<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. __)*
NETLIVE COMMUNICATIONS, INC.
(Name of Issuer)
COMMON STOCK, $.0001 PAR VALUE
(Title of Class of Securities)
641142104
(CUSIP Number)
WITH A COPY TO:
LAURENCE M. ROSEN GREGORY K. MARKS, ESQ.
NETLIVE COMMUNICATIONS, INC. ESANU KATSKY KORINS & SIGER
586 BROADWAY, SUITE 806 605 THIRD AVENUE
NEW YORK, NEW YORK 10012 NEW YORK, NEW YORK 10158
(212) 343-7082 (212) 953-6000
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
MARCH 11, 1997
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G
to report the acquisition which is the subject of this Schedule 13D,
and is filing this schedule because of Rule 13d-1(b)(3) or (4), check
the following box. [ ]
Note: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to
whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject
class of securities, and for any subsequent amendment containing
information which would alter disclosures provided in a prior cover
page.
The information required on the remainder of this cover page shall
not be deemed to be "filed" for the purpose of Section 18 of the
Securities Exchange Act of 1934 ("Act") or otherwise subject to the
liabilities of that section of the Act but shall be subject to all
other provisions of the Act (however, see the Notes).
(Continued on following pages)
Page 1 of 28 Pages
<PAGE>
CUSIP No. 641142104 SCHEDULE 13D
================================================================================
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Michael Kharitonov
================================================================================
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
================================================================================
3 SEC USE ONLY
================================================================================
4 SOURCE OF FUNDS
Not Applicable
================================================================================
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e)
Not Applicable
================================================================================
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.A.
================================================================================
7 SOLE VOTING POWER
NUMBER OF
SHARES 456,371*
BENEFICIALLY =============================================================
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING -0-
PERSON =============================================================
WITH 9 SOLE DISPOSITIVE POWER
456,371*
==============================================================
10 SHARED DISPOSITIVE POWER
-0-
================================================================================
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
456,371*
================================================================================
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
================================================================================
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
14.5%
================================================================================
14 TYPE OF REPORTING PERSON
IN
================================================================================
* Assumes the exercise in full of all 190,161 stock options held by the
Reporting Person, of which only 27,895 are presently exercisable.
Page 2 of 28 Pages
<PAGE>
CUSIP No. 641142104 SCHEDULE 13D
================================================================================
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Laurence Rosen
================================================================================
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
================================================================================
3 SEC USE ONLY
================================================================================
4 SOURCE OF FUNDS
Not Applicable
================================================================================
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
Not Applicable
================================================================================
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.A.
================================================================================
7 SOLE VOTING POWER
NUMBER OF
SHARES 678, 898*
BENEFICIALLY =============================================================
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING -0-
PERSON =============================================================
WITH 9 SOLE DISPOSITIVE POWER
678, 898*
=============================================================
10 SHARED DISPOSITIVE POWER
-0-
================================================================================
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
678, 898*
================================================================================
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
================================================================================
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
20.7%
================================================================================
14 TYPE OF REPORTING PERSON
IN
================================================================================
* Assumes the exercise in full of all 330,648 stock options held by the
Reporting Person, of which only 46,579 are presently exercisable.
Page 3 of 28 Pages
<PAGE>
CUSIP No. 641142104 SCHEDULE 13D
================================================================================
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Andrew Schwartz
================================================================================
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
================================================================================
3 SEC USE ONLY
================================================================================
4 SOURCE OF FUNDS
Not Applicable
================================================================================
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
Not Applicable
================================================================================
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.A.
================================================================================
7 SOLE VOTING POWER
NUMBER OF
SHARES 165,412*
BENEFICIALLY =============================================================
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING -0-
PERSON =============================================================
WITH 9 SOLE DISPOSITIVE POWER
165,412*
=============================================================
10 SHARED DISPOSITIVE POWER
-0-
================================================================================
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
165,412*
================================================================================
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
================================================================================
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.5%
================================================================================
14 TYPE OF REPORTING PERSON
IN
================================================================================
* Assumes the exercise in full of all 75,000 stock options held by the
Reporting Person, none of which are presently exercisable.
