EXHIBIT 10.5
XXXXXXXX.XXX, INC.
AMENDMENT TO AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
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This Amendment to Amended and Restated Shareholders Agreement, dated
as of January 1, 1999 (the "Amendment"), is entered into by and among
xXxxxxxx.xxx, Inc., a Delaware corporation (the "Company"), and the stockholders
of the Company set forth on the signature pages hereto (each a "Stockholder" and
collectively, the "Stockholders").
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Company and certain of its stockholders entered into an
Amended and Restated Shareholders Agreement on December 21, 1998 (the
"Agreement"); and
WHEREAS, the Company and the Stockholders desire to amend the
Agreement in certain respects; and
WHEREAS, pursuant to Section 7(a) of the Agreement, such Agreement may
be amended upon the prior written consent of (i) the Company, (ii) the holders
of at least sixty six and two-thirds percent (66 2/3%) of the Company's
outstanding Series A Preferred Stock, Series B Preferred Stock and Series C
Preferred Stock, voting together as one class, (iii) the holders of at least
sixty seven percent (67%) of the Company's outstanding Series C Preferred Stock,
voting separately as a class and (iv) the holders of at least a majority of the
Company's outstanding Common Stock, voting separately as a class.
NOW, THEREFORE, in consideration of the premises and the agreements
set forth herein, and intending to be legally bound hereby, the parties hereby
agree as follows:
ARTICLE I
DEFINITIONS
1.1 Definitions. Capitalized terms used herein and not otherwise
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defined herein shall have the respective meanings set forth in the Agreement.
ARTICLE II
AMENDMENT
2.1 Section 2 of the Agreement is hereby amended and restated in its
entirety, to read in full as follows:
"2) BOARD OF DIRECTORS. The following provisions shall apply during
the pendency of this Agreement:
a) The Shareholders agree that the size of the Board shall equal
seven (7) members.
1.
b) The Shareholders further agree that the Common Shareholders shall
have the right to designate three representatives to serve on the
Board (the "Common Shareholders' Designees"), at least one of whom
shall be an individual that is not an employee of the Company (the
"Independent Director"), that the Series A Investors shall have the
right to designate one (1) representatives to serve on the Board (the
"Series A Designee"), and that one of the Series B Investors,
Xxxxxxxxxxx/Xxxxxx Information Partners I, L.P., shall have the right
to designate one (1) representative to serve on the Board (the "Series
B Designee"), that one of the Series C Purchasers, MediaOne or its
assignee, shall have the right to designate one (1) representative to
serve on the Board (the "Series C Designee"), and that all
shareholders, including Common Shareholders, Series A Investors,
Series B Investors and Series C Purchasers - shall vote to elect one
representative to the Board; provided that the director shall be
elected by the affirmative vote of at least two-thirds (66.67%) of the
total shares voting in the election ("All Shareholders Designee").
c) Until the later of (a) three years from the Effective Date, or
(b) the first date when less than 83,000 shares of Series A Preferred
are outstanding (with respect to Series A designees only), or (c) the
first date when less than 195,000 shares of Series B Preferred are
outstanding (with respect to Series B designees only), or (d) the
first date when less than 133,812 shares of Series C Preferred are
outstanding and held by MediaOne or its assignee (with respect to the
Series C Designee only), each Shareholder agrees to vote all of his
Shareholder Shares and any other voting securities of the Company over
which such Shareholder has voting control and to take all other
necessary or desirable actions within his control (whether in his, her
or its capacity as a shareholder, director, member of a Board
committee or officer of the Company or otherwise, and including,
without limitation, attendance at meetings in person or by proxy for
purposes of obtaining a quorum and execution of written consents in
lieu of meetings), so that the Common Shareholders' Designees, the
Series A Designees, the Series B Designees, and the Series C Designee
shall be elected to, and continue to serve on, the Board. Without
limiting the generality of the prior sentence, the Common Shareholders
agree not to vote to remove the Series A Designees, the Series B
Designees or the Series C Designee from the Board; the Series A
Investors agree not to vote to remove the Common Shareholders'
Designees, the Series B Designees, or the Series C Designee from the
Board; the Series B Investors agree not to vote to remove the Common
Shareholders' Designees, the Series A Designees, or the Series C
Designees from the Board; and the Series C Purchasers agree not to
vote to remove the Common Shareholders' Designees, the Series A
Designees, or the Series B Designees from the Board.
2.
d) The Board shall maintain a compensation committee (the
"Compensation Committee") which will recommend the following for
approval by the full Board: management compensation; Company benefit
plans; and adoption of, and grants under, stock option plans. The
Board shall also maintain an audit committee (the "Audit Committee")
which will be responsible for reviewing with management of the Company
and with the Company's independent auditors, both jointly and
separately, the financial controls, accounting and audit and reporting
activities of the Company, the performance of the Company's auditors,
and the capability and performance of the Company's finance staff. As
of the January 29, 1999, the members of the Compensation Committee
shall be (1) the Series A Designee, (2) the Series B Designee, (3) the
Series C Designee and (4) the Independent Director. As of the
January 29, 1999, the members of the Audit Committee shall be (1) the
Series B Designee, (2) the Series A Designee (3) the Series C
Designee, and (4) the Independent Director."
