Initial Public Offering (IPO): Registration Statement (General Form) — Form S-1
Filing Table of Contents
Document/Exhibit Description Pages Size
1: S-1 Registration Statement (General Form) 146 767K
2: EX-3.1 Restated Certificate of Incorporation 29 135K
3: EX-3.3 By-Laws of the Registrant 16 79K
4: EX-10.1 1997 Stock Option Plan 13 55K
13: EX-10.10 Form of Option Stockholders Agreement 9 48K
14: EX-10.11 Stock Purchase Agreement Dated March 9, 1998 39 183K
15: EX-10.12 Stock Purchase Agreement Dated September 9, 1998 24 114K
16: EX-10.13 Stock and Warrant Purchase Agreement 31 143K
17: EX-10.14 Stock Purchase Agreement Dated May 17, 2000 22 118K
18: EX-10.15 Stock Purchase Agreement Dated May 17, 2000 29 161K
19: EX-10.16 Form of Warrant Delivered to the Purchasers 18 80K
20: EX-10.17 Shareholder Agreement 27 65K
21: EX-10.18 Amendment to Shareholders Agreement 4 30K
22: EX-10.19 Amended and Restated Shareholders Agreement 13 69K
5: EX-10.2 1999 Stock Option Plan 12 55K
23: EX-10.20 Walker and Jaeckle Shareholder Agreement 15 43K
24: EX-10.21 Stock Option Agreement 5 38K
25: EX-10.22 Amended and Restated Stockholders Agreement 46 188K
26: EX-10.23 Amend. #1 to Amended & Restated Stockholders Agmt 5 27K
27: EX-10.24 Amend #2 Waiver of Amended & Restated Stockholders 5 28K
28: EX-10.25 2nd Amended & Restated Stockholders Agmt 43 211K
29: EX-10.26 Amended & Restated Registration Rights Agmt 38 137K
30: EX-10.27 Amend #1 to Amended & Restated Registration Rights 4 28K
31: EX-10.28 2nd Amended & Restated Registration Rights 29 130K
32: EX-10.29 Indemnification Agreement 11 43K
6: EX-10.3 2000 Stock Incentive Plan 7 45K
33: EX-10.31 Guarantee Signed by Time, Inc. 1 17K
34: EX-10.32 Letter Agreement 3 24K
35: EX-10.33 Consulting Agreement 9 45K
36: EX-10.34 Employment Agreement 4 27K
37: EX-10.35 Letter Agreement 3 25K
38: EX-10.36 Employment Agreement 2 23K
39: EX-10.37 Subordinated Promissory Note 3 25K
40: EX-10.38 Subordinated Promissory Note 3 25K
41: EX-10.39 Subordinated Promissory Note 3 25K
7: EX-10.4 Form of Non-Qualified Stock Option Agreement 3 26K
42: EX-10.40 Subordinated Promissory Note 3 25K
43: EX-10.41 Promissory Note 2 20K
44: EX-10.42 Promissory Note 2 20K
45: EX-10.43 Promissory Note 2 20K
46: EX-10.44 Promissory Note 2 20K
47: EX-10.45 Promissory Note 2 20K
48: EX-10.46 Promissory Note 2 20K
49: EX-10.47 Loan Exchange Agreement 5 28K
50: EX-10.48 Revolving Promissory Note 3 25K
51: EX-10.49 Credit Agreement 47 170K
8: EX-10.5 Form of Option Shareholders Agreement 15 46K
52: EX-10.50 Promissory Note 3 21K
53: EX-10.51 Promissory Note 3 22K
54: EX-10.52 Lease 80 323K
55: EX-10.53 Lease 64 277K
56: EX-10.54 Settlement Agreement 8 51K
57: EX-10.55 Sales Representative Agreement 18 59K
58: EX-10.56 Limited Liability Company Agreement 25 102K
59: EX-10.59 Letter Agreement 2 20K
9: EX-10.6 Form of Non-Qualified Stock Option Agreement 3 26K
60: EX-10.60 Master Agreement 13 69K
61: EX-10.61 Revolving Promissory Note 4 25K
10: EX-10.7 Form of Option Shareholders Agreement 10 43K
11: EX-10.8 Form of Nonstatutory Stock Option Agreement 6 35K
12: EX-10.9 Form of Incentive Stock Option Agreement 6 35K
62: EX-16.1 Letter Regarding Change in Certifying Accountant 1 16K
63: EX-21.1 Subsidiaries of the Registrant 1 15K
64: EX-23.1 Consent of Arthur Andersen LLP 1 15K
65: EX-27.1 Financial Data Schedule 2 18K
EX-10.11 — Stock Purchase Agreement Dated March 9, 1998
Exhibit Table of Contents
Exhibit 10.11
EXECUTION COPY
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STOCK PURCHASE AGREEMENT
among
NEWSUB SERVICES, INC.,
JAY S. WALKER,
GENERAL ATLANTIC PARTNERS 46, L.P.,
GAP COINVESTMENT PARTNERS, L.P.
and
THE STOCKHOLDERS NAMED HEREIN
_____________________________
Dated as of March 9, 1998
_____________________________
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Table of Contents
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Page
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ARTICLE 1 DEFINITIONS................................................. 2
1.1 Definitions................................................. 2
1.2 Accounting Terms; Financial Statements...................... 8
ARTICLE 2 PURCHASE AND SALE OF COMMON STOCK........................... 8
2.1 Purchase and Sale of Common Stock........................... 8
2.2 Closing..................................................... 8
2.3 Second Payment Date......................................... 9
ARTICLE 3 CONTINGENT PAYMENT.......................................... 9
3.1 1998 Contingent Payment..................................... 9
3.2 1999 Continent Payment...................................... 11
3.3 IPO Contingent Payment...................................... 12
3.4 Payment for Sale of Company................................. 12
3.5 Payment to the Selling Stockholders......................... 13
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS.. 14
4.1 Power and Authority......................................... 14
4.2 Authorization; No Contravention............................. 14
4.3 Title to Purchased Shares................................... 14
4.4 Governmental Authorization; Third Party Consents............ 15
4.5 Binding Effect.............................................. 15
4.6 Litigation.................................................. 15
4.7 Compliance with Laws........................................ 15
4.8 No Default or Breach........................................ 15
4.9 Potential Conflicts of Interest............................. 16
4.10 Private Offering............................................ 16
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF WALKER.................... 16
5.1 Credit Agreement Representations............................ 16
5.2 Corporate Existence and Power............................... 16
5.3 Authorization; No Contravention............................. 16
5.4 Governmental Authorization; Third Party Consents............ 17
5.5 Binding Effect.............................................. 17
5.6 Capitalization.............................................. 17
5.7 FIRPTA...................................................... 18
5.8 Financial Statements........................................ 18
5.9 Taxes....................................................... 18
5.10 Private Offering............................................ 18
5.11 Potential Conflicts of Interest............................. 18
5.12 Trade Relations............................................. 19
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5.13 Broker's, Finder's or Similar Fees......................... 19
ARTICLE 6 REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS........... 19
6.1 Existence and Power........................................ 19
6.2 Authorization; No Contravention............................ 20
6.3 Governmental Authorization; Third Party Consents........... 20
6.4 Binding Effect............................................. 20
6.5 Litigation................................................. 20
6.6 Purchase for Own Account................................... 21
6.7 Investment Experience...................................... 22
6.8 Broker's, Finder's or Similar Fees......................... 22
ARTICLE 7 CONDITIONS TO THE OBLIGATION OF THE PURCHASERS TO CLOSE.... 22
7.1 Representations and Warranties............................. 22
7.2 Compliance with this Agreement............................. 22
7.3 Secretary's Certificate.................................... 22
7.4 Selling Stockholders' Certificate.......................... 23
7.5 Documents.................................................. 23
7.6 Stockholders Agreement..................................... 23
7.7 Registration Rights Agreement.............................. 23
7.8 Opinion of Counsel......................................... 23
7.9 Purchased Shares........................................... 23
7.10 Consents and Approvals..................................... 24
7.11 Auditor's Review........................................... 24
7.12 Conversion to a C Corporation.............................. 24
7.13 Walker and Loeb Agreement.................................. 24
ARTICLE 8 CONDITIONS TO THE OBLIGATION OF THE SELLING
STOCKHOLDERS TO CLOSE...................................... 24
8.1 Representation and Warranties.............................. 24
8.2 General Partners' Certificates............................. 25
8.3 Stockholders Agreement..................................... 25
8.4 Payment by the Purchasers.................................. 25
8.5 Opinion of Counsel......................................... 25
ARTICLE 9 INDEMNIFICATION............................................ 25
9.1 Indemnification by Walker.................................. 25
9.2 Indemnification by Purchasers.............................. 26
9.3 Notification............................................... 26
ARTICLE 10 AFFIRMATIVE COVENANTS...................................... 28
10.1 Financial Statements and Other Information................. 28
10.2 Books and Records.......................................... 28
10.3 Back-Ups of Computer Software.............................. 28
10.4 No Offers to Sell.......................................... 28
10.5 Issuance to Stuart Bell.................................... 29
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10.6 Amendment to Certificate of Incorporation................... 29
ARTICLE 11 TERMINATION OF AGREEMENT.................................... 29
11.1 Termination................................................. 29
11.2 Survival.................................................... 30
ARTICLE 12 MISCELLANEOUS............................................... 30
12.1 Survival of Representations and Warranties.................. 30
12.2 Notices..................................................... 31
12.3 Successors and Assigns; Third Party Beneficiaries........... 31
12.4 Amendment and Waiver........................................ 31
12.5 Counterparts................................................ 32
12.6 Headings.................................................... 32
12.7 Pronouns.................................................... 32
12.8 Governing Law............................................... 32
12.9 Severability................................................ 32
12.10 Entire Agreement............................................ 32
12.11 Fees........................................................ 32
12.12 Publicity................................................... 32
12.13 Further Assurances.......................................... 33
EXHIBITS
A-1 Certificate of Incorporation
A-2 By-laws
B Form of Stockholders Agreement
C Form of Registration Rights Agreement
D 1998 Bank Financing Plan
SCHEDULES
2.1 Purchase and Sale of Common Stock
5.6 Capitalization
12.2 Addresses
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STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT, dated March 9, 1998 (this "Agreement"),
among NewSub Services, Inc., a Connecticut corporation (the "Company"), Jay S.
Walker ("Walker"), Margaret Loeb, John Veronis, John Suhler, Crutcher Family
Trust, Joseph Hanson, The Jay S. Walker Irrevocable Credit Trust and Andre
Jaeckle ("Jaeckle") (collectively, the "Selling Stockholders"), General Atlantic
Partners 46, L.P., a Delaware limited partnership ("GAP LP") and GAP
Coinvestment Partners, L.P., a New York limited partnership ("GAP Coinvestment"
and, together with GAP LP, the "Purchasers").