Page 4 of 28 Pages
<PAGE>
CUSIP No. 641142104 SCHEDULE 13D
================================================================================
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Jeffrey Wolf
================================================================================
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
================================================================================
3 SEC USE ONLY
================================================================================
4 SOURCE OF FUNDS
Not Applicable
================================================================================
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
Not Applicable
================================================================================
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.A.
================================================================================
7 SOLE VOTING POWER
NUMBER OF
SHARES 500,635*
BENEFICIALLY =============================================================
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING -0-
PERSON =============================================================
WITH 9 SOLE DISPOSITIVE POWER
500,635*
=============================================================
10 SHARED DISPOSITIVE POWER
-0-
================================================================================
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
500,635*
================================================================================
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
================================================================================
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
16.1%
================================================================================
14 TYPE OF REPORTING PERSON
IN
================================================================================
* Assumes the exercise in full of all 159,082 stock options held by the
Reporting Person, of which only 36,930 are presently exercisable.
Page 5 of 28 Pages
<PAGE>
CUSIP No. 641142104 SCHEDULE 13D
================================================================================
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Dr. Scott Wolf
================================================================================
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a) [ ]
(b) [X]
================================================================================
3 SEC USE ONLY
================================================================================
4 SOURCE OF FUNDS
Not Applicable
================================================================================
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDING IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e)
Not Applicable
================================================================================
6 CITIZENSHIP OR PLACE OF ORGANIZATION
U.S.A.
================================================================================
7 SOLE VOTING POWER
NUMBER OF
SHARES 214,667*
BENEFICIALLY =============================================================
OWNED BY 8 SHARED VOTING POWER
EACH
REPORTING -0-
PERSON =============================================================
WITH 9 SOLE DISPOSITIVE POWER
214,667*
=============================================================
10 SHARED DISPOSITIVE POWER
-0-
================================================================================
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
214,667*
================================================================================
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES [ ]
================================================================================
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
7.2%
================================================================================
14 TYPE OF REPORTING PERSON
IN
================================================================================
* Assumes the exercise in full of all 37,193 stock options held by the
Reporting Person, 18,597 of which are presently exercisable.
Page 6 of 28 Pages
<PAGE>
ITEM 1. SECURITY AND ISSUER.
This Statement on Schedule 13D (this "Schedule 13D") relates
to shares of Common Stock, $.0001 par value per share (the "Common Stock"), of
NetLive Communications, Inc., a Delaware corporation (the "Issuer"), which has
its principal executive offices located at 584 Broadway, New York, New York
10012. The reporting date (the "Reporting Date") with respect to the
transactions covered hereby is March 11, 1997.
ITEM 2. IDENTITY AND BACKGROUND.
(a) This Statement is being filed by Michael Kharitonov,
Laurence M. Rosen, Andrew Schwartz, Jeffrey Wolf and Dr. Scott Wolf
(individually a "Reporting Person" and, collectively, the "Reporting
Persons"), who collectively may be deemed a group beneficially owning more
than 5% of the outstanding shares of the Common Stock within the meaning of
Section 13(d) (3) of the Securities Exchange Act of 1934, as amended (the
"Act"). The filing of this Schedule 13D shall not be construed as an admission
that any Reporting Person is, for purposes of Section 13(d) or 13(g) of the
Act, the beneficial owner of any securities covered by this Schedule 13D
except for the securities stated expressly herein to be beneficially owned by
such Reporting Person.
(b) and (c) Mr. Kharitnov is the Chairman of the Board and
Director of Technology of the Issuer. His principal business address is c/o
NetLive Communications, Inc., 584 Broadway, Suite 806, New York, New York
10012.
Mr. Rosen is the President, Chief Executive
Officer, Treasurer and a member of the Board of Directors of the Issuer. His
principal business address is c/o NetLive Communications, Inc., 584 Broadway,
Suite 806, New York, New York 10012.
Mr. Schwartz is Vice President of Business
Development, Secretary and General Counsel of the Issuer. His principal
business address is c/o NetLive Communications, Inc., 584 Broadway, Suite 806,
New York, New York 10012.