2.2 In accordance with Section 7(a) of the Agreement, this Amendment
shall be effective upon execution by (i) the Company, (ii) the holders of at
least sixty six and two-thirds percent (66 2/3%) of the Company's outstanding
Series A Preferred Stock, Series B Preferred Stock and Series C Preferred Stock,
voting together as one class, (iii) the holders of at least sixty seven percent
(67%) of the Company's outstanding Series C Preferred Stock, voting separately
as a class and (iv) the holders of at least a majority of the Company's
outstanding Common Stock, voting separately as a class.
ARTICLE III
MISCELLANEOUS
3.1 Governing Law. This Agreement shall be governed by and
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interpreted in accordance with the laws of the State of Colorado as applied to
agreements executed and performed wholly within the State of Colorado, without
regard to its conflict of law principles.
3.2 Headings. The Section headings appearing in this Agreement are
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for reference purposes only and shall not be considered a part of this
Agreement. Such headings shall not modify, amend or affect the provisions
hereof.
3.3 Counterparts. This Agreement may be executed in multiple
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counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
3.4 Assignment and Binding Effect. Subject to the foregoing, all of
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the terms and provisions of this Agreement shall be binding upon and inure to
the benefit of and be enforceable by the successors and assigns of each of the
parties hereto. All references herein to any party shall be deemed to include
any successor to such party.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
3.
IN WITNESS WHEREOF, the parties have executed this Amendment as of the
date first above written.
xXxxxxxx.xxx, Inc.
By: /s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
President and Chief Executive Officer
STOCKHOLDERS:
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XXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
XXXXX XXXX
/s/ Xxxxx Xxxx
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Xxxxx Xxxx
XXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
XXXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
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Xxxxxxx X. Xxxxxxx
4.
NEW WORLD EQUITIES, INC.
By:_____________________________________
Its:____________________________________
XXXX X. XXXXXX
/s/ Xxxx X. Xxxxxx
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Xxxx X. Xxxxxx
XXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
XXXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
XXXXXXX XXXXX
/s/ Xxxxxxx Xxxxx
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Xxxxxxx Xxxxx
XXXX XXXXX
/s/ Xxxx Xxxxx
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Xxxx Xxxxx
5.
XXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
XXXXX X. XXXXXXXXXX
/s/ Xxxxx X. Xxxxxxxxxx
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Xxxxx X. Xxxxxxxxxx
XXXXXXX X. XXXXXXX
/s/ Xxxxxxx X. XxXxxxx
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Xxxxxxx X. XxXxxxx
XXXXXX X. XXXXXX AND
XXXXXXX X. XXXXXX, JTWROS
/s/ Xxxxxx X. Xxxxxx
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Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
XXX X. XXXXXX
/s/ Xxx X. Xxxxxx
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Xxx X. Xxxxxx
XXXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
6.
XXXX X. XXXXXXXXX
/s/ Xxxx X. Xxxxxxxxx
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Xxxx X. Xxxxxxxxx
McD VENTURE CAPITAL FUND, L.P.
By:_____________________________________
Its:____________________________________
XXXXXXXX & COMPANY SECURITIES, INC., As
Custodian for Xxxxxxx X. Xxxxxxx XXX
By:_____________________________________
Its:____________________________________
XXXXXXXX & CO. SECURITIES, INC.
By:_____________________________________
Its:____________________________________
SILVER FAMILY TRUST U/D/T
/s/ Xxxxxx X. Silver, Trustee
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Xxxxxx X. Silver, Trustee
/s/ Xxxxxxxx X. Silver, Trustee
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Xxxxxxxx X. Silver, Trustee
7.
XXXXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
XXXXX X. XXXXXXX
/s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
XXX X. XXXXXXXXXX
/s/ Xxx X. Xxxxxxxxxx
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Xxx X. Xxxxxxxxxx
XXXXXXX X. XXXXXX & XXXXX XXXXXX, JTWROS
/s/ Xxxxxxx X. Xxxxxx
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Xxxxxxx X. Xxxxxx
/s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
XXX XXXXXXXX
/s/ Xxx Xxxxxxxx
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Xxx Xxxxxxxx
8.
H & K PARTNERS V
By: /s/ Xxxxxxx Xxxxxx
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Xxxxxxx Xxxxxx, _____________________
N.T. XXXXXXX CO.
By: /s/ Xxxxxx Xxxxx Xxxxxxx
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Xxxxxx Xxxxx Xxxxxxx, Vice President
XXXXXXXXXXX/XXXXXX
INFORMATION PARTNERS I, L.P.
By: Xxxxxxxxxxx Xxxxxx Information
Partners, L.L.C., as General Partner
/s/
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Xxxx Xxxxxxxxxxx, Co-President
MEDIAONE INTERACTIVE SERVICES, INC.
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx, President
VSI HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxx
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Xxxxx X. Xxxxx, Executive Vice President
9.
XXXXXX X. XXXXXXX
/s/ Xxxxxx X. Xxxxxxx
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Xxxxxx X. Xxxxxxx
XXXX X. XXXXXXX
/s/ Xxxx X. Xxxxxxx
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Xxxx X. Xxxxxxx
XXXXXXXX X. XXXXXX
/s/ Xxxxxxxx X. Xxxxxx
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Xxxxxxxx X. Xxxxxx
XXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
10.