WHEREAS, the Selling Stockholders are the record and beneficial owners
of shares of voting common stock, no par value, of the Company (the "Voting
Stock") and nonvoting common stock, no par value, of the Company (the "Nonvoting
Stock," and collectively with the Voting Stock, the "Common Stock");
WHEREAS, pursuant to the terms and conditions set forth in this
Agreement, the Selling Stockholders propose to sell to (a) GAP LP, and GAP LP
has agreed to purchase from the Selling Stockholders, an aggregate of 117.18
shares of Voting Stock and an aggregate of 1014 shares of Nonvoting Stock, and
(b) GAP Coinvestment, and GAP Coinvestment has agreed to purchase from the
Selling Stockholders, an aggregate of 25.88 shares of Voting Stock and an
aggregate of 223.94 shares of Nonvoting Stock;
WHEREAS, prior to the date hereof, pursuant to the Credit Agreement,
dated as of March 5, 1998 (the "Credit Agreement"), among the Company,
NationsBank, N.A., as agent and as lender and the other parties listed on the
signature page thereto, the Company borrowed $50 million pursuant to a Term Loan
Facility (as defined in the Credit Agreement) and borrowed up to $20 million
pursuant to a Revolving Credit Facility (as defined in the Credit Agreement),
and the Company distributed a portion of such funds to the stockholders of the
Company as a one-time bonus payment and special dividend (collectively all of
the items included in this recital are referred to herein as the
"Recapitalization");
WHEREAS, on the Closing Date (as hereinafter defined), the Company
will enter into the Stockholders Agreement (as hereinafter defined) with GAP LP,
GAP Coinvestment and the stockholders named therein, pursuant to which the
parties thereto have agreed to, among other things, certain first offer, tag-
along and rights on future issuances of equity securities and corporate
governance rights and obligations;
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WHEREAS, on the Closing Date, the Company will enter into the
Registration Rights Agreement (as hereinafter defined) with GAP LP, GAP
Coinvestment and the stockholders named therein, pursuant to which the parties
thereto have agreed to, among other things, certain registration rights with
respect to certain shares of Common Stock;
WHEREAS, in order to induce each of GAP LP and GAP Coinvestment to
purchase the Purchased Shares (as hereinafter defined) and to enter into the
Stockholders Agreement and the Registration Rights Agreement, the Company and
the Selling Stockbolders have agreed to enter into this Agreement and make the
representations and warranties set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
and adequacy of which is hereby acknowledged, the parties hereto agree as
follows:
ARTICLE 1
DEFINITIONS
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1.1 Definitions. As used in this Agreement, and unless the context
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requires a different meaning, the following terms have the meanings indicated:
"Affiliate" shall mean any Person who is an "affiliate" as defined in
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Rule 12b-2 of the General Rules and Regulations under the Exchange Act. GAP LP
and GAP Coinvestment shall be deemed to be Affiliates of one another.
"Agreement" means this Agreement as the same may be amended
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supplemented or modified in accordance with the terms hereof.
"Audited Financial Statements" means, with respect to a fiscal year,
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the audited consolidated balance sheet of the Company as of the end of such
fiscal year and the related statements of operations, cash flows and
stockholders' equity for such fiscal year, setting forth in each case in
comparative form the figures for the previous year, all in conformity with GAAP,
in reasonable detail and accompanied by a management summary and analysis of the
operations of the Company for such fiscal year and by the opinion of a
nationally recognized independent certified public accounting firm reasonably
satisfactory to the Purchasers.
"Bell" has the meaning set forth in Section 10.5 of this Agreement.
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"Board of Directors" means the Board of Directors of the Company.
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"Business Day" means any day other than a Saturday, Sunday or other
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day on which commercial banks in the State of New York are authorized or
required by law or executive order to close.
"By-Laws" means the by-laws of the Company in effect on the Closing
Date substantially in the form attached hereto as Exhibit A-2, as the same may
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be amended from time to time.
"Capital Lease Obligations" of any Person shall mean, as of the date
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of determination, the obligations of such Person to pay rent or other amounts
under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to
be classified and accounted for as capital leases on a balance sheet of such
Person under GAAP and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such time
determined in accordance with GAAP consistently applied.
"Certificate of Incorporation" means the Certificate of Incorporation
----------------------------
of the Company substantially in the form attached hereto as Exhibit A-1, as the
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same may be amended from time to time.
"Claims" has the meaning set forth in Section 9.1 of this Agreement.
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"Closing" has the meaning set forth in Section 2.2 of this Agreement.
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"Closing Date" has the meaning set forth in Section 2.2 of this
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Agreement.
"Code" means the Internal Revenue Code of 1986, as amended, or any
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successor statute thereto.
"Commission" means the Securities and Exchange Commission or any
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similar agency then having jurisdiction to enforce the Securities Act.
"Common Stock" has the meaning set forth in the recitals to this
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Agreement.
"Common Stock Equivalent" means any security or obligation which is by
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its terms convertible into or exchangeable for shares of Common Stock,
including, without limitation, any option, warrant or other subscription or
purchase right with respect to Common Stock.
4
"Company" has the meaning set forth in the recitals to this Agreement.
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"Condition of the Company" means the assets, business, properties,
------------------------
prospects, operations or financial condition of the Company.
"Contingent Payment" has the meaning set forth in Section 3.5 of this
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Agreement.
"Contractual Obligations" means as to any Person, any provision of any
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security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument to which such Person is a
party or by which it or any of its property is bound.
"Credit Agreement" has the meaning set forth in the recitals to this
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Agreement.
"Extra Payments" has the meaning set forth in Section 3.1 of this
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Agreement.
"Financial Statements" has the meaning set forth in Section 5.8 of
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this Agreement.
"GAAP" means generally accepted accounting principles in effect from
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time to time in the United States.
"GAP Coinvestment" has the meaning set forth in the recitals to this
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Agreement.
"GAP LLC" means General Atlantic Partners, LLC, a Delaware limited
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liability company and the general partner of GAP LP, and any successor to such
entity.
"GAP LP" has the meaning set forth in the recitals to this Agreement.
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"Governmental Authority" means the government of any nation, state,
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city, locality or other political subdivision thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Indemnified Party" has the respective meanings set forth in Sections
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9.1 and 9.3 of this Agreement.
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"Indemnnifying Party" has the respective meanings set forth in
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Sections 9.1 and 9.3 of this Agreement.
"Initial Public Offering" means an underwritten public offering
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pursuant to an effective Registration Statement filed under the Securities Act.
"IPO Valuation" means, with respect to the Company, the product of (a)
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the aggregate number of shares of Common Stock outstanding immediately prior to
the Initial Public Offering multiplied by (b) the mid-point of the anticipated
price range per share of the shares of Common Stock to be offered in the Initial
Public Offering based on the information provided in the Company's Registration
Statement to calculate the Commission filing fee.
"Jaeckle" has the meaning set forth in the recitals to this Agreement.
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"Jaeckle Agreement" has the meaning set forth in Section 7.10 of this
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Agreement.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
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assignment, encumbrance, lien (statutory or other) or preference, priority,
right or other security interest or preferential arrangement of any kind or
nature whatsoever (excluding preferred stock and equity related preferences),
including, without limitation, those created by, arising under or evidenced by
any conditional sale or other title retention agreement, the interest of a
lessor under a Capital Lease Obligation, or any financing lease having
substantially the same economic effect as any of the foregoing.
"Loeb" has the meaning set forth in Section 7.10 of this Agreement.
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"Losses" "Losses" has the meaning set forth in Section 9.1 of this
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Agreement.
"Merger" means (x) the merger or consolidation of the Company into or
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with one or more Persons or (y) the merger or consolidation of one or more
Persons into or with the Company, if, in the case of (x) or (y), the
stockholders of the Company prior to such merger or consolidation do not retain
at least a majority of the voting power of the surviving Person.
"Minor Stockholders" means Joseph Hanson, John Veronis, John Suhler,
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the Crutcher Family Trust and Margaret Bates.
"Minor Stockholders Agreement" has the meaning set forth in Section
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7.10 of this Agreement.
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"Nonvoting Stock" has the meaning set forth in the recitals to this
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Agreement.
"Orders" has the meaning set forth in Section 4.2 of this Agreement.
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"Person" means any individual, firm, corporation, partnership, trust,
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incorporated or unincorporated association, joint venture, joint stock company,
limited liability company, Governmental Authority or other entity of any kind,
and shall include any successor (by merger or otherwise) of such entity.
"Purchased Shares" has the meaning set forth in Section 2. 1 (a) of
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this Agreement.
"Purchaser Indemnified Party" has the meaning set forth in Section 9.2
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of this Agreement.
"Purchaser Indemnifying Party" has the meaning set forth in Section
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9.2 of this Agreement.
"Purchasers" has the meaning set forth in the recitals to this
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Agreement.
"Recapitalization" has the meaning set forth in the recitals to this
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Agreement.
"Registration Rights Agreement" means the Registration Rights
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Agreement substantially in the form attached hereto as Exhibit C.
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"Registration Statement" means a Registration Statement filed pursuant
----------------------
to the Securities Act.
"Requirement of Law" means, as to any Person, any law, statute,
------------------
treaty, rule, regulation, right, privilege, qualification, license or franchise
or determination of an arbitrator or a court or other Governmental Authority or
stock exchange, in each case applicable or binding upon such Person or any of
its property or to which such Person or any of its property is subject or
pertaining to any or all of the transactions contemplated or referred to herein.
"S Corp Status" has the meaning set forth in Section 3.1 of this
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Agreement.
"Sale" shall mean the voluntary sale, conveyance, exchange or transfer
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to another Person of (i) the Voting Stock of the Company if, after such sale,
conveyance, exchange or transfer, the stockholders of the Company prior to such
sale, conveyance, exchange or transfer do not retain at least a majority of the
voting power of the Company or (ii) all or substantially all of the assets of
the Company.
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"Second Payment Date" has the meaning set forth in Section 2.3 of this
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Agreement.
"Securities Act" means the Securities Act of 1933, as amended, and the
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rules and regulations of the Commission thereunder.
"Selling Stockholders" has the meaning set forth in the recitals to
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this Agreement.
"Stockholders Agreement" means the Stockholders Agreement
----------------------
substantially in the form attached hereto as Exhibit B.
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"Subsidiaries" has the meaning set forth in Article 1 of the Credit
------------
Agreement.
"Tax" has the meaning set forth in Section 5.9 of this Agreement.
---
"Transaction Documents" means collectively, this Agreement, the
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Stockholders Agreement and the Registration Rights Agreement.
