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-10.29 — Indemnification Agreement
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Exhibit 10.29
INDEMNIFICATION AGREEMENT
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INDEMNIFICATION AGREEMENT (this "Agreement") dated as of May 17, 2000
among Synapse Group, Inc., a Delaware corporation (together with any successor
entity, "Synapse"), Mr. Jay S. Walker, an individual residing in the State of
Connecticut ("Walker"), and NSSI Holdings Inc., a Delaware corporation (together
with any successor entity, "Time") and an indirect wholly owned subsidiary of
Time Inc., a Delaware corporation.
WHEREAS, pursuant to that certain Stock Purchase Agreement, dated as
of May 17, 2000 ("Synapse Agreement"), by and between Synapse and Time, Time is
acquiring from Synapse 3,125,000 shares of Series C Preferred Stock, par value
$0.001 per share, of Synapse for an aggregate purchase price of $25 million (the
"Synapse Purchase Price"); and
WHEREAS, pursuant to that certain Securities Purchase Agreement, dated
as of May 17, 2000 ("Walker Agreement"), by and between Walker and Time, Time is
acquiring from Walker 1,511,592.507 shares of Class A Common Stock, par value
$0.001 per share, of Synapse and 5,363,407.493 shares of Class B Common Stock,
par value $0.001 per share, of Synapse for an aggregate purchase price of $55
million (the "Walker Purchase Price"); and
WHEREAS, as a condition to Time's entering into the Synapse Agreement
and the Walker Agreement, Time has required that each of Synapse and Walker
indemnify Time against Losses (as hereinafter defined);
WHEREAS, Synapse has agreed to provide such indemnification to Time,
on the terms and subject to the conditions of the Synapse Agreement; and
WHEREAS, Walker has agreed to provide such indemnification to Time, on
the terms and subject to the conditions of this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and intending to be
legally bound hereby, the parties agree as follows:
ARTICLE I
INDEMNIFICATION
Section 1.1 Indemnification by Walker.
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(a) Subject to the terms of this Article I, Walker agrees to
indemnify, defend and hold harmless Time and its Affiliates (as defined in Rule
12b-2 under the Securities Exchange Act of 1934, as amended) and their
respective officers, directors, employees, subsidiaries, partners, members and
controlling persons (each, a "Time Indemnified Party") to the fullest extent
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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
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party), damages, expenses (including reasonable fees, disbursements and other
charges of counsel incurred by the Time Indemnified Party) or other liabilities
(collectively, "Losses") resulting from, arising out of or relating to (i) the
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breach by Walker of any representation, warranty or covenant of Walker set forth
in Section 2 of the Walker Agreement or relating to the breach of any other
agreement by Walker in the Walker Agreement or (ii) a Synapse Loss (as
hereinafter defined); provided, that if and to the extent that such
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indemnification is unenforceable for any reason, Walker shall make the maximum
contribution to the payment and satisfaction of such Losses which shall be
permissible under applicable laws. In connection with the obligation of Walker
to indemnify the Time Indemnified Parties for expenses as set forth above,
Walker shall, upon presentation of appropriate invoices containing reasonable
detail, reimburse each Time Indemnified Party for all such expenses (including
reasonable fees, disbursements and other charges of counsel incurred by the Time
Indemnified Party, provided that Walker shall not be liable for the fees and
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expenses of more than one counsel for all Time Indemnified Parties); provided,
that such Time Indemnified Party undertakes in writing to repay Walker for such
expenses in the event it is ultimately determined that the Time Indemnified
Party was not entitled to indemnification pursuant to this Agreement.
