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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)*
Final Amendment
NETLIVE COMMUNICATIONS, INC.
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(Name of Issuer)
COMMON STOCK
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(Title of Class of Securities)
64114210
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(CUSIP Number)
Mr. Owen May With a copy to:
May Davis Group, Inc. Morris Orens, Esq.
Wall Street Tower Shereff, Friedman, Hoffman & Goodman, LLP
20 Exchange Place 919 Third Avenue
New York, New York 10005 New York, New York 10022
(212) 480-2710 (212) 758-9500
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
JUNE 12, 1997
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(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
statement because of Rule 13d-1(b) (3) or (4), check the following: [ ].
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).
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SCHEDULE 13D
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CUSIP No. 64114210 Page 2 of Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
May Davis Group, Inc. (13-373-5598)
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
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NUMBER OF 7 SOLE VOTING POWER
SHARES 35,118
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BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 0
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EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 35,118
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WITH
10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
35,118
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.3%
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14 TYPE OF REPORTING PERSON*
CO;BD
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
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SCHEDULE 13D
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CUSIP No. 64114210 Page 3 of Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Owen May
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
Not applicable.
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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NUMBER OF 7 SOLE VOTING POWER
SHARES 0
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BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 35,118
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EACH
REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 0
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WITH
10 SHARED DISPOSITIVE POWER
35,118
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
35,118
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.3%
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14 TYPE OF REPORTING PERSON*
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
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CUSIP No. 64114210 Page 4 of Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Dibo Attar
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
Not applicable.
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) or 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Italy
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NUMBER OF
SHARES 7 SOLE VOTING POWER
BENEFICIALLY 0
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OWNED BY 8 SHARED VOTING POWER
EACH 555,000
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REPORTING 9 SOLE DISPOSITIVE POWER
PERSON 0
WITH
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10 SHARED DISPOSITIVE POWER
555,000
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
555,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
17.6%
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14 TYPE OF REPORTING PERSON*
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
SCHEDULE 13D
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CUSIP No. 64114210 Page 5 of Pages
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Dennis Sal
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) / /
(b) /X/
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
PF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) or 2(e) / /
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States
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NUMBER OF
SHARES 7 SOLE VOTING POWER
BENEFICIALLY 90,000
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OWNED BY 8 SHARED VOTING POWER
EACH 0
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REPORTING
PERSON 9 SOLE DISPOSITIVE POWER
WITH 90,000
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10 SHARED DISPOSITIVE POWER
0
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
90,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* / /
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
3.4%
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14 TYPE OF REPORTING PERSON*
IN
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*SEE INSTRUCTIONS BEFORE FILLING OUT!
INCLUDE BOTH SIDES OF THE COVER PAGE, RESPONSES TO ITEMS 1-7
(INCLUDING EXHIBITS) OF THE SCHEDULE, AND THE SIGNATURE ATTESTATION.
<PAGE>
This Statement is Amendment No. 1 ("Amendment No. 1") to the
Statement on Schedule 13D (the "Schedule 13D") filed with the Securities and
Exchange Commission on March 11, 1997, by May Davis Group, Inc., Owen May, Dibo
Attar and Dennis Sal relating to their ownership of Common Stock of NetLive
Communications, Inc., a Delaware corporation (the "Company"). Unless otherwise
indicated, all defined terms shall have the meanings ascribed to them in the
Schedule 13D. This Amendment No. 1 is the final amendment to the Schedule 13D.
ITEM 4. PURPOSE OF TRANSACTION.
Item 4 is hereby amended as follows:
The Reporting Persons have entered into a Settlement Agreement (the
"Settlement Agreement"), dated June 12, 1997, by and between the Company and
each of the Reporting Persons and the Funds, a copy which is attached hereto as
Exhibit 5 and is incorporated herein by reference.
