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 B FINANCING
CLOSING DATE: March 30, 2006
HIGHLY CONFIDENTIAL
SC008711
YOUTUBE, INC.
SERIES B FINANCING
CLOSING DATE: Malch 30, 2006
Tab Number
I. Actions Taken PlÌor to the Closing
A. Action by Unanimous Written Consent of
Directors of the Board of YouTube, Inc., dated March 30, 2006.................... ........ ..... ................. ................ ..... 1
Exhibit A:
Exhibit B:
Second Amended and Restated Certificate of Incorporation (See Tab 3)
Exhihit C:
Exhibit D:
Exhibit E:
Series B Preferred Stock Purchase Agreement (See Tab 4) Amended and Restated Investors' Rights Agreement (See Tab 6) Amended and Restated Right of First Refusal and Co-Sale Agreement (See Tab 8) Amended and Restated Voting Agreement (See Tab 7)
the Stockholders of You
B. Action by Written Consent of
Tube, Inc., dated March 30, 2006 ........................................................................................ .............. ..... 2
Exhibit A: Second Amended and Restated Certificate ofTncorporation (See
Tab 3)
C. Second Amended and Restated Certi ficate ofIncorporation filed in Delaware on March 29, 2006...................................................................................... 3
n. Documents Delivered at the Closing
A. Series B Preferred Stock Purchase Agreement, dated March 30, 2006........... ........... 4
Exhibit A:
Exhibit B:
Schedule ofInvestors
Second Amended and Restated Certificate ofIncorporation (See
Tab 3)
Exhibit C:
Exhibit D:
Exhibit E:
Exhibit F:
Exhibit G:
Exhihit H:
3407236JDOC
Amended and Restated Investors' Rights Agreement (See Tab 6) Amended and Restated Voting Agreement (See Tab 7) First Refusal and Co-Sale Amended and Restated Right of Agreeinent (See Tab 8) Exceptions (See Tab 5) Schedule of Offcer's Certificate (See Tab 9) Opinion of Counsel to the Company (See Tab 11)
HIGHLY CONFIDENTIAL
SC008713
Tab Number
B. Schedule of
Exceptions to Stock Purchase Agrecment, dated March 30, 2006.............................................................................................................................5
C. Amended and Restated Investors' Rights Agreement, March 30, 2006.....................6
Exhibit A:
Exhibit B: Exhibit C:
Investors Founders Company's Address
D. Amended and Restated Voting Agreement, dated March 30, 2006 ...........................7
Exhibit A:
Exhibit B:
Exhibit C:
Exhibit D:
Series B Holders Series A Holders Founders Transferees
E. Amended and Restated Right of First Refusal and Co-Sale Agreement,
dated March 30, 2006....... .......... ........... ......,........................................... ....... ........ .... 8
Exhibit A:
Exhibit B: Exhibit C:
Purchasers
Existing Investors
Exhibit D:
Exhibit E:
Founders Transferees Notiee of Share Transfer
F. Offcer's Certificate, dated March 30,2006...............................................................9
G. Secretary's Certificate, dated March 30, 2006.......................................................... 10
Exhibit A:
Exhibit B: Exhibit C:
Shareholder Resolutions (See Tab 2)
Board Resolutions (See Tab 1)
Second Amended and Restated Certificate of Incorporation (See
Tab 3) Bylaws
Exhibit D:
H. Opinion of
Wilson, Sonsini, Goodrich and Rosati, Counsel to the Company, dated March 30, 2006....... ........... ..................................... ....................... 11
1. Good Standing Certitìcate from the Delaware Secretary of State, dated March 29, 2006........... ................ ........... ............... ..... ........ ............ .... ....................... 12
J. Good Standing Ceiiiíìcate from the California Secretary of
State, dated March 24, 2006 .............................................. .......................................... ............ ..... 13
-2-
3407236_I.DOC
HIGHLY CONFIDENTIAL
SC008714
Tab Numbel
K. Certificate from the California Franchise Tax Board, dated March 24, 2006........................................................................................................................... 14
L. Bring Down Letter regarding Good Standing from the Califomia Secretary of State and Certificate from the Califomia Franchise Tax Board, dated March 30, 2006 ......................................................................................................... 15
III. Celtificates, Payment and Receipts
A. Trust Details... ......................................... ...................... ............................................ 16
B. Purchase Price Receipt, dated April 3,2006............................................................. 17
C. Copies of Series B Preferred Stock Certificates ....................................................... 18
D. Stock Certificate Receipts.... ..................................................................................... 19
iv. Post Closing Documents
A. FOll11 D as filed with the U.S. Securities and Exchange Commission on Apri i i 4, 2006 ................. ..................... ............................... ..................................... 20
B. Form D as Jïled with the State of Califomia on April 14, 2006............................... 21
340723ú..l.IlCX"
-3-
HIGHLY CONFIDENTIAL
SC008715
IN WITNESS WHEREOF, the undersigned have executed this Action by Unanimous
Written Consent of the Board of Directors as of the date first set forth above, which may be
executed in one or more counterparts, each of which shall be deemed an original, and all of which
shall constitutc one and the same instrument. This action shall be fied with the minutes of the
proceedings of this Board of Directors and shall be effective as of the date first above written.
