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-10.20 — Walker and Jaeckle Shareholder Agreement
| EX-10.20 | 1st Page of 15 | TOC | ↑Top | Previous | Next | ↓Bottom | Just 1st |
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Exhibit 10.20
WALKER AND JAECKLE SHAREHOLDER AGREEMENT
AGREEMENT made as of the lst day of August, 1994 by and among NewSub
Services, Inc., a Connecticut corporation (the "Corporation"), Jay Walker and
Andre Jaeckle.
WHEREAS, Jay Walker has sold, and Andre Jaeckle has purchased, 400 of
the Class B non-voting shares of capital stock of the Corporation owned by Jay
Walker, the sale being subject to the contemporaneous execution of this
Agreement;
WHEREAS, the parties hereto (as hereinafter defined) wish to enter
into an agreement imposing certain restrictions on the transfer of Jaeckle's
shares and setting forth certain agreements to provide for the continuity of the
Corporation and its management and business as a condition to the transfer of
such shares;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties agree as follows:
1. Definitions. In addition to the terms defined elsewhere herein,
when used herein the following terms shall have the meanings indicated:
(a) Affiliate shall mean, with respect to any Shareholder, (i) any
Person who, directly or indirectly, is in control of, is controlled by or is
under common control with, the Shareholder, and (ii) any Person who is a
director or officer of the Shareholder or of any Person described in clause (i)
above.
(b) Jaeckle shall mean Andre Jaeckle and any Permitted Transferee of
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any of the Shares of Andre Jaeckle.
(c) 1933 Act shall mean the Securities Act of 1933, as amended.
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(d) Permitted Transferee shall mean any Person to whom any Shares are
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transferred in accordance with and subject to the terms of this Agreement.
(e) Person shall mean a natural person, corporation, limited
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partnership, general partnership, joint stock company, joint venture,
association, company, trust, bank trust company, land trust, business trust or
other organization, whether or not a legal entity, and a government or agency or
political subdivision thereof.
(f) Sell or Transfer, as to any Shares, shall mean to sell, or in any
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other way, directly or indirectly, transfer assign, exchange, donate, make a
gift of, distribute, pledge, hypothecate, transfer voting rights with respect
to, encumber or otherwise dispose of, either voluntarily or involuntarily, or
the act of making any such sale, transfer, assignment, exchange, donation, gift,
distribution, pledge, hypothecation, encumbrance or other disposition.
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(g) Shares shall mean all of the shares of capital stock of the
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Corporation currently owned by Jaeckle, any shares of capital stock acquired in
exchange for Shares as a result of mergers, recapitalizations, consolidations or
otherwise, any additional Shares issued or distributed by the Corporation by
reason of stock dividends, increases in outstanding shares, additional issuances
or otherwise and any options, warrants or rights to purchase any of the
foregoing.
(h) Walker shall mean Jay Walker and any Permitted Transferee of any
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of the Shares of Jay Walker.
(i) Shareholder shall mean Jaeckle and shall include any Person who,
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after the date hereof, acquires Shares as a Permitted Transferee of Jaeckle (or
of any subsequent Permitted Transferee) in accordance with and subject to the
terms of this Agreement.
2. Restrictions on Transfer. (a) Jaeckle agrees not to Transfer Shares
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except as permitted under and in accordance with the terms of this Agreement. No
non-complying Transfer or purported Transfer (an "Ineffectual Transfer")
pursuant to which any person shall attempt to acquire any right, title or
interest in any Shares other than in accordance with the provisions of this
Agreement, shall be recognized by the Corporation. An Ineffectual Transfer shall
be null and void and shall not be recorded as a transfer, on the stock transfer
records of the Corporation. Notwithstanding the occurrence of any
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attempted Ineffectual Transfer, the purported Transferor of Shares shall
continue to be entitled, so long as he shall remain the owner of such Shares, to
any and all existing rights and privileges of a Shareholder to which he is
otherwise entitled, and subject to all obligations of a Shareholder, with
respect to such Shares.
(b) The provisions of this Section shall apply to any Permitted
Transferee (or subsequent Permitted Transferee) of Jaeckle.
3. Take-Along Rights. If Walker intends to Transfer all of his Shares
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to an independent third party, then at the request of Walker, Jaeckle shall sell
to such independent third party all of the Shares held by Jaeckle at the same
price per share and upon the same other terms and conditions applicable to the
sale by Walker. The term "price per share" set forth in the preceding sentence
shall be deemed to include any form of payment, compensation or financial
benefit payable directly or indirectly to Walker in consideration for or in
connection with a Transfer of Shares, provided, however, that payment of
reasonable compensation for services to be actually rendered after the sale
shall not be included.