Subject to applicable legal requirements, the terms of the
Settlement Agreement and the factors referred to below, the Reporting Persons
may, from time to time, purchase additional shares of Common Stock in open
market or privately negotiated transactions. In determining whether to
purchase additional shares, the Reporting Persons intend to consider and
review various factors on a continuous basis, including the terms of the
Settlement Agreement, the Company's financial condition, business and
prospects, other developments concerning the Company, the reaction of the
Company and of stockholders to the Reporting Persons' ownership of Common
Stock, the price and availability of shares of Common Stock, other investment
and business opportunities available to the Reporting Persons, developments
with respect to the Reporting Persons' business, and general economic, money
and stock market conditions. In addition, depending upon, among other
things, the matters referred to above and the terms of the Settlement
Agreement, the Reporting Persons may determine at any time to dispose of all
or a portion of their shares of Common Stock. Except as described in Item 6,
each of the Reporting Persons reserves the right to change its plans and
intentions at any time, as it deems appropriate, and, to the knowledge of
each of the Reporting Persons, each of the persons listed on Annex 1 to the
Schedule 13D may make the same evaluation and may have the same reservation.
Except as set forth in this Item 4, none of the Reporting Persons
or, to the knowledge of each of the Reporting Persons, any of the persons
listed on Annex 1 hereto, 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 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT
TO SECURITIES OF THE ISSUER.
Item 6 is hereby amended as follows:
The Settlement Agreement, a copy of which is attached hereto as
Exhibit 5, is hereby incorporated herein by reference.
Except as described herein, neither any of the Reporting Persons
nor any other person referred to in Annex 1 to the Schedule 13D, 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.
3.1.* Joint Filing Agreement.
3.2.* Underwriter's Warrant, issued by NetLive Communications,
Inc. to May Davis Group, Inc.
3.3.* Financial Advisory and Investment Banking Agreement, between
NetLive Communications, Inc. and May Davis Group, Inc.
3.4.* Letter Agreement, between NetLive Communications, Inc. and
Dennis Sal
3.5. Settlement Agreement, dated June 12, 1997, by and among
NetLive Communications, Inc., May Davis Group, Inc., Owen
May, Dibo Attar, Dennis Sal and the Fund's signatory
thereto.
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*Filed with initial Schedule 13D.
<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.
June 13, 1997 MAY DAVIS GROUP, INC.
By: /s/ Owen May
------------------------------------
Owen May
Chairman and Chief Executive Officer
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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.
June 13, 1997 /s/ Owen May
---------------------------------
Owen May
<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.
June 13, 1997 /s/ Dibo Attar
----------------------------------
Dibo Attar
<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.
June 13, 1997 /s/ Dennis Sal
-----------------------------------
Dennis Sal
<PAGE>
EXHIBIT INDEX
EXHIBIT NO. DOCUMENT
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1* Joint Filing Agreement
2* Underwriter's Warrant, issued by NetLive
Communications, Inc. to May Davis Group, Inc.
3* Financial Advisory and Investment Banking Agreement,
between NetLive Communications, Inc. and May Davis
Group, Inc.
4* Letter Agreement, between NetLive Communications, Inc.
and Dennis Sal
5 Settlement Agreement, dated June 12, 1997, by and among
NetLive Communications, Inc., May Davis Group, Inc.,
Owen May, Dibo Attar, Dennis Sal and the Funds
signatory thereto.
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*Filed with initial Schedule 13D.
<PAGE>
EXHIBIT 5
SETTLEMENT AND VOTING AGREEMENT ("Agreement") dated June 12, 1997
among NetLive Communications, Inc., a Delaware corporation ("NetLive"
or the "Company"), May Davis Group, Inc., ("May Davis"), Owen May,
Dibo Attar, Dennis Sal and the seven investment funds listed on the
signature pages hereto to which Mr. Attar acts as advisor (the "Funds"
and together with May Davis and Messrs. May, Attar, and Sal, the
"Subscribing Parties").
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WHEREAS, the parties have agreed to enter into this Agreement in order
to resolve NetLive corporate governance issues;
WHEREAS, the Subscribing Parties are willing, among other things, to
define their rights with respect to voting of the voting securities of the
Company that are now or hereafter Subscribing Party Voting Securities (defined
below); and
WHEREAS, not later than the approval of this Agreement by the Board of
Directors of the Company, the Company and Laurence Rosen will have entered into
a severance agreement in the form attached hereto as Annex B providing for,
among other things, Mr. Rosen's resignation as President, Chief Executive
Officer, Principal Financial Officer and Treasurer of the Company.