Mr. Jeffrey Wolf is managing general partner of
Athena Ventures, LLC, a New York City-based venture capital firm. His
principal business address is c/o Athena Ventures, LLC, 660 Madison Avenue,
New York, New York 10021.
Dr. Scott Wolf is President of Itasca Ventures, a
venture capital firm. His principal business address is 3700 First Bank Place,
Minneapolis, Minnesota 55440.
Mr. Jeffrey Wolf and Dr. Scott Wolf are brothers.
Each disclaims beneficial ownership of the Issuer's securities owned by the
other.
(d) and (e) During the last five years, none of the
Reporting Persons (1) has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors), or (2) was a party to a civil
proceeding of a judicial or administrative body of a competent jurisdiction
and as a result of such proceeding was or is subject to a judgment, decree or
final order enjoining future
Page 7 of 28 Pages
<PAGE>
violations of, or prohibiting or mandating activities subject to, Federal or
state securities laws or finding any violation with respect to such laws.
(f) Each of the Reporting Persons is a citizen of the
United States of America.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
In September 1995, December 1995 and January 1996, the
Reporting Persons used their personal funds to purchase shares of Common Stock
for an aggregate consideration of $6,750, $22,890 and $1.00, respectively, as
follows:
<TABLE>
<CAPTION>
Number of Number of Number of
Shares Purchased Shares Purchased Shares Purchased
Name In September 1995 in December 1995 in January 1996
- ---- ----------------- ---------------- ---------------
<S> <C> <C> <C>
Scott Wolf . . . . . . . . . . . . 132,268 45,206
Laurence M. Rosen . . . . . 263,699 88,737 1,674
Jeffrey Wolf . . . . . . . . . . . 263,699 88,737
Andrew Schwartz. . . . . . . 45,206 45,206
Michael Kharitonov . . . . . 132,268 132,268 1,674
</TABLE>
In February 1996, Mr. Laurence Rosen purchased 90,412 shares of the Company's
Common Stock from Mr. Andrew Schwartz. In December 1996, such transaction was
rescinded by mutual agreement.
ITEM 4. PURPOSE OF TRANSACTION.
The Reporting Persons initially acquired the Common Stock
owned by each of them for investment purposes. Subsequently, each of the
Reporting Persons entered into a certain Stockholders Agreement (the
"Stockholder Agreement") which became effective when the last of the
signatories executed the Stockholders Agreement on the Reporting Date. The
purpose was to ensure collective action and solidarity to move effectively
against, among other things, an unsolicited business combination and the
announced commencement of a consent solicitation (the "Hostile Solicitation")
by May Davis Group, Inc. ("MDC"), the underwriter of the Issuer's August 1996
initial public offering, with the announced intention of removing the Issuer's
current Board of Directors. The fact that the Reporting Persons have filed
this Schedule 13D jointly is not an admission that the Reporting Persons are a
single reporting entity for the purposes of any Federal or state law or
regulation.
Subject to applicable law and the factors described below,
the Reporting Persons may, from time to time, purchase additional shares of
Common Stock or other securities of the Issuer in open market or privately
negotiated transactions. In determining whether to purchase additional
securities, the Reporting Persons intend to consider various factors
including, without limitation, the
Page 8 of 28 Pages
<PAGE>
Company's financial condition, business and prospects, the reaction of the
Company's stockholders to the anticipated Hostile Solicitation described
herein, the price and availability of shares of Common Stock, other available
investment and business opportunities, their personal financial circumstances
and general economic and stock market conditions. In addition, depending upon
the matters referred to above, among other things, the Reporting Persons may
determine at any time to dispose of all or a portion of their shares of Common
Stock. Moreover, each of the Reporting Persons with currently exercisable
stock options is actively considering the exercise of some or all of such
options. Except as described in Item 6 hereof, each of the Reporting Persons
reserves the right to change its plans and intentions at any time, as it deems
appropriate.