4. Walker Option to Purchase Shares. (a) At any time hereafter upon
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written notice to Jaeckle, Walker shall have the option to purchase all, but not
less than all, of the Shares. The purchase price shall be the Purchase Price as
hereinafter defined.
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(b) The closing of the transfer of the Shares shall take place within
60 days after notice by Walker to Jaeckle of exercise of the foregoing option.
At the closing Jaeckle shall deliver the certificates or other documents
evidencing the Shares to Walker, duly endorsed for transfer. Walker shall
thereupon pay the Purchase Price therefor in accordance with paragraph (c)
below.
(c) Payment of the purchase price for the Shares shall be paid at the
closing by certified or bank check or by wire transfer of immediately available
funds.
5. Purchase Price of Shares. The "Purchase Price" with respect to any
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Shares for purposes of this Agreement shall be $125.00 per share plus interest
thereon at the rate of seven percent (7%) per year, compounded annually, from
and after the date of this Agreement.
6. Voting Rights. Walker shall have the exclusive right to act and
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vote with respect to the Jaeckle Shares in Walker's sole discretion. Jaeckle
hereby appoints Walker as Jaeckle's attorney in fact and proxy, with full power
of substitution, to act and vote with respect to the Shares on all matters. The
foregoing proxy is coupled with an interest and is irrevocable.
7. The Existing Shareholder Agreements. Jaeckle acknowledges and
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agrees that the Shares are subject to the terms and condition of (i) a
Shareholder Agreement dated January 1, 1994 among the Corporation, Jay Walker
and Michael Loeb as amended by a
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letter agreement dated May , 1994 among such parties (the "Walker/Loeb
Agreement") and (ii) a Shareholder Agreement dated December 1, 1993 among the
Corporation and all of the then shareholders of the Corporation as amended by a
letter agreement dated May , 1994 among such parties (the "Shareholder
Agreement"). Notwithstanding the preceding, the Shareholders agree that,
pursuant to Section 6 above, Walker shall have the exclusive right to vote and
act with respect to the Jaeckle Shares in connection with all matters relating
to the Walker/Loeb Agreement and the Shareholder Agreement.
8. Walker Consent To Transfer of Shares By Jaeckle. Jaeckle shall not
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Transfer any Shares without the prior written consent of Walker, which consent
Walker may withhold in his sole discretion.
9. Conflict of Interest/Non-Compete. Jaeckle agrees that, so long as
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he owns Shares of the Corporation and for one year after sale of all his Shares,
he will not be an officer, director, consultant, employee, owner, partner,
principal, associate, joint venturer or security holder of, or otherwise render
services to or have an ownership or capital interest in, any organization or
business which conducts a magazine subscription selling business in the United
States of America competitive with that carried on by the Corporation, except
that Jaeckle may hold a passive investment of stock of less than five
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percent (5%) of outstanding shares in a corporation whose shares are publicly
traded.
10. Covenant Not to Disclose. Jaeckle acknowledges and agrees that
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much of the information, documents, files and other papers concerning the
products, business, operations, financial affairs, or condition of the
Corporation are strictly confidential, including but not limited to, financial
statements, customer lists, training manuals, marketing methods, pricing
structures, technical data, process information and know-how (the "Confidential
Information"). Jaeckle covenants and agrees that he will not at any time
divulge, make known to any person, or use, in each case for his own personal
benefit, any of the Confidential Information, whether or not made known to him
by reason of his being a shareholder, director, officer or employee of the
Corporation, except (i) as reasonably necessary to conduct the business of the
Corporation, (ii) as required by law, regulation or legal process or (iii) to
third parties who have executed and delivered to the Corporation a non-
disclosure agreement, in form and substance satisfactory to the Corporation.
All materials, records, and documents developed or owned by the
Corporation, whether embodied in electronic media or in written form, shall be
the sole property of the Corporation and upon the request of the Corporation,
Jaeckle shall promptly deliver to the Corporation such materials, records and
documents or copies thereof as are then
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maintained by him or otherwise under his control, and shall retain no copies
thereof.
The obligations of Jaeckle under this Section shall be binding on him even
after he ceases to be a shareholder of the Corporation and shall survive
termination of this Agreement.