NOW, THEREFORE, in consideration of the agreements, rights,
obligations, and covenants contained herein, the parties hereby agree as
follows:
1. TERM. The term of this Agreement (the "Term") shall be the
period commencing on the date hereof and ending on the third anniversary of the
date hereof.
2. VOTING.
2.1. The Subscribing Parties shall take such action as may be required
so that all of the Subscribing Party Voting Securities entitled to vote during
the Term are voted in accordance with this Section 2 as follows and, subject to
the requirements of the Securities Exchange Act of 1934, as amended, use
reasonable efforts to encourage holders of other voting securities of the
Company to so vote:
(a) At the 1997 annual meeting of the Company's shareholders (the
"1997 Annual Meeting"), provided that the Board complies with Section 3.1,
(i) the Subscribing Party Voting Securities shall be voted in favor of the
election to the Board of Directors of NetLive (the "Board") of all the
Board's nominees, including, without limitation, in favor of Michael
Kharitonov as Chairman of the Board, if he is a Board nominee and (ii)
assuming approval by the shareholders of the Company of the Charter and
By-law amendments set forth in Section 2.1(b) hereof, the Subscribing Party
Voting Securities shall be voted in favor of the division of such nominees
into the classes proposed by the Board as set forth on Annex A hereto. At
each
<PAGE>
successive annual meeting of shareholders, or any other occasion when the
Company's directors are elected, during the Term of this Agreement, provided
that the Board complies with Section 3.1, the Subscribing Party Voting
Securities shall be voted in favor of all the Board's nominees. The Board's
nominees for election at the 1997 Annual Meeting and the proposed class
divisions are set forth on Annex A hereto.
(b) At the 1997 Annual Meeting, the Subscribing Party Voting
Securities shall be voted in favor of amending the By-laws of the Company by
striking out Sections 1(a) and 1(c) of Article III of the By-laws in their
entirety and amending the Company's Certificate of Incorporation by adding
new Articles IX, X and XI to read as follows; provided however that in place
of the reference to the Class III Directors' Designee and the Subscribing
Party Designee in the form of Article XI set forth below, Article XI shall
contain the names of the individuals designated as Class III Directors'
Designee and Subscribing Party Designee pursuant to this Agreement:
"ARTICLE IX: NUMBER OF DIRECTORS: The number of directors of the
Corporation shall be seven."
"ARTICLE X: CLASSIFIED BOARD OF DIRECTORS. The directors, other
than those who may be elected by the holders of any class or series of
stock having a preference over the Common Stock as to dividends or
upon liquidation pursuant to the terms of this Certificate of
Incorporation or any resolution or resolutions providing for the
issuance of any such series of stock adopted by the Board of
Directors, shall be classified with respect to the time for which they
severally hold office into three classes, as nearly equal in number as
possible. The initial Class I Directors shall serve for a term
expiring at the first annual meeting of stockholders of the
Corporation following the adoption of this amendment of this
Certificate; the initial Class II Directors shall serve for a term
expiring at the second annual meeting of stockholders following this
amendment of this Certificate; and the initial Class III Directors
shall serve for a term expiring at the third annual meeting of
stockholders following the adoption of this amendment of this
Certificate. Each director in each such class shall hold office until
his or her successor is duly elected and qualified or until his
earlier death, disability, resignation or removal. At each annual
meeting of stockholders beginning with the first annual meeting of
stockholders following the adoption of this amendment of this
Certificate, the successors of the class of directors whose term
expires at that meeting shall be elected to hold office for a term
expiring at the annual meeting of stockholders to be held in the third
year following the year of their election, with each director in each
such class to hold office until his or her successor is duly elected
and qualified or until his earlier death, disability, resignation or
removal."
