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Exhibit 4.5
SHAREHOLDERS AGREEMENT
Shareholders Agreement dated as of March 10, 1999 (this "Agreement")
by and among Sage Networks, Inc., a Delaware corporation (the "Company"), and
each of the individuals or entities signatory hereto (each a "Stockholder" and
together the "Stockholders").
W I T N E S S E T H :
WHEREAS, the Company is authorized to issue (i) a total of 2,647,658
shares of Series A Convertible Preferred Stock, par value $0.01 per share
("Preferred Stock"), and (ii) a total of 100,000,000 shares of Common Stock, par
value $0.01 per share ("Common Stock"); and
WHEREAS, upon the consummation of the transactions contemplated by
the Asset Purchase Agreement, dated as of March 8, 1999, and the Agreement to
Deliver Shares, dated as of the date hereof, among the Company, Interliant
and the other parties named therein (the "Purchase Agreement" and the "Delivery
Agreement," respectively) there will be 26,832,197 shares of Common Stock issued
and outstanding, 2,647,658 shares of Preferred Stock issued and outstanding and,
pursuant to the Purchase Agreement, the Company has agreed to grant options for
the purchase of Common Stock to the existing holders of options to purchase
common stock, $ .01 par value per share, of Interliant; and
WHEREAS, upon the consummation of the transactions contemplated by
the Purchase Agreement and the Delivery Agreement, the Stockholders will own the
number of shares of Common Stock as set forth opposite their respective names on
Schedule I hereto and if any Shares are delivered to such Stockholders pursuant
to Section 3.01(b) of the Purchase Agreement, Schedule I hereto shall be amended
to include such Shares; and
WHEREAS, it is a condition to the consummation of the transactions
contemplated by the Purchase Agreement that the parties enter into this
Agreement;
WHEREAS, it is a condition to the exercise of any of the Options
that the holder of such Options be and become a Stockholder for all purposes of
this Agreement and execute and deliver to the Company a copy of this Agreement
and in such connection Schedule I hereto shall be amended to include the name of
such exercising holder of Options and the number of shares of Common Stock
issued to such holder;
WHEREAS, if any Unconverted Option Shares are delivered to Seller
pursuant to the Purchase Agreement, the Seller shall become a Stockholder for
all purposes of this Agreement and Schedule I hereto shall be amended to include
the name of the Seller.
NOW, THEREFORE, in consideration of the mutual promises, agreements
and covenants set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto, intending legally to be bound, hereby agree as follows:
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ARTICLE I.
DEFINITIONS
Section 1.01 Defined Terms. The following terms when used in this
Agreement, including its preamble and recitals, shall, except where the context
otherwise requires, have the following meanings, such meanings to be equally
applicable to the singular and plural forms thereof:
"Affiliate" shall mean, with respect to any Person, any person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person. For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities
or by contract or otherwise.
"Common Stock Equivalents" shall mean the number of shares of Common
Stock issuable upon the exercise, exchange or conversion of any security.
"Encumbrance" means any security interest, pledge, mortgage, lien,
charge, adverse claim of ownership or use, or other encumbrance of any kind.
"Equity Securities" shall mean any Common Stock, any securities
exercisable or exchangeable for or convertible into Common Stock and any rights,
options or warrants to acquire any of the foregoing.
"Expiration Date" shall mean the earliest of (a) the consummation of
the initial public offering of Common Stock by the Company or (b) a Sale
Transaction with respect to the Company.
"Interliant" shall mean Interliant, Inc., a Texas corporation.
"Interliant Holders" shall mean the Wolf Holders and the holders of
any shares of Common Stock issued upon exercise of the Options.
"Options" shall mean options issued under the 1998 Sage Networks,
Inc. Stock Option Plan upon conversion of options issued under the Wolf
Communications Company 1995 Employee Stock Option Plan as amended and the
Interliant, Inc. Lidestri Stock Option Plan and Agreement.
"Permitted Registration Rights" shall mean all piggyback
registration rights granted under this Agreement.
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"Person" shall mean and include an individual, a corporation, a
limited liability company, an association, a partnership, a joint venture, a
trust or estate, a government or any department or agency thereof, or any other
entity or governmental body.
"Preferred Stock" shall mean the Company's Series A Preferred Stock,
$.01 par value, with the rights and preferences set forth in the Certificate of
Incorporation of the Company, as amended.
"Registration Expenses" shall mean all expenses incident to the
Company's performance of or compliance with its obligations under Sections 4.01
and 4.02 hereof, including without limitation, all SEC, NASD and stock exchange
or NASDAQ registration and filing fees and expenses, fees and expenses of
compliance with applicable state securities or "blue sky" laws (including,
without limitation, reasonable fees and disbursements of counsel for the
underwriters in connection with "blue sky" qualifications of securities
registered in accordance with this Agreement), printing expenses, messenger and
delivery expenses, the fees and expenses incurred in connection with the listing
of the securities to be registered in an initial public offering on each
securities exchange or national market system on which such securities are to be
so listed and, following such initial public offering, the fees and expenses
incurred in connection with the listing of such securities to be registered on
each securities exchange or national market system on which such securities are
listed, fees and disbursements of counsel for the Company and all independent
certified public accountants retained by the Company (including the expenses of
any annual audit and "cold comfort" letters required by or incident to such
performance and compliance), all reasonable fees and expenses of one counsel to
the Stockholders in the case of a Piggyback Registration, the fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities (including the fees and expenses of any "qualified independent
underwriter" required by the NASD), the reasonable fees and expenses of any
special experts retained by the Company in connection with such registration,
fees and expenses of other Persons retained by the Company in connection with
such registration, all transfer taxes with respect to the shares of Common Stock
sold by a Stockholder and all other expenses incurred by Stockholders customary
for and incidental to the sale and delivery of the shares of Common Stock to be
sold by such Stockholders (but not including any underwriting discounts or
commission, if any, attributable to the sale of Common Stock by holders of such
Common Stock other than the Company).
