Viacom International, Inc. et al v. Youtube, Inc. et al

Filing 219

DECLARATION of William M. Hohengarten (Part Nine) Ex. 287 - Part 3 in Support re: 176 MOTION for Partial Summary Judgment /Viacom's Notice of Motion for Partial Summary Judgment on Liability and Inapplicability of the Digital Millennium Copyright Act Safe Harbor Defense.. Document filed by Country Music Television, Inc., Paramount Pictures Corporation, Viacom International, Inc., Black Entertainment Television, LLC, Comedy Partners. (Attachments: # 1 Exhibit 287 - Part 4, # 2 Exhibit 287 - Part 5, # 3 Exhibit 287 - Part 6, # 4 Exhibit 287 - Part 8, # 5 Exhibit 287 - Part 8, # 6 Exhibit 288, # 7 Exhibit 289, # 8 Exhibit 290, # 9 Exhibit 291, # 10 Exhibit 292, # 11 Exhibit 293, # 12 Exhibit 294, # 13 Exhibit 295, # 14 Exhibit 296, # 15 Exhibit 297, # 16 Exhibit 298)(Kohlmann, Susan)

YOUTUBE, INC.
a Delaware corporation

SERIES A FINANCING

CLOSING DATE: October 21, 2005

HIGHLY CONFIDENTIAL

SC008403

YOUTUBE, INC.

SERIES A FINANCING
CLOSING DATE: October 21, 2005

Tab Number
I. Actions Taken Prior to the Closing
AcLIon by Unanimous Written Consent of the Board of Directors of You

Tube, Inc.,

dated October 20, 2005 ............................ ........................ ............ .............................. ........1
Exhibit A:
Exhibit B:

Exhibit C:

Exhibit D:
Exhibit E:
Exhibit F:

Exhibit G:

Exhibit H:

Amended and Restated Certificate of Incorporation (See Tab 3) Series A Preferred Stock Purchase Agreement (See Tab 4) Investors' Rights Agreement (See Tab 6) Right of First Refusal and Co-Sale Agreement (See Tab 8) Voting Agreement (See Tab 7) Fomi ofIndemnification Agreement (See Tab 14) Form of Sequoia Capital Management Rights Letter (See Tab 12) Form of Sequoia Capital Board Observer Rights Letter (See Tab 13)

You Tube, Inc., dated October 20, Action by Written Consent of the Stockholders of 2005...................................................................................................................................2

Exhibit A: Amended and Restated Ccrtificate of Incorporation (See Tab 3)
Amended and Restated Certificate of Incorporation filed in Delaware on October 20, 2005...................................................................................................................................3

II. Documents Delivered at the Closing

Series A Preferred Stock Purchase Agreement, dated October 21, 2005 ....... ..................4

Exhibit A:
Exhibit B: Exhibit C:

Exhibit D:
Exhibit E:
Exhibit F:

Exhibit G:
3249278_I.DOC

Schedule of Investors Amended and Restated Certificate of Incorporation (See Tab 3) Investors' Rights Agreement (See Tab 6) Voting Agreement (See Tab 7) Right of First Refusal and Co-Sale Agreement (See Tab 8) Schedule of Exceptions (See Tab 5) Compliance Ceiiificate (See Tab 9)

HIGHLY CONFIDENTIAL

SC008405

Exhibit H:
Exhibit T:

Exhibit J: Exhibit K:
Schedule of

Opinion of Counsel to the Company (See Tab 11) Fonn of Sequoia Capital Management Rights Letter (See Tab 12) Form of Sequoia Capital Board Observer Rights Letter (See Tab 13)
Form ofTndemnification Agreement with RoelofBotha (See Tab 14)

Exceptions to Stock Purchase Agreement, dated October 21,2005.............5

Investors' Rights Agreement, October 21, 2005.............................................................. 6
Exhibit A: Exhibit B:
Exhibit C:

Tnvestors

Founders Company's Address

Voting Agreement, dated October 21, 2005............................................. ............... .......... 7
Exhibit A: Exhibit B:
Right of

Investors Founders

First Refusal and Co-Sale Agreement, dated October 21,2005.........................8
Investors Founders Notice of Share Transfer

Exhibit A: Exhibit B:
Exhibit C:

Compliance Certificate, dated October 21, 2005........ ............... .......................................9

Secretary's Certificate, dated October 21,2005..............................................................10
Exhibit A: Exhibit B:
Exhibit C:

Shareholder Rcsolutions (See Tab 2)
Board Resolutions (See Tab 1)

Exhibit D:

Amended and Restated Certificate of Incorporation (See Tab 3) Bylaws

Opinion of Wilson, Sonsini, Goodrich and Rosati, Counsel to the Company, dated October 21, 2005...................................................................................................11

