock"), (B) the
identity of the proposed transferee ("Third Party Purchaser"), (C) the proposed
purchase price per share offered by the Third Party Purchaser (the "Offer
Price"), and (D) the material terms and conditions upon which the proposed
Transfer is to be made. Upon delivery of the Notice, such offer shall be
irrevocable unless and until the rights of first offer provided for herein shall
have been waived or shall have expired.
(ii) The Series B Investors may elect, by written
notice to the Founder and the Company delivered within fifteen (15) days after
the giving of the Notice pursuant to Section 3(b)(i) (the "Series B Notice
Period"), to purchase any or all of the Offered Stock at a purchase price equal
to the Offer Price and upon the terms and subject to the conditions set forth in
the Notice (the "Series B Option"). Each Series B Investor shall have the right
to purchase that percentage of the Offered Stock determined by dividing (A) the
total number of shares of Investor Stock then owned by such Series B Investor by
(B) the total number of shares of Investor Stock then owned by all Series B
Investors (in each case, calculated on an as converted to Common Stock basis).
The Company shall, within five (5) days of the expiration of the Series B Notice
Period, provide written notice to the fully participating Series B Investors
indicating the number of shares of Offered Stock not elected to be purchased by
the other Series B Investors (the "Company B Option Notice"). If any Series B
Investor does not fully subscribe for the number of shares of Offered Stock such
Series B Investor is entitled to purchase, then each other fully participating
Series B Investor may elect by written notice delivered to the Founder and the
Company within five (5) days of delivery of the Company B Option Notice to
purchase that percentage of the remaining Offered Stock not so subscribed for
determined by dividing (x) the total number of shares of Investor Stock then
owned by such fully participating Series B Investor by (y) the total number of
shares of Investor Stock then owned by all fully participating Series B
Investors who elected to purchase the remaining Offered Stock (in each case,
calculated on an as converted to Common Stock basis).
(iii) The failure of a Series B Investor to respond
within the Series B Notice Period to the Founder and the Company shall be deemed
to be a waiver of such Series B Investor's rights under this Section 3(b),
provided that each Series B Investor may waive its rights under this Section
3(b) prior to the expiration of the Series B Notice Period by giving written
notice to the Founder and the Company.
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(c) Series A Right of First Refusal.
--------------------------------
(i) The Company shall within five (5) days of the
expiration of the last applicable time period set forth in Section 3(b)(ii)
above provide notice to the Series A Investors of the number of shares of
Offered Stock, if any, that the Series B Investors did not elect to purchase.
The Series A Investors may elect within fifteen (15) days after delivery of such
notice (the "Series A Notice Period") to purchase any or all of the remaining
Offered Stock at a purchase price equal to the Offer Price and upon the terms
and subject to the conditions set forth in the Notice (the "Series A Option").
Each such Series A Investor shall have the right to purchase that percentage of
the remaining Offered Stock determined by dividing (x) the total number of
shares of Investor Stock then owned by such Series A Investor by (y) the total
number of shares of Investor Stock then owned by all Series A Investors (in each
case, calculated on an as converted to Common Stock basis). The Company shall,
within five (5) days of the expiration of the Series A Notice Period, provide
written notice to the fully participating Series A Investors indicating the
number of shares of Offered Stock not elected to be purchased by the other
Series A Investors (the "Company A Option Notice"). If any Series A Investor
does not fully subscribe for the number of shares of Offered Stock such Series A
Investor is entitled to purchase, then each other fully participating Series A
Investor may elect by written notice delivered to the Founder and the Company
within five (5) days of delivery of the Company A Option Notice to purchase that
percentage of the remaining Offered Stock not so subscribed for determined by
dividing (I) the total number of shares of Investor Stock then owned by such
fully participating Series A Investor by (II) the total number of shares of
Investor Stock then owned by all fully participating Series A Investors who
elected to purchase the remaining Offered Stock (in each case, calculated on an
as converted to Common Stock basis).
(ii) The failure of a Series A Investor to respond
within the Series A Notice Period to the Founder and the Company shall be deemed
to be a waiver of such Series A Investor's rights under this Section 3(c),
provided that each Series A Investor may waive its rights under this Section
3(c) prior to the expiration of the Series A Notice Period by giving written
notice to the Founder and the Company.
(d) Settlement.
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(i) The Closing of the Offered Stock to be purchased
by the Series B Investors and/or the Series A Investors shall be completed
within thirty (30) days of the expiration of the last applicable notice period
set forth in Sections 3(b) or (c), as applicable.
(ii) Unless the Series B Investors or the Series A
Investors shall have purchased all of the Offered Stock pursuant to Sections
3(b) or (c), as applicable, the Founder may, subject to Section 3(e), sell the
Offered Stock to a Third Party Purchaser on the terms and subject to the
conditions set forth in the Notice; provided, however, that such sale is bona
fide and made pursuant to a contract entered into within sixty (60) days of the
earliest to occur of (A) the waiver by the Series B Investors and the Series A
Investors of their options to purchase the Offered Stock or (B) the expiration
of the Series A Notice Period or (C) the expiration of the time period set forth
in Section 3(d)(i) without the closing of the purchase of the Offered Stock
having taken place due to failure by the Series A Investors and/or Series B
Investors to close (the earliest of such dates being referred to herein as the
"Contract Date"); and provided further, that such sale shall not be consummated
unless and until all of the following conditions are met:
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(a) The Founder shall deliver to the Company a
certificate of a Third Party Purchaser
stating that (x) such Third Party Purchaser
is aware of the rights of the Series B
Investors and the Series A Investors
contained in this Section 3 and (y) prior to
the purchase by such Third Party Purchaser
of any of such Offered Stock, such Third
Party Purchaser shall become a party to this
Agreement and agree to be bound by the terms
and conditions hereof; and
(b) The consummation of such sale to a Third
Party Purchaser shall not be subject to any
conditions (other than necessary filings
under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act), except that it may be
conditioned upon the truth as of the closing
of the proposed purchase of customary
representations and warranties and the
delivery of stock certificates and a
customary legal opinion.