"Value" means the fair market value of the Company as shall be agreed
-----
upon by the Board of Directors and the Purchasers or, if the Board of Directors
and the Purchasers shall fail to agree as shall be determined, at the Company's
expense by an appraiser chosen by the Board of Directors and reasonably
acceptable to the Purchasers.
"Voting Stock" has the meaning set forth in the recitals to this
------------
Agreement.
"Walker" has the meaning set forth in the recitals to this Agreement.
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"Walker and Loeb Agreement" has the meaning set forth in Section 7. 10
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of this Agreement.
"1998 Net Income Target" has the meaning set forth in Section 3. 1 (a)
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of this Agreement.
"1999 Net Income Target" has the meaning set forth in Section 3.2(a)
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of this Agreement.
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"1998 Plan" has the meaning set forth in Section 3.1(a) of this
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Agreement.
1.2 Accounting Terms; Financial Statements. All accounting terms
--------------------------------------
used herein not expressly defined in this Agreement shall have the respective
meanings given to them in accordance with sound accounting practice. The term
"sound accounting practice" shall mean such accounting practice as, in the
opinion of the independent certified public accountants regularly retained by
the Company, conforms at the time to GAAP applied on a consistent basis except
for changes with which such accountants concur.
ARTICLE 2
PURCHASE AND SALE OF COMMON STOCK
---------------------------------
2.1 Purchase and Sale of Common Stock.
---------------------------------
(a) Subject to the terms and conditions herein set forth, each
of the Selling Stockholders agrees to sell to each of the Purchasers, and each
of the Purchasers agrees that it will purchase from each Selling Stockholder,
the aggregate number of shares of Common Stock set forth opposite each such
Purchaser's name and below each such Selling Stockholder's name on Schedule 2.1
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hereto (all such shares being referred to herein as the "Purchased Shares").
After the consummation of the Recapitalization and the transactions contemplated
by this Agreement, the Purchased Shares shall represent at least ten (10)
percent of the not more than 9,147 shares of Common Stock outstanding on a fully
diluted basis on the Closing Date.
(b) On the Closing Date (as hereinafter defined), each of the
Purchasers shall purchase its Purchased Shares at the price per share equal to
(i) $34,121.93 minus (ii) the amount equal to the quotient of (x) $50,000,000
plus the aggregate amount drawn down under the Revolving Credit Facility on the
closing date of the Recapitalization divided by (y) 8,792. On the Closing Date,
the Purchasers and the Selling Stockholders shall amend Schedule 2.1 hereto to
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set forth opposite each Purchaser's name the aggregate purchase price being paid
by such Purchaser for its Purchased Shares, and the portion of the purchase
price being paid on the Closing Date and the portion of the purchase price being
paid on the Second Payment Date.
2.2 Closing. Unless this Agreement shall have terminated pursuant to
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Article 11 and subject to the satisfaction or waiver of the conditions set forth
in Articles 7 and 8, the closing of the sale and purchase of the Purchased
Shares (the "Closing") shall take place at the offices of Paul, Weiss, Rifkind,
Wharton & Garrison, no later than 4:00 p.m., New York time, one Business Day
following the closing date of the transactions contemplated by the Credit
Agreement, or at such other time, place and date that the Company and the
Purchasers may agree in writing (the "Closing Date"). On the Closing Date, (a)
each Selling Stockholder shall deliver to each Purchaser certificates
representing
9
the Purchased Shares being purchased by such Purchaser from such Selling
Stockholder, duly endorsed in blank or accompanied by a duly executed stock
power, in proper form for transfer, and registered in the name of such
Purchaser, (b) each Purchaser will deliver to such Selling Stockholder 66.26% of
the aggregate purchase price therefor (as determined pursuant to Section 2.1(b)
herein) by wire transfer of immediately available funds and (c) the Company
shall (i) register the purchase of the Purchased Shares by the Purchasers
pursuant to this Agreement and (ii) in exchange for the certificates delivered
to each Purchaser by each Selling Stockholder pursuant to the preceding clause
(a), deliver to each Purchaser a certificate registered on the Company's stock
ledger in the name of such Purchaser representing the aggregate number of
Purchased Shares being purchased by such Purchaser under this Agreement.
2.3 Second Payment Date. No later than five (5) Business Days after
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the Closing Date (the "Second Payment Date"), each Purchaser will deliver to
each Selling Stockholder 33.74% of the aggregate purchase price for the
Purchased Shares being purchased by such Purchaser from such Selling Stockholder
(as determined pursuant to Section 2. 1 (b) herein) by wire transfer of
immediately available funds.
ARTICLE 3
CONTINGENT PAYMENT
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3.1 1998 Contingent Payment.
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(a) In the event that (i) the net revenues of the Company, as
set forth in the Audited Financial Statements for fiscal year 1998, are not less
than the $225,000,000 projected net revenues of the Company for fiscal year 1998
set forth in the initial 1998 Bank Financing Plan provided to the Purchasers in
connection with the Recapitalization and attached as Exhibit D hereto (the "1998
Plan") and (ii) the net income of the Company, as defined below, for fiscal year
1998, exceeds the $14,000,000 projected net income of the Company for fiscal
year 1998 set forth in the 1998 Plan (such $14,000,000 being hereinafter
referred to as the "1998 Net Income Target") by an amount greater than twenty
(20) percent but less than thirty (30) percent of the 1998 Net Income Target,
then (x) the Purchasers shall pay to each Selling Stockholder in accordance with
Section 3.5 an amount per share equal to $546.45 for each one percent (or a pro
rata portion of $546.45 per share to the extent less than one percent) that the
net income of the Company, as set forth in the Audited Financial Statements for
fiscal year 1998, exceeds the 1998 Net Income Target by an amount greater than
twenty (20) percent but less than thirty (30) percent of the 1998 Net Income
Target and (y) the Selling Stockholders shall be eligible to receive a payment
pursuant to Section 3.2(a), 3.2(b), 3.3(a), 3.3(b), 3.4(a) or 3.4(b); provided,
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however, that notwithstanding anything to the contrary set forth in this
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Agreement, the aggregate amount per share payable by the Purchasers to each
Selling Stockholder pursuant to this Section 3.1(a), when added together with
all amounts payable by the Purchasers to such Selling Stockholder pursuant to
Section 3.2(a), 3.2(b), 3.3(a), 3.3(b), 3.4(a) and 3.4(b), if any, shall
10
not be greater than $5,464.48 per share. For purposes of this Section 3.1, net
income shall mean (i) in the event that the Company transfers the Extra Payments
(as defined below) to the Minor Stockholders and Walker at the time when the
Company retains its status as an "S Corporation," as defined in Section 1361 of
the Code for federal income tax purposes ("S Corp Status"), the sum of (x) the
net income of the Company as set forth in the Audited Financial Statements for
fiscal year 1998 plus (y) an amount up to $1,728,855 representing consulting
payments to Minor Stockholders paid out of proceeds of the Recapitalization plus
(z) an amount up to $1,085,459 representing a bonus payment to Walker (together
with the payment set forth in (y) above, the "Extra Payments") paid out of
proceeds of the Recapitalization and (ii) in the event that the Company
transfers the Extra Payments to the Minor Stockholders and Walker at a time when
the Company no longer retains S Corp Status, the net income of the Company as
set forth in the Audited Financial Statements for fiscal year 1998.
(b) In the event that (i) the net revenues of the Company, as
set forth in the Audited Financial Statements for fiscal year 1998, are not less
than the $225,000,000 projected net revenues of the Company for fiscal year 1998
set forth in the 1998 Plan and (ii) the net income of the Company, as set forth
in the Audited Financial Statements for fiscal year 1998, exceeds the 1998 Net
Income Target by an amount not less than thirty (30) percent of the 1998 Net
Income Target, then (x) the Purchasers shall pay to each Selling Stockholder in
accordance with Section 3.5 the aggregate amount per share equal to $5,464.48,
(y) the Selling Stockholders shall not be entitled to any other payments under
this Article 3 and (z) Sections 3.2, 3.3, and 3.4 shall terminate and have no
force or effect; provided, however, that notwithstanding anything to the
-------- -------
contrary set forth in this Agreement, the aggregate amount per share payable by
the Purchasers to each Selling Stockholder pursuant to this Section 3.1(b), when
added together with all amounts payable by the Purchasers to the Selling
Stockholders pursuant to Section 3.3(a), if any, shall not be greater than
$5,464.48 per share.
(c) In the event that (i) the net revenues of the Company, as
set forth in the Audited Financial Statements for fiscal year 1998, are less
than the $225,000,000 projected net revenues of the Company for fiscal year 1998
set forth in the 1998 Plan or (ii) the net income of the Company, as set forth
in the Audited Financial Statements for fiscal year 1998, does not exceed the
1998 Net Income Target by an amount greater than twenty (20) percent of the 1998
Net Income Target, then (x) the Purchasers shall not be obligated to make any
payment to the Selling Stockholders pursuant to this Section 3.1 and (y) the
Selling Stockholders shall be eligible to receive a payment pursuant to Section
3.2(a), 3.2(b), 3.3(a), 3.3(b), 3.4(a) or 3.4(b).
11
3.2 1999 Continent Payment.
----------------------
(a) In the event that (i) the net revenues of the Company, as
set forth in the Audited Financial Statements for fiscal year 1999, are not less
than the $286,000,000 projected net revenues, of the Company for fiscal year
1999 set forth in the 1998 Plan and (ii) the net income of the Company, as set
forth in the Audited Financial Statements for fiscal year 1999, exceeds the
$19,300,000 projected net income of the Company for fiscal year 1999 set forth
in the 1998 Plan (such $19,300,000 being hereinafter referred to as the "1999
Net Income Target") by an amount greater than twenty (20) percent but less than
thirty (30) percent of the 1999 Net Income Target, then (x) the Purchasers shall
pay to each Selling Stockholder in accordance with Section 3.5 an amount per
share equal to $546.45 for each one percent (or a pro rata portion of $546.45
per share to the extent less than one percent) that the net income of the
Company, as set forth in the Audited Financial Statements for fiscal year 1999,
exceeds the 1999 Net Income Target by an amount greater than twenty (20) percent
but less than thirty (30) percent of the 1999 Net Income Target and (y) the
Selling Stockholders shall be eligible to receive a payment pursuant to Section
3.3(a), 3.3(b), 3.4(a) or 3.4(b); provided, however, that notwithstanding
-------- -------
anything to the contrary set forth in this Agreement, the aggregate amount per
share payable by the Purchasers to each Selling Stockholder pursuant to this
Section 3.2(a), when added together with all amounts payable by the Purchasers
to such Selling Stockholder pursuant to Section 3.1(a), 3.3(a), 3.3(b), 3.4(a)
and 3.4(b), if any, shall not be greater than $5,464.48 per share.