"Sale Transaction" shall mean a sale of all or substantially all of
the assets of the Company, or a merger or consolidation of the Company
(including a triangular merger involving any subsidiary thereof) with or into
any other entity (other than a merger or consolidation in which shares of the
Company's voting capital stock outstanding immediately before such merger or
consolidation are exchanged or converted into or constitute shares which
represent more than fifty percent (50%) of the surviving entity's voting capital
interests after such consolidation or merger) or a transaction or series of
related transactions in which a person or group of persons (as defined in Rule
13d-5(b)(1) of the Securities Exchange Act of 1934, as amended), acquires
beneficial ownership (as determined in accordance with Rule 13d-3 of such Act)
of more than 50% of the voting power of the Company; provided, however, that any
reorganization, merger or consolidation involving (1) only a change in the state
of incorporation of the Company or (2) a
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merger of the Company with or into a wholly-owned subsidiary of the Company that
is incorporated in the United States of America shall not constitute a "Sale
Transaction".
"SEC" shall mean the Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Stock" shall mean the Common Stock and the Preferred Stock.
"WHO" shall mean WEB Hosting Organization L.L.C., a Delaware limited
liability company.
"Wolf Holders" shall mean Xxxxxx Xxxx, Xxx Xxxxxxxx Xxxx 1995
Marital Trust, Xxxxxx X. Xxxx Children's Trust, Xxxxxxx Xxxxxx, Broadview
Holdings LLP and the Seller if it becomes the holder of the Unconverted Option
Shares.
ARTICLE II.
VOTING AGREEMENT
Section 2.01 Board of Directors of the Company. So long as the Wolf
Holders own at least 5% of the issued and outstanding Common Stock, the Wolf
Holders shall have the right to nominate one person for election as a director
of the Company (the "Wolf Representative") which person shall be subject to the
approval of the Company, which approval shall not be unreasonably withheld. The
members of Web Hosting Organization LLC ("WEB"), the Company's principal
stockholder, have the right to nominate seven persons for election as directors
of the Company. The members of WEB are Charterhouse Equity Partners III, L .P.
and Chef Nominees Limited which collectively shall have the right to nominate
four persons for election as directors of the Company (the "Charterhouse
Representatives) and WHO Management LLC ("WHO") which shall have the right to
nominate three persons for election as directors of the Company (the "WHO
Representatives").
Section 2.02 Covenant to Vote. (a) Each of the Stockholders shall
appear in person or by proxy at any annual or special meeting of stockholders
for the purpose of obtaining a quorum and shall vote or cause the vote of the
shares of Stock owned by such Stockholder or by any Affiliate of such
Stockholder, either in person or by proxy, at any annual or special meeting of
stockholders of the Company called for the purpose of voting on the election, if
such director has been nominated by the Wolf Holders for election, or removal,
if such director has been designated by the Wolf Holders for removal, of
directors, or by consensual action of stockholders with respect to such election
or removal of directors, in favor of such election of the director so nominated,
or removal of the director so designated, in accordance with Section 2.01 and
for the replacement of the director in accordance with Section 2.01. In
addition, each of the Stockholders shall appear in person or by proxy at any
annual or special meeting of stockholders for the purpose of obtaining a quorum
and shall vote or cause the vote of the shares of Stock owned by such
Stockholder or any Affiliate of such Stockholder upon any matter submitted to a
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vote of the stockholders of the Company in a manner so as to be consistent and
not in conflict with, and to implement, the terms of this Agreement.
(b) WEB shall appear in person or by proxy at any annual or
special meeting of stockholders for the purpose of obtaining a quorum and shall
vote or cause the vote of the shares of Stock owned by it or by any of its
Affiliates, either in person or by proxy, at any annual or special meeting of
stockholders of the Company called for the purpose of voting on the election, if
such director has been nominated by Charterhouse or WHO for election, or
removal, if such director has been designated by Charterhouse or WHO for
removal, of directors, or by consensual action of stockholders with respect to
such election or removal of directors, in favor of such election of the director
so nominated, or removal of the director so designated, in accordance with
Section 2.01 and for the replacement of the director in accordance with Section
2.01. In addition, WEB shall appear in person or by proxy at any annual or
special meeting of stockholders for the purpose of obtaining a quorum and shall
vote or cause the vote of the shares of Stock owned by it or any of its
Affiliates upon any matter submitted to a vote of the stockholders of the
Company in a manner so as to be consistent and not in conflict with, and to
implement, the terms of this Agreement.
Section 2.03 Vacancies/Removals. The Wolf Representative shall be
subject to removal by a majority in interest of the Wolf Holders at any time,
with or without cause. The Charterhouse Representatives and the WHO
Representatives shall be subject to removal by a Charterhouse or WHO,
respectively, any time, with or without cause. Any of Charterhouse, WHO or a
majority in interest of the Wolf Holders shall have the right to call a special
meeting of Stockholders at any time, and from time to time, for the sole purpose
of designating to or removing from the Board of Directors of the Company, with
or without cause, any person or persons nominated by Charterhouse, WHO or a
majority in interest of the Wolf Holders, as the case may be, for election as a
director. If the Wolf Holders call such a special meeting, the Stockholders
shall vote all of their Stock in support of such removal and for the election of
such director or replacements as may be nominated by a majority in interest of
the Wolf Holders.
Section 2.04 No Voting or Conflicting Agreements. Each of the
Stockholders agrees that it will not and will not permit any Affiliate to grant
any proxy or enter into or agree to be bound by any voting trust with respect to
its shares of Stock or to enter into any stockholder agreements or arrangements
of any kind with any Person with respect to its shares of Stock in any such case
in a manner that is inconsistent with the provisions of this Agreement.
Section 2.05 Actions Consistent with Agreement. The Company shall
not take any action inconsistent with the provisions of this Agreement.
Section 2.06 Expiration of Rights. The rights granted pursuant to
this Article 2 shall expire and be of no further force and effect as of the date
that the Wolf Holders own less than 5% of the issued and outstanding Common
Stock.
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ARTICLE III.
RESTRICTIONS ON TRANSFERS BY THE STOCKHOLDER
Section 3.01 Restrictions on Transfers Generally. Each Stockholder
hereby agrees that such Stockholder shall not, and shall not permit any
Affiliate to, directly or indirectly, transfer, sell or otherwise dispose of, or
create, incur or assume any Encumbrance with respect to any shares of Stock or
Equity Securities other than (i) pursuant to an effective registration statement
under the Securities Act or (ii) pursuant to an exemption from registration
under the Securities Act and any state securities or Blue Sky laws.