(iii) If such sale is not consummated within sixty
(60) days of the Contract Date for any reason, then the restrictions provided
for herein shall again become effective, and no Transfer of such Offered Stock
may be made thereafter by the Founder without again offering the same to the
Series B Investors and the Series A Investors in accordance with this Section 3.
(e) Co-Sale Right.
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(i) If a Founder is Transferring stock to a Third
Party Purchaser pursuant to Section 3(d)(ii), then each Preferred Stockholder
that has not exercised the Series B Option or the Series A Option, as
applicable, shall have the right, exercisable upon written notice to such
Founder within thirty (30) days after receipt of the Notice, to participate in
such sale of Founder Stock on the same terms and conditions. To the extent one
or more of the Preferred Stockholders exercise such right of participation in
accordance with the terms and conditions set forth below, the number of shares
of Founder Stock that the Founder may sell in the transaction shall be
correspondingly reduced.
(ii) Each Preferred Stockholder may sell all or any
part of that number of shares of Investor Stock equal to the product obtained by
multiplying (A) the aggregate number of shares of Founder Stock covered by the
Notice by (B) a fraction, the numerator of which is the number of shares of
Investor Stock owned by the Preferred Stockholder at the time of the Transfer
and the denominator of which is the total number of shares of Investor Stock
owned by all the Preferred Stockholders at the time of the Transfer (in each
case, calculated on an as converted to Common Stock basis).
(iii) If any Preferred Stockholder fails to elect to
fully participate in such Founder's sale pursuant to this Section 3(e), the
Founder shall give notice of such failure to the Preferred Stockholders who did
so elect (the "Participants"). The Participants shall have five days from the
date such notice was given to agree to sell their pro rata share of the unsold
portion. For purposes of this paragraph, a Participant's pro rata share shall be
the ratio of (x) the number of shares of Investor Stock held by such Participant
to (y) the total number of shares of Investor Stock held by all the Participants
(in each case, calculated on an as converted to Common Stock basis).
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(iv) The exercise or non-exercise of the rights of
the Participants hereunder to participate in one or more sales of Founder Stock
made by the Founder shall not adversely affect their rights to participate in
subsequent sales of Founder Stock subject to this Section 3.
(v) In the event the Founder has not sold the Founder
Stock subject to the aforementioned provisions within the time period specified
in Section 3(d)(ii), the Founder shall not thereafter sell any Founder Stock
subject to the provisions of this Agreement without again being subject to the
rights of the Stockholders as here prescribed.
4. Sales by the Other Stockholders.
(a) Series B Right of First Refusal.
(i) If an Other Stockholder proposes to Transfer any
shares of Common Stock, then such Other Stockholder shall offer such shares
first to the Series B Investors, by sending written notice (the "Notice") to the
Series B Investors, with a copy to the Company and the Series A Investors, which
shall state (A) the number of shares proposed to be Transferred (the "Offered
Stock"), (B) the identity of the proposed transferee ("Third Party Purchaser"),
(C) the proposed purchase price per share offered by the Third Party Purchaser
(the "Offer Price"), and (D) the material terms and conditions upon which the
proposed Transfer is to be made. Upon delivery of the Notice, such offer shall
be irrevocable unless and until the rights of first offer provided for herein
shall have been waived or shall have expired.
(ii) The Series B Investors may elect, by written
notice to the Other Stockholder and the Company delivered within fifteen (15)
days after the giving of the Notice pursuant to Section 4(a)(i) (the "Series B
Notice Period"), to purchase any or all of the Offered Stock at a purchase price
equal to the Offer Price and upon the terms and subject to the conditions set
forth in the Notice (the "Series B Option"). Each Series B Investor shall have
the right to purchase that percentage of the Offered Stock determined by
dividing (A) the total number of shares of Investor Stock then owned by such
Series B Investor by (B) the total number of shares of Investor Stock then owned
by all Series B Investors (in each case, calculated on an as converted to Common
Stock basis). The Company shall, within five (5) days of the expiration of the
Series B Notice Period, provide written notice to the fully participating Series
B Investors indicating the number of shares of Offered Stock not elected to be
purchased by the other Series B Investors (the "Company B Option Notice"). If
any Series B Investor does not fully subscribe for the number of shares of
Offered Stock such Series B Investor is entitled to purchase, then each other
fully participating Series B Investor may elect by written notice delivered to
the Other Stockholder and the Company within five (5) days of delivery of the
Company B Option Notice to purchase that percentage of the remaining Offered
Stock not so subscribed for determined by dividing (x) the total number of
shares of Investor Stock then owned by such fully participating Series B
Investor by (y) the total number of shares of Investor Stock then owned by all
fully participating Series B Investors who elected to purchase the remaining
Offered Stock (in each case, calculated on an as converted to Common Stock
basis).
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(iii) The failure of a Series B Investor to respond
within the Series B Notice Period to the Other Stockholder and the Company shall
be deemed to be a waiver of such Series B Investor's rights under this Section
4(a), provided that each Series B Investor may waive its rights under this
Section 4(a) prior to the expiration of the Series B Notice Period by giving
written notice to the Other Stockholder and the Company.
(b) Series A Right of First Refusal.
--------------------------------
(i) The Company shall within five (5) days of the
expiration of the last applicable time period set forth in Section 4(a)(ii)
above provide notice to the Series A Investors of the number of shares of
Offered Stock, if any, that the Series B Investors did not elect to purchase.