"ARTICLE XI. VACANCIES. If any seat on the Board becomes
vacant during its initial term following the 1997 Annual Meeting, such
vacancy shall be filled as follows: (i) in the case of Class III
directors, by the vote of a majority of the remaining Class III
Directors, (ii) in the case of the Class II Directors or the Class III
Directors' Designee or its successors (all such Directors being
referred to as the
<PAGE>
"Independent Directors"), by the vote of a majority of the remaining
Independent Directors, and (iii) in the case of the Subscribing Party
Designee or its successors, by the Subscribing Parties so long as such
person is not an officer or employee of May Davis and is reasonably
acceptable to the Board."
2.2. VOTING TRUST OR ARRANGEMENT. None of the Subscribing Party
Voting Securities shall be deposited in a voting trust or subjected to any
arrangement or agreement with respect to the voting of such Subscribing Party
Voting Securities, except as provided herein.
2.3. TRANSFER OR ACQUISITION OF VOTING SECURITIES OF THE COMPANY.
Subject to Section 2.4, if any voting securities of the Company cease to be
Subscribing Party Voting Securities during the term of this Agreement, such
securities shall thereupon cease to be subject to the voting restrictions of
this Section 2; and if any voting securities of the Company become
Subscribing Party Voting Securities during the term of this Agreement, such
securities shall thereupon become subject to such voting restrictions.
2.4. TRANSFER RESTRICTIONS. The Subscribing Parties represent and
warrant that there are 315,000 outstanding shares of Common Stock that are
Subscribing Party Voting Securities as of the date hereof and that such number
of shares of Common Stock will continue to be Subscribing Party Voting
Securities through the date of the 1997 Annual Meeting (including any
adjournments of such Meeting). The Subscribing Parties shall not sell or
otherwise transfer any of the Subscribing Party Voting Securities (or take any
other action that would cause such Common Stock to cease to be Subscribing Party
Voting Securities) until after the 1997 Annual Meeting (including any
adjournments of such Meeting). Any proposed transfer of Subscribing Party
Voting Securities by a Subscribing Party shall be void unless in accordance with
the provisions of this Section 2.4.
3. OTHER AGREEMENTS.
3.1. BOARD REPRESENTATION. Promptly after the initial Subscribing
Party Designee and Class III Directors' Designee have been determined, the Board
will be increased to seven members, the Subscribing Party Designee and Class III
Directors' Designee will be simultaneously elected by the Board to the Board and
such persons will be nominated by the Board for election to the Board at the
1997 Annual Meeting. Thereafter, for the Term of this Agreement, the Board will
include among its nominees for election to the Board as Class I directors a
designee of the Subscribing Parties who is not an officer or employee of May
Davis and is reasonably acceptable to the Board ("Subscribing Party Designee")
and an independent designee of a majority of the Class III Directors then in
office who is reasonably acceptable to May Davis and the Board ("Class III
Directors' Designee"); provided that the Subscribing Parties and the Class III
Directors, as the case may be, provide the name of their proposed designee to
the Board at least 120 days before the anniversary of the prior year's annual
meeting.
3.2. PROXY OR CONSENT SOLICITATIONS. During the Term, no member of
the Subscribing Parties shall solicit proxies or consents or initiate, propose
or become a "participant" in a "solicitation" (as such terms are defined in
Regulation 14A under the Securities Exchange Act of 1934, as amended, or any
similar successor statute (the "Exchange Act")), in opposition to any
<PAGE>
matter which has been recommended by a majority of Board or in favor of any
matter which has not been approved by a majority of the Board or seek directly
or indirectly to advise, encourage or influence any Person with respect to the
voting of voting securities of the Company in such manner, or directly or
indirectly induce or attempt to induce any Person to initiate any stockholder
proposal. In addition, during the Term, the Subscribing Parties will cooperate
with the Company's efforts to solicit shareholders proxies to the extent
permitted by applicable law.
3.3. GROUP PARTICIPATION. None of the Subscribing Parties shall join,
or permit any subsidiary to join and will use its reasonable efforts to prevent
any Affiliate from joining, a partnership, limited partnership, syndicate or
other group, or otherwise act in concert with any other person, for the purpose
of acquiring, holding, voting or disposing of any securities of the Company,
(other than by the group disclosed in the Schedule 13-D of May Davis, dated
March 7, 1997, in a manner consistent with the purposes hereof).
