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EXHIBIT 4.6
FIRST AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT
THIS FIRST AMENDED AND RESTATED STOCKHOLDERS' AGREEMENT (the
"AGREEMENT") is made as of this 25th day of April, 2000, by and among
DigitalConvergence.:Com Inc., a Delaware corporation (the "COMPANY"), certain
of the "SERIES A INVESTORS" (as defined below), the "SERIES B INVESTORS" (as
defined below), the "SERIES C INVESTORS" (as defined below) (the Series A
Investors, the Series B Investors and the Series C Investors are,
collectively, the "INVESTORS" and each individually, an "INVESTOR"), NBC-DCCI
Holding, Inc. ("NBC"), certain stockholders listed on the signature pages
hereto under the heading Inside Stockholders (the "INSIDE STOCKHOLDERS") and
certain other stockholders listed on the signature pages hereto under the
heading Outside Stockholders (the "OUTSIDE STOCKHOLDERS") (the Investors, the
Inside Stockholders and the Outside Stockholders shall be collectively
referred to as the "STOCKHOLDERS").
RECITALS
WHEREAS, each of the Stockholders now or may hereafter own equity
securities of the Company (including, without limitation, shares of the
Company's Common Stock, $0.01 par value per share (the "COMMON STOCK"), any
class or series of preferred stock (including, without limitation, shares of
the Company's Series A Convertible Preferred Stock, $0.01 par value per share
(the "SERIES A PREFERRED"), shares of the Company's Series B Convertible
Preferred Stock, $0.01 par value per share (the "SERIES B PREFERRED"), and
shares of the Company's Series C Convertible Preferred Stock, $0.01 par value
per share (the "SERIES C PREFERRED")), options, warrants, instruments
convertible or exchangeable into such securities or rights to acquire such
securities (collectively, the "SECURITIES"));
WHEREAS, (i) the Company and the purchasers of its Series A Preferred
(the "SERIES A INVESTORS") are parties to that certain Stock Purchase
Agreement, dated as of September 29, 1999 (the "SERIES A PURCHASE AGREEMENT"),
(ii) the Company and the purchasers of its Series B Preferred (the "SERIES B
INVESTORS") are parties to that certain Stock Purchase Agreement, dated as of
the date hereof (the "SERIES B PURCHASE AGREEMENT"), and (iii) the Company and
the purchasers of its Series C Preferred (the "SERIES C INVESTORS") are
parties to that certain Stock Purchase Agreement, dated as of the date hereof
(the "SERIES C PURCHASE AGREEMENT") (the Series A Purchase Agreement, the
Series B Purchase Agreement, and the Series C Purchase Agreement are
collectively, the "PURCHASE AGREEMENTS" and each individually, a "PURCHASE
AGREEMENT");
WHEREAS, the Company and NBC are parties to those certain Warrant
Agreements, both dated as of April 20, 2000;
WHEREAS, this Agreement amends and restates the Stockholders'
Agreement dated as of September 29, 1999 among the Series A Investors, the
Company and the other parties thereto;
WHEREAS, the obligations of the Investors under the Purchase
Agreements are conditioned, among other things, upon the execution and
delivery of this Agreement by the Investors, the Inside Stockholders, the
Outside Stockholders and the Company;
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NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the undersigned parties
hereto agree as follows:
1. DEFINITIONS.
(a) "AFFILIATE" shall mean, with respect to any individual,
corporation, limited liability company, partnership, limited partnership,
joint venture, joint stock company, firm, company, syndicate, trust, estate,
association, governmental authority, business, organization or any other
incorporated or unincorporated entity (each a "PERSON"), any other Person that
directly or indirectly, through one or more intermediaries, controls or is
controlled by, or is under common control with, such Person.
(b) "CO-SALE PRO RATA SHARE" shall mean the ratio that (i)
the sum of the number of shares of Common Stock then held by the Eligible
Seller (as defined herein) and the number of shares of Common Stock issuable
upon exercise of any vested options, vested warrants, or convertible
securities (including, without limitation, the Preferred Stock) then held by
such Eligible Seller bears to (ii) the sum of the total number of shares of
Common Stock then held by all Eligible Sellers and the number of shares of
Common Stock issuable upon exercise of any vested options, vested warrants, or
convertible securities (including, without limitation, the Preferred Stock)
held by all Eligible Sellers plus the number of shares of Common Stock then
held by the Stockholder or Permitted Transferee proposing to sell his or its
shares of Common Stock.
(c) "ELECTING OFFEREE" has the meaning set forth in SECTION
2(a).
(d) "ELIGIBLE OFFEREE" has the meaning set forth in SECTION
2(a).
(e) "ELIGIBLE SELLER" has the meaning set forth in SECTION 3.
(f) "GAAP" shall mean generally accepted accounting principles
consistently applied.
(g) "NEW SECURITIES" shall mean any shares of capital stock
of the Company, including Common Stock and any series of preferred stock,
whether now authorized or not, and rights, options or warrants to purchase
said shares of capital stock, and securities of any type whatsoever that are,
or may become, convertible into or exchangeable for said shares of capital
stock. Notwithstanding the foregoing, "NEW SECURITIES" does not include (i)
Common Stock offered to the public generally pursuant to a registration
statement under the Securities Act in connection with a Qualified Public
Offering, (ii) securities issued or sold in connection with the Option Pool,
net of repurchases, cancellations and expirations (without exercise) of such
securities, (iii) stock issued in connection with any Recapitalization by the
Company, (iv) stock issued in connection with an acquisition of another
business entity or business segment of any such entity by the Company by
merger, purchase of assets, reorganization or otherwise that has been approved
by the Investors or
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for which no approval of the Investors is required by this Agreement, (v) the
shares of Preferred Stock issued pursuant to the Series B Purchase Agreement
or the Series C Purchase Agreement or shares issued upon conversion thereof,
(vi) the warrants issued to NBC pursuant to the Warrant Agreements, both dated
as of April 20, 2000, or shares of Common Stock issuable upon exercise
thereof, (vii) the warrants issued to Belo Enterprises, Inc. pursuant to that
certain Warrant Agreement, dated as of September 29, 1999, or shares of Common
Stock issuable upon exercise thereof, or (viii) stock issued in connection
with the potential merger described in SCHEDULE 2.23 to the Series B Purchase
Agreement and the Series C Purchase Agreement.
(h) "PERMITTED TRANSFEREE" shall mean a Stockholder's, NBC's
or any Permitted Transferee's, as the case may be, Affiliate, spouse and
descendants (whether natural or adopted), any spouses of such descendants, any
trust for the benefit of such person or persons, a legal guardian for any
minor descendants (whether natural or adopted) or any of the foregoing,
provided that such Permitted Transferee agrees to be bound by the terms of
this Agreement. With respect to the Investors, NBC or any Outside
Stockholders, a Permitted Transferee shall also be deemed to include (i) any
general or limited partner or principal of the Investor and (ii) any fund
affiliated with the Investor.
(i) "PREFERRED STOCK" shall mean the Series A Preferred, the
Series B Preferred and the Series C Preferred.
(j) "PRO RATA SHARE" shall mean the ratio that (i) the sum
of the total number of shares of Common Stock which are then held by an
Investor, or NBC and those which such Investor or NBC has the right to obtain
pursuant to exercise or conversion of any vested option, vested warrant,
vested right or convertible security (including the Preferred Stock) bears to
(ii) the sum of the total number of shares of Common Stock then outstanding
and which are issuable pursuant to exercise or conversion of any then
outstanding vested options, vested warrants, vested rights or convertible
securities (including the Preferred Stock).
(k) "QUALIFIED PUBLIC OFFERING" shall mean the closing of an
underwritten public offering of Common Stock pursuant to an effective
registration statement under the Securities Act of 1933 in which: (i) the
gross proceeds equal or exceed $75,000,000 and (ii) the aggregate market value
of the Common Stock of the Company immediately prior to the closing of the
underwritten public offering, but assuming the conversion of each then
outstanding share of Preferred Stock (and determined utilizing the offering
price in such underwriting), equals or exceeds $750,000,000.
(l) "RECAPITALIZATION" shall mean any stock split, stock
dividend, combination, recapitalization or other similar event occurring after
the date hereof.