Section 3.02 Tag Along Right. If WHO proposes to transfer shares of
Stock or Equity Securities to any Person or Persons (other than to an Affiliate)
in a transaction, WHO shall notify the Wolf Holders in writing (the "Tag Along
Notice") of such proposed transfer and its terms and conditions. Within fifteen
(15) days of receipt of a Tag Along Notice, each Wolf Holder shall notify WHO if
it elects to participate in such transfer ("Tag Along Right") and shall state
the number of shares of Stock that such Wolf Holder desires to sell. Upon
electing to transfer, the Wolf Holders shall be obligated to sell, at the same
price and on the same terms as WHO, the number of shares stated in its notice to
WHO. The Wolf Holders may elect to sell such number of shares of Stock as is
equal to the aggregate number of shares of Stock and number of Equity Securities
to be transferred in such transaction multiplied by a fraction, the numerator of
which shall be the aggregate number of shares of Stock held by the Wolf Holders
(calculated on a fully diluted basis) and the denominator of which shall be the
aggregate number of shares of Stock and number of Equity Securities held by all
transferors (calculated on a fully diluted basis). The Wolf Holders shall agree
to enter into a purchase agreement in form and substance approved by WHO to the
extent such agreement shall contain customary representations as to ownership of
the shares to be purchased and the absence of liens thereon. If the sale is not
consummated within one hundred eighty (180) days following the delivery of the
Tag Along Notice, then a Wolf Holder shall no longer be obligated to sell its
shares of Stock pursuant to such Tag Along Right but shall remain subject to the
provisions of this Section 3.02 with respect to any subsequent proposed transfer
described in this Section 3.02. In the event that the proposed transferee does
not purchase all the shares of Stock that a Wolf Holder elects to sell pursuant
to the foregoing on the same terms and conditions as the securities purchased
from WHO, then WHO shall not be permitted to sell any securities to the proposed
transferee. If no Tag Along Notice is received by the end of the 15 days
referred to above, WHO shall have the right for a 180 day period thereafter to
transfer the securities to the proposed transferee on terms and conditions no
more favorable to WHO than those stated in the Tag Along Notice and in
accordance with the provisions of this Section 3.02.
Section 3.03 Drag Along Right. (a) If at any time the Company or WHO
(the "Proposing Investor") proposes to transfer in a bona fide arm's-length sale
all or substantially all of the shares of capital stock of the Company or the
Stock and Equity Securities owned by WHO to any Person or Persons who are not
Affiliates of the Proposing Investor (the "Proposed Transferee"), the Proposing
Investor shall have the right (the "Drag Along Right"), subject to applicable
law and compliance with any other restrictions applicable to such transfer, to
require
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all Interliant Holders to sell, pursuant to Section 3.03(b), to the Proposed
Transferee, on the same terms and conditions as applicable to the Proposing
Investors except as limited in Section 3.03(b), such number of shares of Stock
as is equal to the aggregate number of shares of Stock and number of Equity
Securities to be transferred in such transaction multiplied by a fraction, the
numerator of which shall be the aggregate number of shares of Stock held by the
Interliant Holders (calculated on a fully diluted basis) and the denominator of
which shall be the aggregate number of shares of Stock and number of Equity
Securities held by all transferors (calculated on a fully diluted basis).
(b) To exercise a Drag Along Right, the Proposing Investor shall
give the Company and each Interliant Holder (each, a "Drag Along Investor"), at
least fifteen (15) days prior to the proposed transfer to the Proposed
Transferee, a written notice (the "Drag Along Notice") containing (a) the name
and address of the Proposed Transferee and (b) the proposed purchase price and
the terms of payment and other material terms and conditions of the Proposed
Transferee's offer. Each Drag Along Investor shall thereafter be obligated to
sell its shares of Stock to the Proposed Transferee (such number of shares of
Stock to be calculated in accordance with Section 3.03(a)). Each such Drag Along
Investor shall agree to enter into a purchase agreement in form and substance
approved by the Proposing Investor to the extent such agreement shall contain
customary representations from each Drag Along Investor as to ownership of the
shares to be purchased and the absence of liens thereon and customary
indemnification provisions solely with respect to such representations from the
Drag Along Investor. If the sale is not consummated within a period of one
hundred eighty (180) days following the date of the Drag Along Notice, then each
Drag Along Investor shall no longer be obligated to sell such Drag Along
Investor's shares of Stock pursuant to such Drag Along Right but shall remain
subject to the provisions of this Section 3.03 with respect to any subsequent
proposed transfer described in this Section 3.03. The Drag Along Investor shall
not be required to participate in a proposed transfer pursuant to the exercise
of a Drag Along Right unless its liability for breaches of representations and
warranties made in connection with the sale thereunder is limited to no more
than the total sale price received by such Drag Along Investor in such sale.
Section 3.04 Permitted Transfers. The Interliant Holders agree not
to transfer or otherwise dispose of any Stock of the Company or use any Stock of
the Company as collateral for the purposes of securing any indebtedness for
borrowed money or otherwise; provided, however, the Interliant Holders (a) shall
transfer their shares of Stock as required by Section 3.03, (b) may transfer
their shares of Stock (i) in accordance with Section 3.02 or Section 3.06, (ii)
to another Wolf Holder or an Affiliate of an Interliant Holder that is an
investment fund or similar entity and that, in the reasonable judgment of the
Company, is not a competitor of the Company, (iii) by gift or bequest or through
inheritance to, or for the benefit of, a spouse or children, (iv) by will or the
laws of descent and distribution or (v) to generate proceeds used to pay taxes
incurred by the Wolf Holders in connection with the transactions contemplated by
the Purchase Agreement and the Agreement to Deliver Shares.
Section 3.05 Transferees Subject to Agreement. In the event of any
transfer of shares of Stock by any Interliant Holder pursuant to this Agreement,
the transferee shall hold
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such shares of Stock so acquired with all the rights conferred by, and subject
to all of the restrictions imposed by, this Agreement applicable to the
transferor of such shares of Stock. Any transferee of any shares of Stock shall,
as a condition of the consummation of such transfer, agree to be subject to the
terms of this Agreement.