The Series A Investors may elect within fifteen (15) days after delivery of such
notice (the "Series A Notice Period") to purchase any or all of the remaining
Offered Stock at a purchase price equal to the Offer Price and upon the terms
and subject to the conditions set forth in the Notice (the "Series A Option").
Each such Series A Investor shall have the right to purchase that percentage of
the remaining Offered Stock determined by dividing (x) the total number of
shares of Investor Stock then owned by such Series A Investor by (y) the total
number of shares of Investor Stock then owned by all Series A Investors (in each
case, calculated on an as converted to Common Stock basis). The Company shall,
within five (5) days of the expiration of the Series A Notice Period, provide
written notice to the fully participating Series A Investors indicating the
number of shares of Offered Stock not elected to be purchased by the other
Series A Investors (the "Company A Option Notice"). If any Series A Investor
does not fully subscribe for the number of shares of Offered Stock such Series A
Investor is entitled to purchase, then each other fully participating Series A
Investor may elect by written notice delivered to the Other Stockholder and the
Company within five (5) days of delivery of the Company A Option Notice to
purchase that percentage of the remaining Offered Stock not so subscribed for
determined by dividing (I) the total number of shares of Investor Stock then
owned by such fully participating Series A Investor by (II) the total number of
shares of Investor Stock then owned by all fully participating Series A
Investors who elected to purchase the remaining Offered Stock (in each case,
calculated on an as converted to Common Stock basis).
(ii) The failure of a Series A Investor to respond
within the Series A Notice Period to the Other Stockholder and the Company shall
be deemed to be a waiver of such Series A Investor's rights under this Section
4(b), provided that each Series A Investor may waive its rights under this
Section 4(b) prior to the expiration of the Series A Notice Period by giving
written notice to the Other Stockholder and the Company.
(c) Settlement.
-----------
(i) The Closing of the Offered Stock to be purchased
by the Series B Investors and/or the Series A Investors shall be completed
within thirty (30) days of the expiration of the last applicable notice period
set forth in Sections 4(a) or (b), as applicable.
(ii) Unless the Series B Investors or the Series A
Investors shall have purchased all of the Offered Stock pursuant to Sections
4(a) or (b), as applicable, the Other Stockholder may sell the Offered Stock to
a Third Party Purchaser on the terms and subject to the conditions set forth in
the Notice; provided, however, that such sale is bona fide and made pursuant to
a contract entered into within sixty (60) days of the earliest to occur of (A)
the waiver by the Series B Investors and the Series A Investors of their options
to purchase the Offered Stock or (B) the expiration of the Series A Notice
Period or (C) the expiration of the time period set forth in Section 4(c)(i)
without the closing of the purchase of the Offered Stock having taken place due
to failure by the Series B Investors and/or the Series A Investors to close (the
earliest of such dates being referred to herein as the "Contract Date"); and
provided further, that such sale shall not be consummated unless and until all
of the following conditions are met:
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(a) The Other Stockholder shall deliver to the
Company a certificate of a Third Party
Purchaser stating that (x) such Third Party
Purchaser is aware of the rights of the
Series B Investors and the Series A
Investors contained in this Section 4 and
(y) prior to the purchase by such Third
Party Purchaser of any of such Offered
Stock, such Third Party Purchaser shall
become a party to this Agreement and agree
to be bound by the terms and conditions
hereof; and
(b) The consummation of such sale to a Third
Party Purchaser shall not be subject to any
conditions (other than necessary filings
under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act), except that it may be
conditioned upon the truth as of the closing
of the proposed purchase of customary
representations and warranties and the
delivery of stock certificates and a
customary legal opinion.
(iii) If such sale is not consummated within sixty
(60) days of the Contract Date for any reason, then the restrictions provided
for herein shall again become effective, and no Transfer of such Offered Stock
may be made thereafter by the Other Stockholder without again offering the same
to the Series B Investors and the Series A Investors in accordance with this
Section 4.
5. Sales by Series A Investors.
(a) Series B Right of First Refusal.
--------------------------------
(i) If a Series A Investor proposes to Transfer any
shares of Preferred Stock, other than pursuant to Section 3(e) or 5(d), then
such Series A Investor shall offer such shares first to the Series B Investors,
by sending written notice (the "Notice") to the Series B Investors, with a copy
to the Company and the other Series A Investors, which shall state (A) the
number of shares proposed to be Transferred (the "Offered Stock"), (B) the
identity of the proposed transferee ("Third Party Purchaser"), (C) the proposed
purchase price per share offered by the Third Party Purchaser (the "Offer
Price"), and (D) the material terms and conditions upon which the proposed
Transfer is to be made. Upon delivery of the Notice, such offer shall be
irrevocable unless and until the rights of first offer provided for herein shall
have been waived or shall have expired.
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(ii) The Series B Investors may elect, by written
notice to the Series A Investor and the Company delivered within fifteen (15)
days after the giving of the Notice pursuant to Section 5(a)(i) (the "Series B
Notice Period"), to purchase any or all of the Offered Stock at a purchase price
equal to the Offer Price and upon the terms and subject to the conditions set
forth in the Notice (the "Series B Option"). Each Series B Investor shall have
the right to purchase that percentage of the Offered Stock determined by
dividing (A) the total number of shares of Investor Stock then owned by such
Series B Investor by (B) the total number of shares of Investor Stock then owned
by all Series B Investors (in each case, calculated on an as converted to Common
Stock basis). The Company shall, within five (5) days of the expiration of the
Series B Notice Period, provide written notice to the fully participating Series
B Investors indicating the number of shares of Offered Stock not elected to be
purchased by the other Series B Investors (the "Company B Option Notice"). If
any Series B Investor does not fully subscribe for the number of shares of
Offered Stock such Series B Investor is entitled to purchase, then each other
fully participating Series B Investor may elect by written notice delivered to
the Preferred Stockholder and the Company within five (5) days of delivery of
the Company B Option Notice to purchase that percentage of the remaining Offered
Stock not so subscribed for determined by dividing (x) the total number of
shares of Investor Stock then owned by such fully participating Series B
Investor by (y) the total number of shares of Investor Stock then owned by all
fully participating Series B Investors who elected to purchase the remaining
Offered Stock (in each case, on an as converted to Common Stock basis).