(b) In the event that (i) the net revenues of the Company, as
set forth in the Audited Financial Statements for fiscal year 1999, are not less
than the $286,000,000 projected net revenues of the Company for fiscal year 1999
set forth in the 1998 Plan and (ii) the net income of the Company, as set forth
in the Audited Financial Statements for fiscal year 1999, exceeds the 1999 Net
Income Target by an amount not less than thirty (30) percent of the 1999 Net
Income Target, then the Purchasers shall pay to each Selling Stockholder in
accordance with Section 3.5 the aggregate amount per share equal to $5,464.48;
provided, however, that notwithstanding anything to the contrary set forth in
-------- -------
this Agreement, the aggregate amount per share payable by the Purchasers to each
Selling Stockholder pursuant to this Section 3.2(b), when added together with
all amounts payable by the Purchasers to such Selling Stockholder pursuant to
Section 3. 1 (a), 3.3(a), 3.3(b), 3.4(a) or 3.4(b), if any, shall not be greater
than $5,464.48 per share.
(c) In the event that (i) the net revenues of the Company, as
set forth in the Audited Financial Statements for fiscal year 1999, are less
than the $286,000,000 projected net revenues of the Company for fiscal year 1999
set forth in the 1998 Plan or (ii) the net income of the Company, as set forth
in the Audited Financial Statements for fiscal year 1999, does not exceed the
1999 Net Income Target by an amount greater than twenty (20) percent of the 1999
Net Income Target, then (x) the Purchasers shall not be obligated to make any
payment to the Selling Stockholders pursuant to this Section 3.2 and (y) the
Selling
12
Stockholders shall be eligible to receive a payment pursuant to Section 3.3(a),
3.3(b), 3.4(a) or 3.4(b).
3.3 IPO Contingent Payment.
----------------------
(a) In the event that the Company files in calendar year 1998
with the Commission a Registration Statement with respect to its Initial Public
Offering, then (x) the Purchasers shall pay to each Selling Stockholder in
accordance with Section 3.5 an amount per share equal to $1,092.90 per share for
each $10,000,000 (or a pro rata portion of $1,092.90 per share to the extent
less than $10,000,000) that the IPO Valuation with respect to such Registration
Statement of the Company is greater than $450,000,000, (y) the Selling
Stockholders shall not be entitled to any other payments pursuant to Sections
3.3(b), 3.4(a) and 3.4(b) and (z) Sections 3.3(b), 3.4(a) and 3.4(b) shall
terminate and have no further force or effect; provided, however, that
-------- -------
notwithstanding anything to the contrary contained in this Agreement, the
aggregate amount per share payable by Purchasers to each Selling Stockholder
pursuant to this Section 3.3(a), when added together with all amounts payable by
the Purchasers to such Selling Stockholder pursuant to Sections 3.1(a), 3.1(b),
3.2(a) and 3.2(b), if any, shall not be greater than $5,464.48 per share.
(b) In the event that the Company files in calendar year 1999
with the Commission a Registration Statement with respect to its Initial Public
Offering, then (x) the Purchasers shall pay to each Selling Stockholder in
accordance with Section 3.5 an amount per share equal to $1,092.90 for each
$10,000,000 (or a pro rata portion of $1,092.90 per share to the extent less
than $10,000,000) that the IPO Valuation with respect to such Registration
Statement of the Company is greater than $600,000,000, (y) the Selling
Stockholders shall not be entitled to any other payments pursuant to Sections
3.4(a) and 3.4(b) and (z) Sections 3.4(a) and 3.4(b) shall terminate and have no
further force or effect; provided, however, that notwithstanding anything to the
-------- -------
contrary contained in this Agreement, the aggregate amount per share payable by
the Purchasers to each Selling Stockholder pursuant to this Section 3.3(b), when
added together with all amounts payable by the Purchasers to such Selling
Stockholder pursuant to Sections 3.1(a), 3.2(a) and 3.2(b), if any, shall not be
greater than $5,464.48 per share.
3.4 Payment for Sale of Company
---------------------------
(a) In the event of (i) a Sale in calendar year 1998 pursuant to
which the Value of the Company is not less than $400,000,000 or (ii) a Merger in
calendar year 1998 in which the Value of the Company is not less than
$400,000,000, then the Purchasers shall pay to each Selling Stockholder in
accordance with Section 3.5 an amount per share equal to $1,092.90 per share for
each $10,000,000 (or a pro rata portion of $1,092.90 per share to the extent
less than $10,000,000) that the Value of the Company is greater than
$400,000,000, (y) the Selling Stockholders shall not be entitled to any other
payments pursuant to Sections 3.2(a), 3.2(b), 3.3(a), 3.3(b) and 3.4(b) and (z)
Sections 3.2(a), 3.2(b), 3.3(a), 3.3(b) and 3.4(b) shall terminate and have no
further force or effect; provided, however, that notwithstanding anything to the
-------- -------
contrary contained in this Agreement, the
13
aggregate amount per share payable by Purchasers to each Selling Stockholder
pursuant to this Section 3.4(a), when added together with all amounts payable by
the Purchasers to such Selling Stockholder pursuant to Sections 3.1 (a), and/or
3.1 (b), if any, shall not be greater than $5,464.48 per share.
(b) In the event of (i) a Sale in calendar year 1999 pursuant to
which the Value of the Company is not less than $550,000,000 or (ii) a Merger in
calendar year 1999 in which the Value of the Company is not less than
$550,000,000, then the Purchasers shall pay to each Selling Stockholder in
accordance with Section 3.5 an amount per share equal to $1,092.90 per share for
each $10,000,000 (or a pro rata portion of $1,092.90 per share to the extent
less than $10,000,000) that the Value of the Company is greater than
$550,000,000, (y) the Selling Stockholders shall not be entitled to any other
payments pursuant to Sections 3.2(a), 3.2(b), 3.3(a), 3.3(b) and 3.4(a) and (z)
Sections 3.2(a), 3.2(b), 3.3(a), 3.3(b) and 3.4(a) shall terminate and have no
further force or effect; provided, however, that notwithstanding anything to the
-------- -------
contrary contained in this Agreement, the aggregate amount per share payable by
Purchasers to each Selling Stockholder pursuant to this Section 3.4(b), when
added together with all amounts payable by the Purchasers to such Selling
Stockholder pursuant to Sections 3.1(a), 3.1 (b), 3.2(a) and 3.2(b), if any,
shall not be greater than $5,464.48 per share.
3.5 Payment to the Selling Stockholders. If any amounts are payable
-----------------------------------
by the Purchasers to the Selling Stockholders pursuant to Section 3.1 (a),
3.1(b), 3.2(a), 3.2(b), 3.3(a), 3.3(b), 3.4(a) or 3.4(b) herein (each, a
"Contingent Payment"), then the Purchasers shall pay to each of the Selling
Stockholders his proportionate percentage of the Contingent Payment (calculated
by dividing the aggregate amount of the purchase price received by such Selling
Stockholder by the aggregate purchase price paid by the Purchasers to the
Selling Stockholders on the Closing Date for all of the Purchased Shares) not
later than fifteen (15) Business Days after (w) in the case of a Contingent
Payment payable under Section 3.1 (a) or 3.1 (b), the receipt by the Purchasers
of the Audited Financial Statements for fiscal year 1998; (x) in the case of a
Contingent Payment payable under Section 3.2(a) or 3.2(b), the receipt by the
Purchasers of the Audited Financial Statements for fiscal year 1999; (y) in the
case of a Contingent Payment payable under Section 3.3(a) or 3.3(b), the closing
date of the Initial Public Offering or (z) in the case of a Contingent Payment
payable under Section 3.4(a) or 3.4(b), the closing date of the Sale or Merger,
by check or wire transfer of immediately available funds to an account or
accounts designated in writing by each of the Selling Stockholders. The
Purchasers and the Selling Stockholders shall execute such additional documents
as are necessary or appropriate in connection with the payment of a Contingent
Payment.
14
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
OF THE SELLING STOCKHOLDERS
---------------------------
Each of the Selling Stockholders represents and warrants (severally
and not jointly) to the Purchasers as follows:
4.1 Power and Authority. Such Selling Stockholder has, as the case
-------------------
may be, (a) the legal capacity or (b) the power and authority to execute,
deliver and perform his obligations under this Agreement and each of the other
Transaction Documents to which he is a party.
4.2 Authorization; No Contravention. The execution, delivery and
-------------------------------
performance by such Selling Stockholder of this Agreement and each of the other
Transaction Documents to which he is a party and the transactions contemplated
hereby and thereby, including, without limitation, the sale of the Purchased
Shares by such Selling Stockholder (a) if applicable, have been duly authorized
by all necessary action of the Selling Stockholder; (b) if applicable, do not
contravene the terms of the Certificate of Incorporation or Bylaws, or similar
instrument of organization, or any amendment thereof; (c) do not violate,
conflict with or result in any breach or contravention of or the creation of any
Lien under, any Contractual Obligation of such Selling Stockholder, or any
Requirement of Law applicable to such Selling Stockholder and (d) do not violate
any judgment, injunction, writ, temporary restraining order, award, decree or
order of any nature (collectively, "Orders") applicable to such Selling
Stockholder. Such Selling Stockholder has not previously entered into any
agreement which is currently in effect or to which such Selling Stockholder is
currently bound, granting any rights to any Person which are inconsistent with
the rights to be granted by such Selling Stockholder in the Transaction
Documents.
4.3 Title to Purchased Shares. Such Selling Stockholder owns
-------------------------
beneficially and of record the Purchased Shares and has good and valid title to
the Purchased Shares, free and clear of all Liens. Such Selling Stockholder has
the unrestricted power and authority to transfer the Purchased Shares to the
Purchasers. Upon delivery to the Purchasers of the stock certificates
representing such Selling Stockholder's Purchased Shares and payment therefor,
the Purchasers shall acquire good and valid title to such Purchased Shares, free
and clear of all Liens, other than those created by the Purchasers.
15
4.4 Governmental Authorization; Third Party Consents. No approval,
------------------------------------------------
consent, compliance, exemption, authorization, or other action by, or notice to,
or filing with, any Governmental Authority or any other Person in respect of any
Requirement of Law, and no lapse of a waiting period under a Requirement of Law
is necessary or required in connection with the execution, delivery or
performance (including, without limitation, the sale, issuance and delivery of
the Purchased Shares), by or enforcement against such Selling Stockholder of
this Agreement and each of the other Transaction Documents to which he is a
party or the transactions contemplated hereby or thereby.