(b) Notwithstanding anything to the contrary contained herein
and subject to the terms of this Article I, Walker shall not be obligated to
indemnify any Time Indemnified Party with respect to Synapse Losses unless:
2
(i) Synapse has made payments to the Time Indemnified
Parties pursuant to Article 7 of the Synapse Agreement in an aggregate
amount equal to the Synapse Purchase Price or Synapse Losses exceed the
Synapse Purchase Price, in either of which events Walker shall indemnify
the Time Indemnified Parties for Synapse Losses only to the extent in
excess of the Synapse Purchase Price (subject to subsection (c) below); or
(ii) prior to such time as Synapse shall have made
payments to the Time Indemnified Parties pursuant to Article 7 of the
Synapse Agreement in an aggregate amount equal to the Synapse Purchase
Price (x) Synapse has failed to make any payment to a Time Indemnified
Party within 90 days after demand has been duly made by the Time
Indemnified Party in accordance with Article 7 of the Synapse Agreement and
(y) such failure to pay is as a result of a Synapse Insolvency (as
hereinafter defined), in which event Walker shall indemnify the Time
Indemnified Parties for the full amount of such Synapse Losses (subject to
subsection (c) below).
(c) Notwithstanding anything to the contrary contained
herein, the aggregate amount of all payments made by Walker to the Time
Indemnified Parties in respect of any and all Losses (including Synapse Losses)
shall not exceed the Walker Purchase Price.
(d) As used herein, "Synapse Losses" means Losses arising as
a result of the breach by Synapse of any representation, warranty or covenant
set forth in Section 3 of the Synapse Agreement, other than those set forth in
Section 3.1, 3.2, 3.3, 3.4, 3.11, and 3.18 thereof, for which Synapse is liable
to indemnify Time pursuant to Article 7 of the Synapse Agreement; provided,
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however, that, notwithstanding anything to the contrary contained in the Synapse
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Agreement, Synapse Losses shall not include any Consequential Damages (as
hereinafter defined).
(e) As used herein, "Synapse Insolvency" means (i) Synapse
shall commence any case, proceeding or other action (A) under any existing or
future law of any jurisdiction, domestic or foreign, relating to bankruptcy,
insolvency, reorganization or relief of debtors, seeking to have an order for
relief entered with respect to it, or seeking to adjudicate it insolvent, or
seeking reorganization, arrangement, adjustment, winding-up,
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liquidation, dissolution, composition or other relief with respect to it or its
debts, or (B) seeking appointment of a receiver, trustee, custodian, conservator
or other similar official for Synapse or for all or any substantial part of its
assets or Synapse shall make a general assignment for the benefit of its
creditors; or (ii) there shall be commenced against Synapse any case, proceeding
or other action of a nature referred to in clause (i) above that (A) results in
the entry of an order for relief or any such adjudication or appointment or (B)
remains undismissed, undischarged or unbonded for a period of 30 days; or (iii)
Synapse shall fail to pay, or shall admit in writing its inability to pay, or
shall be unable to pay its debts generally as they become due; or (iv) the
making of any levy on or judicial seizure or attachment of a material part of
the assets of Synapse or the taking of possession by a receiver, custodian,
trustee, liquidator or similar official of or for Synapse of a material part of
its assets, and such levy, seizure, attachment or taking has the effects set
forth in clause (iii) above, or the entry of an order for any of the foregoing,
if such order has not been vacated, discharged, or stayed or bonded within 30
days from the entry thereof; or (v) the liabilities of Synapse shall exceed its
assets (excluding for this purpose, all deferred subscription revenues and
associated deferred charges); or (vi) the dissolution or liquidation of Synapse.
Section 1.2 Indemnification by Time.
-----------------------
(a) Subject to the terms of this Article I, Time agrees to
indemnify, defend and hold harmless Walker 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 any representation, warranty or covenant of Time set
forth in Section 3 of the Walker Agreement or relating to the breach of any
other agreement of Time in the Walker Agreement; provided, that if and to the
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extent that such indemnification is unenforceable for any reason, Time shall
make the maximum contribution to the payment and satisfaction of such Losses
which shall be permissible under applicable laws. In connection with the
obligation of Time to indemnify for expenses set forth above, Time shall, upon
presentation of appropriate invoices containing reasonable detail, reimburse
Walker for all such expenses (including reasonable fees, disbursements and other
charges of counsel incurred by Walker); provided, that Walker undertakes in
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writing to repay Time for such expenses in the event it is ultimately determined
that Walker was not entitled to indemnification pursuant to this Agreement.