3.4. ACKNOWLEDGMENT. The Subscribing Parties hereby acknowledge,
irrevocably consent and do not object that the Board of Directors intends to:
(a) amend Article III, Section 6 of the Company's By-laws by adding
the following sentence after the period at the end thereof:
"The Chairman of the Board shall be elected by the Shareholders of the
Company and he shall hold office until the expiration of his term as
director or until his death, resignation or removal for cause."; and
(b) amend Article IV, Sections 1(c) and 3 of the Company's By-laws by
removing the period at the end of each Section and adding to each the following
phrase: ", except as provided in Article III, Section 6 hereof."
3.5. CONSENT OF MAY DAVIS. May Davis hereby agrees to execute and
deliver to the Company simultaneously with the execution of this Agreement, its
written consent pursuant to Section 5(p) of the Underwriting Agreement, dated
August 12, 1996 between May Davis and NetLive (the "Underwriting Agreement") to
the filing by the Company, on or after May 14, 1998, of one or more Form S-8
registration statements and any amendments thereto which register the offer and
sale of not more than 1,360,000 shares of Common Stock issuable upon the
exercise of stock options or pursuant to the NetLive Performance Share Program
Plan (the "Plan") as described in Section 3.8 hereof and/or any employee benefit
program of the Company.
3.6. WITHDRAWAL OF DEMAND FOR SHAREHOLDER LIST. The Subscribing
Parties agree to cause May Davis to issue simultaneously herewith a written
withdrawal of its demand, dated February 27, 1997, pursuant to Section 220 of
the Delaware General Corporation Law, for a list of the Company's shareholders.
3.7. PAYMENT OF LEGAL FEES AND EXPENSES. Simultaneously with the
execution of this Agreement, the Company shall deliver to the Subscribing
Parties a check in the amount of $35,000, payable to Shereff, Friedman, Hoffman
& Goodman, LLP, as reimbursement of certain
<PAGE>
of the documented out-of-pocket legal fees and expenses incurred by the
Subscribing Parties in connection with the subject matter of this Agreement.
3.8. PERFORMANCE SHARE PROGRAM. The Company represents and warrants
that a maximum of 300,000 shares of Common Stock have been issued to the NetLive
Communications, Inc. Performance Share Program Trust (the "Trust") pursuant to
the Plan and that 106,000 shares of Common Stock have been awarded under the
Plan as of the date hereof. The Company agrees that it will not authorize the
issuance to the Trust of more than the 300,000 shares of Common Stock previously
issued to the Trust and the remaining 194,000 shares of Common Stock issued to
the Trust and not already awarded to NetLive employees (the "Remaining Shares")
shall not be awarded under the Plan except in connection with any compensation
packages awarded in connection with the recruitment and hiring and retention
from time to time of the Company's new Chief Executive Officer and other senior
management excluding Michael Kharitonov, Laurence Rosen, Andrew Schwartz,
Jeffrey Wolf and Scott Wolf.
The parties further agree that if all or at least 2/3 of the Remaining
Shares are not so awarded by June 30, 1998, the Company will use its reasonable
efforts to cause the Trust to return the unawarded Remaining Shares to the
Company; provided that the unawarded Remaining Shares shall not be returned to
the Company if such return cannot be done in accordance with all applicable laws
or would have a material adverse tax effect.
3.9. THE 1997 ANNUAL MEETING. The Company shall use its reasonable
efforts to call and hold the 1997 Annual Meeting not later than August 31, 1997
and in any event shall hold such meeting (including any adjournments ) not later
than September 15, 1997 unless, despite the Company's continuing reasonable
efforts to hold such meeting not later than September 15, 1997, the meeting is
delayed by forces beyond the Company's reasonable control including, without
limitation, delays arising out of the review of the proxy materials for such
meeting by the Securities and Exchange Commission or a shareholder vote to
adjourn such meeting which is supported by the Subscribing Parties. If the
Company violates this Section 3.9, the Subscribing Parties shall be released
from the transfer restrictions in Section 2.4. Such release shall be the sole
remedy for the violation of this Section 3.9, and this Agreement shall otherwise
remain in full force and effect.