Except as set forth in this Item 4, none of the Reporting
Persons has any present plans or intentions which would result in or relate to
any of the transactions described in subparagraphs (a) through (j) of Item 4
of Schedule 13D.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) and (b) The Reporting Persons, in the aggregate,
beneficially own 1,223,899 shares of Common Stock, and stock options to
acquire an aggregate of 792,084 shares of Common Stock (of which 130,001 are
currently exercisable). This represents approximately 53.9% of the shares of
the Common Stock outstanding (which for purposes of this calculation includes
all 792,084 shares subject to options). All computations of the applicable
percentages of shares of Common Stock beneficially owned by the Reporting
Persons are based on the 2,950,000 shares of Common Stock issued and
outstanding as of the Reporting Date.
Mr. Kharitonov was the beneficial owner of an aggregate of
456,371 shares of Common Stock, comprised of 266,210 shares of Common Stock
and stock options exercisable over various periods to acquire an aggregate of
190,161 shares of Common Stock. The exercise price thereof ranges from $2.50
to $5.50 per share and only 27,895 of such stock options are currently
exercisable.
Mr. Rosen was the beneficial owner of an aggregate of
678,898 shares of Common Stock, comprised of 348,250 shares of Common Stock
and stock options exercisable over various periods to acquire an aggregate of
330,648 shares of Common Stock. The exercise price thereof ranges from $2.50
to $5.50 per share and only 46,579 of such stock options are currently
exercisable.
Mr. Schwartz was the beneficial owner of an aggregate of
165,412 shares of Common Stock, comprised of 90,412 shares of Common Stock and
stock options exercisable over various periods to acquire an aggregate of
75,000 shares of Common Stock. None of such stock options are currently
exercisable and the exercise price thereof is $4.8125 per share.
Mr. Jeffrey Wolf was the beneficial owner of an aggregate of
500,635 shares of Common Stock, comprised of 341,553 shares of Common Stock
and stock options exercisable over various periods to acquire an aggregate of
159,082 shares of Common Stock. The exercise price thereof ranges from $2.50
to $5.50 per share and only 36,930 of such stock options are currently
exercisable.
Page 9 of 28 Pages
<PAGE>
Dr. Scott Wolf was the beneficial owner of an aggregate of
214,667 shares of Common Stock, comprised of 177,474 shares of Common Stock
and stock options exercisable over various periods to acquire an aggregate of
37,193 shares of Common Stock. The exercise price thereof is $2.50 per share
and only 18,597 of such stock options are currently exercisable.
(c) There were no transactions in the Common Stock by the
Reporting Persons effected during the past 60 days.
(d) Each of the Reporting Persons has the sole right to
receive or the power to direct the receipt of dividends from, or the proceeds
from the sale of, the Common Stock, if any, directly owned by each of them.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
The Stockholders Agreement provides, among other things,
that each of the Reporting Persons will vote all the Issuer's voting
securities then owned in the manner approved in writing by a majority of such
securities then owned by all of the Reporting Persons in the aggregate. The
Stockholders Agreement further provides that no transfer of the Issuer's
securities by a Reporting Person shall be effective, and no transferee will be
entitled to vote such securities or any other indices of ownership, unless and
until such transferee agrees in writing to be bound by the terms and
conditions of the Stockholders Agreement.
The foregoing summary of the Stockholders Agreement is
qualified in its entirety by reference to the text of such Stockholders
Agreement, which is attached hereto as Exhibit 2, and is incorporated herein
by reference.
Except as described herein, none of the Reporting Persons
has any contracts, arrangements, understandings or relationships (legal or
otherwise) with any person with respect to any securities of the Company
including, but not limited to, transfer or voting of any of the securities,
finder's fees, joint ventures, loan or option arrangements, puts or calls,
guarantees or profits, division of profits or loss, or the giving or
withholding of proxies.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
(a) Joint Filing Agreement.
(b) Copy of Stockholders Agreement.
Page 10 of 28 Pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct.
March 18, 1997 /s/ Michael Kharitonov
-----------------------
Michael Kharitonov
Page 11 of 28 Pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct.
March 18, 1997
/s/ Laurence M. Rosen
-----------------------
Laurence M. Rosen
Page 12 of 28 Pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct.
March 18, 1997
/s/ Andrew Schwartz
-----------------------
Andrew Schwartz
Page 13 of 28 Pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct.