(m) "REMAINING PRO RATA SHARE" shall mean the ratio that (i)
the sum of the number of shares of Common Stock then held by each Eligible
Offeree (as defined herein) and the number of shares of Common Stock issuable
upon exercise of any vested options, vested warrants or convertible securities
(including, without limitation, the Preferred Stock) then held by such
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Eligible Offeree bears to (ii) the sum of the total number of shares of Common
Stock then held by all Eligible Offerees and the number of shares of Common
Stock issuable upon exercise of any vested options, vested warrants or
convertible securities (including, without limitation, the Preferred Stock)
then held by all Eligible Offerees.
(n) "SALE TRANSACTION" shall mean the consolidation or
merger of the Company with or into any other corporation or business entity
(other than with or into a wholly-owned domestic Subsidiary of the Company),
the sale or other transfer in a single transaction or a series of related
transactions of all or substantially all of the assets of the Company, or the
liquidation, dissolution, winding-up or reorganization of the Company.
(o) "SELLING INSIDE STOCKHOLDER" has the meaning set forth
in SECTION 2(a).
(p) "STOCK OPTION PLAN" shall mean any stock option, stock
purchase, stock award or other incentive plan of the Company, including the
Company's 1999 Stock Option Plan, as amended.
(q) "SUBSIDIARY" shall mean any corporation, partnership,
joint venture or other legal entity in which the Company owns, directly or
indirectly, an equity interest.
2. RIGHT OF FIRST REFUSAL - OTHER STOCKHOLDERS.
(a) In the event that any Inside Stockholder (a "SELLING
INSIDE STOCKHOLDER") (or a Permitted Transferee of a Selling Inside
Stockholder) proposes to transfer any of their Securities, such Selling Inside
Stockholder or such person's Permitted Transferee shall give the Investors,
NBC, the Outside Stockholders or their Permitted Transferees (collectively,
the "ELIGIBLE OFFEREES") written notice of the price, terms and conditions of
the proposed sale. Each Eligible Offeree shall have thirty (30) days from the
date of receipt of any such notice to agree to purchase up to its Remaining
Pro Rata Share of such Securities, for the price and upon the terms and
conditions specified in the notice, by giving written notice to such Selling
Inside Stockholder or such person's Permitted Transferee stating therein the
quantity of Securities to be purchased up to such person's Remaining Pro Rata
Share. If any Eligible Offeree fails to agree to purchase its full Remaining
Pro Rata Share within such thirty (30) day period, the Selling Inside
Stockholder or such person's Permitted Transferee selling such Securities will
give the Eligible Offerees who did so agree (the "ELECTING OFFEREES") notice
of the number of Securities which were not subscribed for. Such notice may be
by telephone if followed by written confirmation within two (2) days. The
Electing Offerees shall have fifteen (15) days from the date of such second
notice to agree to purchase their Remaining Pro Rata Share (or such greater
amount as such Electing Offerees agree upon) of all or any part of the
Securities not purchased by such other Eligible Offerees. For purposes of the
second election under this SECTION 2(a), shares held by Eligible Offerees
other than Electing Offerees shall be excluded from SECTION 1(f)(ii) for the
definition of a "Remaining Pro Rata Share."
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(b) In the event that the Eligible Offerees and the Electing
Offerees determine that they shall not purchase all of the Securities that
such Selling Inside Stockholder or such person's Permitted Transferee proposes
to transfer within the periods specified in SECTION 2(a) hereof, such Selling
Inside Stockholder or such person's Permitted Transferee shall then give the
Board of Directors of the Company written notice of the price, terms and
conditions of the proposed sale. The Company shall have thirty (30) days from
the date of receipt of any such notice to agree to purchase up to all of such
Securities not elected to be purchased by the Eligible Offerees and the
Electing Offerees, for the price and upon the terms and conditions specified
in the notice delivered to the Eligible Offerees pursuant to SECTION 2(a)
above, by delivering written notice to such Selling Inside Stockholder or such
person's Permitted Transferee stating therein the quantity of Securities to be
purchased up to all of such Securities.
(c) Notwithstanding anything to the contrary in this SECTION
2, the Eligible Offerees, the Electing Offerees and the Company may not in the
aggregate purchase less than all of the Securities proposed to be transferred
pursuant to the notice to the Eligible Offerees pursuant to SECTION 2(a) above.
(d) Subject to the provisions of SECTION 3, in the event the
Eligible Offerees, the Electing Offerees and the Company fail to purchase all
of the Securities proposed to be transferred within the said thirty (30) day
period in the case of the Eligible Offerees, plus the fifteen (15) day period
specified in the case of the Electing Offerees, plus the thirty (30) day
period specified in the case of the Company, respectively, such Selling Inside
Stockholder or such person's Permitted Transferee shall have ninety (90) days
thereafter to sell the Securities proposed to be transferred at the price and
upon the terms and conditions no more favorable to the purchasers of such
Securities than specified in the notice to the Eligible Offerees pursuant to
SECTION 2(a) above. In the event such Selling Inside Stockholder or such
person's Permitted Transferee has not sold the Securities within said ninety
(90) day period, such Selling Inside Stockholder or such person's Permitted
Transferee shall not thereafter sell any of their Securities without first
offering such Securities in the manner provided in this SECTION 2.
3. RIGHTS OF PARTICIPATION; COOPERATIVE SALE. Notwithstanding
the foregoing SECTION 2(d), no Selling Inside Stockholder or such person's
Permitted Transferee (whether the first or a subsequent Permitted Transferee)
may sell, assign or transfer any of his Securities pursuant to SECTION 2(d)
until the Investors, NBC, the Outside Stockholders and their Permitted
Transferees (the "ELIGIBLE SELLERS") shall have been given the opportunity,
exercisable within thirty (30) days from the date of notice to the Eligible
Sellers by such Selling Inside Stockholder or such Permitted Transferee, to
sell to the proposed transferee or transferees, upon the same terms and
conditions offered to the Selling Inside Stockholder or such Permitted
Transferee, its Co-Sale Pro Rata Share of the Securities proposed to be sold.
If an Eligible Seller fails to notify the Selling Inside Stockholder or such
Permitted Transferee within thirty (30) days after the notice given pursuant
hereto, it shall be deemed to have waived its right under this SECTION 3. Any
sale or transfer made pursuant to this SECTION 3 shall be consummated within
one hundred and twenty (120) days of the date of the notice given pursuant to
SECTION 2(a) above and shall be conditioned upon the agreement
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of the proposed transferee or transferees that such proposed transferee or
transferees will purchase each Eligible Seller's Co-Sale Pro Rata Share of the
Securities proposed to be sold.
4. VOTING AGREEMENTS. The parties hereto agree as follows:
(a) INVESTORS' NOMINEE. For so long as 3,791,900 shares of
Preferred Stock remain outstanding, at any time when Michael Jordan is not a
director of the Company, the Company agrees to nominate to, and the
Stockholders, the Permitted Transferees and the Investors' Permitted Assigns
agree to cause to be elected to, the Company's Board of Directors, one (1)
nominee designated by holders of at least a majority of the shares of
Preferred Stock.
(b) VOTING. In causing a nominee to be elected to the
Company's Board of Directors in accordance with SECTION 4(a), the
Stockholders, the Permitted Transferees and the Investors' Permitted Assigns
shall vote all of their shares of Preferred Stock and Common Stock (including
Common Stock issued upon exercise of the Preferred Stock) then owned
beneficially by such person in favor of electing the nominees designated
pursuant to SECTION 4(a) to the Company's Board of Directors.
5. PERMITTED TRANSFEREES. Each Inside Stockholder may transfer
any Securities to a Permitted Transferee without regard to SECTION 2 or
SECTION 3 provided that such Permitted Transferee agrees to be bound by this
Agreement and that such transfer is in compliance with applicable securities
laws.
6. CHANGES IN STOCK. If, from time to time during the term of
this Agreement:
(a) there is a dividend of any security, stock split or
other change in the character or amount of any of the outstanding securities
of the Company, or
(b) there is any consolidation or merger immediately
following which stockholders of the Company hold more than fifty percent (50%)
of the voting equity securities of the surviving corporation,
then, in such event, any and all new, substituted or additional securities or
other property to which any Stockholder or NBC is entitled by reason of his
ownership of the Securities shall be immediately subject to the provisions of
this Agreement and be included in the word "Securities" for all purposes of
this Agreement with the same force and effect as the Securities presently
subject to this Agreement and with respect to which such securities or
property were distributed.