(iii) The failure of a Series B Investor to respond
within the Series B Notice Period to the Series A Investor and the Company shall
be deemed to be a waiver of such Series B Investor's rights under this Section
5(a), provided that each Series B Investor may waive its rights under this
Section 5(a) prior to the expiration of the Series B Notice Period by giving
written notice to the Series A Investor and the Company.
(b) Series A Right of First Refusal.
--------------------------------
(i) The Company shall within five (5) days of the
expiration of the last applicable time period set forth in Section 5(a)(ii)
above provide notice to the other Series A Investors of the number of shares of
Offered Stock, if any, that the Series B Investors did not elect to purchase.
The other Series A Investors may elect within fifteen (15) days after delivery
of such notice (the "Series A Notice Period") to purchase any or all of the
remaining Offered Stock at a purchase price equal to the Offer Price and upon
the terms and subject to the conditions set forth in the Notice (the "Series A
Option"). Each such Series A Investor shall have the right to purchase that
percentage of the remaining Offered Stock determined by dividing (x) the total
number of shares of Investor Stock then owned by such Series A Investor by (y)
the total number of shares of Investor Stock then owned by all Series A
Investors (in each case, calculated on an as converted to Common Stock basis).
The Company shall, within five (5) days of the expiration of the Series A Notice
Period, provide written notice to the fully participating Series A Investors
indicating the number of shares of Offered Stock not elected to be purchased by
the other Series A Investors (the "Company A Option Notice"). If any Series A
Investor does not fully subscribe for the number of shares of Offered Stock such
Series A Investor is entitled to purchase, then each other fully participating
Series A Investor may elect by written notice delivered to the transferring
Series A Investor and the Company within five (5) days of delivery of the
Company A Option Notice to purchase that percentage of the remaining Offered
Stock not so subscribed for determined by dividing (I) the total number of
shares of Investor Stock then owned by such fully participating Series A
Investor by (II) the total number of shares of Investor Stock then owned by all
fully participating Series A Investors who elected to purchase the remaining
Offered Stock (in each case, calculated on an as converted to Common Stock
basis).
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(ii) The failure of a Series A Investor to respond
within the Series A Notice Period to the transferring Series A Investor and the
Company shall be deemed to be a waiver of such Series A Investor's rights under
this Section 5(b), provided that each Series A Investor may waive its rights
under this Section 5(b) prior to the expiration of the Series A Notice Period by
giving written notice to the transferring Series A Investor and the Company.
(c) Settlement.
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(i) The Closing of the Offered Stock to be purchased
by the Series B Investors and/or the non-transferring Series A Investors shall
be completed within thirty (30) days of the expiration of the last applicable
notice period set forth in Sections 5(a) or (b), as applicable.
(ii) Unless the Series B Investors or the Series A
Investors shall have purchased all of the Offered Stock pursuant to Sections
5(a) or (b), as applicable, the transferring Series A Investor may, subject to
Section 5(d), sell the Offered Stock to a Third Party Purchaser on the terms and
subject to the conditions set forth in the Notice; provided, however, that such
sale is bona fide and made pursuant to a contract entered into within sixty (60)
days of the earliest to occur of (A) the waiver by the Series B Investors and
the Series A Investors of their options to purchase the Offered Stock or (B) the
expiration of the Series A Notice Period or (C) the expiration of the time
period set forth in Section 5(c)(i) without the closing of the purchase of the
Offered Stock having taken place due to failure by the Series B Investors and/or
Series A Investors to close (the earliest of such dates being referred to herein
as the "Contract Date"); and provided further, that such sale shall not be
consummated unless and until all of the following conditions are met:
(a) The transferring Series A Investor shall
deliver to the Company a certificate of a
Third Party Purchaser stating that (x) such
Third Party Purchaser is aware of the rights
of the Series B Investors and the Series A
Investors contained in this Section 5 and
(y) prior to the purchase by such Third
Party Purchaser of any of such Offered
Stock, such Third Party Purchaser shall
become a party to this Agreement and agree
to be bound by the terms and conditions
hereof; and
(b) The consummation of such sale to a Third
Party Purchaser shall not be subject to any
conditions (other than necessary filings
under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act), except that it may be
conditioned upon the truth as of the closing
of the proposed purchase of customary
representations and warranties and the
delivery of stock certificates and a
customary legal opinion.
(iii) If such sale is not consummated within sixty
(60) days of the Contract Date for any reason, then the restrictions provided
for herein shall again become effective, and no Transfer of such Offered Stock
may be made thereafter by the transferring Series A Investor without again
offering the same to Series B Investors and the other Series A Investors in
accordance with this Section 5.
10
(d) Co-Sale Right.
--------------
(i) If a Series A Investor is Transferring stock to a
Third Party Purchaser pursuant to Section 5(c)(ii), then each Series A Investor
that has not exercised the Series A Option (other than the transferring Series A
Investor) shall have the right, exercisable upon written notice to such
transferring Series A Investor within thirty (30) days after receipt of the
Notice, to participate in such sale of Investor Stock on the same terms and
conditions. To the extent one or more of the Series A Investors exercise such
right of participation in accordance with the terms and conditions set forth
below, the number of shares of Investor Stock that the transferring Series A
Investor may sell in the transaction shall be correspondingly reduced.