4. RELEASE. (a) Each of the Subscribing Parties hereby irrevocably
and unconditionally:
(i) releases the Company and its officers, directors, employees,
agents and Affiliates, and each of its predecessors in interest, successors,
heirs and assigns, from any and all claims, rights, damages, demands, causes of
action or liabilities of any nature whatsoever, known or unknown, contingent or
fixed, whether due or to become due, other than for any matter specifically
contemplated by this Agreement, that any Subscribing Party had, now has or may
have at any future time by reason of any cause, matter or thing whatsoever,
directly or indirectly, related to any action taken or omitted to be taken by
such persons on or prior to the date hereof including, without limitation, any
alleged breaches of fiduciary duty or other act or omission relating to the
proposal made to NetLive by the Zodiac Group, Inc. or the NetLive Communication,
Inc. Performance Share Program Trust and Plan; and
<PAGE>
(ii) covenants not to sue the Company and its officers, directors,
employees, agents and Affiliates, and each of its predecessors in interest,
successors, heirs and assigns, of, from or with respect to any and all claims,
rights, damages, demands, causes or liabilities of any nature whatsoever, known
or unknown, contingent or fixed, whether due or to become due, other than for
any matter arising out of this Agreement, that any Subscribing Party has had,
now has or may have at any future time by reason of any cause, matter or thing
whatsoever, directly or indirectly, related to any action taken or omitted to be
taken by such persons on or prior to the date hereof including, without
limitation, any alleged breaches of fiduciary duty or other act or omission
relating to the proposal made to NetLive by the Zodiac Group, Inc. or the
NetLive Communication, Inc. Performance Share Program Trust and Plan.
(b) The Company hereby irrevocably and unconditionally:
(i) releases each of the Subscribing Parties and its or his officers,
directors, employees, agents, trustees and Affiliates, and each of its or his
predecessors in interest, successors, heirs and assigns, from any and all
claims, rights, damages, demands, causes of action or liabilities of any nature
whatsoever, known or unknown, contingent or fixed, whether due or to become due,
other than for any matter specifically contemplated by this Agreement, that the
Company had, now has or may have at any future time by reason of any cause,
matter or thing whatsoever, directly or indirectly, related to any action taken
or omitted to be taken by such persons on or prior to the date hereof including,
without limitation, any alleged breaches of fiduciary duty or other act or
omission relating to the proposal made to NetLive by the Zodiac Group, Inc., the
NetLive Communication, Inc. Performance Share Program Trust and Plan or the
formation of a group for purposes of commencing a consent solicitation of the
Company's shareholders; and
(ii) covenants not to sue each of the Subscribing Parties and its or
his officers, directors, employees, agents, trustees and Affiliates, and each of
its or his predecessors in interest, successors, heirs and assigns, of, from or
with respect to any and all claims, rights, damages, demands, causes or
liabilities of any nature whatsoever, known or unknown, contingent or fixed,
whether due or to become due, other than for any matter arising out of this
Agreement, that the Company has had, now has or may have at any future time by
reason of any cause, matter or thing whatsoever, directly or indirectly, related
to any action taken or omitted to be taken by such persons on or prior to the
date hereof including, without limitation, any alleged breaches of fiduciary
duty or other act or omission relating to the proposal made to NetLive by the
Zodiac Group, Inc., the NetLive Communication, Inc. Performance Share Program
Trust and Plan or the formation of a group for purposes of commencing a consent
solicitation of the Company's shareholders.
(c) In the event that any one or more of the provisions of this
Section 4 shall be or become invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein shall not be affected thereby. The invalidity, illegality or
unenforceability of any provision of this Section 4 shall have no effect on the
enforceability of any provision of any of this Agreement and shall not give rise
to any claim, whether for damages, rescission, restitution or otherwise.
<PAGE>
5. REPRESENTATIONS AND WARRANTIES.
5.1. NetLive represents and warrants to the Subscribing Parties as
follows: The execution and delivery of this Agreement and any other agreements
contemplated hereby and the consummation of the transactions contemplated hereby
and thereby will not conflict with, or result in any, violation of or default
under, any provision of the Articles of Incorporation or By-laws of NetLive, or
of any agreement or instrument binding upon NetLive.