4.5 Binding Effect. This Agreement and each of the other Transaction
--------------
Documents to which such Selling Stockholder is a party have been duly executed
and delivered by such Selling Stockholder, and this Agreement and each of the
other Transaction Documents to which such Selling Stockholder is a party
constitute the legal, valid and binding obligation of such Selling Stockholder,
enforceable against such Selling Stockholder in accordance with their terms,
except as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, fraudulent conveyance or transfer, moratorium or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
4.6 Litigation. There are no legal actions, suits, proceedings,
----------
claims, complaints, disputes or investigations pending or, to the knowledge of
such Selling Stockholder, threatened, at law, in equity, in arbitration or
before any Governmental Authority against such Selling Stockholder that would,
if adversely determined, have a material adverse effect on the ability of such
Selling Stockholder to perform his obligations under this Agreement or any other
Transaction Document to which he is a party. No judgment, injunction, writ,
temporary restraining order, decree or order of any nature has been issued by
any court or other Governmental Authority against such Selling Stockholder
purporting to enjoin or restrain the execution, delivery or performance of any
of the Transaction Documents to which he is a party.
4.7 Compliance with Laws. Such Selling Stockholder is in compliance
--------------------
with all Requirements of Law in all respects, except to the extent that the
failure to comply with such Requirements of Law would not have a material
adverse effect on the ability of such Selling Stockholder to perform his
obligations under the Transaction Documents to which he is a party.
4.8 No Default or Breach. Such Selling Stockholder has not received
--------------------
notice of, and is not in default under or with respect to any Contractual
Obligation of such Selling Stockholder in any respect, which, individually or
together with all such defaults, could have an effect on the ability of such
Selling Stockholder to perform his obligations under the Transaction Documents
to which he is a party.
16
4.9 Potential Conflicts of Interest. No Selling Stockholder, the
-------------------------------
spouse of such Selling Stockholder nor, to the knowledge of such Selling
Stockholder, any relative of such spouse or such Selling Stockholder, and no
Affiliate of any of the foregoing, except, in the case of John Veronis, John
Suhler and the Crutcher Family Trust in the ordinary course of the business of
Veronis, Suhler & Associates of advising companies in the media business, (a)
owns, directly or indirectly, any interest in (excepting less than 1% stock
holdings for investment purposes in securities of publicly held and traded
companies), or is an officer, director, employee or consultant of, any Person
which is, or is engaged in business as, a competitor, lessor, lessee, supplier,
distributor, sales agent or customer of, or lender to or borrower from, the
Company; (b) owns, directly or indirectly, in whole or in part, any tangible or
intangible property that the Company uses in the conduct of business; or (c) has
any cause of action or other claim whatsoever against, or owes or has advanced
any amount to, the Company, except for claims in the ordinary course of business
such as for accrued vacation pay, accrued benefits under employee benefit plans,
and similar matters and agreements existing on the date hereof.
4.10 Private Offering. No form of general solicitation or general
----------------
advertising was used by such Selling Stockholder or its representatives in
connection with the sale of the Purchased Shares.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF WALKER
----------------------------------------
Walker hereby represents and warrants to the Purchasers as follows:
5.1 Credit Agreement Representations. All representations and
--------------------------------
warranties of the Company set forth in Article 8 of the Credit Agreement are
true and correct on the date hereof. For purposes of this Agreement, (a) the
definition of Loan Documents set forth in Article 1 of the Credit Agreement
shall be deemed to include the Transaction Documents and (b) the definition of
Agent set forth in Article 1 of the Credit Agreement shall be deemed to include
the Purchasers.
5.2 Corporate Existence and Power. The Company has the corporate
-----------------------------
power and authority to execute, deliver and perform its obligations under
Section 2.2 and Articles 10, 11 and 12 of this Agreement and each of the other
Transaction Documents to which it is a party.
5.3 Authorization: No Contravention. The execution, delivery and
-------------------------------
performance by the Company of this Agreement and each of the other Transaction
Documents and the transactions contemplated hereby and thereby (a) have been
duly authorized by all necessary corporate action of the Company; (b) do not
contravene the terms of the Certificate of Incorporation or the By-laws, or any
amendment of any thereof; (c) do not violate, conflict with or result in any
breach or contravention of, or the creation of any Lien under, any Contractual
Obligation of the Company, or any Requirement of Law
17
applicable to the Company; and (d) do not violate any Orders of any Governmental
Authority against, or binding upon, the Company.
5.4 Governmental Authorization; Third Party Consents. No approval,
------------------------------------------------
consent, compliance, exemption, authorization or other action by, or notice to,
or filing with, any Governmental Authority or any other Person in respect of any
Requirement of Law, and no lapse of a waiting period under a Requirement of Law,
is necessary or required in connection with the execution, delivery or
performance by, or enforcement against, the Company of this Agreement and the
other Transaction Documents or the transactions contemplated hereby and thereby.
5.5 Binding Effect. This Agreement and each of the other Transaction
--------------
Documents have been duly executed and delivered by the Company, and constitute
the legal, valid and binding obligations of the Company enforceable against the
Company in accordance with their terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or similar laws affecting the enforcement of creditors'
rights generally and by general principles of equity relating to enforceability
(regardless of whether considered in a proceeding at law or in equity).
5.6 Capitalization. On the Closing Date, after giving effect to the
--------------
transactions contemplated by this Agreement, the authorized capital stock of the
Company shall consist of (i) 7,500 shares of Voting Stock, of which 2,000 shares
shall be issued and outstanding and (ii) 7,500 shares of Nonvoting Stock, of
which 6,792 shares shall be issued and outstanding. Schedule 5.6 sets forth a
------------
true and complete list of the stockholders of the Company and, opposite the name
of each stockholder, the amount of all outstanding capital stock and Common
Stock Equivalents owned by such stockholder. Except as set forth on Schedule
--------
5.6, there are no options, warrants, conversion privileges, subscription or
---
purchase rights or other rights presently outstanding to purchase or otherwise
acquire (i) any authorized but unissued, unauthorized or treasury shares of the
Company's capital stock, (ii) any Common Stock Equivalents or (iii) other
securities of the Company. The Purchased Shares are duly authorized, validly
issued, fully paid and nonassessable and, to Walker's best knowledge, were
issued in compliance with the registration and qualification requirements of all
applicable federal securities laws. The issued and outstanding shares of Common
Stock are all duly authorized, validly issued, fully paid and nonassessable,
and, to Walker's best knowledge, were issued in compliance with the registration
and qualification requirements of all applicable federal securities laws. The
Company has no Subsidiaries.
18
5.7 FIRPTA. The Company is not a "foreign person" within the
------
meaning of Section 1445 of the Code.
5.8 Financial Statements. The Company has delivered to the
--------------------
Purchasers its Audited Financial Statements for the fiscal year ended and as at
December 31, 1997 (the "Financial Statements"). The Financial Statements are
complete and correct in all material respects and have been prepared in
accordance with GAAP applied on a consistent basis throughout the periods
indicated. The Financial Statements fully and fairly present the combined
financial position, operating results and cash flows, of the Company in all
material respects as of the date and for the period indicated.
5.9 Taxes. (i) The Company has paid all federal, state, county,
-----
local, foreign and other taxes, including, without limitation, income taxes,
estimated taxes, excise taxes, sales taxes, use taxes, gross receipts taxes,
franchise taxes, employment and payroll related taxes, property taxes and import
duties, whether or not measured in whole or in part by net income (hereinafter,
"Taxes" or, individually, a "Tax") which have come due and are required to be
paid by it through the date hereof, and all deficiencies or other additions to
Tax, interest and penalties owed by it in connection with any such Taxes, except
where the failure to pay any such Tax would not individually or in the aggregate
have a material adverse effect on the Condition of the Company; (ii) the Company
has timely filed returns for Taxes that it is required to file on and through
the date hereof; (iii) with respect to all Tax returns of the Company, (x) to
the knowledge of the Company, there is no unassessed tax deficiency proposed or
threatened against the Company and (y) no audit is in progress and no extension
of time is in force with respect to any date on which any return for Taxes was
or is to be filed and no waiver or agreement is in force for the extension of
time for the assessment or payment of any Tax.
5.10 Private Offering. No form of general solicitation or general
----------------
advertising was used by the Company or its representatives in connection with
the sale of the Purchased Shares. No registration of the Purchased Shares,
pursuant to the provisions of the Securities Act or any state securities or
"blue sky" laws, assuming that each Purchaser's primary place of business is
Connecticut, will be required by the sale of the Purchased Shares.
5.11 Potential Conflicts of Interest. No officer or director of the
-------------------------------
Company, no spouse of any such officer or director, and, to the knowledge of the
Company, no relative of such spouse or of any such officer or director and no
Affiliate of any of the foregoing (a) owns, directly or indirectly, any interest
in (excepting less than 1% stock holdings for investment purposes in securities
of publicly held and traded companies), or is an officer, director, employee or
consultant of, any Person which is, or is engaged in business as, a competitor,
lessor, lessee, supplier, distributor, sales agent or customer of, or lender to
or borrower from, the Company; (b) owns, directly or indirectly, in whole or in
part, any tangible or intangible property that the Company has used, or that the
Company will use, in the conduct of business; or (c) has any cause of action or
other claim whatsoever against, or
19
owes or has advanced any amount to, the Company, except for claims in the
ordinary course of business such as for accrued vacation pay, accrued benefits
under employee benefit plans, and similar matters and agreements existing on the
date hereof.
5.12 Trade Relations. There exists no actual or, to the knowledge of
---------------
the Company, threatened termination, cancellation or limitation of, or any
material adverse modification or change in, the business relationship of the
Company, or the business of the Company, with any customer or distributor
(including, without limitation, any credit card issuer) or any group of
customers or distributors whose purchases are individually or in the aggregate
material to the Condition of the Company, or with any material supplier
(including, without limitation, any magazine publisher) of the Company, and
there exists no present condition or state of fact or circumstances that would
materially adversely affect the Condition of the Company or prevent the Company
from conducting such business relationships or such business with any such
customer, such group of customers or distributors or such material supplier in
the same manner as heretofore conducted by the Company.
5.13 Broker's, Finder's or Similar Fees. There are no brokerage
----------------------------------
commissions, finder's fees or similar fees or commissions payable by the Company
in connection with the transactions contemplated hereby based on any agreement,
arrangement or understanding with the Company or any action taken by any such
Person.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES
OF THE PURCHASERS
-----------------
Each of the Purchasers hereby represents and warrants (severally and
not jointly) to the Selling Stockholders as follows:
6.1 Existence and Power. Such Purchaser (a) is a partnership duly
-------------------
organized, validly existing and in good standing under the laws of the
jurisdiction of its formation, (b) has all requisite power and authority to
conduct the business in which it is currently, or is proposed to be, engaged,
and (c) has the requisite partnership power and authority to execute, deliver
and perform its obligations under this Agreement and each of the other
Transaction Documents to which it is a party.