7. COVENANTS OF THE COMPANY. The Company hereby covenants that,
except as provided in SECTION 7(d), for so long as any shares of Preferred
Stock are outstanding or until the conversion of the Preferred Stock upon the
occurrence of a Qualified Public Offering:
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(a) FINANCIAL AND OTHER INFORMATION. The Company will
maintain a system of accounts in accordance with sound accounting principles
and procedures, keep full and complete financial records and, prior to the
consummation of a Qualified Public Offering, will furnish to the Investors the
following reports:
(i) within one hundred twenty (120) days after the
end of each fiscal year, a copy of the consolidated balance sheet of
the Company as of the end of such year, together with consolidated
statements of income, cash flow and stockholders' equity of the Company
for such year, audited by and accompanied by the report of independent
public accountants of nationally recognized standing, prepared in
accordance with GAAP; in addition, the Company will provide such
financial statements in comparative form with the corresponding periods
of the prior year and budgeted figures for the current year;
(ii) within forty-five (45) days after the end of
each fiscal quarter, an unaudited consolidated balance sheet of the
Company as of the end of such quarter and unaudited consolidated
statements of income, cash flow and stockholders' equity for the
Company for such quarter and for the year to date, prepared in
accordance with GAAP (except for footnotes) and practices consistently
applied; in addition, the Company will provide such financial
statements in comparative form with the corresponding periods of the
prior year and budgeted figures for the current year; PROVIDED, that
from and after such time as the Company in the ordinary course prepares
monthly financial statements, the Company shall furnish to the
Investors, within thirty (30) days after the end of each month, an
unaudited consolidated balance sheet of the Company as of the end of
such month and unaudited consolidated statements of income, cash flow
and stockholders' equity for the Company for such month and for the
year to date, prepared in accordance with GAAP (except for footnotes)
and practices consistently applied; in addition, the Company will
provide such financial statements in comparative form with the
corresponding periods of the prior year and budgeted figures for the
current year;
(iii) promptly following receipt by the Company, each
audit response letter, accountant's management letter and other written
report submitted to the Company by its independent public accountants
in connection with an annual or interim audit of the books of the
Company or any of its Subsidiaries;
(iv) promptly upon sending, making available or
filing the same, all press releases, reports and financial statements
that the Company sends or makes available to its stockholders or
directors or files with the Securities and Exchange Commission; and
(v) such other financial information as the holders
of at least a majority of the shares of Preferred Stock may reasonably
request, it being agreed that at least thirty (30) days prior to the
beginning of each fiscal year, beginning January 1, 2000, the Company
shall prepare and submit to the Board of Directors an annual plan for
such year which shall include, without limitation, an operating plan, a
long-term strategic plan, a capital
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expenditure plan and policy, plans for incurrences of indebtedness for
borrowed money and projections regarding other sources of funds,
monthly projected capital and operating expense budgets, cash flow
statements, profit and loss statements and balance sheet projections,
itemized in such detail as the Board of Directors may request. A copy
of such annual plan shall be sent to the Investors upon its approval by
the Board of Directors.
(b) ACCESS TO INFORMATION. The Company will permit any Investor
to inspect any of the properties or books and records of the Company and any
of the Subsidiaries, to make copies of extracts from such books and records
and to discuss the affairs and condition of the Company and the Subsidiaries
with representatives of the Company and such Subsidiaries, all to such
reasonable extent and at such reasonable times and intervals as an Investor
may request.
(c) INTELLECTUAL PROPERTY. From the date hereof, the Company
will, and will cause each Subsidiary to, use all reasonable efforts to keep
confidential all Technology Assets (as defined in the Purchase Agreements) and
other confidential intellectual property and information which is material to
the respective businesses or prospective businesses of the Company and the
Subsidiaries, and to provide the Company and/or each Subsidiary with
sufficient title to, ownership of, or rights to such intellectual property as
is or may become necessary for the conduct of their respective businesses,
including the filing and presentation of any applications for U.S. and/or
foreign patents as may be determined by the President, Chief Executive Officer
or the Board of Directors of the Company. From the date hereof, the Company
will, and will cause each Subsidiary to, enter into such agreements with its
employees, consultants, licensees, customers and other third parties as may be
reasonably required to carry out its obligations under this SECTION 7(c).
(d) RESTRICTED CORPORATE ACTIONS.
(i) So long as at least 1,900 shares of Series A
Preferred remain outstanding, the Company will not, without the written
approval of the holders of at least two-thirds of the shares of Series
A Preferred, take any of the following actions:
(A) amend, alter or repeal the Company's
Bylaws or Certificate of Incorporation so as to adversely affect the
preferences, special rights or other powers of shares of Series A
Preferred;
(B) increase or decrease the authorized number
of shares of Series A Preferred;
(C) create any new class or series of shares
that has a preference over or is on a parity with the Series A
Preferred with respect to voting, dividends or liquidation preferences
(except that the Company may create and issue the Series B Preferred
and the Series C Preferred and may grant voting rights to shares of a
series of preferred stock which have the right to vote with holders of
Common Stock on an as-converted basis, but in any event not in
preference to shares of Series A Preferred);
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(D) reclassify stock into shares having a
preference over or parity with the Series A Preferred with respect to
voting, dividends or liquidation preferences (except that the Company
may grant voting rights to shares of a series of preferred stock which
have the right to vote with holders of Common Stock on an as-converted
basis, but in any event not in preference to shares of Series A
Preferred);
(E) authorize any dividend or other
distribution (other than a stock dividend) with respect to the
Preferred Stock or the Common Stock (other than cash dividends payable
to the holders of Series A Preferred);
(F) repurchase any Common Stock or Preferred
Stock, other than the purchase of Common Stock from employees acquired
pursuant to any stock option plan, stock purchase plan, stock award
plan or other incentive plan of the Company or the purchase of Common
Stock pursuant to contractual rights to repurchase shares of Common
Stock held by employees, directors or consultants of the Company or its
subsidiaries upon termination of their employment or services or
pursuant to the exercise of a contractual right of first refusal, call
right or other purchase option held by the Company; provided that in
the event the Company repurchases any such shares from one or more
employees pursuant to this clause (F), the aggregate value of such
permitted repurchases shall not exceed $1,000,000 (exclusive of any
amount of indebtedness owed to the Company by an officer or employee
that is canceled or rescinded as part of a repurchase) in any twelve
(12) month period;
(G) increase the number of directors of the
Company to greater than seven (7) persons;
(H) use proceeds from the sale of any Series
A Preferred other than for the uses contemplated by Section 4.3 of the
Series A Purchase Agreement;
(I) other than options, or shares purchasable
on the exercise of options, pursuant to the Option Pool (as defined in
SECTION 7(g)), offer shares of Common Stock at an issue price that is
the less than the fair market value for such shares as of the date of
issuance;
(J) offer or issue any equity security that
has a preference over, more favorable terms than, or on a parity with
the Series A Preferred with respect to voting, dividends, liquidation
preferences or any other material term or condition; provided, however,
that the Company may create and issue the Series B Preferred and the
Series C Preferred; or
(K) undertake, enter into or consummate any
Sale Transaction.
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(ii) So long as at least 1,800,000 shares of Series
B Preferred remain outstanding, the Company will not, without the
written approval of the holders of at least two-thirds of the shares
of Series B Preferred, take any of the following actions:
(A) amend, alter or repeal the Company's
Bylaws or Certificate of Incorporation so as to adversely affect the
preferences, special rights or other powers of shares of Series B
Preferred;
(B) increase or decrease the authorized
number of shares of Series B Preferred;
(C) create any new class or series of shares
that has a preference over or is on a parity with the Series B
Preferred with respect to voting, dividends or liquidation preferences
(except that the Company may create and issue the Series A Preferred
and the Series C Preferred and may grant voting rights to shares of a
series of preferred stock which have the right to vote with holders of
Common Stock on an as-converted basis, but in any event not in
preference to shares of Series B Preferred);
(D) reclassify stock into shares having a
preference over or parity with the Series B Preferred with respect to
voting, dividends or liquidation preferences (except that the Company
may grant voting rights to shares of a series of preferred stock which
have the right to vote with holders of Common Stock on an as-converted
basis, but in any event not in preference to shares of Series B
Preferred);
(E) authorize any dividend or other
distribution (other than a stock dividend) with respect to the
Preferred Stock or the Common Stock (other than cash dividends payable
to the holders of Series B Preferred);
(F) repurchase any Common Stock or Preferred
Stock, other than the purchase of Common Stock from employees acquired
pursuant to any stock option plan, stock purchase plan, stock award
plan or other incentive plan of the Company or the purchase of Common
Stock pursuant to contractual rights to repurchase shares of Common
Stock held by employees, directors or consultants of the Company or its
subsidiaries upon termination of their employment or services or
pursuant to the exercise of a contractual right of first refusal, call
right or other purchase option held by the Company; provided that in
the event the Company repurchases any such shares from one or more
employees pursuant to this clause (F), the aggregate value of such
permitted repurchases shall not exceed $1,000,000 (exclusive of any
amount of indebtedness owed to the Company by an officer or employee
that is canceled or rescinded as part of a repurchase) in any twelve
(12) month period;
(G) increase the number of directors of the
Company to greater than seven (7) persons;
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(H) use proceeds from the sale of any Series
B Preferred other than for the uses contemplated by Section 4.1 of the
Series B Purchase Agreement;
(I) other than options, or shares purchasable
on the exercise of options, pursuant to the Option Pool), offer shares
of Common Stock at an issue price that is the less than the fair market
value for such shares as of the date of issuance;
(J) offer or issue any equity security that
has a preference over, more favorable terms than, or on a parity with
the Series B Preferred with respect to voting, dividends, liquidation
preferences or any other material term or condition; provided, however,
that the Company may create and issue the Series A Preferred and the
Series C Preferred; or
(K) undertake, enter into or consummate any
Sale Transaction.