5.2. The Subscribing Parties represent and warrant to NetLive as
follows: The execution and delivery of this Agreement and any other agreement
contemplated hereby and the consummation of the transactions contemplated hereby
and thereby will not conflict with, or result in any violation of or default
under, any provision of the Certificate of Incorporation or By-laws of May Davis
Group or conflict with any agreement, instrument binding upon or governing
document of any of the Subscribing Parties.
6. MISCELLANEOUS.
6.1. DEFINITIONS. The following terms shall have the following
meanings.
(a) Affiliate. "Affiliate" shall have the meaning ascribed to it in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act, as in
effect on the date hereof.
(b) Subscribing Party Voting Securities. "Subscribing Party Voting
Securities" shall mean voting securities of the Company which from time to time
during the Term of this Agreement are (i) beneficially owned by the Subscribing
Parties solely for their, its or his own account, (ii) beneficially owned by one
or more entities of which the Subscribing Parties own, directly or indirectly,
more than 50% of the outstanding equity interests, (iii) voting securities of
the Company over which the Subscribing Parties have majority voting or majority
dispositive power. For the purposed of this definition, (x) voting securities
of the Company shall be deemed to be owned for the account of a Subscribing
Party if such voting securities are owned for the account of any member of such
Subscribing Party's immediate family (as such term is defined in Rule 16a-1(e)
promulgated under the Securities Exchange Act of 1934, as amended) or for the
account of any trust established for the benefit of such Subscribing Party or
any such member of his or its immediate family and (y) a Subscribing Party shall
be deemed to have voting or dispositive power over voting securities of the
Company to the extent that any member of such Subscribing Party's immediate
family or any trustee of any trust established for the benefit of such
Subscribing Party or such immediate family members shall have voting or
dispositive power over such voting securities.
(c) Person. A "person" shall mean any individual, firm, corporation,
partnership or other entity.
6.2. SPECIFIC ENFORCEMENT. The Subscribing Parties acknowledge and
agree that NetLive would be irreparably damaged in the event any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that
NetLive shall be entitled to an injunction or injunctions to prevent
<PAGE>
breaches of this Agreement and to specifically enforce this Agreement and the
terms and provisions thereof in any action instituted in any court of the United
States or any state thereof having subject matter jurisdiction, in addition to
any other remedy to which NetLive may be entitled, at law or in equity.
6.3. MODIFICATION; WAIVER. This Agreement may be modified in any
manner and at any time by written instrument executed by the parties hereto.
None of the terms, covenants, and conditions of this Agreement may be waived at
any time except by written instrument executed by the parties hereto.
6.4. NOTICES. All notices, requests, demands, claims, and other
communications hereunder shall be in writing and shall be delivered by certified
or registered mail (first class postage pre-paid), guaranteed overnight
delivery, or facsimile transmission confirmed by any method set forth above and
shall be deemed given upon receipt thereof:
(a) if to NetLive to:
584 Broadway, Suite 806
New York, New York 10012
Attention: General Counsel
Telecopy: (212) 343-7090
(b) if to any of the Subscribing Parties to the address set
forth next to such party's name on the signature pages hereto;
or at such other address or to such other person as may be specified in writing
duly delivered to all other parties by any party.
6.5. PARTIES IN INTEREST; ASSIGNMENT. This Agreement and all the
provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective heirs, representatives, successors and permitted
assigns, but neither this Agreement nor any of the rights, interests, and
obligations hereunder shall be assigned by any of the parties hereto without the
prior written consent of the other parties hereto. Nothing in this Agreement,
whether expressed or implied, shall be construed to give any person other than
the parties hereto any legal or equitable right, remedy, or claim under or in
respect of this Agreement.
6.6. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall constitute one and the same instrument.
6.7. HEADINGS. The article and section headings of this Agreement are
for convenience of reference only and shall not be deemed to alter or affect the
meaning or interpretation of any provisions hereof.
6.8. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York applicable to
contracts made and to be performed therein.
<PAGE>
6.9. Severability. If any provision of this Agreement shall be
determined to be illegal and unenforceable by any court of law, the remaining
provisions shall be severable and enforceable in accordance with their terms.