20
6.2 Authorization; No Contravention. The execution, delivery and
-------------------------------
performance by such Purchaser of this Agreement and each of the other
Transaction Documents to which it is a party and the transactions contemplated
hereby and thereby, including, without limitation, the purchase of the Purchased
Shares, (a) have been duly authorized by all necessary partnership action, (b)
do not contravene the terms of such Purchaser's organizational documents, or any
amendment thereof, (c) do not violate, conflict with or result in any breach or
contravention of or the creation of any Lien under, any Contractual Obligation
of such Purchaser, or any Requirement of Law applicable to such Purchaser and
(d) do not violate any Orders of any Governmental Authority against, or binding
upon, such Purchaser.
6.3 Governmental Authorization; Third Party Consents. No approval,
------------------------------------------------
consent, compliance, exemption, authorization, or other action by, or notice to,
or filing with, any Governmental Authority or any other Person, and no lapse of
a waiting period under any Requirement of Law is necessary or required in
connection with the execution, delivery or performance (including, without
limitation, the purchase of the Purchased Shares) by, or enforcement against,
such Purchaser of this Agreement and each of the other Transaction Documents to
which such Purchaser is a party or the transactions contemplated hereby and
thereby.
6.4 Binding Effect. This Agreement and each of the other Transaction
--------------
Documents to which such Purchaser is a party have been duly executed and
delivered by such Purchaser, and this Agreement and each of the other
Transaction Documents to which such Purchaser is a party constitute the legal,
valid and binding obligations of such Purchaser, enforceable against it in
accordance with their terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, fraudulent conveyance or
transfer, moratorium or similar laws affecting the enforcement of creditors'
rights generally or by equitable principles relating to enforceability
(regardless of whether considered in a proceeding at law or in equity).
6.5 Litigation. There are no legal actions, suits, proceedings,
----------
claims, complaints, disputes or investigations pending or, to the knowledge of
such Purchaser, threatened, at law, in equity, in arbitration or before any
Governmental Authority against such Purchaser that would, if adversely
determined, have a material adverse effect on the ability of such Purchaser to
perform its obligations under this Agreement or any other Transaction Document
to which it is a party. No Order has been issued by any court or other
Governmental Authority against such Purchaser purporting to enjoin or restrain
the execution, delivery or performance of this Agreement or any of the other
Transaction Documents to which such Purchaser is a party.
21
6.6 Purchase for Own Account. The Purchased Shares to be acquired
------------------------
by such Purchaser pursuant to this Agreement are being or will be acquired for
investment for its own account and with no intention of distributing or
reselling, or granting any participation in, such Purchased Shares or any part
thereof in any transaction that would be in violation of the securities laws of
the United States of America, or any state or foreign jurisdiction, without
prejudice, however, to the rights of such Purchaser at all times to sell or
otherwise dispose of all or any part of such Purchased Shares under an effective
registration statement under the Securities Act and under the applicable state
securities laws, or under an exemption from such registration available under
such laws, and subject, nevertheless, to the disposition of such Purchaser's
property being at all times within its control. If such Purchaser should in the
future decide to dispose of any of such Purchased Shares, such Purchaser
understands and agrees that it may do so only in compliance with the Securities
Act and applicable state and foreign securities laws, as then in effect. Such
Purchaser agrees to the imprinting, so long as required by law, of legends on
certificates representing all of its Purchased Shares as required by any
applicable state securities laws and to the following effect (and acknowledges
that the Company will make a notation on its transfer books to such effect):
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES
LAWS OF ANY JURISDICTION OF THE UNITED STATES. THE SECURITIES MAY NOT BE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
SUCH ACT AND UNDER THE APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY, IF REQUESTED BY
THE COMPANY, THAT THERE IS AN APPLICABLE EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SUCH ACT AND SUCH LAWS.
THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE, ENCUMBRANCE OR OTHER
DISPOSITION (EACH A "TRANSFER") AND VOTING OF ANY OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY THE TERMS OF THE AMENDED
AND RESTATED STOCKHOLDERS AGREEMENT, DATED MARCH 9, 1998, AMONG NEWSUB
SERVICES, INC., GENERAL ATLANTIC PARTNERS 46, L.P., GAP COINVESTMENT
PARTNERS, L.P. AND THE STOCKHOLDERS NAMED THEREIN. THE COMPANY WILL NOT
REGISTER THE TRANSFER OF SUCH SECURITIES ON THE BOOKS OF THE COMPANY UNLESS
AND UNTIL THE TRANSFER HAS BEEN MADE IN COMPLIANCE WITH THE TERMS OF THE
STOCKHOLDERS AGREEMENT. THE COMPANY WILL MAIL A COPY OF SUCH AGREEMENT,
TOGETHER WITH A COPY OF THE EXPRESS TERMS OF THE SECURITIES AND THE OTHER
CLASS OR CLASSES AND SERIES OF SHARES, IF ANY, WHICH THE COMPANY IS
AUTHORIZED TO ISSUE,
22
TO THE RECORD HOLDER OF THIS CERTIFICATE, WITHOUT CHARGE, WITHIN FIVE DAYS
AFTER RECEIPT OF A WRITTEN REQUEST THEREFOR.
6.7 Investment Experience. GAP Coinvestment and each of the
---------------------
partners of GAP LP is an "Accredited Investor" as defined in Rule 501(a) under
the Securities Act.
6.8 Broker's, Finder's or Similar Fees. There are no brokerage
----------------------------------
commissions, finder's fees or similar fees or commissions payable by such
Purchaser, in connection with the transactions contemplated hereby based on any
agreement, arrangement or understanding with such Purchaser or any action taken
by such Purchaser.
ARTICLE 7
CONDITIONS TO THE OBLIGATION
OF THE PURCHASERS TO CLOSE
--------------------------
The obligation of the Purchasers to purchase the Purchased Shares, to
pay the purchase price therefor at the Closing and to perform their other
obligations hereunder shall be subject to the satisfaction as determined by, or
waiver by, the Purchasers of the following conditions on or before the Closing
Date.
7.1 Representations and Warranties. The representations and
------------------------------
warranties of the Selling Stockholders and Walker contained in Articles 4 and 5
hereof shall be true and correct in all material respects at and on the Closing
Date as if made at and on such date.
7.2 Compliance with this Agreement. Each of the Selling
------------------------------
Stockholders and the Company shall have performed and complied in all material
respects with all of its agreements and conditions set forth herein that are
required to be performed or complied with by each such Selling Stockholder or
the Company on or before the Closing Date.
7.3 Secretary's Certificate. The Purchasers shall have received a
-----------------------
certificate from the Company, in form and substance reasonably satisfactory to
the Purchasers, dated the Closing Date and signed by the Secretary or an
Assistant Secretary of the Company, certifying that the attached copies of the
Certificate of Incorporation, the By-laws and resolutions of the Board of
Directors approving this Agreement and each of the other Transaction Documents
and the transactions contemplated hereby and thereby, are all true, complete and
correct and remain unamended and in full force and effect.
23
7.4 Selling Stockholders' Certificate. The Purchasers shall have
---------------------------------
received a certificate from each Walker Stockholder, in form and substance
satisfactory to the Purchasers, dated the Closing Date, and signed by each
Walker Stockholder, certifying that (a) the representations and warranties of
such Walker Stockholder contained in Articles 4 and 5 hereof are true and
correct on the Closing Date and (b) such Walker Stockholder has performed and
complied in all material respects with all of his agreements and conditions set
forth or contemplated herein that are required to be performed or complied with
by him on or before the Closing Date.
7.5 Documents. The Purchasers shall have received true, complete and
---------
correct copies of such documents as they may reasonably request in connection
with or relating to the sale of the Purchased Shares and the transactions
contemplated hereby, all in form and substance reasonably satisfactory to the
Purchasers.
7.6 Stockholders Agreement. The Company and the stockholders named
----------------------
therein shall have duly executed and delivered the Stockholders Agreement,
substantially in the form attached hereto as Exhibit B.
---------
7.7 Registration Rights Agreement. The Company and the stockholders
-----------------------------
named therein shall have duly executed and delivered the Registration Rights
Agreement, substantially in the form attached hereto as Exhibit C.
---------
7.8 Opinion of Counsel. The Purchasers shall have received opinions
------------------
of Whitman Breed Abbott & Morgan LLP, counsel to the Company and the Selling
Stockholders dated the Closing Date, relating to the transactions contemplated
by or referred to herein, in a form reasonably satisfactory to the Purchasers.
7.9 Purchased Shares. The Selling Stockholders shall have delivered
----------------
to the Purchasers stock certificates in definitive form representing the number
of Purchased Shares set forth opposite each such Purchaser's name on Schedule
--------
2.1 hereto, duly endorsed in blank, in proper form for transfer, and registered
---
in the name of such Purchaser. The Selling Stockholders shall have paid, or
caused to be paid, all stock transfer and other taxes required to be paid in
connection with the sale and delivery to the Purchasers of the Purchased Shares.
24
7.10 Consents and Approvals. All consents, exemptions,
----------------------
authorizations, or other actions by, or notices to, or filings with,
Governmental Authorities and other Persons in respect of all Requirements of Law
and with respect to those Contractual Obligations (including, without
limitation, under (i) the Walker and Loeb Shareholder Agreement, dated January
1, 1994 (the "Walker and Loeb Agreement"), among the Company, Walker and Michael
Loeb ("Loeb"), (ii) the Shareholder Agreement, dated December 1, 1993 (the
"Minor Stockholders Agreement"), among the Company, Walker, Loeb and the other
parties listed on the signature page thereto and (iii) the Walker and Jaeckle
Shareholder Agreement, dated August 1, 1994 (the "Jaeckle Agreement"), among the
Company, Walker and Jaeckle) of the Company or the Selling Stockholders which
are necessary or required in connection with the execution, delivery or
performance by, or enforcement against, the Company or the Selling Stockholders
of this Agreement and each of the other Transaction Documents shall have been
obtained and be in full force and effect, and the Purchasers shall have been
furnished with appropriate evidence thereof and all applicable waiting periods
shall have expired without any action being taken or threatened which would have
a material adverse effect on the Condition of the Company.
7.11 Auditor's Review. The Purchasers shall have received the
----------------
Financial Statements.
7.12 Conversion to a C Corporation. The Company shall have
-----------------------------
terminated its status as an "S Corporation," as defined in Section 1361 of the
Code for federal income tax purposes.
7.13 Walker and Loeb Agreement. The Walker and Loeb Agreement shall
-------------------------
have been terminated by the parties thereto.
ARTICLE 8
CONDITIONS TO THE OBLIGATION OF THE SELLING
STOCKHOLDERS TO CLOSE
---------------------
The obligation of the Selling Stockholders to sell the Purchased
Shares and to perform their obligations hereunder shall be subject to the
satisfaction as determined by, or waiver by, each of the Selling Stockholders of
the following conditions on or before the Closing Date:
8.1 Representation and Warranties. The representations and
-----------------------------
warranties of each Purchaser contained in Article 6 hereof shall be true and
correct in all material respects at and on the Closing Date as if made at and on
such date.