(ii) Each non-transferring Series A Investor may sell
all or any part of that number of shares of Investor Stock equal to the product
obtained by multiplying (A) the aggregate number of shares of Investor Stock
covered by the Notice by (B) a fraction, the numerator of which is the number of
shares of Investor Stock owned by the non-transferring Series A Investor at the
time of the Transfer and the denominator of which is the total number of shares
of Investor Stock owned by all the Series A Investors (other than the
transferring Series A Investor) at the time of the Transfer (in each case,
calculated on an as converted to Common Stock basis).
(iii) If any Series A Investor fails to elect to
fully participate in such transferring Series A Investor's sale pursuant to this
Section 5(d), the transferring Series A Investor shall give notice of such
failure to the Series A Investors who did so elect (the "Participants"). The
Participants shall have five days from the date such notice was given to agree
to sell their pro rata share of the unsold portion. For purposes of this
paragraph, a Participant's pro rata share shall be the ratio of (x) the number
of shares of Investor Stock held by such Participant to (y) the total number of
shares of Investor Stock held by all the Participants (in each case, calculated
on an as converted to Common Stock basis).
(iv) The exercise or non-exercise of the rights of
the Participants hereunder to participate in one or more sales of Investor Stock
made by the transferring Series A Investor shall not adversely affect their
rights to participate in subsequent sales of Investor Stock subject to this
Section 5.
(v) In the event the transferring Series A Investor
has not sold the Investor Stock subject to the aforementioned provisions within
the time period specified in Section 5(c)(i), the transferring Series A Investor
shall not thereafter sell any Investor Stock subject to the provisions of this
agreement without again being subject to the rights of the Preferred
Stockholders as here prescribed.
11
6. Sales by Series B Investors.
(a) Series B Right of First Refusal.
--------------------------------
(i) If a Series B Investor proposes to Transfer any
shares of Preferred Stock, other than pursuant to Section 3(e), 5(d) or 6(c),
then such Series B Investor shall offer such shares first to the other Series B
Investors, by sending written notice (the "Notice") to the other Series B
Investors, with a copy to the Company, which shall state (A) the number of
shares proposed to be Transferred (the "Offered Stock"), (B) the identity of the
proposed transferee ("Third Party Purchaser"), (C) the proposed purchase price
per share offered by the Third Party Purchaser (the "Offer Price"), and (D) the
material terms and conditions upon which the proposed Transfer is to be made.
Upon delivery of the Notice, such offer shall be irrevocable unless and until
the rights of first offer provided for herein shall have been waived or shall
have expired.
(ii) The other Series B Investors may elect, by
written notice to the transferring Series B Investor and the Company delivered
within fifteen (15) days after the giving of the Notice pursuant to Section
6(a)(i) (the "Series B Notice Period"), to purchase any or all of the Offered
Stock at a purchase price equal to the Offer Price and upon the terms and
subject to the conditions set forth in the Notice (the "Series B Option"). Each
non-transferring Series B Investor shall have the right to purchase that
percentage of the Offered Stock determined by dividing (A) the total number of
shares of Investor Stock then owned by such Series B Investor by (B) the total
number of shares of Investor Stock then owned by all Series B Investors (in each
case, calculated on an as converted to Common Stock basis). The Company shall,
within five (5) days of the expiration of the Series B Notice Period, provide
written notice to the fully participating Series B Investors indicating the
number of shares of Offered Stock not elected to be purchased by the other
Series B Investors (the "Company B Option Notice"). If any Series B Investor
does not fully subscribe for the number of shares of Offered Stock such Series B
Investor is entitled to purchase, then each other fully participating Series B
Investor may elect by written notice delivered to the transferring Series B
Investor and the Company within five (5) days of delivery of the Company B
Option Notice to purchase that percentage of the remaining Offered Stock not so
subscribed for determined by dividing (x) the total number of shares of Investor
Stock then owned by such fully participating Series B Investor by (y) the total
number of shares of Investor Stock then owned by all fully participating Series
B Investors who elected to purchase the remaining Offered Stock (in each case,
on an as converted to Common Stock basis).
(iii) The failure of a Series B Investor to respond
within the Series B Notice Period to the transferring Series B Investor and the
Company shall be deemed to be a waiver of such Series B Investor's rights under
this Section 6(a), provided that each Series B Investor may waive its rights
under this Section 6(a) prior to the expiration of the Series B Notice Period by
giving written notice to the transferring Series B Investor and the Company.
(b) Settlement.
-----------
(i) The Closing of the Offered Stock to be purchased
by the non-transferring Series B Investors shall be completed within thirty (30)
days of the expiration of the last applicable notice period set forth in
Sections 6(a).
12
(ii) Unless the non-transferring Series B Investors
shall have purchased all of the Offered Stock pursuant to Sections 6(a), the
transferring Series B Investor may, subject to Section 6(c), sell the Offered
Stock to a Third Party Purchaser on the terms and subject to the conditions set
forth in the Notice; provided, however, that such sale is bona fide and made
pursuant to a contract entered into within sixty (60) days of the earliest to
occur of (A) the waiver by the non-transferring Series B Investors of their
options to purchase the Offered Stock or (B) the expiration of the Series B
Notice Period or (C) the expiration of the time period set forth in Section
6(b)(i) without the closing of the purchase of the Offered Stock having taken
place due to failure by the Series B Investors to close (the earliest of such
dates being referred to herein as the "Contract Date"); and provided further,
that such sale shall not be consummated unless and until all of the following
conditions are met:
(a) The transferring Series B Investor shall
deliver to the Company a certificate of a
Third Party Purchaser stating that (x) such
Third Party Purchaser is aware of the rights
of the Series B Investors contained in this
Section 6 and (y) prior to the purchase by
such Third Party Purchaser of any of such
Offered Stock, such Third Party Purchaser
shall become a party to this Agreement and
agree to be bound by the terms and
conditions hereof; and
(b) The consummation of such sale to a Third
Party Purchaser shall not be subject to any
conditions (other than necessary filings
under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act), except that it may be
conditioned upon the truth as of the closing
of the proposed purchase of customary
representations and warranties and the
delivery of stock certificates and a
customary legal opinion.