6.10. EFFECTIVENESS. This Agreement shall not become effective
until it has been approved by the Board of Directors of the Company, which may
determine in its sole discretion whether or not to approve this Agreement. If
such approval is not granted by June 13, 1997, this Agreement may be rescinded
by any party hereto; but unless and until such action is taken, this Agreement
shall be binding on the Subscribing Parties.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
NETLIVE COMMUNICATIONS, INC.
By: /s/ Michael Kharitonov
----------------------------------
Name: Michael Kharitonov
Title: Chairman of the Board
Chief Executive Officer
Address: THE SUBSCRIBING PARTIES:
Owen May MAY DAVIS GROUP, INC.
May Davis Group, Inc.
Wall Street Tower By: /s/ Owen May
----------------------------------
20 Exchange Place Name: Owen May
New York, New York 10005 Title: Chairman and Chief Executive
Facsimile No. (212) 480-2757 Officer
Address: /s/ Owen May
---------------------------------------
OWEN MAY
Owen May
May Davis Group, Inc.
Wall Street Tower
20 Exchange Place
New York, New York 10005
Facsimile No. (212) 480-2757
Address: /s/ Dibo Attar
----------------------------------------
DIBO ATTAR
Dibo Attar
Woodco Fund Management
4900 Woodway - Suite 650
Houston, Texas 77056
Facsimile No. (713) 621-8027
<PAGE>
Address: /s/ Dennis Sal
----------------------------------------
DENNIS SAL
Dennis Sal
Dennis Sal Associates
15700 West Ten Mile Road
Suite 112
Southfield, Michigan 48075
Facsimile No. (810) 569-6242
Address: DAVSTAR II MGD. INVESTMENTS CORP. N.V.
Davstar II Mgd. Investments
Corp. N.V. By: /s/ Russell S. Molina
-----------------------------------
c/o Woodco Fund Management Name: Russell S. Molina
4900 Woodway - Suite 650 Title: Attorney-in-Fact
Houston, Texas 77056
Facsimile No. (713) 621-8027
Address: JASMINVILLE CORP. N.V.
Jasminville Corp. N.V. By: /s/ Russell S. Molina
-------------------------------
c/o Woodco Fund Management Name: Russell S. Molina
4900 Woodway Title: Attorney-in-Fact
Suite 650
Houston, Texas 77056
Facsimile No. (713) 621-8027
Address: CELESTIAL DREAMS CORP. N.V.
Celestial Dreams Corp. N.V. By: /s/ Gregory Elias
-------------------------------
c/o Woodco Fund Management Name: Gregory Elias
4900 Woodway - Suite 650 Title: Managing Director
Houston, Texas 77056
Facsimile No. (713) 621-8027
<PAGE>
Address: EAGLEHURST CORP. N.V.
Eaglehurst Corp. N.V. By: /s/ Gregory Elias
-------------------------------
c/o Woodco Fund Management Name: Intertrust (Curacao) N.V.
4900 Woodway - Suite 650 Title: Managing Director
Houston, Texas 77056
Facsimile No. (713) 621-8027
Address: SIGNAL HILL N.V.
Signal Hill N.V. By: /s/ Gregory Elias
-------------------------------
c/o Woodco Fund Management Name: Intertrust (Curacao) N.V.
4900 Woodway - Suite 650 Title: Managing Director
Houston, Texas 77056
Facsimile No. (713) 621-8027
Address: WELLINGTON CORP. N.V.
Wellington Corp. N.V. By: /s/ Gregory Elias
-------------------------------
c/o Woodco Fund Management Name: Intertrust (Curacao) N.V.
4900 Woodway - Suite 650 Title: Managing Director
Houston, Texas 77056
Facsimile No. (713) 621-8027
Address: GANATERRA CORP. N.V.
Ganaterra Corp. N.V. By: /s/ Gregory Elias
-------------------------------
c/o Woodco Fund Management Name: Intertrust (Curacao) N.V.
4900 Woodway - Suite 650 Title: Managing Director
Houston, Texas 77056
Facsimile No. (713) 621-8027