11. Election to be Taxed as a "Small Business" Corporation. (a) The parties
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agree that the Corporation shall elect to be taxed as a "small business
corporation" under Subchapter S of the Internal Revenue Code of 1986, as
amended (the "Code"), or such other provision of law now or hereafter applicable
to such election, and under any corresponding state law. The parties shall cause
the Corporation to execute the necessary forms for exercising such elections,
shall execute the necessary stockholder's consents, and shall authorize the
filing of such elections and consents. All other action deemed necessary or
advisable to perfect such elections shall be taken and is hereby authorized. The
parties further agree to continue such elections unless they unanimously agree
otherwise. None of the parties, without the consent of all the others, shall
take any action or make any Transfer of Shares which will result in the
termination or revocation of such elections, and each shall take such action as
may be required to continue such elections from year to year. Any proposed
Transfer shall only be effective and recognized by the Corporation if the
proposed transferee provides the Corporation with a written opinion of
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legal counsel, who shall be satisfactory to the Corporation and its counsel,
such opinion to be in form and substance satisfactory to the Corporation and its
counsel, to the effect that the proposed Transfer may be effected without
resulting in the termination or revocation of such elections.
(b) In the event that a Shareholder's ownership interest in the Corporation
is terminated, in any manner or for any reason whatsoever, during a taxable year
in which the Corporation is an S corporation, the remaining Shareholder(s) shall
have the right to make an election, under Section 1377(a) of the Code, to close
such taxable year, effective as of the date of such termination, for the purpose
of allocating income (or loss) to the Corporation's shareholders for such
taxable year. In the event of such an election, the terminating Shareholder
shall execute and deliver such documents and instruments as may be necessary to
effect such election in accordance with applicable provisions of the Code.
12. Endorsement of Stock Certificates. Each certificate for Shares issued
---------------------------------
by the Corporation shall bear an endorsement on its front or back substantially
as follows:
"The shares represented by this certificate ( the "Shares") have not been
registered under the Securities Act of 1933, as amended (the "Act"), or any
state securities law and the Shares may not be sold or offered for sale in the
absence of an effective registration statement under the Act and any
applicable state securities laws or an available exemption from the
registration requirements of the Act and any applicable state securities laws.
In addition, the Shares are issued, accepted and held subject to
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and transferable only in accordance with the provisions of (i) the Shareholder
Agreement, dated as of December 1, 1993, by and among the Corporation and its
shareholders, as amended (ii) the Walker and Loeb Shareholder Agreement, dated
January 1, 1994, by and among the Corporation and certain of its shareholders,
as amended and (iii) the Walker and Jaeckle Shareholder Agreement, dated
January 1, 1994, by and among the Corporation and certain of its shareholders,
copies of which Shareholder Agreements are on file in the office of the
Corporation."
13. Failure to Deliver Certificates. In the event that a Shareholder is
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required by the provisions of this Agreement to sell his Shares to another party
and such Shareholder fails to deliver the certificates representing such Shares,
duly endorsed for transfer, upon tender by the other party of the purchase price
therefor, the Corporation shall have the right to transfer such Shares on the
stock transfer records of the Corporation and to treat such Shares as if the
stock certificates had been delivered by the Shareholder. In such event, the
Shareholder shall be deemed to have no ownership interest in, or any rights with
respect to, such Shares as of the date the Corporation transfers such Shares on
its stock transfer records.
14. Termination. This Agreement shall terminate upon the occurrence of any
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of the following:
(a) the mutual agreement of all of the parties hereto; or
(b) the bankruptcy, receivership or dissolution of the Corporation.
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Nothing contained in this Section shall affect or impair any rights or
obligations arising prior to or at the time of termination of this Agreement.
15. Miscellaneous.
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(a) Successor Shareholders Must Sign. Under no circumstances may any Shares
--------------------------------
be sold, transferred or otherwise disposed of to any person who, if he is not
already a Shareholder, has not executed and delivered to the Shareholders and
the Corporation a written agreement to be bound by the terms of this Agreement
and any transferee or recipient of Shares shall be subject to the same
restrictions under this Agreement as were applicable to the original Transferor
of Shares.
(b) Entire Agreement. This Agreement constitutes the entire understanding
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among the parties and supersedes all existing agreements among them. No
modification, discharge or waiver, in whole or in part, of any of the provisions
of this Agreement shall be valid unless in writing and signed by the parties.
(c) Headings. The section headings in this Agreement are for convenience of
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reference and do not constitute part of the agreement.