(iii) So long as at least 1,990,000 shares of Series
C Preferred remain outstanding, the Company will not, without the
written approval of the holders of at least two-thirds of the shares of
Series C Preferred, take any of the following actions:
(A) amend, alter or repeal the Company's
Bylaws or Certificate of Incorporation so as to adversely affect the
preferences, special rights or other powers of shares of Series C
Preferred;
(B) increase or decrease the authorized number
of shares of Series C Preferred;
(C) create any new class or series of shares
that has a preference over or is on a parity with the Series C
Preferred with respect to voting, dividends or liquidation preferences
(except that the Company may create and issue the Series A Preferred
and the Series B Preferred and may grant voting rights to shares of a
series of preferred stock which have the right to vote with holders of
Common Stock on an as-converted basis, but in any event not in
preference to shares of Series C Preferred);
(D) reclassify stock into shares having a
preference over or parity with the Series C Preferred with respect to
voting, dividends or liquidation preferences (except that the Company
may grant voting rights to shares of a series of preferred stock which
have the right to vote with holders of Common Stock on an as-converted
basis, but in any event not in preference to shares of Series C
Preferred);
(E) authorize any dividend or other
distribution (other than a stock dividend) with respect to the
Preferred Stock or the Common Stock (other than cash dividends payable
to the holders of Series C Preferred);
11
<PAGE>
(F) repurchase any Common Stock or Preferred
Stock, other than the purchase of Common Stock from employees acquired
pursuant to any stock option plan, stock purchase plan, stock award
plan or other incentive plan of the Company or the purchase of Common
Stock pursuant to contractual rights to repurchase shares of Common
Stock held by employees, directors or consultants of the Company or its
subsidiaries upon termination of their employment or services or
pursuant to the exercise of a contractual right of first refusal, call
right or other purchase option held by the Company; provided that in
the event the Company repurchases any such shares from one or more
employees pursuant to this clause (F), the aggregate value of such
permitted repurchases shall not exceed $1,000,000 (exclusive of any
amount of indebtedness owed to the Company by an officer or employee
that is canceled or rescinded as part of a repurchase) in any twelve
(12) month period;
(G) increase the number of directors of the
Company to greater than seven (7) persons;
(H) use proceeds from the sale of any Series
C Preferred other than for the uses contemplated by Section 4.1 of the
Series C Purchase Agreement;
(I) other than options, or shares purchasable
on the exercise of options, pursuant to the Option Pool), offer shares
of Common Stock at an issue price that is the less than the fair market
value for such shares as of the date of issuance;
(J) offer or issue any equity security that
has a preference over, more favorable terms than, or on a parity with
the Series C Preferred with respect to voting, dividends, liquidation
preferences or any other material term or condition; provided, however,
that the Company may create and issue the Series A Preferred and the
Series B Preferred; or
(K) undertake, enter into or consummate any
Sale Transaction.
(e) STOCKHOLDER AND DIRECTOR INFORMATION. At the request of any
Investor, the Company shall promptly deliver to such Investor information
regarding the security holders, officers and directors of the Company,
including, without limitation, names, addresses, types of securities held and
terms of securities held.
(f) NO IMPAIRMENT. The Company and the Subsidiaries will observe and
honor in good faith all rights of the Investors under the terms of this
Agreement or any other document executed in connection herewith, and will take
no action that would impair or otherwise prejudice such rights.
(g) OPTION POOL. The shares reserved for issuance pursuant to the
Stock Option Plan shall not exceed fifteen percent (15%) of the fully diluted
Common Stock and Preferred Stock (assuming the issuance and sale of the
Preferred Stock) of the Company at the Closing (such shares being referred to
as the "OPTION POOL"), appropriately adjusted for Recapitalizations.
12
<PAGE>
(h) RESERVE FOR CONVERSION SHARES. The Company shall at all times
reserve and keep available out of its authorized but unissued shares of Common
Stock, for the purpose of effecting the conversion of the Preferred Stock and
otherwise complying with the terms of this Agreement and the Purchase
Agreements such number of its duly authorized shares of Common Stock as shall
be sufficient to effect the conversion of the Preferred Stock from time to
time outstanding or otherwise to comply with the terms of this Agreement and
the Purchase Agreements. If at any time the number of authorized but unissued
shares of Common Stock shall not be sufficient to effect the conversion of the
Preferred Stock, or otherwise to comply with the terms of this Agreement, the
Company will forthwith take such corporate action as may be necessary to
increase its authorized but unissued shares of Common Stock to such number of
shares as shall be sufficient for such purposes. The Company will obtain any
authorization, consent, approval or other action by or make any filing with
any court or administrative body that may be required under applicable state
securities laws in connection with the issuance of shares of Common Stock upon
conversion of the Preferred Stock.
(i) BYLAWS. The Company shall at all times cause its Bylaws to
provide that the number of directors fixed in accordance therewith shall in no
event conflict with any of the terms or provisions of this Agreement or the
Company's Certificate of Incorporation. The Company shall at all times
maintain provisions in its Bylaws and/or Certificate of Incorporation
indemnifying all directors against liability and absolving all directors from
liability to the Company and its stockholders and providing for advance
payment of such indemnities to the maximum extent permitted under the laws of
the State of Delaware.
(j) COMPLIANCE. The Company shall comply, and cause each Subsidiary
to comply, with all applicable laws, rules, regulations and orders,
noncompliance with which could materially and adversely affect its business or
condition, financial or otherwise.
(k) AGREEMENTS IN FORCE. The Company will not waive or fail to
enforce the provisions of any employment agreement, non-disclosure or
noncompetition agreement under which it has rights where such waiver or
failure to enforce would have a material adverse effect on the Company or its
business.
8. RIGHT OF FIRST REFUSAL ON ISSUANCE OF NEW SECURITIES.
(a) GRANT OF RIGHT. The Company hereby grants to each Investor and
NBC the right of first refusal to purchase its Pro Rata Share of New
Securities which the Company may, from time to time, propose to sell and issue.
(b) NOTICE. In the event the Company proposes to undertake an
issuance or sale of New Securities, it shall give the Investors and NBC
written notice of its intention, describing the amount and type of New
Securities, and the price and terms upon which the Company proposes to issue
the same. To the extent New Securities are subject to SECTION 8(a) above, each
Investor and NBC shall have thirty (30) days from the date of receipt of any
such notice to agree to purchase up to its Pro Rata Share of such New
Securities for the price and upon the terms specified in the notice by giving
13
<PAGE>
written notice to the Company and stating therein the quantity of New
Securities to be purchased. Subject to the previous sentence, the closing of
the purchase of the New Securities to be issued and sold to the Investors or
NBC shall occur at the same time as the closing of the sale of New Securities
not elected or eligible to be purchased by the Investors or NBC shall occur.
(c) ELIGIBLE SALES TO THIRD PARTIES. After giving the notice and
opportunity for the Investors and NBC to participate as required under SECTION
8(b) above, the Company shall have ninety (90) days thereafter to issue and
sell the New Securities not elected nor eligible to be purchased by the
Investors and NBC at the price and upon the terms no more favorable to the
purchasers of such securities than specified in the Company's notice under
SECTION 8(b). In the event the Company has not sold such New Securities within
said ninety (90) day period, the Company shall not thereafter issue or sell
any New Securities without first offering such securities in the manner
provided above.