25
8.2 General Partners' Certificates. The Company and the Selling
------------------------------
Stockholders shall have received a certificate from a general partner of each of
GAP LP and GAP Coinvestment, in form and substance satisfactory to the Company
and the Selling Stockholders, dated the Closing Date and signed by such general
partner, certifying that (a) the representations and warranties of GAP LP or GAP
Coinvestment, as the case may be, contained in Article 6 hereof are true and
correct in all material respects on the Closing Date and (b) GAP LP or GAP
Coinvestment, as the case may be, has performed and complied with all of its
agreements and conditions set forth or contemplated herein that are required to
be performed or complied with by GAP LP or GAP Coinvestment, as the case may be,
on or before the Closing Date.
8.3 Stockholders Agreement. The Purchasers shall have duly executed
----------------------
and delivered the Stockholders Agreement, substantially in the form attached
hereto as Exhibit B.
8.4 Payment by the Purchasers. Each Purchaser shall have purchased
-------------------------
and paid for the Purchased Shares to be purchased by such Purchaser.
8.5 Opinion of Counsel. The Selling Stockholders shall have received
------------------
opinions of Paul, Weiss, Rifkind, Wharton & Garrison, counsel to the Purchasers
dated the Closing Date, relating to the transactions contemplated by or referred
to herein, in a form reasonably satisfactory to the Selling Stockholders.
ARTICLE 9
INDEMNIFICATION
---------------
9.1 Indemnification by Walker. Except as otherwise provided in this
-------------------------
Article 9, Walker (the "Indemnifying Party"), agrees to indemnify, defend and
hold harmless each of the Purchasers and their Affiliates and their respective
officers, directors, agents, employees, subsidiaries, partners, members and
controlling persons (each, an "Indemnified Party") to the fullest extent
permitted by law from and against any and all losses and any and all actions,
proceedings, claims, complaints, disputes, arbitrations or investigations or
written threats thereof (collectively, "Claims") (including any Claim by a third
party), damages, expenses (including reasonable fees, disbursements and other
charges of counsel incurred by the Indemnified Party in any action between the
Indemnifying Party and the Indemnified Party or between the Indemnified Party
and any third party or otherwise) or other liabilities (collectively, "Losses")
resulting from, arising out of or relating to the breach by the Indemnifying
Party of any representation or warranty or covenant set forth in Article 5, or
relating to the breach of any other agreement by the Indemnifying Party in this
Agreement or the other Transaction Documents; provided, that the Indemnifying
--------
Party shall not be liable under this Section 9.1 to an Indemnified Party to the
extent that it is finally judicially determined that such Losses resulted
primarily from the material breach by such Indemnified Party of any
representation, warranty, covenant or other agreement of such Indemnified Party
contained in this Agreement or other Transaction Documents; and provided,
--------
further, that if
-------
26
and to the extent that such indemnification is unenforceable for any reason, the
Indemnifying Party shall make the maximum contribution to the payment and
satisfaction of such Losses which shall be permissible under applicable laws.
Notwithstanding anything to the contrary contained herein, the amount of any
payment by any Indemnifying Party to any Indemnified Party herewith in respect
of any Loss shall not exceed the aggregate purchase price paid by the Purchasers
for the Purchased Shares purchased by the Purchasers hereunder. In connection
with the obligation of the Indemnifying Party to indemnify for expenses as set
forth above, the Indemnifying Party shall, upon presentation of appropriate
invoices containing reasonable detail, reimburse each Indemnified Party for all
such expenses (including reasonable fees, disbursements and other charges of
counsel incurred by the Indemnified Party) only (i) after the final resolution
or disposition of such Claim and (ii) if such Indemnified Party prevails in such
Claim; provided, however, that if an Indemnified Party is reimbursed hereunder
-------- -------
for any expenses, such reimbursement of expenses shall be refunded to the extent
it is finally judicially determined that the Losses in question resulted
primarily from the willful misconduct or gross negligence of such Indemnified
Party.
9.2 Indemnification by Purchasers. Except as otherwise provided in
-----------------------------
this Article 9, each of the Purchasers, severally and not jointly (each, a
"Purchaser Indemnifying Party"), agrees to indemnify, defend and hold harmless
each of the Selling Stockholders (each, a "Purchaser Indemnified Party") to the
fullest extent permitted by law from and against any and all Losses resulting
from, arising out of or relating to any breach of the representation or warranty
set forth in Sections 6.6 or 6.7 herein; provided, that the Purchaser
--------
Indemnifying Party shall not be liable under this Section 9.2 to a Purchaser
Indemnified Party to the extent that it is finally judicially determined that
such Losses resulted primarily from the material breach by such Purchaser
Indemnified Party of any representation, warranty, covenant or other agreement
of such Purchaser Indemnified Party contained in this Agreement or the other
Transaction Documents; and provided, further, that if and to the extent that
-------- -------
such indemnification is unenforceable for any reason, the Purchaser Indemnifying
Party shall make the maximum contribution to the payment and satisfaction of
such Losses which shall be permissible under applicable laws. The aggregate
amount of indemnification payments payable to the Purchaser Indemnified Party
shall not exceed the aggregate purchase price paid by such Purchaser
Indemnifying Party for its Purchased Shares hereunder.
9.3 Notification. Each Indemnified Party or Purchaser Indemnified
------------
Party, as the case may be (for purposes of this Section 9.3, an "Indemnified
Party"), under this Article 9 shall, promptly after the receipt of notice of the
commencement of any action, investigation, claim or other proceeding against
such Indemnified Party in respect of which indemnity may be sought from the
Indemnifying Party or Purchaser Indemnifying Party, as the case may be (for
purposes of this Section 9.3, an "Indemnifying Party"), under this Article 9,
notify the Indemnifying Party in writing of the commencement thereof. The
omission of any Indemnified Party to so notify the Indemnifying Party of any
such action shall not relieve the Indemnifying Party from any liability which it
may have to such Indemnified Party (a) other than pursuant to this Article 9 or
(b) under this Article 9 unless, and only to the extent that, such omission
results in the Indemnifying Party's forfeiture of
27
substantive rights or defenses. In case any such action, claim or other
proceeding shall be brought against any Indemnified Party, and it shall notify
the Indemnifying Party of the commencement thereof, the Indemnifying Party shall
be entitled to assume the defense thereof at its own expense, with counsel
satisfactory to such Indemnified Party in its reasonable judgment; provided,
--------
however, that any Indemnified Party may, at its own expense, retain separate
-------
counsel to participate in such defense at its own expense. Notwithstanding the
foregoing, in any action, claim or proceeding in which both the Indemnifying
Party, on the one hand, and an Indemnified Party, on the other hand, are, or are
reasonably likely to become, a party, such Indemnified Party shall have the
right to employ separate counsel at the expense of the Indemnifying Party and to
control its own defense of such action, claim or proceeding if, in the
reasonable opinion of counsel to such Indemnified Party, a conflict or potential
conflict exists between the Indemnifying Party, on the one hand, and such
Indemnified Party, on the other hand, that would make such separate
representation advisable; provided, however, that the Indemnifying Party shall
-------- -------
not be liable for the fees and expenses of more than one counsel to all
Indemnified Parties. The Indemnifying Party agrees that it will not, without the
prior written consent of the Indemnified Party, settle, compromise or consent to
the entry of any judgment in any pending or threatened claim, action or
proceeding relating to the matters contemplated hereby (if any Indemnified Party
is a party thereto or has been actually threatened to be made a party thereto)
unless such settlement, compromise or consent includes an unconditional release
of each Indemnified Party from all liability arising or that may arise out of
such claim, action or proceeding. The Indemnifying Party shall not be liable for
any settlement of any claim, action or proceeding effected against an
Indemnified Party without the Indemnifying Party's written consent, which
consent shall not be unreasonably withheld. The rights accorded to an
Indemnified Party hereunder shall be in addition to any rights that any
Indemnified Party may have at common law, by separate agreement or otherwise;
provided, however, that notwithstanding the foregoing or anything to the
-------- -------
contrary contained in this Agreement, nothing in this Article 9 should restrict
or limit any rights that any Indemnified Party may have to seek equitable
relief.
28
ARTICLE 10
AFFIRMATIVE COVENANTS
---------------------
Until such time as the Company is required to file periodical and
other reports pursuant to Section 13 or Section 15 of the Securities Exchange
Act of 1934, as amended (except in the case of the covenant set forth in Section
10.1(c) which shall remain in effect), the Company hereby covenants and agrees
with the Purchasers as follows:
10.1 Financial Statements and Other Information. For so long as a
------------------------------------------
Purchaser owns shares of Common Stock, the Company shall deliver to such
Purchaser, in form and substance reasonably satisfactory to such Purchaser:
(a) as soon as available, but not later than ninety (90) days
after the end of each fiscal year of the Company, a copy of the Audited
Financial Statements with respect to such fiscal year;
(b) commencing with the fiscal period ending on March 31, 1998,
as soon as available, but in any event not later than forty-five (45) days after
the end of each of the first three fiscal quarters of each fiscal year, the
consolidated unaudited balance sheet of the Company, and the related statements
of operations and cash flows for such quarter and for the period commencing on
the first day of the fiscal year and ending on the last day of such quarter, all
certified by an appropriate officer of the Company as presenting fairly the
consolidated financial condition as of such date and results of operations and
cash flows for the periods indicated in conformity with GAAP applied on a
consistent basis, subject to normal year-end adjustments and reserves and the
absence of footnotes required by GAAP; and
(c) as promptly as practicable, if requested by either of the
Purchasers, a certificate signed by the President of the Company that the
Company is not a "foreign person" within the meaning of Section 1445 of the
Code; and
10.2 Books and Records. The Company shall keep proper books of
-----------------
record and account, in accordance with GAAP, consistently applied.
10.3 Back-Ups of Computer Software. The Company shall make back-ups
-----------------------------
of all material computer software programs and databases and shall maintain such
back-up software programs and databases at a secure off-site location.
10.4 No Offers to Sell. The Company agrees that neither it, nor
-----------------
anyone acting on its behalf, shall offer to sell the Purchased Shares or any
other security of the Company so as to require the registration of the Purchased
Shares pursuant to the provisions
29
of the Securities Act or any state securities or "blue sky" laws, unless such
Purchased Shares or other security is so registered.
10.5 Issuance to Stuart Bell. No later than sixty (60) days after the
-----------------------
Closing Date, the Company shall have entered into an agreement with Stuart Bell
("Bell"), pursuant to which Bell shall receive a cash payment in the event of an
Initial Public Offering or Sale of the Company in an aggregate amount no greater
than 1.5% of the Value of the Company. Such agreement shall not differ in any
material respect from the terms described in the preceding sentence.