Section 3.06 Right of FIrst Refusal. (a) If, at any time, any
Interliant Holder desires to sell, transfer or otherwise dispose of any shares
of Stock then owned by such Interliant Holder (other than transfers pursuant to
(i) an effective registration statement under the Securities Act, (ii) Section
3.02, (iii) Section 3.03 or (iv) Section 3.04 (b)(ii), (iii) and (iv)) to any
third party pursuant to a bona fide offer, such Interliant Holder (the "Seller")
shall first give a written notice to the Company and WHO (the "Seller's Notice")
stating the Seller's desire to make such sale, transfer or other disposition and
the terms of the offer, including the identity of the person making the offer
(the "Bona Fide Purchaser"), the amount and kind of securities proposed to be
transferred and the purchase price offered to the Seller by the Bona Fide
Purchaser. The Seller's Notice shall constitute an irrevocable offer by the
Seller to sell to WHO or its Members (the "Eligible Investors") and the Company
such securities at the price and on the terms offered by the Bona Fide
Purchaser.
(i) Within 10 business days after the receipt by WHO and the Company of
the Seller's Notice, the Company may elect to purchase such
securities at the price and on the terms offered by the Bona Fide
Purchaser in cash under this Section 3.06(a) by giving notice to the
Seller, with copies to WHO and the Eligible Investors as to the
number, if any, of such securities it is electing to purchase (the
"Company Notice"). The election to purchase such securities shall be
made on behalf of the Company by those members of the Board of
Directors of the Company not affiliated or associated with the
Seller. The Company Notice shall be deemed to be an irrevocable
commitment to purchase from the Seller in cash at the price and on
the terms offered by the Bona Fide Purchaser the number of such
securities that the Company specifies in the Company Notice. If the
Company elects to purchase any of such securities, the Company shall
have 20 business days from the date the Company Notice has been sent
to fund such purchase.
(ii) If the Company does not elect to purchase all of such securities,
WHO may elect (within 5 business days after the receipt by WHO of
the Company Notice) to purchase such securities at the price and on
the terms offered by the Bona Fide Purchase in cash under this
Section 3.06(a) by giving a notice to the Seller, with copies to the
Company and the Eligible Investors, as to the number of such
securities, if any, it is electing to purchase (the "WHO Notice").
The WHO Notice shall be deemed to be an irrevocable commitment to
purchase from the Seller in cash at the price and on the terms
offered by the Bona Fide Purchaser the number of such securities
that WHO has elected to purchase pursuant to the WHO Notice. If WHO
elects to purchase any of such securities, WHO shall have 20
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business days from the date the WHO Notice has been sent to fund
such purchase.
(iii) If the Company and WHO do not elect to purchase all of such
securities, any Eligible Investor may elect (within 5 business days
after the date of receipt by the Eligible Investors of the WHO
Notice) to purchase such securities at the price and on the terms
offered by the Bona Fide Purchaser in cash under this Section
3.06(a) by giving a notice to the Seller, with a copy to the Company
and WHO as to the number of such securities, if any, it is electing
to purchase (the "Eligible Investor Notice"). Each Eligible Investor
that is given an Eligible Investor Notice shall be allocated a
portion of the remaining securities pro rata based on its ownership
interest in WHO. The Eligible Investor Notice shall be deemed to be
an irrevocable commitment to purchase from the Seller in cash at the
price and on the terms offered by the Bona Fide Purchaser the number
of such securities that the Company specified in the Eligible
Investor Notice. If an Eligible Investor elects to purchase any of
such securities, such Eligible Investor shall have 20 business days
from the date the Eligible Investor Notice has been sent to fund
such purchase.
(b) If the Company, WHO and the Eligible Investors fail to elect to
purchase such securities within the time periods specified in Section 3.06(a),
then the Seller (i) shall be under no obligation to sell any of such securities
to WHO, the Company or any Eligible Investors, unless the Seller so elects, and
(ii) may, within a period of one hundred and eighty (180) days from the date of
the Seller's Notice, sell all (but not less than all) such securities to the
Bona Fide Purchaser in cash at a price per share not less than the price and on
the terms offered by the Bona Fide Investor; provided, however, that such Bona
Fide Purchaser shall, in accordance with the provisions of Section 3.05 hereof,
agree to execute and be bound by the terms of this Agreement to the same extent
and in the same manner as the Seller of such shares.
Section 3.07 Restrictive Legends. Each share of Stock and Equity
Securities shall bear a legend in substantially the following form:
The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended, and neither
the securities nor any interest therein may be offered, sold,
transferred, pledged or disposed of in the absence of such
registration or an exemption under such Act and the rules and
regulations thereunder. The securities represented by this
certificate are subject to, and are transferable only upon
compliance with, the provisions of the Shareholders Agreement dated
as of March 2, 1999 among Sage Networks, Inc. and certain of its
shareholders. A copy of the above-referenced agreement is on file at
the office of Sage Networks, Inc.
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Section 3.08 Expiration of Restrictions. The restrictions set forth
in Article III hereof shall expire and be of no further force and effect as of
the Expiration Date.
ARTICLE IV.
REGISTRATION RIGHTS
Section 4.01 Piggyback Registration. (a) If the Company proposes
(including in connection with any demand registration by a Stockholder) to file
any registration statement under the Securities Act with respect to any Stock or
Equity Security (other than pursuant to a registration statement on Form S-4 or
S-8 or any successor or similar forms in connection with an exchange offer or
any offering of securities solely to the Company's then existing stockholders or
employees of the Company and its subsidiaries and other than in connection with
the Company's initial public offering), the Company shall give written notice of
such proposed filing to the Wolf Holders at least 30 days prior to such proposed
filing. Such notice shall offer to the Wolf Holders the opportunity to include
in such registration statement for resale by the Stockholders, such number of
shares of Common Stock each may request in a written notice to the Company
(which notice shall specify the number of shares to be disposed of by such
holder and the intended method of disposition thereof) within 20 days after the
receipt of such notice from the Company (a "Piggyback Registration"). The
Company shall permit, or shall cause the managing underwriter of any such
proposed offering to permit, the shares of Stock or Equity Securities requested
to be included in the registration to be included on the same terms and
conditions as are applicable to the other Stock or Equity Securities included in
such registration statement. The Company or such subsidiary, as applicable,
shall not be required to maintain the effectiveness of the registration
statement beyond the earlier to occur of (i) 180 days after the effective date
of the registration statement; and (ii) consummation of the distribution by the
Wolf Holders of the shares of Stock or Equity Securities that are included in
such registration statement.