9. LEGENDS. All certificates of the Stockholders representing any
Securities subject to the provisions of this Agreement shall have endorsed
thereon a legend to substantially the following effect:
"THE RIGHT TO SELL, TRANSFER OR OTHERWISE DISPOSE OF OR PLEDGE
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY BE SUBJECT TO CERTAIN
RESTRICTIONS, WHICH INCLUDE CO-SALE AND RIGHT OF FIRST REFUSAL
RESTRICTIONS ON THE SALE OF THE SHARES AND A VOTING AGREEMENT, SET
FORTH IN A STOCKHOLDERS' AGREEMENT. A COPY OF SUCH AGREEMENT IS ON FILE
AT THE CORPORATION'S PRINCIPAL PLACE OF BUSINESS AND ITS REGISTERED
OFFICE."
10. TRANSFER OF STOCK. The Company shall not: (a) permit any transfer
on its books of any Securities which shall have been sold or transferred in
violation of any of the provisions set forth in this Agreement or applicable
securities laws, (b) treat as an owner of such Securities or accord the right
to vote as an owner or to pay dividends to any transferee to whom such
Securities shall have been sold or transferred in violation of any of the
provisions set forth in this Agreement, or (c) treat as an owner of such
Securities or accord the right to vote as an owner or to pay dividends to any
transferee to whom such Securities shall have been pledged or hypothecated.
11. TERMINATION. This Agreement shall terminate upon the earlier to
occur of:
(a) an agreement in writing by the Company, Investors holding at
least two-thirds of the shares (counted on an as-converted basis) of the
capital stock held by all Investors, Inside Stockholders holding at least
two-thirds of the shares (counted on an as-converted basis) of the capital
stock held by all Inside Stockholders and Outside Stockholders holding at
least two-thirds of the shares (counted on an as-converted basis) of the
capital stock held by all Outside Stockholders;
14
<PAGE>
(b) the consummation of a Qualified Public Offering;
(c) the consolidation, merger (but only with respect to a
consolidation or merger pursuant to which stockholders of the Company
(determined prior to such consolidation or merger) hold less than fifty
percent (50%) of the voting equity of the surviving corporation) or sale of
all or substantially all of the assets of the Company; or
(d) December 31, 2010.
12. TRANSFER OF RIGHTS. Notwithstanding any other provision of this
Agreement, the rights set forth in SECTION 2, SECTION 3, and SECTION 4 (the
"RIGHTS") are assignable or transferable by the Investors and NBC to any party
(an "INVESTORS' PERMITTED ASSIGN") in connection with the sale of such
securities to such party pursuant to the terms of this Agreement, so long as
such Investors' Permitted Assign agrees in a written instrument to be bound by
the terms of this Agreement as if such party were an Investor or NBC, as
applicable.
13. AMENDMENT. Any provision of this Agreement may be amended or the
observance thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively) only with the written consent of
the Company, Investors holding at least two-thirds of the shares (counted on
an as-converted basis) of the capital stock held by all Investors, Inside
Stockholders holding at least two-thirds of the shares (counted on an
as-converted basis) of the capital stock held by all Inside Stockholders and
Outside Stockholders holding at least two-thirds of the shares (counted on an
as-converted basis) of the capital stock held by all Outside Stockholders. Any
amendment or waiver effected in accordance with this SECTION 13 shall be
binding upon each Stockholder, NBC, each Permitted Transferee, each Investors'
Permitted Assign, and the Company. For purposes of this SECTION 13 only, the
term "Investor" shall include NBC.
14. GOVERNING LAW. This Agreement and the legal relations between the
parties arising hereunder shall be governed by and interpreted in accordance
with the laws of the State of Delaware. The parties hereto agree to submit to
the jurisdiction of the federal and state courts of the State of Delaware with
respect to the breach or interpretation of this Agreement or the enforcement
of any and all rights, duties, liabilities, obligations, powers, and other
relations between the parties arising under this Agreement.
15. ENTIRE AGREEMENT. This Agreement, including all exhibits,
schedules and attachments hereto, and all other agreements executed in
connection therewith, constitute the full and entire understanding and
agreement between the parties regarding the matters set forth herein and
therein. This Agreement (i) amends and restates in its entirety the
Stockholders' Agreement, dated September 29, 1999 (the "Original Agreement),
by and among the Company and the other parties thereto, (ii) has been approved
in accordance with the terms of the Original Agreement, as evidenced by the
signatories hereto and (iii) is binding on all parties to the Original
Agreement, whether or not such parties are signatories hereto. The Series A
Investors and the Company agree that the provisions set forth in SECTION 7
hereof replace and supercede the provisions set forth in SECTIONS 4.1, 4.2,
4.4-4.14,
15
<PAGE>
5.1, 5.2 AND 5.3 contained in the Series A Purchase Agreement, which
provisions of such Series A Purchase Agreement shall be void and of no further
force or effect on and after the date of this Agreement. Except as otherwise
expressly provided herein, the provisions hereof shall inure to the benefit
of, and be binding upon the successors, assigns, heirs, executors and
administrators of the parties hereto.
16. NOTICES, ETC. Except as otherwise specifically provided herein,
all notices and other communications required or permitted hereunder shall be
in writing and shall be deemed effectively given upon personal delivery to the
party to be notified or three (3) days after deposit with the United States
mail, by registered or certified mail, postage prepaid, addressed (a) if to an
Investor or NBC, at such Investors' or NBC's address as set forth on the
signature pages hereto, or at such other address as such Investor or NBC shall
have furnished to the Company in writing in accordance with this SECTION 16;
(b) if to any other holder of the Preferred Stock and Common Stock issued upon
conversion thereof to whom the Rights have been transferred in accordance with
SECTION 12 hereof, at such address as such holder shall have furnished the
Company in writing in accordance with this SECTION 16, or, until any such
holder so furnishes an address to the Company, then to and at the address of
the last holder thereof who has so furnished an address to the Company; (c) if
to any Other Stockholder, at such address as such Other Stockholder shall have
last furnished the Company and the Stockholders in writing; or (d) if to the
Company, at its principal office.
17. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
18. SEVERABILITY. If any provision of this Agreement is held invalid
under applicable law, such provision will be ineffective to the extent of such
invalidity, and such invalid provision will be modified to the extent
necessary to make it valid and enforceable. Any such invalidity will not
invalidate the remainder of this Agreement.
19. SPECIFIC PERFORMANCE. The Company, NBC and the Stockholders agree
that the rights created by this Agreement are unique, and that the loss of any
such right is not susceptible to monetary quantification. Consequently, the
parties agree that an action for specific performance (including for temporary
and/or permanent injunctive relief) of the obligations created by this
Agreement is a proper remedy for the breach of the provisions of this
Agreement, without the necessity of proving actual damages. If the parties
hereto are forced to institute legal proceedings to enforce their rights in
accordance with the provisions of this Agreement, the prevailing party shall
be entitled to recover its reasonable expenses, including attorneys' fees, in
connection with any such action.
20. WARRANTS. The Investors consent to and approve the Company's
issuance of warrants on the terms and conditions described in Schedule 2.5 of
the Series B Purchase Agreement and the Series C Purchase Agreement, to NBC
pursuant to the Warrant Agreements, both dated as of April 18, 2000, or shares
of Common Stock issuable upon exercise thereof.
16
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
COMPANY
DIGITALCONVERGENCE.:COM, INC.
By: /s/ Patrick V. Stark
------------------------------------
Name: Patrick V. Stark
Title: Executive Vice President
INSIDE STOCKHOLDERS
/s/ J. Jovan Philyaw
---------------------------------------------
J. Jovan Philyaw
/s/ Patrick V. Stark
---------------------------------------------
Patrick V. Stark
/s/ Michael N. Garin
---------------------------------------------
Michael N. Garin
Stockholders' Agreement - Signature Page
<PAGE>
OUTSIDE STOCKHOLDERS
BCG PARTNERSHIP, LTD.
By: /s/ William O. Hunt
-------------------------------------------
General Partner
Address: BCG Partnership, Ltd.
17604 Woods Edge Drive
Dallas, Texas 75287
Telephone: (972) 931-8559
Telecopy: (972) 931-4032
B&G PARTNERSHIP, LTD.
By: /s/ William O. Hunt
-------------------------------------------
General Partner
Address: B&G Partnership, Ltd.
17604 Woods Edge Drive
Dallas, Texas 75287
Telephone: (972) 931-8559
Telecopy: (972) 931-4032
JAT FIVE, LTD.
By: /s/ Jack A. Turpin
-------------------------------------------
Jack A. Turpin, Manager
Address: JAT FIVE, LTD.