(iii) If such sale is not consummated within sixty
(60) days of the Contract Date for any reason, then the restrictions provided
for herein shall again become effective, and no Transfer of such Offered Stock
may be made thereafter by the transferring Series B Investor without again
offering the same to the other Series B Investors in accordance with this
Section 6.
(c) Co-Sale Right.
--------------
(i) If a Series B Investor is Transferring stock to a
Third Party Purchaser pursuant to Section 6(b)(ii), then each Series B Investor
that has not exercised the Series B Option (other than the transferring Series B
Investor) shall have the right, exercisable upon written notice to such
transferring Series B Investor within thirty (30) days after receipt of the
Notice, to participate in such sale of Investor Stock on the same terms and
conditions. To the extent one or more of the Series B Investors exercise such
right of participation in accordance with the terms and conditions set forth
below, the number of shares of Investor Stock that the transferring Series B
Investor may sell in the transaction shall be correspondingly reduced.
(ii) Each non-transferring Series B Investor may sell
all or any part of that number of shares of Investor Stock equal to the product
obtained by multiplying (A) the aggregate number of shares of Investor Stock
covered by the Notice by (B) a fraction, the numerator of which is the number of
shares of Investor Stock owned by the non-transferring Series B Investor at the
time of the Transfer and the denominator of which is the total number of shares
of Investor Stock owned by all the Series B Investors (other than the
transferring Series B Investor) at the time of the Transfer (in each case,
calculated on an as converted to Common Stock basis).
13
(iii) If any Series B Investor fails to elect to
fully participate in such transferring Series B Investor's sale pursuant to this
Section 6(c), the transferring Series B Investor shall give notice of such
failure to the Series B Investors who did so elect (the "Participants"). The
Participants shall have five days from the date such notice was given to agree
to sell their pro rata share of the unsold portion. For purposes of this
paragraph, a Participant's pro rata share shall be the ratio of (x) the number
of shares of Investor Stock held by such Participant to (y) the total number of
shares of Investor Stock held by all the Participants (in each case, calculated
on an as converted to Common Stock basis).
(iv) The exercise or non-exercise of the rights of
the Participants hereunder to participate in one or more sales of Investor Stock
made by the transferring Series B Investor shall not adversely affect their
rights to participate in subsequent sales of Investor Stock subject to this
Section 6.
(v) In the event the transferring Series B Investor
has not sold the Investor Stock subject to the aforementioned provisions within
the time period specified in Section 6(b)(i), the transferring Series B Investor
shall not thereafter sell any Investor Stock subject to the provisions of this
agreement without again being subject to the rights of the Series B Investors as
here prescribed.
7. Non-Cash Purchase Price. Notwithstanding anything in
Sections 3(b), 3(c), 4(a), 4(b), 5(a), 5(b) or 6(a) to the contrary, should the
purchase price specified in the applicable Notice be payable in property other
than cash or evidences of indebtedness, the Series B Investors and/or the Series
A Investors, as the case may be, shall have the right to pay the purchase price
in the form of cash equal in amount to the fair market value of such property.
If the transferring Stockholder and the Stockholders exercising a right of first
refusal hereunder cannot agree on such fair market value within five (5) days
after the non-transferring Stockholder's receipt of the Notice, the valuation
shall be made by an appraiser of recognized standing selected by the
transferring Stockholder and the Stockholders exercising a right of first
refusal hereunder or, if they cannot agree on an appraiser within ten (10) days
after such receipt of the 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 Stockholder and the
exercising Stockholders, with the half of the cost borne by exercising
Stockholders borne pro rata by each based on the number of shares such parties
were interested in purchasing pursuant to the applicable right of first refusal.
If the time for the closing of the exercising Stockholders' purchase has expired
but for the determination of the value of the purchase price offered by the
prospective transferee(s), then such closing shall be held on or prior to the
fifth (5th) business day after such valuation shall have been made pursuant to
this subsection.
14
8. Exempt Transfers. Notwithstanding the foregoing, the rights
of the Preferred Stockholders and the Company shall not apply to any Transfer
(i) to the Company, (ii) by a Series B Investor to another Series B Investor or
an investor in such Series B Investor, (iii) by a Founder, an Other Stockholder
or a Preferred Stockholder to the ancestors, descendants or spouse or to trusts
for the benefit of such persons or such Founder, Other Stockholder or Preferred
Stockholder or a charitable remainder trust or (iv) by a Preferred Stockholder
to an affiliate of such Preferred Stockholder; provided in each case that (x)
the transferring Founder, Other Stockholder or Preferred Stockholder shall
inform all the Preferred Stockholders and the Company of the Transfer prior to
effecting it and (y) the Transferee shall furnish the parties hereto with a
written agreement to be bound by and comply with all provisions of this
Agreement (collectively, the "Permitted Transferees"). Such transferred Founder
Stock, Common Stock or Investor Stock shall remain "Founder Stock," "Common
Stock" or "Investor Stock" hereunder, as applicable, and such Permitted
Transferee shall be treated as a "Founder," "Other Stockholder" or "Preferred
Stockholder," as applicable, for purposes of this Agreement.