(b) If the managing underwriter or underwriters, if any, advise the
Wolf Holders and in writing that in its or their opinion that, the number of
securities proposed to be sold in such registration (including securities to be
included pursuant to Section 4.01(a) above) will materially adversely affect the
success of such offering, the Company will include in such registration the
number of securities, if any, which in the opinion of such underwriter or
underwriters, or the Company or such subsidiary, as the case may be, can be sold
as follows: (i) first, the shares the Company proposes to sell; (ii) second, the
shares of Common Stock requested to be included in such registration by WHO, the
purchasers of the Preferred Stock and the Wolf Holders; and (iii) third, the
securities requested to be included by each other Person exercising any
Piggyback Registration rights; provided that (a) if all shares requested to be
included in such Piggyback Registration by members of any group set forth above
are not to be included, selection of shares to be included from within such
groups shall be made pro rata based on the number of shares that each member of
such group holds and (b) the Wolf Holders shall not have the right to register
shares pursuant to this Section 4.01 if the Company is at such time, and has
been continuously during the immediately preceding three years, subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act and such
Stockholder is then entitled to
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sell all of its shares of Stock or Equity Securities without any volume
restrictions pursuant to Rule 144 of the Securities Act or all of such shares of
Stock or Equity Securities may be sold pursuant to Rule 144(k) of the Securities
Act.
Section 4.02 Holdback Agreement. Notwithstanding any other provision
in this Article 4, the Company and The Wolf Holders each agree that it will not,
and the Company shall use its best efforts to not permit any Affiliate to (and
it shall be a condition to the rights of each Stockholder under this Article 4
that such Stockholder does not) offer for public sale any shares of Common Stock
or Equity Securities, or effect any sale of securities pursuant to Rule 144,
during the 10 days prior to and the 180 days after the closing date of any
underwritten offering thereunder unless such shares are covered by such
registration statement or such shorter period is agreed to by any managing
underwriter or underwriters of such offering.
Section 4.03 Expenses. All Registration Expenses, disbursements and
fees incurred by the Company and the Stockholders in connection with any
registration under this Article 4 shall be borne by the Company.
Section 4.04 Registration Procedures. In connection with the
registration of shares of Stock or Equity Securities under the Securities Act
pursuant to this Agreement, the Company, will furnish each Stockholder whose
shares of Stock or Equity Securities are registered thereunder and each
underwriter, if any, with a copy of the registration statement (including all
exhibits thereto) and all amendments thereto and will supply each such
Stockholder and each underwriter, if any, with copies of any prospectus included
therein (including a preliminary prospectus and all amendments and supplements
thereto) in such quantities as may be reasonably necessary for the purposes of
the proposed sale or distribution covered by such registration.
Notwithstanding anything to the contrary herein, the only securities
which the Company shall be required to register pursuant to this Article 4 shall
be shares of Common Stock; provided, however, that in any underwritten public
offering, the holders of Preferred Stock and any securities exercisable or
exchangeable for or convertible into Common Stock, and any rights, options or
warrants to acquire any of the foregoing, shall be entitled to sell such
securities to the underwriters for exercise, exchange or conversion and sale of
the shares of Common Stock issued upon exercise, exchange or conversion thereof.
In connection with the Company's registration obligations pursuant
to this Article 4, the Company will use its best efforts to effect such
registration to permit the sale of such shares of Stock or Equity Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto the Company will:
(a) prepare and file with the SEC, as soon as practicable after
receiving a written notice pursuant to Section 4.02, a registration statement on
any appropriate form under the Securities Act, which form shall be selected by
the Company (and shall be reasonably acceptable to any managing underwriter
chosen by holders of shares covered by such registration statement) and shall be
available for the sale of the shares in accordance with the intended
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method or methods of distribution thereof, and use its reasonable efforts to
cause such registration statement to become effective; provided that before
filing a registration statement or any prospectus related thereto or any
amendments or supplements thereto, including documents incorporated by reference
after the initial filing of any registration statement, the Company will furnish
copies of all such documents proposed to be filed to the holders of the shares
covered by such registration statement and underwriters, if any, and make the
Company's representatives available for discussion of such documents and other
relevant matters and shall reasonably consider such changes in such documents
prior to the filing thereof as such holders or underwriters may timely and
reasonably request. If any Stockholder whose shares of Stock or Equity
Securities are covered by such registration statement shall reasonably object to
any disclosure in or omission from any registration statement or any amendment
thereto or any prospectus or any supplement thereto (including documents
incorporated by reference) which the Company in good faith on the advice of
counsel believes is necessary or appropriate to be included therein or omitted
therefrom, and prior to the effectiveness of such registration advises the
Company that it chooses not to participate in such offering, such Stockholder
may choose not to participate in such offering;
(b) prepare and file with the SEC such amendments and post-effective
amendments to the registration statement as may be necessary to keep such
registration statement effective for the required duration thereof; cause the
related prospectus to be supplemented by any required prospectus supplement, and
as so supplemented to be filed pursuant to Rule 424 under the Securities Act;
and comply with the relevant provisions of the Securities Act during the
applicable period in accordance with the intended methods of disposition by the
sellers thereof set forth in such registration statement or supplement to such
prospectus;
(c) notify the selling Stockholders and the managing underwriters if
any, promptly, and (if requested by any such holder) confirm such advice in
writing, (A) when a prospectus or any prospectus supplement or post-effective
amendment has been filed, and, with respect to a registration statement or any
post-effective amendment, when the same has become effective, (B) of any request
by the SEC for amendments or supplements to a registration statement or related
prospectus or for additional information, (C) of the issuance by the SEC of any
stop order suspending the effectiveness of a registration statement or the
initiation of any proceedings for that purpose, (D) of the receipt by the
Company of any written notification with respect to the suspension of the
qualification of any of the shares for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose, and (E) of the
existence of any fact known to the Company which results in a registration
statement, a prospectus or any document incorporated therein by reference
containing an untrue statement of a material fact or omitting to state a
material fact necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading;
(d) use reasonable efforts to obtain the withdrawal of any order
suspending the effectiveness of a registration statement at the earliest
practicable moment;
(e) if reasonably requested by the managing underwriters or a
selling Stockholder, promptly incorporate in a prospectus supplement or
post-effective amendment such