March 18, 1997
/s/ Jeffrey Wolf
-----------------------
Jeffrey Wolf
Page 14 of 28 Pages
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief,
I certify that the information set forth in this statement is true, complete
and correct.
March 19, 1997
/s/ Dr. Scott Wolf
-----------------------
Dr. Scott Wolf
Page 15 of 28 Pages
<PAGE>
EXHIBIT INDEX
-------------
Exhibit No. Document
- ----------- --------
1 Joint Filing Agreement
2 Copy of Stockholders Agreement.
Page 16 of 28 Pages
<PAGE>
Exhibit 1
JOINT FILING AGREEMENT
Pursuant to Rule 13d-1(f) promulgated under the Securities
Exchange Act of 1934, as amended, the parties hereby agree to the joint filing
of a Statement on Schedule 13D with respect to the shares of common stock, par
value $.0001 per share, of NetLive Communications, Inc., with the Securities
and Exchange Commission and any other applicable authorities or parties. The
parties hereto further agree that this Joint Filing Agreement ("Agreement") be
included as an Exhibit thereto. In addition, each party to this Agreement
agrees to file jointly any and all amendments to such Statement on Schedule
13D and expressly authorizes each other party hereto to file the same on its
behalf as such filing party deems necessary or appropriate, until such time as
a party hereto shall notify the others in writing of its desire to terminate
this Agreement. This Agreement may be executed in multiple counterparts, each
of which shall constitute one and the same instrument.
Date: March 18, 1997
/s/ Michael Kharitonov
----------------------------------
Michael Kharitonov
/s/ Laurence Rosen
----------------------------------
Laurence Rosen
/s/ Andrew Schwartz
----------------------------------
Andrew Schwartz
/s/ Jeffrey Wolf
----------------------------------
Jeffrey Wolf
----------------------------------
Dr. Scott Wolf
Page 17 of 28 Pages
<PAGE>
Exhibit 1
JOINT FILING AGREEMENT
Pursuant to Rule 13d-1(f) promulgated under the Securities
Exchange Act of 1934, as amended, the parties hereby agree to the joint filing
of a Statement on Schedule 13D with respect to the shares of common stock, par
value $.0001 per share, of NetLive Communications, Inc., with the Securities
and Exchange Commission and any other applicable authorities or parties. The
parties hereto further agree that this Joint Filing Agreement ("Agreement") be
included as an Exhibit thereto. In addition, each party to this Agreement
agrees to file jointly any and all amendments to such Statement on Schedule
13D and expressly authorizes each other party hereto to file the same on its
behalf as such filing party deems necessary or appropriate, until such time as
a party hereto shall notify the others in writing of its desire to terminate
this Agreement. This Agreement may be executed in multiple counterparts, each
of which shall constitute one and the same instrument.
Date: March 19, 1997
----------------------------------
Michael Kharitonov
----------------------------------
Laurence Rosen
----------------------------------
Andrew Schwartz
----------------------------------
Jeffrey Wolf
/s/ Dr. Scott Wolf
----------------------------------
Dr. Scott Wolf
Page 17 of 28 Pages
<PAGE>
EXHIBIT 2
---------
STOCKHOLDERS AGREEMENT
Stockholders Agreement (the "Agreement"), dated as of March 8, 1997,
by and among the persons named and having the respective addresses set forth
on Exhibit A annexed hereto (individually, a "Stockholder" and, collectively,
the "Stockholders").
W I T N E S S E T H:
WHEREAS, the Stockholders own the number of issued and outstanding
shares (the "Shares") of common stock, $.0001 par value ("Common Stock"), of
NetLive Communications, Inc., a Delaware corporation (the "Corporation"), set
forth on Exhibit A annexed hereto, as such Exhibit may be amended from time to
time; and
WHEREAS, the Stockholders wish to set forth their agreement regarding
the voting of their Shares and to establish procedures relating to the sale or
other disposition of the Shares;
NOW, THEREFORE, in consideration of the foregoing premises and of the
mutual promises and covenants herein contained, the parties hereto hereby
agree as follows:
1.0. Restrictions on Transfer of the Shares.
1.1. Compliance with Agreement. For purposes of this Agreement, the
term "transfer" or "Transfer" shall mean any sale, assignment, mortgage,
hypothecation, transfer or pledge of, creation of a security interest in, or
lien on, or any encumbrance, gift, trust (voting or other), bequest or any
testamentary or other disposition of, whether voluntary or by operation of
law, the Shares or any interest therein. So long as this Agreement shall
remain in effect, no Stockholder shall make any transfer of any Shares or any
interest in any Shares, except in accordance with the provisions of this
Agreement.
