EFTA01202626.pdf

ARTSPACE MARKETPLACE, INC. ACTION BY WRITTEN CONSENT OF STOCKHOLDERS Dated as of July 21, 2014 Pursuant to Section 228 of the General Corporation Law of the State of Delaware The undersigned, being stockholders of Artspace Marketplace, Inc., a Delaware corporation, (the "Company"), and representing a majority of the outstanding (i) voting power of the Company and (ii) shares of Preferred Stock, including a majority of the shares of the Company's Series B Preferred Stock (collectively the "Stockholders"), do hereby consent, pursuant to Section 228 of the Delaware General Corporation Law (the "DGCL"), to adoption of the following resolutions and waiver (the "Consent") with the same force and effect as if they had been approved at a duly convened meeting of the stockholders of the Company: Loan Transaction WHEREAS, the Company is a party to that certain Note Purchase Agreement dated June 10, 2014 (the "Prior Agreement") and related documents, including a Security Agreement and Notes issued in connection therewith (collectively the "Loan Documents"), pursuant to which the Company may borrow an aggregate amount of up to $500,000 (the "Loan Amount"); WHEREAS, the Company desires to amend and restate the Existing Agreement, including the Form of Promissory Note, to increase the Loan amount to $925,000 and to make certain changes to the terms and conditions of the Prior Agreement, as set forth in the Amended and Restated Note Purchase Agreement substantially in the form attached hereto as Exhibit A (the "Amended Agreement"). NOW THEREFORE BE IT: RESOLVED that pursuant to Section 3.3.5 of the Second Amended and Restated Certificate of Incorporation of the Company, the Stockholders hereby authorize the Company to enter into and to deliver the Amended Agreement, together with all of the exhibits, schedules attachments or other ancillary documents thereto, and to perform and incur its obligations contemplated thereby in substantially similar form and terms to the form and terms set forth in Exhibit A, and such Amended Agreement hereby is, in all respects, approved and the officers of the Company are, and each individually is, authorized and instructed, for and in the name of the Company, to execute and deliver such Amended Agreement. Interested Party Transaction WHEREAS, pursuant to Section 144 of the Delaware General Corporation Law, no contract or transaction between the Company and any other corporation, partnership, association or other organization in which one or more of the officers or directors of the artspace bridge stockholderconset 7 21 14 pw.doc EFTA01202626 Company is an officer or director of, or has a financial interest in (any such party is referred to herein individually as an "Interested Party," or collectively as the "Interested Parties," and any such contract or transaction is referred to herein as an "Interested Party Transaction"), shall be void or voidable solely for that reason, or solely because the director or officer is present at or participates in the meeting of the Board which authorized the Interested Party Transaction or solely because the vote of any such director is counted for such purpose, if: (i) the material facts as to the director's or officer's relationship or interest as to the contract or transaction are disclosed or are known to the Board, and the Board in good faith authorizes the contract or transaction by affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum, (ii) the material facts as to the director's or officer's relationship or interest and as to the contract or transaction are disclosed or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith by vote of the stockholders, or (iii) the contract or transaction is fair as to the Company as of the time it is authorized, approved or ratified by the Board or the stockholders; WHEREAS, it is hereby disclosed or made known to the Stockholders that Warren Lee is a director of the Company and an officer or director or partner in, or has a financial interest in, Canaan IX LP, a Lender, and the Amended Agreement may be deemed to be an Interested Party Transaction; and WHEREAS, it is hereby disclosed or made known to the Stockholders that Richard ICramlich is a director of the Company and a Lender, and the Amended Agreement may be deemed to be an Interested Party Transaction. NOW THEREFORE, BE IT RESOLVED, that after careful consideration of the terms and conditions of the Amended Agreement, the Stockholders have determined that the terms and conditions of the Amended Agreement are just and equitable and fair as to the Company and that it is therefore advisable and in the best interest of the Company and its stockholders that the Company undertake the Amended Agreement. Waiver of Preemptive Rights WHEREAS, the Company's Amended and Restated Investor Rights Agreement (the "IRA") provides that the Company shall first offer to each Major Investor (as defined in the IRA) a portion of any New Securities (as defined in the IRA) that the Company proposes to offer (such rights in favor of such Major Investors being referred to herein as the "Preemptive Rights"); WHEREAS, the Amended Agreement, and the shares issuable upon conversion of the notes issued in connection therewith, directly or indirectly, constitute New Securities; WHEREAS, the Company and the Requisite Majority (as defined in the IRA) desire to waive the application of the Preemptive Rights; NOW, THEREFORE, BE IT RESOLVED, that the Stockholders, including the Requisite Majority, representing the requisite threshold to effect such waiver, hereby irrevocably waive, on 2 anspacc bridge stockholderconset 7 21 14 pw.doc EFTA01202627 behalf of themselves and all other Investors (as defined in the IRA) any and all preemptive, participation, veto, first refusal rights, first offer, co-sale or similar rights (including rights to notice) held in any capacity pursuant to Section 4.1 of the IRA, as well as any other preemptive, participation or veto rights, rights of first refusal and other co-sale rights that any such stockholders do or may have, if at all, that may be operative as it relates to the Company's authorization of the Amended Agreement and issuance of any Note(s) in connection therewith, and the New Securities issuable upon conversion thereof. This Consent shall be governed by and construed in accordance with the internal laws of the State of New York, without regard to conflict of law principles that would result in the application of any law other than the law of the State of New York. This Consent may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which shall constitute one and the same document. This