Any copy, facsimile or othcr reliable reproduction of this action may be substituted or used in lieu
of the original writing for any and all purposes for which the original writing could be used,
provided that such copy, facsimile or other reproduction bc a complete reproduction of thc entirc
original writing.
Steve Chen
RoelofBotha
322769 (Signature Page to Unanimous Written Consent of
the Board)
HIGHLY CONFIDENTIAL SC008721
IN WITNESS WHEREOF, the undersigned have executed this Action by Unanimous
Written Consent of the Board of Directors :is of the date first set forth above, which may be
executed in one or more counterparts, each of which shall be deemed an original, and all of
which
shall constitute one and the same instrument. This action shall be filed with the minutes of the
proceedings of this Board of Directors and shall be effective as of the date first above written.
Any copy, facsimile or other reliable reproduction of this action may be substituted or used in lieu
of the original writing for any and all purposes for which the original writing could be used,
provided that such copy, facsimile or other reproduction be a complete reproduction of the entire
original writing.
JL
Steve Chen
Chad Hurley
.
Roelof Botha
3227769 (Signature Page to Unanimous Written Consent of
the Board)
HIGHLY CONFIDENTIAL SC008722
IN WITNESS WHEREOF, this action by written consent shall be effective as of
the date
the Company receives the requisite consent of the Company's stoekholders. By executing this action
by written consent, each undersigned stockholder is giving wiitten consent with respect to all shares
of the Company's capital stock held by such stockholder in favor of
the above resolutions. This
action by written consent may be executed in any number of counterpars, each of
which shall
constitute an original and all of
which together shall constitute one action. Any copy, facsimile or
other reliable reproduction of this action by written consent may be substituted or used in lieu of the
original writing for any and all puroses for which the original writing could be used, provided that
such copy, facsimile or other reproduction is a complete reproduction of
the entire original writing.
This action by written consent shall be filed with the minutes of
the proceedings of
the stockholders
of the Company.
Dated: 3I~4-I_!:~J26__
By ,.¡-1£
Steve Chen
3360891_2DOC
(Signature Page to Stockholder Written Consent)
HIGHLY CONFIDENTIAL
SC008731
IN WITNESS WHEREOF, this action by written consent shall be effective as of
the date
the Company receives the requisite consent of
the Company's stockholders. By executing this action
by written consent, each undersigned stockholder is giving written consent with respect to all shares
ofthe Company's capital stock held by such stoekholder 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
which together shall constitute one action. Any copy, facsimile or
other reliable reproduction of this action by written consent may be substituted or used in lieu of the
original writing for any and all puroses for which the original writing could be used, provided that
such copy, facsimile or other reproduction is a complete reproduetion of
the entire original writing.
This action by written consent shall be filed with the minutes of the proceedings of the stockholders
of
the Company.
Dated:
3&7 /66
B
rI
3360891JDOC
(Signature Page to Stockholder Written Consent)
HIGHLY CONFIDENTIAL
SC008732
IN WITNESS WHEREOF, this action by written consent shall be effective as of
the date
the Company receives the requisite consent of
the Company's stockholders. By executing this action
by written consent, each undersigned stockholder is giving written consent with respect to all shares
of the Company's capital 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
which together shall eonstitute one action. Any copy, facsimile or
this action by written consent may be substituted or used in lieu of
other reliable reproduction of
the
original writing for any and all puroses for which the original writing could be used, provided that
such copy, facsimile or other reproduction is a complete reproduction of
the entire original writing.
the proceedings of
This action by written consent shall be filed with the minutes of
the stockholders
of the Company.
Dated: 3 - 2-:-06
Baye:Ka~k. JwJ
L
.l6089J.2.DOC
(Signature Page to Stockholder Written Consent)
HIGHLY CONFIDENTIAL
SC008733
IN WITNESS Vv'HEREOF, the pal1ies hereto have executed this Series B Preferred Stock Purchase Agreement effective as of the date first set forth above.