9. Legend.
(a) Each certificate representing shares of Founder
Stock, Common Stock or Investor Stock now or hereafter owned by a Founder, Other
Stockholder or Preferred Stockholder or issued to any person in connection with
a transfer pursuant to Section 8 hereof shall be endorsed with the following
legend:
"THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO THE
TERMS AND CONDITIONS OF A CERTAIN STOCKHOLDERS' AGREEMENT BY
AND AMONG THE CORPORATION AND THE STOCKHOLDERS OF THE
CORPORATION. COPIES OF SUCH AGREEMENT MAY BE OBTAINED UPON
WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION."
(b) Each of the Founders, the Other Stockholders and the
Preferred Stockholders agrees that the Company may instruct its transfer agent
to impose transfer restrictions on the shares represented by certificates
bearing the legend referred to in Section 9(a) above to enforce the provisions
of this Agreement and the Company agrees to promptly do so. The legend shall be
removed upon termination of this Agreement.
10. Bring-Along Right. In the event that Stockholders (the
"Proposing Stockholders") holding stock comprising at least seventy-five percent
(75%) of the Company's voting securities (the "Threshold Percent") propose to
Transfer their stock to a third party (the "Offeror") pursuant to a merger,
consolidation, reorganization or sale of shares, the remaining Stockholders will
be required to sell their stock to such Offeror at the same price and upon the
same terms and conditions as in the offer made to the Proposing Stockholders or
vote in favor of the transaction, in the case of a merger, consolidation or
reorganization; provided, however, that the Series B Investors shall not be
required to sell their shares or vote in favor of the transaction, as
applicable, unless such transaction reflects a pre-money valuation of at least
$80,000,000.
15
11. Board of Directors.
(a) The Board of Directors of the Company shall be
comprised of five directors.
(b) For so long as the Founder Stock constitutes at least
seven percent (7%) of the outstanding capital stock of the Company and each of
Shay Xxx Xxxxxx and Xxxx Xxxxxx remains an employee of the Company, the holders
of a majority of the Founder Stock then outstanding, voting as a class, shall
have the right to designate two (2) directors (the "Founder Directors") and, in
any election of directors of the Company, each of the Founders shall vote at any
regular or special meeting of stockholders (or by written consent) such number
of shares of Founder Stock then owned by such Founder (or as to which such
Founder then has voting power) as may be necessary to elect two (2) directors
designated by the Founders. Initially, the directors designated by the Founders
shall be Shay Xxx Xxxxxx and Xxxxxxxx Xxxxx. If the holders of a majority of the
Founder Stock then outstanding no longer have the right to designate Founder
Directors pursuant to this Section 11(b), the two (2) directors previously
designated by the Founders shall be nominated and elected by the holders of a
majority of the Common Stock (including shares of Common Stock issued or
issuable upon conversion of the Preferred Stock, on an as converted basis).
(c) For so long as the Series A Investors shall be
permitted to designate board seats pursuant to the Restated Articles, in any
election of directors of the Company, each of the Series A Investors shall vote
at any regular or special meeting of stockholders (or by written consent) such
number of shares of Series A Preferred Stock then owned by such Series A
Investor (or as to which such Series A Investor then has voting power) as may be
necessary to elect one (1) director designated by the Series A Investors.
Initially, the director designated by the Series A Investors shall be Xx.
Xxxxxxx Xxxxxx.
(d) For so long as the Series B Investors shall be
permitted to designate board seats pursuant to the Restated Articles, in any
election of directors of the Company, each of the e-street international ag or
any affiliate thereof ("e-street") and D.E.P. Technology Holdings Ltd. or any
affiliate thereof ("DEP") shall vote at any regular or special meeting of
stockholders (or by written consent) such number of shares of Series B Preferred
Stock then owned by such Series B Investor (or as to which such Series B
Investor then has voting power) as may be necessary to elect two (2) directors,
one (1) designated by e-street and one (1) designated by DEP. Initially, the
director designated by DEP shall be Xxxx Xxxxxx and the director designated by
e-street shall be Xxxxxx Xxxxxxxx.
(e) Any director of the Company may be removed from the
Board of Directors in the manner allowed by law and the Company's Amended and
Restated Certificate of Incorporation and By-laws, and with respect to a
director designated pursuant to Section 11(a), only upon the vote or written
consent of the parties entitled to designate such director.
16
12. Miscellaneous.
(a) Governing Law. This Agreement and all acts and
transactions pursuant hereto shall be governed, construed and interpreted in
accordance with the laws of the State of New York, without giving effect to
principles of conflicts of laws.
(b) Amendment. Any term of this Agreement may be amended
or waived only by the written consent of (i) as to the Company, only by the
Company, (ii) as to the Preferred Stockholders, by holders of more than fifty
percent (50%) in interest of the Series A Preferred Stock, e-street and DEP,
provided that any Preferred Stockholder may waive any of his rights hereunder
without obtaining the consent of any other Preferred Stockholder and provided,
further, that in the case of any provision pertaining only to the Series A
Investors, such provision may be waived by the written consent of holders of
more than fifty percent (50%) in interest of the Series A Preferred Stock and in
the case of any provision pertaining only to the Series B Investors, such
provision may be waived by the written consent of each of e-street and DEP,
(iii) as to the Founders, by holders of more than ninety-five percent (95%) in
interest of the Founder Stock and (iv) as to the Other Stockholders, by holders
of more than fifty percent (50%) in interest of the Common Stock (excluding the
Founder Stock). Any amendment or waiver effected in accordance with clauses (i),
(ii), (iii) and (iv) of this paragraph shall be binding upon each Preferred
Stockholder, the Company, the Other Stockholders and the Founders and their
respective successors and assigns.