1.2. Invalid Transfers. Any purported transfer of Shares by any
Stockholder or any successor to any Stockholder which violates any provision
of this Agreement will be invalid, and holder of any of such Shares shall not
be entitled to vote or receive dividends on such Shares, during the period of
such violation. Any such disqualification will be in addition to, and not in
substitution of, any other legal or equitable remedies available to enforce
such provisions.
1.3. Definition. For purposes of this Agreement, the term "Shares"
shall also include any (i) shares of the Corporation's capital stock, (ii)
securities or other property issued or issuable in respect of the Shares as a
result of any stock dividend, recapitalization, merger, consolidation or split
affecting any of the Shares, (iii) warrants, options or other rights to
purchase, or any securities convertible into, any Shares, and (iv) any script
representing any fractional Shares, in each case whether the same are owned by
a Stockholder as of the date such Stockholder becomes a party to this
Agreement or thereafter acquired from the Corporation or any other person or
Page 18 of 28 Pages
<PAGE>
entity.
1.4. Stock Legend. The Stockholders agree that all stock certificates
evidencing Shares held by them or hereinafter acquired by any of them, in
addition to any notice thereon required by the applicable law, shall bear
conspicuously on the face or back thereof, the following legend:
"This certificate and the shares represented hereby are
subject to, and may not be sold or otherwise disposed of, nor may a
security interest be created herein or therein, except in accordance
with the terms of a certain Stockholder Agreement among certain
shareholders of NetLive Communications, Inc."
2.0. Voting of Shares.
2.1. At any time at which Stockholders shall have the right to, or
shall, vote their Shares, each Stockholder agrees to vote all Shares then
owned by such Stockholder in the manner approved in writing by those owning of
record, in the aggregate, a majority of the issued and outstanding shares of
Common Stock then owned in the aggregate by all of the Stockholders (the
"Majority"). In the event that any Stockholder or Stockholders abstain from
such approval process, the Majority shall constitute the majority of the
issued and outstanding shares of Common Stock then owned in the aggregate by
all of the Stockholders participating in the approval process.
2.2. Any Stockholder may call a meeting of Stockholders which may be
held at such place, within or without the State of New York, as shall be
stated in the notice of meeting given at least three days in advance.
Stockholder may participate in a meeting by means of conference telephone call
or similar communications equipment; may authorize another Stockholder to act
as his or her proxy by a duly executed written instrument; and may act without
a meeting, without prior notice and without a formal vote by written consent
setting forth the action so taken signed by the Stockholders holding at least
a Majority. Prompt written notice of the taking of action without a meeting
shall be given to any Stockholders who did not so participate in such action
by written consent.
3.0. Representations and Warranties.
3.1. Representations. Each Stockholder hereby represents and warrants
to the other Stockholders that such Stockholder is authorized and empowered to
enter into this Agreement and to perform all of the Stockholder's obligations
hereunder. The execution, delivery and performance of this Agreement will not
contravene the provisions of, or (with or without the passage of time or the
giving of notice) constitute a breach of, any agreement or arrangement
applicable to such Stockholder. This Agreement constitutes a valid and binding
obligation enforceable against such Stockholder in accordance with its terms,
except that (i) such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to creditors' rights and (ii) injunctive and other
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<PAGE>
forms of equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceedings thereafter may be
brought.
3.2. Indemnification. Each Stockholder acknowledges that it
understands the meaning and legal consequences of the representations and
warranties contained herein, and it hereby agrees to indemnify and hold
harmless the other Stockholders from and against any and all loss, damage or
liability, including, without limitation, all costs and expenses (including
reasonable attorneys' fees), due to or arising out of a breach of any such
representations or warranties. All representations, warranties and covenants
contained herein including, without limitation, the indemnification contained
in this Section shall survive the termination of this Agreement.