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(b) Notwithstanding anything to the contrary contained
herein, the aggregate amount of all payments made by Time to Walker in respect
of any and all Losses shall not exceed the Walker Purchase Price.
Section 1.3 Notification by the Parties.
---------------------------
(a) Each Time Indemnified Party or Walker, as the case may be
(for purposes of this Section 1.3, an "Indemnified Party"), under this Article I
-----------------
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 Walker, in the case of a Time
Indemnified Party, or Time, in the case of Walker (for purposes of this Section
1.3, an Indemnifying Party), under this Article I, notify the Indemnifying Party
------------------
in writing of the commencement thereof; provided, however, that with respect to
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any Synapse Losses, a Time Indemnified Party shall notify both Synapse and
Walker, and both Synapse and Walker shall be deemed Indemnifying Parties with
respect thereto for purposes of this Section 1.3. 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 except to the extent that the Indemnifying Party is actually
prejudiced thereby. Subject to Section 1.4, 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 retain separate counsel to
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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 warrant such separate representation; provided,
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however, that the Indemnifying Party shall not be liable for the fees and
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expenses of more than one counsel to all Indemnified Parties.
(b) Subject to Section 1.5, 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
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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. The rights
accorded to an Indemnified Party hereunder shall be the exclusive rights and
remedies of any Indemnified Party, regardless of any rights that may arise under
common law, separate agreement or otherwise; provided, however, that
-----------------
notwithstanding the foregoing or anything to the contrary contained in this
Agreement, nothing in this Article I shall restrict or limit any rights that any
Indemnified Party may have to seek equitable relief.
Section 1.4 Walker/Synapse Procedures. Synapse shall, promptly after
-------------------------
the receipt of notice of the commencement or threatened commencement of any
action, investigation, claim or other proceeding against a Time Indemnified
Party that may result in Synapse Losses or any other request by a Time
Indemnified Party for indemnification pursuant to the Synapse Agreement that may
result in Synapse Losses, notify Walker in writing of the commencement thereof.
In the event of any such action, investigation, claim or other proceeding or any
such other request for indemnification by a Time Indemnified Party, Walker and
his counsel shall be entitled to participate in all negotiations and meetings
with Synapse, Time and third-party litigants, as applicable, and in all court
proceedings and other events relating to the defense thereof, at Walker's
expense, as if Walker were a party to such action, investigation, claim or other
proceeding, and to have an opportunity to review, discuss and comment upon all
correspondence with Time and third-party litigants, as applicable, and court
filings of or on behalf of Synapse in connection therewith; provided, however,
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that (i) upon the occurrence of a Synapse Insolvency or (ii) if Walker shall be
liable for the entire amount of such Synapse Loss pursuant to Section 1.1(b)(i),
Walker shall be entitled to unilaterally assume the defense of such action,
investigation, claim or other proceeding.
Section 1.5 Consent to Settlements/Collateral Estoppel. Each of
------------------------------------------
Synapse and Time agrees that it will not, without the prior written consent of
Walker, which consent shall not be unreasonably withheld or delayed, settle,
compromise or consent to the entry of any judgment in any pending or threatened
claim, action or proceeding relating in any way to a Synapse Loss.
Notwithstanding any other provision hereof, any finding of fact or law and any
judgment, ruling, order or other disposition by a tribunal having jurisdiction
in the matter shall be binding upon Walker to the full extent as if
6
he were a party to the relevant proceeding. The failure of Synapse to give
Walker any notice required hereunder or to permit Walker to exercise his rights
pursuant to Section 1.4 above shall not affect the rights of any Time
Indemnified Party under this Agreement; provided, that such Time Indemnified
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Party has complied with its obligations to provide notice under this Agreement
and Article 7 of the Synapse Agreement (but no failure of a Time Indemnified
Party to so comply shall affect the rights of such Time Indemnified Party
hereunder, except to the extent that Walker is actually prejudiced thereby) ;
and provided, further, that nothing contained herein shall affect the rights of
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Walker against Synapse for any breach by Synapse of this Agreement, including
Section 1.4 hereof.