8201 Preston Road
Suite 310
Dallas, Texas 75225
Telephone: (214) 692-4253
Telecopy: ______________
Stockholders' Agreement - Signature Page
<PAGE>
SERIES A INVESTORS
BELO ENTERPRISES, INC.*
By: /s/ Mark T. Ryan
------------------------------
Mark T. Ryan
President
Address: Belo Enterprises, Inc.
Silverside Carr Executive Center
501 Silverside Road, Suite 401
Wilmington, Delaware 19809
Attn: President
Telephone: (302) 792-8464
Telecopy: (302) 798-3922
YOUNG & RUBICAM INC.
By: /s/ Michael J. Dolan
------------------------------
Name: Michael J. Dolan
Title Vice Chairman/CFO
Address: Young & Rubicam Inc.
285 Madison Avenue
New York, New York 10017
Attention: ___________________
Telephone: (214) 210-3022
Telecopy: (214) 687-1393
-------------------------
*Also signing in capacity as a Series B Investor and a Series C Investor.
Stockholders' Agreement - Signature Page
<PAGE>
ING CAPITAL LLC
By: /s/ Albert J. Staal
--------------------------------------
Name: Albert J. Staal
Title: Managing Director
Address: ING Capital, LLC
_______________________________
_______________________________
Telephone: ____________________
Telecopy: ____________________
Stockholders' Agreement - Signature Page
<PAGE>
Sumitomo Corporation
By: /s/ Atsushi Nishijo
-----------------------------------------
Name: Atsushi Nishijo
Title: Managing Director, C.I.O.
General Manager Media,
Electronics & Information Business Group
Address: 1-2-2, Hitotsubashi, Chiyoda-ku
Tokyo, 100-8601
Telephone: +81 3 3217 7012
-------------------------
Telecopy: +81 3 3217 7629
-------------------------
Stockholders' Agreement - Signature Page
<PAGE>
SERIES B & SERIES C INVESTORS
TANDY CORPORATION
By: /s/ Mark C. Hill
-----------------------------------
Mark C. Hill
Senior Vice President, Corporate
Secretary and General Counsel
Address: Tandy Corporation
100 Throckmorton Street
Suite 1900
Fort Worth, Texas 76102
Telephone: (817) 415-2181
Telecopy: (817) 415-6593
Stockholders' Agreement - Signature Page
<PAGE>
A. H. Belo Foundation Corporation
By: /s/ F. Jamieson Clement
-------------------------------------
Name: F. Jamieson Clement
Title Treasurer
Address: 400 S. Record Street
Dallas, Texas 75202
Telephone: (214) 977-6802
Telecopy: (214) 977-6620
Stockholders' Agreement - Signature Page
<PAGE>
COCA-COLA OASIS, INC.
By: /s/ Steve M. Whaley
-------------------------------------
Name: Steve M. Whaley
Title: Vice President
Address: Coca-Cola Oasis, Inc.
c/o The Coca-Cola Company
One Coca-Cola Plaza
Atlanta, GA 30313
Attention: Director of Business
Development
Telephone: (404) 676-2121
Telecopy: (404) 676-6275
with copies to:
The Coca-Cola Company
One Coca-Cola Plaza
Atlanta, GA 30313
Attention: General Counsel
Telephone: (404) 676-2121
Telecopy: (404) 676-6275
Stockholders' Agreement - Signature Page
<PAGE>
A.T. CROSS LIMITED
By: /s/ John T. Ruggieri
-------------------------------------
Name: John T. Ruggieri
Title Assistant Treasurer
Address: c/o Appleby Spurling & Kempe
Cedar House, 41 Cedar Avenue
Hamilton 12, Bermuda
Telephone:
Telecopy:
Stockholders' Agreement - Signature Page
<PAGE>
SCRIPPS-HOWARD PUBLISHING INC.
By: /s/ Craig C. Standen
-------------------------------------
Craig C. Standen
Title: SVP, Corporate Development
Address: The E.W. Scripps Company
312 Walnut Street, 28th Floor
Cincinnati, Ohio 45202
Telephone: (513) 977-3807
Telecopy: (513) 977-3013
Stockholders' Agreement - Signature Page
<PAGE>
SPIELBERG/KATZ ENTERPRISES, LLC
By: /s/ Mr. Shimon Y. Katz
-------------------------------------
Mr. Shimon Y. Katz
Title: Manager of the Member-Manager
Address: Spielberg/Katz Enterprises, LLC
545 Madison Avenue, Suite 700
New York, NY 10022
Attn:
Telephone: (212) 759-2700
Telecopy: (212) 759-2525
Stockholders' Agreement - Signature Page
<PAGE>
SERIES B (ONLY) INVESTORS:
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Stephanie W. Abramson
--------------------------------
Name:
---------------------------
Title:
--------------------------
Address:
-------------------------
-------------------------
Attn:
--------------------
Telephone:
--------------
Telecopy:
--------------
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ David Alexander
------------------------------------
Name: David Alexander
Title:
---------------------------
Address: 500 Fifth Ave., Suite 2700
New York, N.Y. 10110
Stockholders' Agreement - Signature Page
<PAGE>
B&McG HOLDINGS
By: /s/ Burton Lehman
------------------------------------
Name: Burton Lehman
Title: Managing Partner
Address: c/o Schulte, Roth & Zabel
900 Third Avenue
New York, NY 10022
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Bruce A. Barnet
------------------------------------
Name: Bruce A. Barnet
Title:
----------------------------
Address: 5 Crooked Mile Rd.
Westport, CT 06880
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Frank Belatti
------------------------------------
Name: Frank Belatti
Title: CEO AFC Enterprises
Address: 330 Cannady Ct.
Atlanta, GA 30350
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Thomas D. Bell, Jr.
------------------------------------
Name: Thomas D. Bell, Jr.
Title: President & CEO
Address: 14 Red Coat Lane
Greenwich, CT 06830
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ James S. Berrien
------------------------------------
Name: James S. Berrien
Title: President, Forbes Magazine
Address: 290 Sturges Hwy.
Westport, CT 06880
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Darrel G. Besikof
------------------------------------
Darrel G. Besikof
Address: 12231 Orchard Ave. W.
Minnetonka, MN 55305
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Kenneth W. Biermacher
--------------------------------------
Mr. Ken Biermacher
Address: c/o Kane Russell Coleman & Logan
3700 Thanksgiving Tower
1601 Elm Street
Dallas, TX 75201-7207
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ John R. Bingle
----------------------------
Name: John R. Bingle
Address: 49 North Walton Rd.
New Canaan, CT 06840
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Maks Birnbach
---------------------------
Name: Maks Birnbach
Address: 1165 Park Ave. 8A
NY, NY 10128
Attn: Maks Birnbach
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Livio M. Borghese
-----------------------
Name: Livio Borghese
Title:
---------------
Address: 79 East 79th
NY, NY 10021
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Richard J. Borinstein
------------------------------------------
Richard J. Borinstein
Address: c/o Radio Shack/Tandy Corporation
100 Throckmorton, #1600
Fort Worth, TX 76102
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Daniel B. Brewster, Jr.
------------------------------
Name: Daniel B. Brewster, Jr.
Address: 944 Lake Ave.
Greenwich, CT 06831
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Gerard A. Byrne
-------------------------
Name: Gerard A. Byrne
Address:
--------------------
--------------------
--------------------
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Jeffrey A. Chapman
---------------------------------
Address: c/o Vinson & Elkins L.L.P.
2001 Ross Avenue
3700 Trammell Crow Center
Dallas, Texas 75201-2975
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Henry Chiarelli
------------------------------
Mr. Henry Chiarelli
Address: c/o Tandy Corporation
100 Throckmorton, #1400
Fort Worth, TX 76102
Attn: Henry Chiarelli
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ David Christopher
------------------------------
Mr. Dave Christopher
Address: c/o Tandy Corporation
100 Throckmorton, #1900
Fort Worth, TX 76102
Stockholders' Agreement - Signature Page
<PAGE>
/s/ William Clarke
---------------------------
Name: William Clarke
Address: 4 Wild Iris Lane
Fairview, NC 28730
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Kenneth D. Cole
----------------------------------
Name: Kenneth D. Cole
Title:
--------------------------
Address: 1619 Purchase St.
Purchase, N.Y. 10577
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Joseph M. Coleman
----------------------------------
Name: Joseph M. Coleman
Title:
--------------------------
Address: 6416 Shady Oaks
Plano, TX 75093
Attn:
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Mark Colodny
----------------------------------
Name: Mark Colodny
Title: Vice President, Corp.