Consent may be executed by facsimile signatures and distributed by email. [Remainder ofpage intentionally left blank] 3 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202628  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. STOCKHOLDER: By: Name: Catherine Levene 4 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202629  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. By: Name: Christopher Vroom 5 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202630  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Canaan IX, LP By: Name: Title: 6 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202631 IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Accelerator Venture Capital I, LP By: Name: Title: 7 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202632  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Adam Weitsman By: Name: Title: adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202633  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Thomas G. Stemberg Revocable Trust By: Name: Title: 9 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202634  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Cabus Ventures By: Name: Title: 10 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202635  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Metamorphic Ventures, LLC By: Name: Title: 11 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202636  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Jonathan B. Lyon Family Trust By: Name: Title: 12 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202637  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Felicis Ventures II, LP By: Name: Title: 13 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202638  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Lewis Chan By: Name: Title: 14 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202639  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Pamela P. Kramlich By: Name: Title: I5 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202640  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Maria Baibakova By: Name: Title: 16 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202641  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Timothy Mott Trust By: Name: Title: 17 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202642  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Daniel G. Levene By: Name: Title: 18 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202643  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Blue iGallery LLC By: Name: Title: 19 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202644  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Zorba B. Lieberman By: Name: Title: 20 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202645  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Robin P. Selati By: Name: Title: 21 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202646  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Alexandra H. Nash, LLC By: Name: Title: 22 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202647  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Todd Simon By: Name: Title: 23 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202648  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Jonathan Blue By: Name: Title: 24 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202649  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Ron Marks By: Name: Title: 25 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202650  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Drakon LLC By: Name: Title: 26 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202651  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Epping Investment Holdings LLC By: Name: Title: 27 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202652  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Dana Zucker By: Name: Title: 28 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202653  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. David Rosenblatt By: Name: Title: 29 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202654  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Robert Pittman By: Name: Title: 30 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202655  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Ilene Cutler Vroom and Edwin Vroom JTROS By: Name: Title: 31 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202656  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Andrew Goldberg Chase By: Name: Title: 32 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202657  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Dave Morgan By: Name: Title: 33 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202658  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. HHG Investments LLC By: Name: Title: 34 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202659  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Lori Chemla By: Name: Title: 35 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202660  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Michael Schultz By: Name: Title: 36 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202661  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Michael Yavonditte By: Name: Title: 37 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202662  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Robert J. Budihas Revocable Trust By: Name: Title: 38 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202663  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Sharkey Goldstein Capital LLC By: Name: Title: 39 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202664  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Steven Alan Grossman By: Name: Title: 40 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202665  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Tracy G. Riese By: Name: Title: 41 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202666  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. John Gardner By: Name: Title: 42 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202667  IN WITNESS WHEREOF, the parties hereto have caused this Consent to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above. Artsource, Inc. By: Name: Title: 43 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202668  Exhibit A Amended and Restated Note Purchase Agreement 44 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202669  Exhibit B Promissory Note 45 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202670  Exhibit C Security Agreement 46 adspacc bridge stockholderconsa 7 21 14 pw.doc EFTA01202671