10.6 Amendment to Certificate of Incorporation. No later than sixty
-----------------------------------------
(60) days after the Closing Date, the Company shall amend its Certificate of
Incorporation to provide that each share of Nonvoting Stock purchased by the
Purchasers hereunder and any shares of Nonvoting Stock purchased by the
Purchasers after the date hereof shall be automatically converted into and
exchanged for one share of Voting Stock upon the earlier of (i) the IPO
Effectiveness Date and (ii) December 31, 1999; provided, that in the event of a
--------
conversion pursuant to clause (ii) above, the amendment will also provide for a
conversion into Voting Stock of a number of shares of Nonvoting Stock held by
Walker and Loeb so that the percentage of Voting Stock held by the Purchasers
following such conversions shall not exceed the percentage of Common Stock then
held by the Purchasers.
ARTICLE 11
TERMINATION OF AGREEMENT
------------------------
11.1 Termination. This Agreement may be terminated prior to the
-----------
Closing as follows:
(a) at any time on or prior to the Closing Date, by mutual
written consent of the Company and the Purchasers;
(b) at the election of the Company or the Purchasers by written
notice to the other parties hereto after 5:00 p.m., New York time, on May 1,
1998, if the Closing shall not have occurred, unless such date is extended by
the mutual written consent of the Company and the Purchasers; provided, however,
-------- -------
that the right to terminate this Agreement under this Section 11.1(b) shall not
be available (i) to any party whose breach of any representation, warranty,
covenant or agreement under this Agreement has been the cause of, or resulted
in, the failure of the Closing to occur on or before such date or (ii) if the
Closing has not occurred solely because any party hereto has not yet obtained a
necessary approval from any Governmental Authority;
30
(c) at the election of the Company, if the Company shall not
have closed the Recapitalization within thirty (30) days of the date hereof;
(d) at the election of all of the Selling Stockholders, if there
has been a material breach of any representation, warranty, covenant or
agreement on the part of either of the Purchasers contained in this Agreement,
which breach has not been cured within fifteen (15) Business Days of notice to
the Purchasers of such breach; or
(e) at the election of the Purchasers, if there has been a
material breach of any representation, warranty, covenant or agreement on the
part of the Company, Walker or the Selling Stockholders contained in this
Agreement, which breach has not been cured within fifteen (15) Business Days
notice to the Company of such breach.
If this Agreement so terminates, it shall become null and void and have no
further force or effect, except as provided in Section 11.2.
11.2 Survival. If this Agreement is terminated and the transactions
--------
contemplated hereby are not consummated as described above, this Agreement shall
become void and of no further force or effect, other than Article 1, this
Section 11.2 and Section 12. 11, which shall remain in full force and effect.
Notwithstanding anything to the contrary set forth in this Agreement, (a) (i)
none of the parties hereto shall have any liability in respect of a termination
of this Agreement pursuant to Section 11.1(a), Section 11.1(b) or Section
11.1(c) and (ii) nothing shall relieve any of the parties from liability for
actual damages resulting from a termination of this Agreement pursuant to
Section 11.1(d) or 11.1(e); and (b) none of the parties hereto shall have any
liability for speculative, indirect, unforeseeable or consequential damages
resulting from any legal action relating to this Agreement or any termination of
this Agreement.
ARTICLE 12
MISCELLANEOUS
-------------
12.1 Survival of Representations and Warranties. Except for the
------------------------------------------
representations and warranties set forth in Sections 4.1, 4.2, 4.3, 4.4, 5.2,
5.3, 5.4, 5.6, 6.1, 6.2, 6.3, 6.6, 6.7 and 6.8 herein, which shall survive the
execution and delivery of this Agreement, any investigation by or on behalf of
the Selling Stockholders or the Purchasers, or acceptance of the Purchased
Shares or termination of this Agreement, all of the representations and
warranties made herein shall survive the execution and delivery of this
Agreement, any investigation by or on behalf of the Selling Stockholders or the
Purchasers, or acceptance of the Purchased Shares or termination of this
Agreement until forty-five (45) days after receipt by the Purchasers of the
Audited Financial Statements of the Company for the fiscal year ending December
31, 1998.
31
12.2 Notices. All notices, demands and other communications provided
-------
for or permitted hereunder shall be made in writing and shall be by registered
or certified first-class mail, return receipt requested, telecopier, courier
service or personal delivery to the addresses set forth on Schedule 12.2. All
such notices and communications shall be deemed to have been duly given when
delivered by hand, if personally delivered; when delivered by courier, if
delivered by commercial courier service; five (5) Business Days after being
deposited in the mail, postage prepaid, if mailed; and when receipt is
mechanically acknowledged, if properly telecopied.
12.3 Successors and Assigns; Third Party Beneficiaries. This
-------------------------------------------------
Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of the parties hereto. Subject to applicable securities laws,
each of the Purchasers may assign any of its rights under this Agreement to any
of its Affiliates upon notice to the Company, provided such Affiliate is not
directly or indirectly engaged in a business competitive with the business of
the Company. The Selling Stockholders may not assign any of its rights under
this Agreement without the written consent of the Purchasers. Except as provided
in Article 9, no Person other than the parties hereto and their successors and
permitted assigns is intended to be a beneficiary of this Agreement.
12.4 Amendment and Waiver.
--------------------
(a) No failure or delay on the part of the Company, the Selling
Stockholders or the Purchasers in exercising any right, power or remedy
hereunder shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right, power or remedy preclude any other or further
exercise thereof or the exercise of any other right, power or remedy. The
remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to the Company, the Selling Stockholders or the
Purchasers at law, in equity or otherwise.
(b) Any amendment, supplement or modification of or to any
provision of this Agreement, any waiver of any provision of this Agreement, and
any consent to any departure by the Company, the Selling Stockholders or the
Purchasers from the terms of any provision of this Agreement, shall be effective
only if it is made or given in writing and signed by the Company, the Selling
Stockholders and the Purchasers. Except where notice is specifically required by
this Agreement, no notice to or demand on the Selling Stockholders or the
Company in any case shall entitle the Company or the Selling Stockholders to any
other or further notice or demand in similar to the extent that they are
affected thereby or other circumstances.
32
12.5 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
12.6 Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
12.7 Pronouns. All pronouns and any variations thereof refer to the
--------
masculine, feminine or neuter, singular or plural, as the context may require.
12.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAW OF ANY JURISDICTION.
12.9 Severability. If any one or more of the provisions contained
------------
herein, or the application thereof in any circumstance, is held invalid, illegal
or unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
12.10 Entire Agreement. This Agreement, together with the exhibits
----------------
and schedules hereto and the other Transaction Documents, is intended by the
parties as a final expression of their agreement and intended to be a complete
and exclusive statement of the agreement and understanding of the parties hereto
in respect of the subject matter contained herein and therein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein or therein. This Agreement, together with the exhibits
hereto, and the other Transaction Documents supersede all prior agreements and
understandings between the parties with respect to such subject matter.
12.11 Fees. Except as explicitly provided otherwise in any of the
----
Transaction Documents, each party hereto shall bear their own costs and expenses
in connection with the preparation, execution and delivery of this Agreement and
the other Transaction Documents, and the transactions contemplated hereby and
thereby.
12.12 Publicity. Except as may be required by any applicable
---------
Requirement of Law, none of the parties hereto shall issue a publicity release
or public announcement or otherwise make any disclosure concerning this
Agreement or the transactions contemplated hereby, without prior approval by the
other parties hereto (which approval shall not be unreasonably withheld);
provided, however, that nothing in this Agreement shall restrict any Purchaser
-------- -------
from disclosing information (a) that is already publicly available; (b) to the
33
prospective transferee in connection with any contemplated transfer of any of
the Purchased Shares; and (c) to its attorneys, accountants, consultants and
other advisors to the extent necessary to obtain their services in connection
with such Purchaser's investment in the Company. In addition, GAP LLC shall be
permitted to disclose its ownership of the Purchased Shares, the aggregate
purchase price therefor and the identity of the Company and its President on its
Worldwide Web page, www.gapartners.com. If any announcement is required by any
applicable Requirement of Law to be made by any party hereto, prior to making
such announcement such party will deliver a draft of such announcement to the
other parties and shall give the other parties an opportunity to comment
thereon.
12.13 Further Assurances. Each of the parties shall execute such
------------------
documents and perform such further acts (including, without limitation,
obtaining any consents, exemptions, authorizations or other actions by, or
giving any notices to, or making any filings with, any Governmental Authority or
any other Person, and otherwise fulfilling, or causing the fulfillment of, the
conditions to Closing set forth in Articles 7 and 8) as may be reasonably
required or desirable to carry out or to perform the provisions of this
Agreement and to consummate and make effective as promptly as possible the
transactions contemplated by this Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed and delivered by their respective officers hereunto duly authorized
on the date first above written.
NEWSUB SERVICES, INC.
By: /s/ Robert D. Bock
-----------------------------------
Name: Robert D. Bock
Title: Secy/Treas.
GENERAL ATLANTIC PARTNERS 46, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By: /s/ Nancy E. Cooper
-------------------------------
Name: Nancy E. Cooper
Title: A Managing Member
GAP COINVESTMENT PARTNERS, L.P.
By: /s/ Nancy E. Cooper
-----------------------------------
Name: Nancy E. Cooper
Title: A General Partner
CRUTCHER FAMILY TRUST
By: /s/ Lawrence M. Crutcher
-----------------------------------
Name: Lawrence M. Crutcher
Title: Trustee
THE JAY S. WALKER IRREVOCABLE CREDIT TRUST
By: /s/ Harry E. Peden, Trustee
-----------------------------------
By: /s/ Eileen Walker
-----------------------------------
Name:
Title:
/s/ Jay Walker
---------------------------------------
Jay Walker
/s/ Margaret K. Loeb
---------------------------------------
Margaret Loeb
/s/ John J. Veronis
---------------------------------------
John Veronis
/s/ John Suhler
---------------------------------------
John Suhler
/s/ Joseph C. Hanson
---------------------------------------
Joseph Hanson
/s/ Andre Jaeckle
---------------------------------------
Andre Jaeckle
Dates Referenced Herein
| Referenced-On Page |
|---|
| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| Filed on: | | 7/26/00 | | | | | | | None on these Dates |
| | 12/31/99 | | 33 |
| | 12/31/98 | | 34 |
| | 5/1/98 | | 33 |
| | 3/31/98 | | 32 |
| | 3/9/98 | | 1 | | 25 |
| | 3/5/98 | | 5 |
| | 12/31/97 | | 22 |
| | 8/1/94 | | 28 |
| | 1/1/94 | | 28 |
| | 12/1/93 | | 28 |
| List all Filings |
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