COMPANY:
By:
ad Hurley
President and Chief
Executive Offcer
3358502_5.DOC
(Signature Page to Series B Preferred Stock Purchase Agreement)
HIGHLY CONFIDENTIAL
SC008777
EXHIBIT A
SCHEDULE OF INVESTORS
Investor
Number of Shares
1,092,837
Wire Transfer Conversion Total Purchase
or Check of Debt Price
Sequoia Capital XI
3000 Sand Hill Road Building 4, Suite 180 Menlo Park, CA 94025 Attention Roelof Botha Tel: Fax: Email: roelof@sequoiacap.com
Sequoia Capital XL Principals Fund 3000 Sand Hill Road
Building 4, Suite 180
$2,607,215.90 51,764,130.60 $4,371,346.50
118,892
$283,645.1 1 $191,923.89 $475,569.00
Menlo Park, CA 94025 Attention RoelofBotha Tel: Fax: Email: roelof@sequoiacap.com
Sequoia Technology Partnels Xl
34,521
$82,358. i 7 $55,726.33 $138,084.50
3000 Sand Hill Road
Building 4, Suite 180
Menlo Park, CA 94025 Attention RoelofBotha Tel: Fax: Email: roelof@sequoiacap.com
Artis Miclocap Fund, L.P.
One Market Plaza
Spear Street T O\ver, Suite 1700 San Francisco, CA 94 i 05
268,266
$1,073,064.00
$ i ,073,064.00
Attention: David Lamond Tel: Fax: Email:
3358502
HIGHLY CONFIDENTIAL
SC008781
Investor
Number of Shares
Wirc Transfer
or Check
Conversion of Debt
Total Purchasc Price
Altis Microcap Master Fund, L.P.
One Market Plaza
Spear Street Tower, Suite 1700
212,459
$849,836.00
$849,836.00
San Francisco, CA 94105 Attention: David 1,amond Tel: Fax: Email:
Artis Technology Partners, L.P.
One Market Plaza
Spear Street Tower, Suite 1700 San Francisco, CA 94105
2,490
$9,960.00
$9,960.00
Attention: David Lamond Tel: Fax: Email:
Artis Technology Qualified
I~artners, L.P.
22,736
$90,944.00
$90,944.00
One Market Plaza
Spear Street Tower, Suite 1700 San Franciseo, CA 94105
Attention: David Lamond Tel: Fax: Email:
Altis Technology Partners Ltd.
One Market Plaza
Spear Street Tower, Suite 1700
66,963
S267,852.00
$267,852.00
San Francisco, CA 94105 Attention: David Lamond Tel:
Fax'
Email:
Artis Technology 2X, J.,.P. One Market Plaza
Spear Street Tower, Suite 1700
7,617
$30,468.00
$30,468.00
San Francisco, CA 94105 Attention: David Lamond Tel: Fax: Email:
3358502
HIGHLY CONFIDENTIAL
SC008782
Number
Investor
of
Shares
Wire Transfer or Check
Conversion
of Debt
Total Purehase Price
Artis Technology Qualified 2X, L.P. One Market Plaza Spear Street Tower, Suite 1700 San Francisco, CA 94105 Attention: David Lamond
Tel: Fax:
Emai:
41,319
$165,2ì6.00
$165,2ì6.00
Artis Technology 2X Ltd. One Market Plaza Spear Street Tower, Suite 1700
San Francisco, CA 94105 Attention: David Lamond Tel: Fax Email:
128,150
$512,600.00
$512,600.00
WS Investment Company, LLC
(2006A)
3,750
$15,000
$15,000
650 Page Mil Road
Palo Alto, CA 94304- 1 050
--_.._._----------~-_.Total
Tel: Fax: Email: jterranova@wsgr.eom
- '. -~. -.... - -..._~- ~ -- ..'. ..~
.....__.-._'""----.,_.
2,000,000
$5,988,219.18
$2,011,780.82
$8,000,000.00
3358502
HIGHLY CONFIDENTIAL
SC008783
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of
the date first writ.ten above.
COMPANY:
YOUTUBE, INC.
7
By:
Chad Hurley
President and Chief
Executive Officer
FOUNDERS:
Jawed Karim
3211264
(Signature Page To Amended and Restated Investors' Rights Agreement)
HIGHLY CONFIDENTIAL
SC008820
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of
the date first writ.ten above.
COMPANY:
YOUTUBE, fNC.
By:
Chad Hurley
President and ChiefExecutIve Officer
FOUNDMi=
Steve Chen
Chad Hurley
Jawed Karim
3211264
(Signature Page To Amended and Restated Investors' Rights Agreement)
HIGHLY CONFIDENTIAL
SC008821
IN WITNESS WHEREOF, the parties hereto have executed this Agreement effective as of the date first written above.
COMPAN:
YOUTUE, INC.
By:
Chad Hurley
President and Chief
Executive Offcer
FOUNDERS:
Steve Chen
Chad Hurley
Jawed Karim
~~
l
.12112ú4 (Signature Page To Amended and Restated Investors' Rights Agreement)
HIGHLY CONFIDENTIAL
SC008822
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