Development
Address: 59 East 92nd St, #3
NY NY 10128
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ James C. Cooksey
----------------------------------
Name: James C. Cooksey
Address: 12750 Merit #1310
Dallas, TX 75251
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Lawrence R. Cowart
----------------------------------
Name: Lawrence R. Cowart
Title:
----------------------------
Address: 18 Park Lane
Atlanta, Georgia 30309
Stockholders' Agreement - Signature Page
<PAGE>
DCGI ASSOCIATES LLC
By: /s/ Mr. Shimon Y. Katz
--------------------------------------
Mr. Shimon Y. Katz
Title: Member-Manager
Address: DCGI Associates LLC
c/o Spielberg/Katz
Enterprises, LLC
Attn: Shimon Y. Katz
545 Madison Avenue, Suite 700
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Denise De Clercq
----------------------------------
Name: Denise De Clercq
Address: 33 Hugo Verrieststraat
Gent Belgium
Stockholders' Agreement - Signature Page
<PAGE>
Devillier Donegan Enterprises Inc.
By: /s/ Ronald J. Devillier
----------------------------------
Name: Ronald J. Devillier
Title: Pres & CEO
Address: 4401 Connecticut Avenue NW
Wash D.C. 20008
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Michael J. Dolan
----------------------------------
Name: Michael J. Dolan
Title: Vice Chairman/CFO
Address: 15 E. 69th ST., #6C
NY, NY 10021
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ David J. Edmondson
----------------------------------
Mr. Dave Edmondson
4/14/00
Address: c/o Tandy Corporation
100 Throckmorton, #1900
Fort Worth, TX 76102
Stockholders' Agreement - Signature Page
<PAGE>
E.F.G. PRIVATE BANK SA
By: /s/ Silvio Maglio Christophe Trueck
--------------------------------------------
Name: Silvio Maglio - Christophe Trueck
Title: Vice President - Assistant Vice President
Address: E.F.G. Private Bank SA
24, Quai du Seujet
C.P. 2391 1211 Geneve 2
Switzerland
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Ronald E. Elmquist
----------------------------
Mr. Ronald E. Elmquist
Address: Keystone Automative
44 Tunkhannock Avenue
Exeter, PA 18643-1299
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Jay R. Feldman
---------------------------
Jay R. Feldman
Title:
---------------------
Address: 13018 Boswell Ct
Potamac, MD 20854
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Jon Feldman
----------------------------
Name: Jon Feldman
Title:
----------------------
Address: 151 S. Orange Drive
Los Angeles, CA 90036
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Evelyn Follit
------------------------------
Evelyn Follit
Address: c/o Tandy Corporation
200 Taylor Street, #400
Fort Worth, TX 76102
Stockholders' Agreement - Signature Page
<PAGE>
Forbes Family Holdings Inc.
By: /s/ Joel B. Redler
---------------------------
Name: Joel B. Redler
Title: VP Treas.
Address: 60 Fifth Avenue
N.Y. N.Y. 10011
Stockholders' Agreement - Signature Page
<PAGE>
4/13/00
By: /s/ David Frankel
---------------------------
Name: David Frankel
Address: 3507 St. Guadens Rd.
Miami, FL 33133
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Dain T. Fritz
---------------------------
Name: Dain T. Fritz
Address: 14 Moss Ledge Road
Westport, CT 06880
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Charles B. Fruit
---------------------------
Name: Charles B. Fruit
Address: 2845 Andrews Drive
Atlanta, GA 30305
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Geoffrey D. Garin
---------------------------
Name: Geoffrey D. Garin
Address: 5904 32nd Street NW
Washington, DC 20015
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Peter A. Georgescu
---------------------------------------
Name: P. Georgescu
Title: Chairman Emeritus
Address: Young & Rubicam
285 Madison Ave
New York, N.Y. 10017
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Peter Godfrey
---------------------------------------
Name: Peter Godfrey
Title:
--------------------------------
Address: 128 Beachside Avenue
Westport, CT 06880
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Robert A. Goodin
---------------------------------------
Name: Robert A. Goodin
Title:
--------------------------------
Address: 505 Sansome St, Ste. 900
San Francisco, CA 94111
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Peter Guber
---------------------------------------
Name: Peter Guber
Title:
--------------------------------
Address: 5555 Melrose Avenue
Hollywood, CA 90038
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Richard L. Harter
---------------------------------------
Name: Richard L. Harter
Title: Vice President-Sales
Address: 75 Louise's Lane
New Canaan, CT 06840
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ John A. Herfort Diane S. Wallerstein
----------------------------------------------
Name: John A. Herfort Diane S. Wallerstein
Title:
---------------------------------------
Address: 1130 Park Ave. Apt.8-1
(for both) NYC, NY 10128
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Jacob D. Hill
---------------------------------------
Name: Jacob Hill
Title:
--------------------------------
Address: 155 W. 68th #1514
New York, NY 10023
Attn: Jacob Hill
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Mark C. Hill
---------------------------------------
Mr. Mark C. Hill
Address: c/o Tandy Corporation
100 Throckmorton, #1900
Fort Worth, TX 76102
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Dwain Hughes
---------------------------------------
Mr. Dwain Hughes
Address: c/o Tandy Corporation
100 Throckmorton, #1900
Fort Worth, TX 76102
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Loren K. Jensen
---------------------------------------
Loren Jensen
Address: c/o Tandy Corporation
100 Throckmorton, #1800
Fort Worth, TX 76102
Attn: Loren K. Jensen
Stockholders' Agreement - Signature Page
<PAGE>
JGM CAPITAL
By: /s/ John McColskey
---------------------------------
Name: John G. McCloskey
Title: President
Address: 1075 Brookhaven Sq.
Atlanta, GA 30319
Stockholder's Agreement - Signature Page
<PAGE>
By: /s/ David P. Johnson
---------------------------------
Mr. David Johnson
Address: c/o Tandy Corporation
100 Throckmorton, #1600
Fort Worth, TX 76102
Stockholder's Agreement - Signature Page
<PAGE>
By: /s/ Wilma H. Jordan
---------------------------------
Name: Wilma H. Jordan
Title:
--------------------------
Address: 150 E. 52nd, 18th Floor
New York 10022
Stockholder's Agreement - Signature Page
<PAGE>
By: /s/ Robert Kamerschen
---------------------------------
Mr. Robert J. Kamerschen
Address: c/o DIMAC Corporation
200 Day Hill Road
Windsor, CT 06095
Stockholder's Agreement - Signature Page
<PAGE>
By: /s/ Raymond J. Kane
----------------------------------
Mr. Ray Kane
Address: c/o Kane Russell Coleman & Logan
3700 Thanksgiving Tower
1601 Elm Street
Dallas, TX 75201-7207
Attn:
Stockholder's Agreement - Signature Page
<PAGE>
By: /s/ Robert Kelsoe
---------------------------------
Name: Robert Kelsoe
Address: 5220 Spring Valley Road
Suite 500
Dallas, Texas 75240
Stockholder's Agreement - Signature Page
<PAGE>
By: /s/ Winthrop Knowlton
---------------------------------
Name: Winthrop Knowlton
Title:
-------------------------
Address: c/o Knowlton Brothers, Inc.
530 Fifth Avenue
NY, NY 10036
Stockholder's Agreement - Signature Page
<PAGE>
By: /s/ Keith Kocho
---------------------------------
Name: Keith Kocho
Title: Founder and CEO
Address: 1651 N. Beverly Drive
Beverly Hills, CA 90210
Stockholder's Agreement - Signature Page
<PAGE>
By: /s/ Frank Konigsberg
---------------------------------
Name: Frank Konigsberg
Title:
--------------------------
Address: 7919 Sunset Blvd.
Los Angeles, CA 90046
Stockholder's Agreement - Signature Page
<PAGE>
By: /s/ Steven R. Koonin
---------------------------------
Steven R. Koonin
Address: 74 Gateside Place
Marietta, GA 30067
Stockholder's Agreement - Signature Page
<PAGE>
By: /s/ Sharon Korman as trustee for Eric Korman
----------------------------------------------
Name: Sharon Korman
Title: trustee for Eric Lorman
Address: 911 Park Avenue
New York, New York 10021
Stockholder's Agreement - Signature Page
<PAGE>
By: /s/ Lewis F. Kornfeld, Jr.
----------------------------------
Mr. Lewis F. Kornfeld, Jr.