(c) Assignment of Rights. Except as otherwise provided in
this Agreement, the terms and conditions of this Agreement shall inure to the
benefit of and be binding upon the respective successors (including successors
by merger) and permitted assigns of the parties (including transferees of any of
the Founder Stock, Common Stock, Series A Preferred Stock, Series B Preferred
Stock or warrants to purchase shares of Series B Preferred Stock or any Series B
Preferred Stock or Common Stock issued upon conversion or exercise thereof).
Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and assigns
any rights, remedies, obligations, or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
(d) Term. This Agreement shall terminate upon the closing
of a firm commitment underwritten public offering by the Company of shares of
its Common Stock pursuant to a registration statement filed in the United States
under the Securities Act of 1933, as amended, or a public offering effected on
the London Stock Exchange, the Frankfurt Stock Exchange or the Paris Stock
Exchange under applicable securities laws which results in aggregate cash
proceeds to the Company of an amount equal to or greater than $20,000,000, net
of underwriting discounts and commissions and a reflecting a pre-offering
valuation of the Company of at least $60,000,000.
(e) Notices. All notices required or permitted hereunder
shall be in writing and shall be deemed effectively given: (a) upon personal
delivery to the party to be notified; (b) when sent by confirmed telex or
facsimile if sent during normal business hours of the recipient, if not, then on
the next business day; (c) five (5) days after having been sent by registered or
certified mail, return receipt requested, postage prepaid; or (d) one (1) day
after deposit with a nationally recognized overnight courier, specifying next
day delivery, with written verification of receipt. All communications shall be
sent to the address as set forth on the signature pages hereto or at such other
address as such party may designate by ten (10) days advance written notice to
the other parties hereto.
17
(f) Effect of Change in Company's Capital Structure.
Appropriate adjustments shall be made in the number and class of shares subject
to any provisions of this Agreement in the event of a stock dividend, stock
split, reverse stock split, combination, reclassification or like change in the
capital structure of the Company.
(g) Severability. If one or more provisions of this
Agreement are held to be unenforceable under applicable law, the parties agree
to renegotiate such provision in good faith. In the event that the parties
cannot reach a mutually agreeable and enforceable replacement for such
provision, then (a) such provision shall be excluded from this Agreement, (b)
the balance of the Agreement shall be interpreted as if such provision were so
excluded and (c) the balance of the Agreement shall be enforceable in accordance
with its terms.
(h) Attorney 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.
(i) 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.
(j) Titles and Subtitles. The titles and subtitles used
in this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
(k) Aggregation of Stock. All shares of the Series A
Preferred Stock or Series B Preferred Stock or Founder Stock held or acquired by
(i) affiliated entities or persons or (ii) persons or entities under common
investment management, shall be aggregated together for the purpose of
determining the availability of any rights under this Agreement.
(l) Specific Enforcement. It is agreed and understood
that monetary damages would not adequately compensate an injured party for the
breach of this Agreement by any party, that this Agreement shall be specifically
enforceable, and that any breach or threatened breach of this Agreement shall be
the proper subject of a temporary or permanent injunction or restraining order.
Further, each party hereto waives any claim or defense that there is an adequate
remedy at law for such breach or threatened breach.
(m) Entire Agreement; Superseding Effect. This Agreement
and the Waiver constitute the entire agreement between and among the parties
hereto pertaining to the subject matter hereof and any other written or oral
agreements between and among the parties hereto pertaining thereto are expressly
cancelled.
18
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first above written.
M-WISE, INC.
By: /s/ Xxxx Xxx-Xxxxxx
---------------------------
Name: Xxxx Xxx-Xxxxxx
Title:
Address:
FOUNDERS:
PROTON MARKETING ASSOCIATES LLC
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title:
Address:
XXXXXXXX.XXX LLC
By: Xxxx Xxx-Xxxxxx
Name: Shay Xxx Xxxxxx
Title:
Address:
CHINESE WHISPERS LLC
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title:
Address:
OGEN LLC
By: Xxx Xxxxxxxx
Name: Xxx Xxxxxxxx
Title:
Address:
By: /s/ Barak Galili
Name: Barak Galili
Title:
Address:
STOCKHOLDERS:
CAP VENTURES LTD.
By: /s/ Xx. Xxxxxxx Xxxxxx
Name: Xx. Xxxxxxx Xxxxxx
Title:
Address:
E-STREET INTERNATIONAL AG
By:________________________________
Name:
Title:
Address:
D.E.P. TECHNOLOGY HOLDINGS LTD.
By:________________________________
Name:
Title:
Address:
/s/ Xxxxx Xxxxx
------------------------------------
Xxxxx Xxxxx
/s/ Xxxx Xxxxx
------------------------------------
Xxxx Xxxxx
/s/ Xxxxx Xxxx
------------------------------------
Xxxxx Xxxx
SCHEDULE A
SERIES A INVESTORS
Shares of Warrants for
Name and Address Series A Preferred Stock Series A Preferred Stock
---------------- ------------------------ ------------------------
Cap Ventures Ltd. 268,382 56,180
SCHEDULE B
SERIES B INVESTORS
Series B Preferred
Shares of Series B Stock Aggregate Warrant Aggregate
Name Preferred Stock Purchase Price Exercise Price
---- ------------------ ------------------ ------------------
e-street international ag 244,728 $2,000,161.94 $1,000,000
D.E.P. Technology Holdings Ltd. 244,728 $2,000,161.94 $1,000,000
SCHEDULE C
FOUNDERS
Name Shares of Common Stock
---- ----------------------
Proton Marketing Associates, LLC 332,640
Xxxxxxxx.xxx, LLC 258,720
Chinese Whispers, LLC 100,800
Ogen, LLC 147,840
SCHEDULE D
OTHER STOCKHOLDERS
Name Shares of Common Stock
---- ----------------------
Xxxxx Xxxxx 10,695
Xxxx Xxxxx 10,695
Xxxxx Xxxx 15,348