4.0. Miscellaneous Provisions.
4.1. Transferees Bound. Subject to compliance with Section 1.2 hereof
and the other provisions hereof, no transfer shall be effective and no
transferee of a Stockholder shall be entitled to the indices of ownership of
any Shares, including, but not limited to, the right to vote such Shares and
receive dividends thereon, unless and until such transferee has agreed in
writing, in form and substance satisfactory to the Majority, to become bound
by the terms and conditions of this Agreement.
4.2. Specific Performance. The parties agree that it is impossible to
determine the monetary damages which would accrue to a Stockholder or the
personal representative of a disabled or deceased Stockholder by reason of
failure of any other Stockholder to perform any of the obligations under this
Agreement requiring the performance of an act other than the payment of money
only. Therefore, if any party hereto or the legal representative of a disabled
or deceased Stockholder shall institute an action or proceeding to enforce the
provisions hereof, any tribunal hearing such cause shall have the power to
render an award directing one (1) or more parties hereto to specifically
perform his or her obligations hereunder in accordance with the terms and
conditions of this Agreement. In the event that any party has to enforce its
rights hereunder, the prevailing party will be entitled to prompt
reimbursement from the non-prevailing party of the expenses (including
reasonable attorneys' fees) incurred upon submission of reasonable
documentation.
5.0. Termination.
5.1. Termination Events. This Agreement shall be effective as of the
date hereof and shall terminate upon the earliest to occur of any of the
following events:
(a) The merger or consolidation of the Corporation into or
with any other corporation or other entity on terms and conditions which
provide that the Corporation shall not be the survivor of such merger or
consolidation;
(b) The dissolution of the Corporation;
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(c) The written agreement to that effect of the Stockholders
owning of record not less than 51.0% of the shares of the Corporation's common
stock then issued and outstanding and owned by the Stockholders; and
(d) August 12, 1998.
5.2. Continuing Obligation. Any termination pursuant to the foregoing
subsection shall not affect any provision whose survival is expressly stated
or any breach of any obligation theretofore incurred by the Corporation or any
Stockholder hereunder.
6.0. General.
6.1. Assignment. Except as expressly provided herein, neither this
Agreement nor any of the rights or obligations hereunder may be assigned by
any of the parties hereto without the express written consent of the other
parties hereto.
6.2. Binding Effect. The obligations of this Agreement shall be
binding upon and the benefits of this Agreement shall inure to the benefit of
the parties hereto, their legal representatives, administrators, executors,
heirs, legatees, distributees, successors and permitted assigns, and on
transferees by operation of law, whether or not any such person or entity
shall have signed this Agreement. The provisions of this Agreement shall not
be construed as conferring and are not intended to confer any rights on any
other persons.
6.3. Notices. Any notice or communications permitted, required or
given hereunder shall be in writing and shall be delivered (i) personally,
(ii) by any prepaid overnight courier delivery service then in general use,
(iii) mailed, registered or certified mail, return receipt requested, or (iv)
transmitted by telefacsimile and then confirmed by any other method set forth
above, to the addresses designated on Exhibit A or at such other address as
may be designated by notice duly given hereunder. Delivery shall be deemed
made when actually received, or if mailed, three days after delivery to a
United States Post Office.
6.4. Further Assurances. Each of the parties agrees to execute,
acknowledge, deliver, file, record and publish such certificates, instruments,
agreements and other documents, and to take all such further action as may be
required by law or which the Majority deems reasonably necessary or useful in
furtherance of the purposes and the objectives and intentions underlying this
Agreement and not inconsistent with its terms including, without limitation,
effecting any applicable regulatory filings and complying with applicable law.
6.5. Entire Agreement. This Agreement, and any of the other
agreements or documents annexed hereto, incorporates the entire agreement
among the parties relating to the subject matter hereof and supersedes all
prior agreements and understandings of the parties with respect to its subject
matter.