Address: 1000 Throckmorton, Suite #405
Fort Worth, TX 76102
Stockholder's Agreement - Signature Page
<PAGE>
By: /s/ William P. Kupper, Jr.
----------------------------------
Name: William P. Kupper, Jr.
Title:
-------------------------
Address: 51 W. Branch Rd.
Weston, CT 06883
Stockholder's Agreement - Signature Page
<PAGE>
By: /s/ Kevin Lavan
----------------------------------
Kevin Lavan
Address:
-------------------------------
-------------------------------
Stockholder's Agreement - Signature Page
<PAGE>
By: /s/ Chris Malinowski
----------------------------------
Name: Chris Malinowski
Address: 5800 Kingsbrook
Plano, TX 75093
Stockholder's Agreement - Signature Page
<PAGE>
By: /s/ Debra Malinsky
-----------------------------------
Debra Malinsky
Address: 6800 Del Norte, #133
Dallas, TX 75225
Stockholder's Agreement - Signature Page
<PAGE>
By: /s/ Kenneth L. Marks
----------------------------------
Name: Kenneth L. Marks
Title:
---------------------------
Address: 12 Beach Drive
Darien, CT 06820
Stockholder's Agreement - Signature Page
<PAGE>
By: /s/ Thomas N. Matlack
------------------------------------
Name: Thomas N. Matlack
Title: Managing Director
Address: 362 Commonwealth Avenue, #PHB
Boston, MA 02116
Stockholder's Agreement - Signature Page
<PAGE>
By: /s/ Peter W. May
----------------------------------
Name: Peter W. May
Title:
--------------------------
Address: 280 Park Avenue
NY, NY 10017
41st Fl.
Stockholder's Agreement - Signature Page
<PAGE>
By: /s/ Jim McDonald
----------------------------------
Mr. Jim McDonald
Address: c/o Tandy Corporation
100 Throckmorton, #1100
Fort Worth, TX 76102
Stockholder's Agreement - Signature Page
<PAGE>
By: /s/ Donald M. McGuire
---------------------------
Donald M. McGuire
Address: 23 Carleton St.
Greenwich, CT 06830
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Bryan McMillan
-----------------------------
Name: Bryan McMillan
Title:
-----------------------
Address: 2540 Prestonwood Drive
Plano, TX 75093
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Joseph McOwen
----------------------------
Name: Joseph McOwen
Title:
----------------------
Address: 3230 S. Ocean Blvd.
Palm Beach, FL 33480
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Jack L. Messman
----------------------------------------
Mr. Jack Messman
Address: c/o Cambridge Technology Partners
8 Cambridge Center
Cambridge, MA 02142
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Knox Millar
----------------------------
Name: Knox Millar
Title:
----------------------
Address: 194 West Lane
Ridgefield, CT 06877
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Martin Moad
------------------------------
Mr. Martin Moad
Address: c/o Tandy Corporation
100 Throckmorton, #1800
Fort Worth, TX 76102
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Anthony Morgano
------------------------------
Name: Anthony Morgano
Address: 194 Roxbury Rd
Garden City, N.Y. 11530
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ William G. Morton, Jr.
----------------------------------
Mr. William G. Morton, Jr.
Address: Boston Stock Exchange, Inc.
100 Franklin Street
Boston, MA 02110
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Douglas P.C. Nation
---------------------------
Name: Douglas P.C. Nation
Address:
-------------------
-------------------
-------------------
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Anthony Peyser
--------------------------
Name: Anthony Peyser
Title:
-----------------
Address: 160 W 86th St 15A
NYC 10024
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Thomas G. Plaskett
---------------------------------------
Mr. Thomas G. Plaskett
Address: c/o Williams Square
5215 N. O'Connor, #1070
Irving, TX 75039
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Lou Provost
---------------------------------------
Lou Provost
Address: c/o Tandy Corporation
100 Throckmorton, #1600
Fort Worth, TX 76102
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Michael A. Quint
---------------------------------------
Mr. Mike Quint
Address: c/o Jackson & Cooksey
12750 Merit, Suite 1310
Dallas, TX 75251
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Richard Ramsey
---------------------------------------
Mr. Richard Ramsey
Address: c/o Tandy Corporation
100 Throckmorton, #1800
Fort Worth, TX 76102
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Leonard H. Roberts
---------------------------------------
Mr. Leonard H. Roberts
Address: c/o Tandy Corporation
100 Throckmorton, #1900
Fort Worth, TX 76102
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Richard T. Robertson
/s/ Marianne Robertson
----------------------------------------
Name: Richard T. & Marianne Robertson
Title:
--------------------------------
Address: 1531 Lindacrest Drive
Beverly Hills, CA 90210
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Johnathan Rodgers
---------------------------------------
Name: Johnathan Rodgers
Title:
--------------------------------
Address: 3120 Newark St.
Washington, DC 20008
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Larry Sanitsky
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Address: 9340 Readcrest Dr.
Beverly Hills, CA 90210
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Brian D. Sayers
---------------------------------------
Name: Brian D. Sayers
Title:
-------------------------------
Address: 5516 Roland Drive
Plano TX 75093
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Steven J. Simmons
---------------------------------------
Name: Steven J. Simmons
Title:
-------------------------------
Address: 66 Winding Lane
Greenwich, CT 06831
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Francesca Spinelli
----------------------------------
Francesca Spinelli
Address: c/o Tandy Corporation
100 Throckmorton, #1900
Fort Worth, TX 76102
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Mark E. Stanley
----------------------------------
Mr. Mark Stanley
Address: c/o Tandy Corporation
100 Throckmorton, #1100
Fort Worth, TX 76102
Stockholders' Agreement - Signature Page
<PAGE>
THE A.J. STEIN FAMILY TRUST DTD 10/14/83
By: /s/ Alfred J. Stein
----------------------------------
Mr. Alfred J. Stein
Address: 410 Old Oak Court
Los Altos, CA 94022
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Dennis Stoutenburgh
----------------------------------
Name: Dennis Stoutenburgh
Title: Shareholder
Address: 2804 Rosedale Ave.
Dallas, TX 75205
Stockholders' Agreement - Signature Page
<PAGE>
DAVID TARLOW & CO., CPA, PC
By: /s/ Charles Golden
----------------------------------
Name: Charles Golden
Title: Pres
Address: 60 East 42nd St
New York, NY 10165
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Tim G. Temple
----------------------------------
Name: Tim G. Temple
Title:
----------------------------
Address: 1509 Chimney Works
Southlake, TX 76092
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ John C. Thomas, Jr.
----------------------------------
John C. Thomas, Jr.
Address: 14 Sutton Place So.
New York, N.Y. 10022
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ William E. Tucker
----------------------------------
Mr. William E. Tucker
Address: 100 Throckmorton, #416
Fort Worth, TX 76102
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Stuart Turner
----------------------------------
Name: Stuart Turner
Title:
----------------------------
Address: 72 Biltmore Estates
Phoenix, AZ 85016
Stockholders' Agreement - Signature Page
<PAGE>
VINSON & ELKINS L.L.P.
By: /s/ William R. Volk
----------------------------------
Name: William R. Volk
Title: Partner
Address: Vinson & Elkins L.L.P.
2001 Ross Avenue
3700 Trammell Crow Center
Dallas, Texas 75201-2975
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Mark P. Weill
----------------------------
Name: Mark P. Weill
Title: --
----------------------
Address: 399 Park Avenue
NY, NY 10043
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ William F. Weld
----------------------------
Name: William F. Weld
Title: Partner
Address: McDermott, Will & Emery
------------------------
------------------------
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Bourne F. Welsh
----------------------------------
Name: Bourne F. Welsh
Tite:
Address: 501 E. 79th St.
NYC, NY 10021
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Leah Welsh
----------------------------------
Leah Welsh
Address: 6417 Maryland Drive
Los Angeles, CA 90048
Stockholders' Agreement - Signature Page
<PAGE>
By: /s/ Edwina D. Woodbury
----------------------------------
Ms. Edwina D. Woodbury
Address: 629 Totten Place
Chapel Hill, NC 27514
Stockholders' Agreement - Signature Page
<PAGE>
NBC - DCCI HOLDING, INC.
By: /s/
-------------------------------------
Name:
--------------------------------
Title:
-------------------------------
Address: c/o National Broadcasting Company, Inc.
30 Rockefeller Plaza
46th Floor (4618E)
New York, New York 10112
Attn: Brandon Burgess
Stockholders' Agreement - Signature Page