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information as the managing underwriters or a selling Stockholder agree should
be included therein, subject to the last sentence of Section 4.05(a); and
promptly make all required filings of such prospectus supplement or
post-effective amendment as soon as notified of the matters to be incorporated
in such prospectus supplement or post-effective amendment;
(f) prior to any public offering of Stock or Equity Securities,
register or qualify or cooperate with the selling Stockholders, the managing
underwriters, if any, and their respective counsel in connection with the
registration or qualification of such shares for offer and sale under the
securities or "blue sky" laws of such jurisdictions within the United States as
any seller or underwriter reasonably requests in writing and do any and all
other acts or things reasonably necessary or advisable to enable the disposition
in such jurisdictions of the shares of Common Stock covered by the applicable
registration statement; provided that the Company will not be required to
qualify generally to do business in any jurisdiction where it would not
otherwise be required to be so qualified or to take any action which would
subject itself to taxation (other than a nominal amount) in any such
jurisdiction or to general service of process in any jurisdiction where it is
not then so subject;
(g) cooperate with the selling Stockholders and the managing
underwriters, if any, to facilitate the timely preparation and delivery of
certificates representing shares of Common Stock to be sold and not bearing any
restrictive legends; and enable such shares to be in such denominations and
registered in such names as the managing underwriters may request at least two
business days prior to any sale of shares to the underwriters;
(h) use its best efforts to cause the shares covered by the
applicable registration statement to be listed or registered with or approved by
any stock exchange or quotation system on which the shares of Stock or Equity
Securities are then listed and by such governmental agencies or authorities
within the United States as may be reasonably necessary to enable the seller or
sellers thereof or the underwriters, if any, to consummate the disposition of
such shares;
(i) if any fact contemplated by Section 4.05 (c)(E) shall exist,
prepare a supplement or post-effective amendment to the applicable registration
statement or the related prospectus or any document incorporated therein by
reference or file any other required document so that, as thereafter delivered
to the purchasers of the shares of Stock or Equity Securities being sold
thereunder, such prospectus will not contain any untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading;
(j) provide a CUSIP number for all shares of Stock or Equity
Securities, no later than the effective date of the applicable registration
statement;
(k) enter into such agreements (including an underwriting agreement)
and take all such other actions in connection therewith in order to expedite or
facilitate the disposition of such shares of Stock or Equity Securities and in
such connection, whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten
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registration: (A) make such representations and warranties to the holders of
such shares and the underwriters, if any, in form, substance and scope as are
customarily made by issuers to underwriters in primary underwritten offerings;
(B) obtain opinions of counsel to the Company (including counsel which may be an
employee of the Company) and updates thereof which counsel and opinions (in
form, scope and substance) shall be reasonably satisfactory to the managing
underwriters, if any, covering the matters customarily covered in opinions
requested by such holders and underwriters; (C) obtain "cold comfort" letters
and updates thereof from the Company's independent certified public accountants,
addressed to the selling holders and the underwriters, if any, such letters to
be in customary form and covering matters of the type customarily covered in
"cold comforts" letters to underwriters in connection with primary underwritten
offerings; (D) if any underwriting agreement is entered into, the same shall set
forth in full the indemnification provisions and procedures of Section 4.06 with
respect to all parties to be indemnified pursuant to such Section 4.06; and (E)
the Company shall deliver such documents and certificates as may be reasonably
requested by the holders of the Stock or Equity Securities being sold and the
managing underwriters, if any, to evidence compliance with clause (A) hereof and
with any customary conditions contained in the underwriting agreement or other
agreement entered into by the Company. The above shall be done at each closing
under such underwriting or similar agreement or as and to the extent otherwise
reasonably required thereunder;
(l) make available for inspection during normal business hours by a
representative of each Stockholder, any underwriter participating in any
disposition pursuant to a registration statement and any attorney or accountants
retained by such selling Stockholders or underwriter, all financial and other
records, pertinent corporate documents and properties of the Company, and cause
the Company's officers, directors and employees to supply all information
reasonably requested by such representative, underwriter, attorney or accountant
in connection with such registration statement; provided, that such
Stockholders, underwriters, attorneys or accountants execute prior thereto an
agreement with the Company that all such records, information or document shall
be kept confidential by such persons unless (A) disclosure of such records,
information or documents is required by law or by court or administrative order,
or (B) such records, information or documents are or become (but only when they
become) generally available to the public other than as a result of disclosure
in violation of this paragraph; and
(m) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make generally available to the
Stockholders earnings statements satisfying the provisions of Section 1l(a) of
the Securities Act no later than 45 days after the end of any 12-month period
(or 90 days, if such period is a fiscal year) (A) commencing at the end of any
fiscal quarter in which shares of Stock or Equity Securities are sold to
underwriters in an underwritten offering, or (B) if not sold to underwriters in
such an offering beginning with the first month of the Company's first fiscal
quarter commencing after the effective date of the registration statement, which
statements shall cover such 12-month periods.
The Company may require each Stockholder who is a party hereto as to
which any registration is being effected to furnish to the Company such
information and undertakings
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as it may reasonably request regarding such Stockholder and the distribution of
such securities as the Company may from time to time reasonably request in
writing.
Each Stockholder who is a party hereto agrees (i) that upon receipt
of any notice from the Company of the happening of any event of the kind
described in Section 4.05 (c)(E) such Stockholder will forthwith discontinue
such Stockholder's disposition of shares of Stock or Equity Securities pursuant
to the registration statement relating to such shares until such Stockholder's
receipt of the copies of the supplemented or amended prospectus contemplated by
Section 4.05(i) and, if so directed by the Company, will deliver to the Company
(at the Company's expense) all copies then in such Stockholder's possession of
the prospectus relating to such shares current at the time of receipt of such
notice and (ii) that such Stockholder will immediately notify the Company, at
any time when a prospectus relating to the registration of such shares is
required to be delivered under the Securities Act, of the happening of any event
as a result of which information previously furnished by such holder to the
Company in writing for inclusion in such prospectus contains an untrue statement
of a material fact or omits to state any material fact required to be stated
therein, or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
Section 4.05 Indemnification and Contribution. (a) Indemnification.