Sequoia Capital Management Rights Agreement, dated October 21,2005...................12

Sequoia Capital Board Observer Rights Lctter, dated October 21,2005.......................13

Indemnification Agreement with RoelofBotha, dated October 21,2005......................14
Good Standing Certificate from the Delaware Secretary of State, dated October 19, 2005........................................................................................................... ..15
Good Standing Certificate from the California Secretary of State, dated October 14, 2005................... .......................... ....... ........ ............................................... ..16
3249278JDoe

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Good Standing Certificate from the Califomia Franchise Tax Board, dated October 20, 2005.............................................................................................................17
Purchase Price Receipt, dated November 22, 2005.............. ........ .................................. 18

Copies of Series A Preferred Stock Ceiiifieates................ ............ ........ ......................... 19
III. Payment and Receipts

Stock Certificate Receipts..... ......... ............... ........... ............... .......... ...............................20
iv. Post Closing Documents

Form D as fied with the U.S. Securities and Exchange Commission on Noveinber 4, 2005......................................................................................................21
Forni D as tiled with the State of California on November 4, 2005...............................22

3249278JDOC

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HIGHLY CONFIDENTIAL

SC008407

This action by unanimous written consent may be executed in any number of counterpars, each of which shall be an original instrument. This action by unanimous written consent shall be fied with the minutes of the proceedings of the Board and shall be effective as of the date first above written.

~ ~X ChQeyt ~
Steve êî

~

3227769

7

HIGHLY CONFIDENTIAL

SC008415

the date the Company receives the the Company's stockholders. By executing this action by written consent, each requisite consent of the Company's capital undersif,:red stockholder is giving written consent with respect to all shares of stock held by such stockholder in favor of the above resolutions. This action by written consent may be executed in any number of counterparts, each of which shall constitute an original and all of this which together shall constitute one action. Any copy, facsimile or other reliable reproduction of the original writing for any and all action by written consent may be substituted or used in lieu of purposes for which the original writing could be used, provided that such copy, facsimile or other the entire original writing. This action by written consent reproduction is a completc reproduction of
This action by written consent shall be effective as of shall be filed with the minutes of the proceedings of

the stockholders ofthe Company.

Dated: Octobcr 20,2005 ;i ¿

/I// -- _.~'. -. ..~" ~~Q
Steve Chen

,7

Chad Hurley

\..
l

Jawed anm

.l-..2-

32326J6J,DOC

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HIGHLY CONFIDENTIAL

SC008426

IN WITNESS WHEREOF, the parties hereto have executed this Series A Preferred Stock
Purchase Agreement effective as of

the date first set forth abovc.

COMPAN:
YOUTUBE, INC.

B

(Signature Page to Series A Preferred Stock Purchase AgreementJ

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HIGHLY CONFIDENTIAL

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EXHIBIT A
SCHEDULE OF INVESTORS

Number

Investor

of

Shares

Wire Transfer or Check
$2,968,870.55

Conversion
of Debt

Total Purchase Price

Sequoia Capital XI
3000 Sand Hill Road
Building 4, Suite 180

4,384,500

$100,279.45

$3,069,150.00

Menlo Park, CA 94025 Attention Roelof Botha Tel: Fax: Email: roclof a)se

Sequoia Capital XI Principals Fund
3000 Sand Hill Road
Building 4, Suite 180

477,000

S333,900.00

$333,900.00

Menlo Park, CA 94025 Attention Roelof Botha Tel:
Fax:

Email: roelof(àiseguoiacap.com
Sequoia Technology Partners XI

138,500

$96,950.00

$96,950.00

3000 Sand Hil Road
Building 4, Suite 180

Menlo Park, CA 94025 Attention Roelof Botha Tel: Fax: Email: roelof(aseguoiacap.com

Keith Rabois
85 Natoma Street #1

50,000

$35,000.00

$35,000.00

San Francisco, CA 94105

IeI:
Fax:
Email:

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HIGHLY CONFIDENTIAL

SC008470

Number

Investor

of

Shares

Wire Transfer or Check

Conversion of Debt

Total Purchase Price

WS Investment Company, LLC
(2005A) 650 Page Mill Road Palo Alto, CA 94304 Attention: James Terranova Tel: Fax: Email: [e-mail]

138,500

$25,000.00

$25,000.00

Total

5,615,500

$3,459,720.55

$100,279.45

$3,560,000.00

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SC008471

IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date first written above.
COMPANY:
YOUTUBE, INC.

By~a~?~
C a urley' .
President and Chief Executive 0 i.
FOUNDERS:
Steve Chen

2....C'¿ c~-trley
Jawed Karm

~ ~ ", Q .;X.~ ~~

3211264

(Signature Page To Investors' Rights Agreement)

HIGHLY CONFIDENTIAL

SC008504