(d) Validity. If any provision of this Agreement is found to be invalid or
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unenforceable, such provision shall be, and shall be deemed to be modified so as
to cure
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the invalidity or unenforceability, and all other provisions of this Agreement
shall be enforceable notwithstanding such invalidity or unenforceability.
(e) Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Connecticut.
(f) Enforcement. In the event that any party hereto commits a breach of
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that party's obligations hereunder, any non-breaching party damaged thereby
shall be entitled to recover from the party in breach the costs and expenses
incurred, including reasonable attorneys' fees and disbursements, in connection
with enforcing the provisions hereof. Each party acknowledges that irreparable
injury would result to the other parties hereto if the Corporation or any
Shareholder, or his or its transferees or legal representatives, fails to comply
with any of the restrictions herein imposed upon the transfer or encumbrance of
Shares, or with any other covenants, and obligations which are material; and
that in the event of any failure to comply with the terms hereof, the parties
hereto will not have an adequate remedy at law. Therefore, each party hereto
consents to the issuance of an injunction or the enforcement of other equitable
remedies at the instance of the Corporation or any Shareholder to compel
performance of the restrictions, covenants, and obligations contained herein.
The rights and remedies set forth in this subsection shall be
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in addition to, and not in lieu of, any other rights and remedies available at
law or in equity.
(g) Consistent Actions. No Shareholder or other person elected as a
------------------
director of the Corporation pursuant to the provisions hereof, shall take or
fail to take any action that would be inconsistent or in conflict with the
stated rights and obligations contained in this Agreement.
(h) Notices. Any notice, request, instruction, or other communication to be
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given hereunder by any party to another shall be in writing given by hand
delivery, telecopier, certified or registered mail (return receipt requested) or
by overnight express service, addressed to the respective party or parties at
the addresses set forth on Exhibit A or to such other address or addresses as
any party may designate to the others by like notice as set forth above. Any
notice given hereunder shall be deemed given and received on the date of hand
delivery or transmission by telecopier, or three (3) days after deposit with the
United States Postal Service, or one (1) day after delivery to an overnight
express service for next day delivery, as the case may be.
(i) Successors and Assigns. This Agreement is binding upon and shall inure
----------------------
to the benefit of the parties hereto, and their respective heirs, legal
representatives, successors and assigns and shall also be binding on all persons
who have or claim an interest in any Shares.
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(j) Waivers. No waiver by a party, or by anyone claiming by, through or
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under such party, of any right or of the breach of any representation, warranty,
covenant, agreement, condition or duty, shall ever be held or construed as a
waiver of the same or any other right or waiver of any other breach of the same
or of any representation, warranty, covenant, agreement, condition, or duty. In
the event of a breach by a party of any representation, warranty, covenant,
agreement, condition or duty, the failure by any other party to take action on
account of such breach or to enforce any rights resulting therefrom shall not be
deemed a waiver, but such breach shall be a continuing breach until the same has
been cured. No waiver of any of the provisions of this Agreement shall be deemed
or shall constitute a continuing waiver unless otherwise expressly provided
therein.
(k) Securities Law Compliance. No sale or Transfer of Shares by any
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Shareholder shall be made except pursuant to effective registration under the
1933 Act and any applicable state securities laws, or an exemption from such
registration, and prior to any such sale or Transfer the Shareholder proposing
to Sell or Transfer Shares shall give the Corporation (A) notice describing the
manner and circumstances of the proposed Transfer (copies of which the
Corporation shall furnish to any Shareholder upon request) and (B) if reasonably
requested by the Corporation, a written opinion of legal
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counsel, who shall be reasonably satisfactory to the Corporation and its
counsel, such opinion to be in form and substance reasonably satisfactory to the
Corporation and its counsel, to the effect that the proposed Transfer may be
effected without registration under the 1933 Act and any applicable state
securities law.
(l) Pronouns. Any masculine personal pronoun shall be considered to mean
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the corresponding feminine or neuter personal pronoun, and vice versa, as the
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context requires.
(m) Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same instrument. This Agreement
shall become effective and binding upon each proposed party hereto upon the
execution and delivery of a counterpart hereof by such party.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
NEWSUB SERVICES, INC.
By: /s/ Michael R. Loeb
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By: /s/ Jay Walker
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Jay Walker
By: /s/ Andre Jaeckle
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Andre Jaeckle
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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 |
| | 1/1/94 | | 5 | | 10 |
| | 12/1/93 | | 6 | | 10 |
| List all Filings |
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