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: [e-mail]
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: [e-mail]
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: [e-mail]

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: [e-mail]
- '. -~. -.... - -..._~- ~ -- ..'. ..~
.....__.-._'""----.,_.

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