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6.6. Amendments; Waiver. Except as expressly provided herein, neither
this Agreement nor any provision hereof may be terminated, modified, amended
or waived unless in writing and signed by those owning of record, in the
aggregate, a majority of the issued and outstanding shares of Common Stock
then owned in the aggregate by all of the Stockholders. No waiver by any
party, whether express or implied, of any provision of this Agreement, or of
any breach or default, shall constitute a waiver of a breach of a similar or
dissimilar provision or condition.
6.7. Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall be held invalid or
unenforceable to any extent, the remainder of this Agreement and the
application of such provision to other parties or circumstances shall not be
affected thereby and shall be enforced to the greatest extent permitted by
law.
6.8. Construction. The headings in this Agreement are inserted for
convenience and identification only and are not intended to describe,
interpret, define or limit the scope, extent or intent of this Agreement or
any provision hereof. Whenever the context requires, the gender of all words
used in this Agreement shall include the masculine, feminine and neuter. All
references to Sections refer to sections of this Agreement.
6.9. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the internal laws of the State of New York
without giving effect to principles of conflicts-of-law. Each party agrees
that any action or proceeding relating to this Agreement shall be instituted
against such party in any appropriate court in the State of New York and
hereby irrevocably submits to the jurisdiction of the State and Federal courts
of the State of New York and waives any claim of forum non conveniens.
6.10. Counterparts. This Agreement may be executed in any number of
counterparts, and each counterpart will, for all purposes, be deemed an
original instrument, but all such counterparts together will constitute but
one and the same agreement.
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IN WITNESS WHEREOF, this Agreement has been duly executed by
each of the parties hereto as of the day and year first above written.
/s/ Michael Kharitonov
-------------------------
Michael Kharitonov
-------------------------
Laurence Rosen
-------------------------
Andrew Schwartz
-------------------------
Jeffrey Wolf
-------------------------
Dr. Scott Wolf
Page 23 of 28 Pages
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IN WITNESS WHEREOF, this Agreement has been duly executed by
each of the parties hereto as of the day and year first above written.
-------------------------
Michael Kharitonov
/s/ Laurence Rosen 3/11/97
-------------------------
Laurence Rosen
/s/ Andrew Schwartz 3/11/97
-------------------------
Andrew Schwartz
-------------------------
Jeffrey Wolf
-------------------------
Dr. Scott Wolf
Page 24 of 28 Pages
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IN WITNESS WHEREOF, this Agreement has been duly executed by
each of the parties hereto as of the day and year first above written.
-------------------------
Michael Kharitonov
-------------------------
Laurence Rosen
-------------------------
Andrew Schwartz
/s/ Jeffrey Wolf
-------------------------
Jeffrey Wolf
-------------------------
Dr. Scott Wolf
Page 25 of 28 Pages
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IN WITNESS WHEREOF, this Agreement has been duly executed by
each of the parties hereto as of the day and year first above written.
-------------------------
Michael Kharitonov
-------------------------
Laurence Rosen
-------------------------
Andrew Schwartz
-------------------------
Jeffrey Wolf
/s/ Dr. Scott Wolf
-------------------------
Dr. Scott Wolf
Page 26 of 28 Pages
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EXHIBIT A
NAMES, ADDRESSES AND OWNERSHIP INTERESTS OF STOCKHOLDERS
NUMBER OF SHARES
NUMBER OF SHARES OF UNDERLYING OPTIONS
NAME OF STOCKHOLDER COMMON STOCK AND WARRANTS
- ------------------ ------------------- ------------------
Michael Kharitonov 266,210 190,161
145 West 71st Street
Apartment 4F
New York, New York 10023
Laurence Rosen 348,250 330,648
NetLive Communications, Inc.
584 Broadway
Suite 806
New York, New York 10012
Andrew Schwartz 90,412 75,000
NetLive Communications, Inc.
584 Broadway
Suite 806
New York, New York 10012
Jeffrey Wolf 341,553 159,082
Athena Ventures, LLC
660 Madison Avenue
New York, New York 10021
Dr. Scott Wolf 177,474 37,193
2501 Irving Avenue South
Minneapolis, MN 55405
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