(i) In the event of any registration under the Securities Act of any shares of
Stock pursuant to this Article 4, the Company hereby agrees to indemnify and
hold harmless each Stockholder offering or selling such shares and any
underwriter, and their respective officers, directors, stockholders, members,
partners and affiliates, in connection with such offer or sale against such
losses, claims, damages, liabilities, costs or expenses (including reimbursement
for reasonable legal and other expenses) to which any such person may become
subject under the Securities Act or otherwise insofar as such losses, claims,
damages, liabilities, costs or expenses arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such shares were registered under the
Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, or any
application or other filing under any "blue sky" or state securities law, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, provided that the
Company shall not be liable in any such case to the extent that any such loss,
claim, damage, liability (or action or proceeding in respect thereof), cost or
expense arises out of or is based upon an untrue statement or omission or
alleged omission made in such registration statement, preliminary prospectus,
final prospectus, summary prospectus, amendment or supplement, or application or
other filing, in reliance upon and in conformity with written information
furnished to the Company through an instrument duly executed by any holder of
the Company's securities or underwriter.
(ii) In the event of any registration under the Securities Act of any
shares of Common Stock pursuant to this Article 4, each Stockholder
whose shares of Stock or Equity Securities are included in such
registration hereby agrees to indemnify and hold harmless, but only
for an amount, with respect to such Stockholder, not in excess of
the net proceeds realized by
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such Stockholder from the sale of its shares of Common Stock
registered pursuant to such registration statement, both the Company
and its officers, directors, stockholders and affiliates, and any
underwriter, and their respective officers, directors, stockholders
and affiliates, in connection with such offer or sale against such
losses, claims, damages, liabilities, costs or expenses (including
reimbursement for reasonable legal and other expenses) to which any
such person may become subject under the Securities Act or otherwise
insofar as such losses, claims, damages, liabilities, costs or
expenses arise out of or are based solely upon any untrue statement
or alleged untrue statement of any material fact contained in any
registration statement under which such shares were registered under
the Securities Act, any preliminary prospectus, final prospectus or
summary prospectus contained therein, or any amendment or supplement
thereto, or any application or other filing under any "blue sky" or
state securities law, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under
which they were made, not misleading, to the extent that such untrue
statement or omission or alleged omission made in such registration
statement, any such preliminary prospectus, final prospectus,
summary prospectus, amendment or supplement, or application or other
filing, is contained in any written information furnished to the
Company through an instrument duly executed by such holder.
(b) Contribution. (i) If the indemnification provided for in Section
4.06(a) is unavailable to persons to be indemnified pursuant thereto in respect
of any losses, claims, damages, liabilities, costs or expenses referred to
therein, then the Company, in lieu of indemnifying such person, shall contribute
to the amount paid or payable by such person as a result of such losses, claims,
damages, liabilities, costs or expenses, in such proportion as is appropriate to
reflect the relative fault of the Company and such persons in connection with
the actions which resulted in such losses, claims, damages, liabilities, costs
or expenses, as well as any other relevant equitable considerations. The
relative fault of the Company and such persons shall be determined by reference
to, among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
the Company or such persons, and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such action. The amount
paid or payable by a party as a result of the losses, claims, damages,
liabilities, costs and expenses referred to above shall be deemed to include any
legal or other fees or expenses reasonably incurred by such party in connection
with any investigation or proceeding.
(ii) The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 4.06(b) were determined by pro
rata allocation or by any other method of allocation which does not
take account of the equitable considerations referred to in the
immediately
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preceding paragraph. Notwithstanding the provisions of this Section
4.06(b), an indemnified person shall not be required to contribute
any amounts in excess of the amount by which the total price at
which the shares of Stock or Equity Securities were sold by such
indemnified person and distributed to the public exceeds the amount
of any damages which such indemnified person has otherwise been
required to pay by reason of such untrue or alleged untrue statement
or omission or alleged omission and provided, however, that such
Stockholder's aggregate liability shall be limited to the net
proceeds realized by such Stockholder in such offering. No person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
(iii) If indemnification is available under this Section 4, the Company
shall indemnify each indemnified party to the full extent provided
herein without regard to the relative fault of the Company or the
indemnified party or any other equitable consideration provided for
in this Section 4.06(b).
(iv) In the event that any provisions of an indemnification clause in an
underwriting agreement executed by or on behalf of a holder differs
from a provision in this Article IV, such provision in the
underwriting agreement shall determine such holder's rights in
respect thereof.
ARTICLE V.
CERTAIN REPRESENTATIONS AND COVENANTS
Section 5.01 Stockholder Representation. Each Stockholder represents
and warrants as to itself that, in the case of the Wolf Holders, as of the
Closing Date and in the case of the other Interliant Holders as of the date such
Interliant Holder becomes a Stockholder under this Agreement (after giving
effect to all transactions occurring on or as of such date) such Stockholder is
not a party with any other Person to any other agreement with respect to the
holding, voting, acquisition or disposition of shares of Stock except as
previously disclosed to the other Stockholders.
Section 5.02 Company Representation. The Company represents and
warrants that as of the Closing Date (after giving effect to all transactions
occurring on or as of the Closing Date) (i) it is not a party with any other
Person to any other agreement with respect to the holding, voting, acquisition
or disposition of shares of Stock or Equity Securities to the other
Stockholders, and (ii) it has not granted to any other Person any other
registration rights with respect to capital stock of the Company, and no holder
of any capital stock of the Company shall have as of the date hereof any right
to require registration of any capital stock of the Company under the Securities
Act or to include any security in any registration statement filed by the
Company under the Securities Act except pursuant hereto; provided, however, that
the Company
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is a party to the Registration Rights Agreement dated as of December 8, 1997,
between the Company and WHO and the Investors Agreement dated as of January 28,
1999, between the purchasers of the Preferred Stock, WHO and the Company (the
"Prior Agreements"). The Prior Agreements remain in full force and effect except
as modified by Section 4.01(b) hereof.
Section 5.03 Lock-up Agreement. The Interliant Holders agree with
the Company to execute and deliver to the underwriters in connection with the
Company's initial public offering, a lock-up agreement in customary form,
restricting the transfer by the Interliant Holders of shares of Common Stock for
a period of not more than 180 days following the closing of such initial public
offering, provided that the lock-up period for any Interliant Holder shall not
be longer than the lock-up period applicable to WHO.
Section 5.04 Registration Statement on Form S-8. The Company agrees
to file a Registration Statement on Form S-8 with the Securities and Exchange
Commission promptly upon completion of the initial public offering of Company's
Common Stock in order to register the Company's 1998 Stock Option Plan (the
"Plan") and the shares of Common Stock issuable upon exercise of Options granted
pursuant to the Plan.