Section 1.6 Consequential Damages. Notwithstanding anything to the
---------------------
contrary contained herein, neither Walker nor Time shall be obligated to
indemnify the other for any special damages, consequential damages, punitive
damages or lost profits (collectively "Consequential Damages").
ARTICLE II
MISCELLANEOUS
Section 2.1 Notices. All notices, demands and other communications
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provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, courier
service or personal delivery to the addresses set forth below:
(a) if to Synapse:
Synapse Group, Inc.
4 High Ridge Park
Stamford, Connecticut 06905-1325
Attention: Mr. Michael Loeb
with a copy to:
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
Attention: John H. Chory, Esq.
7
(b) if to Time:
NSSI Holdings Inc.
c/o Time Inc.
1271 Avenue of the Americas
New York, New York 10020
Attention: Mr. Jeremy Koch
with copies to:
Time Inc.
1271 Avenue of the Americas
New York, New York 10020
Attention: General Counsel
and
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, New York 10036
Attention: John P. Schmitt, Esq.
(c) If to Walker:
Jay S. Walker
c/o Walker Digital, LLC
Five High Ridge Park
Stamford, Connecticut 06905
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
One Rodney Square
P.O. Box 636
Wilmington, Delaware 19899
Attention: Patricia Moran Chuff, Esq.
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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.
Section 2.2 Successors and Assigns; Third-Party Beneficiaries. This
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Agreement shall inure to the benefit of and be binding upon the successors and
permitted assigns of the parties hereto. No Party hereto may assign any of its
rights under this Agreement without the written consent of the other parties.
Except as provided in Article I, no one other than the parties hereto and their
successors and permitted assigns is intended to be a beneficiary of this
Agreement.
Section 2.3 Amendment and Waiver.
--------------------
(a) No failure or delay on the part of Walker, Synapse or
Time 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 the
exclusive remedies available to Walker and Time against each other in connection
with the transactions contemplated hereby and by the Walker Agreement, other
than remedies of specific performance and injunctive relief.
(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 Walker, Synapse or Time from the terms of any
provision of this Agreement, shall be effective only if it is made or given in
writing and signed by Walker, Synapse and Time.
Section 2.4 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.
Section 2.5 Headings. The headings in this Agreement are for
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convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
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Section 2.6 Pronouns. All pronouns and any variations thereof refer
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to the masculine, feminine or neuter, singular or plural, as the context may
require.
Section 2.7 GOVERNING LAW; JURISDICTION. THIS AGREEMENT SHALL BE
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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. The
parties hereto agree that any suit, action or proceeding instituted against
either of them with respect to this Agreement (including any exhibits hereto)
shall be brought in any federal or state court located in New York, New York.
The parties hereto, by the execution and delivery of this Agreement, irrevocably
waive any objection or defense to the institution of any action in New York, New
York based on improper venue, the convenience of the forum or the jurisdiction
of such courts, or to the execution of judgments resulting therefrom, and the
parties hereto irrevocably accept and submit to the jurisdiction of the
aforesaid courts in any suit, action or proceeding and consent to the service of
process by certified mail at the address set forth in Section 2.1 hereof.
Section 2.8 Entire Agreement. This Agreement and the Walker
----------------
Agreement are 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 Walker Agreement, supersede all prior agreements and
understandings between the parties with respect to such subject matter.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have executed, or have cause to be
executed, this Indemnification Agreement on the date first written above.
/s/ Jay S. Walker
-----------------
JAY S. WALKER
NSSI HOLDINGS INC.
By: /s/ Jeremy B. Koch
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Name: Jeremy B. Koch
Title: President
SYNAPSE GROUP, INC.
By: /s/ Michael R. Loeb
--------------------
Name: Michael Loeb
Title: President
Dates Referenced Herein
| Referenced-On Page |
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| This ‘S-1’ Filing | | Date | | First | | Last | | | Other Filings |
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| |  |
| Filed on: | | 7/26/00 | | | | | | | None on these Dates |
| | 5/17/00 | | 1 |
| List all Filings |
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