ARTICLE VI.
MISCELLANEOUS
Section 6.01 Injunctive Relief. It is acknowledged that it will be
impossible to measure in money the damages that would be suffered if the parties
fail to comply with certain of the obligations imposed on them by this
Agreement, including, without limitation, those obligations set forth in Article
II, Article III, Article IV and Article V and that in the event of any such
failure, an aggrieved Person will be irreparably damaged and will not have an
adequate remedy at law. Any such Person shall, therefore, be entitled to
injunctive relief and/or specific performance to enforce such obligations, and
if any action should be brought in equity to enforce any of such provisions of
this Agreement, none of the parties hereto shall raise the defense that there is
an adequate remedy at law.
Section 6.02 Further Assurances. Each party hereto shall do and
perform or cause to be done and performed all such further acts and things and
shall execute and deliver all such other agreements, certificates, instruments
and documents as any other party hereto reasonably may request in order to carry
out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
Section 6.03 Governing Law. This Agreement shall be construed and
enforced in accordance with, and the rights of the parties shall be governed by,
the laws of the State of New York.
Section 6.04 Entire Agreement; Amendment; Waiver. This Agreement (i)
contains the entire agreement among the parties hereto with respect to the
subject matter hereof, (ii) supersedes all prior written agreements and
negotiations and oral understandings, if any, with respect thereto, (iii) may
not be amended or supplemented except by an instrument or
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counterparts thereof in writing signed by the Company and WHO, and to the extent
that any such amendment or supplement adversely affects the holders of the
Preferred Stock, the Wolf Holders or the Interliant Holders, by a majority in
interest of the holders of the Preferred Stock, a majority in interest of the
Wolf Holders and a majority in interest the Interliant Holders then holding
Stock or Equity Securities and adversely affected by such amendment or
supplement. No waiver of any term or provision shall be effective unless in
writing signed by the party to be charged and such waiver shall not be effective
to any other provision of this Agreement. Notwithstanding the foregoing, no
written instrument shall be required to be signed by any Stockholder in
connection with the amendment of Schedule I to add the names of exercising
holders of Options, shares delivered pursuant to Section 3.01(b) of the Purchase
Agreement or the name of Seller and any Unconverted Shares delivered to Seller.
Section 6.05 Binding Effect. This Agreement shall be binding on and
inure to the benefit of the parties hereto and, subject to the terms and
provisions hereof, their respective legal representatives, successors and
permitted assigns.
Section 6.06 Invalidity of Provision. The invalidity or
unenforceability of any provision of this Agreement in any jurisdiction shall
not affect the validity or enforceability of the remainder of this Agreement in
that jurisdiction or the validity or enforceability of this Agreement, including
that provision, in any other jurisdiction.
Section 6.07 Counterparts. This Agreement may be executed
simultaneously in two or more counterparts, all of which taken together shall be
deemed but one and the same instrument.
Section 6.08 Notices. All notices and other communications provided
for or given or made hereunder shall be in writing (including delivery by
facsimile transmission) and, unless otherwise provided herein, shall be deemed
to have been given when received by the party to whom such notice is to be given
at its address set forth on Schedule I, or such other address for the party as
shall be specified by notice given pursuant hereto.
Section 6.09 Headings. The descriptive headings of the several
paragraphs of this Agreement are inserted for convenience only and do not
constitute part of this Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed by or on behalf
of each of the parties hereto as of the date first above written.
SAGE NETWORKS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxx
Co-Chairman
STOCKHOLDERS:
WEB HOSTING ORGANIZATION, L.L.C.
By: /s/ Xxx X. Xxxxx
-------------------------------------
Name: Xxx X. Xxxxx
-------------------------------
Title: Authorized Signatory
SOFTBANK TECHNOLOGY VENTURES IV, L.P.
By: STV IV LLC, its general partner
By: /s/ Xxxxxxx X. Xxx
-------------------------------------
Xxxxxxx X. Xxx, Managing Member
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SOFTBANK TECHNOLOGY ADVISORS FUND, L.P.
By: STV IV LLC, its managing partner
By: /s/ Xxxxxxx X. Xxx
-------------------------------------
Xxxxxxx X. Xxx, Managing Member
/s/ Xxxxxx Xxxx
-----------------------------------------
Xxxxxx Xxxx
XXX XXXXXXXX XXXX 1995 MARITAL TRUST
By: /s/ Xxxxxx Xxxx
-------------------------------------
Xxxxxx Xxxx, as Trustee
XXXXXX X. XXXX CHILDREN'S TRUST
By: /s/ Xxxxxx Xxxx
-------------------------------------
Xxxxxx Xxxx, as Trustee
/s/ Xxxxxxx Xxxxxx
-----------------------------------------
Xxxxxxx Xxxxxx
BROADVIEW HOLDINGS LLP
By: /s/ Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Chief
Financial Officer
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SCHEDULE I
STOCKHOLDERS' OWNERSHIP OF SECURITIES OF THE COMPANY
Common Stock
WEB HOSTING ORGANIZATION, L.L.C.
00 Xxxx Xxx Xxx Xxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000 25,200,000 shares
XXXXXX XXXX
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 2,386,562 shares
XXX XXXXXXXX WOLF 1995 MARITAL TRUST
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 396,851 shares
XXXXXX X. XXXX CHILDREN'S TRUST
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 793,702 shares
XXXXXXX XXXXXX
0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000 31,748 shares
BROADVIEW HOLDINGS LLP
Xxx Xxxxxx Xxxxx
Xxxx Xxx, Xxx Xxxxxx 00000
Attn: Xxxxx Xxxxxxxxx 114,644 shares
Series A Convertible Preferred Stock
SOFTBANK TECHNOLOGY VENTURES IV, L.P. 2,597,882 shares
000 X. Xxx Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
SOFTBANK TECHNOLOGY ADIVSORS FUND, L.P. 49,776 shares
000 X. Xxx Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
23
Warrants
SOFTBANK TECHNOLOGY VENTURES IV, L.P. 735,532 shares of Common Stock
see above
SOFTBANK TECHNOLOGY ADIVSORS FUND, L.P. 14,093 shares of Common Stock
see above
23
