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EXHIBIT 10.33
▇▇▇▇▇.▇▇▇ NETWORKS, INC.
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT (the "AGREEMENT") is made as of the ___
day of _________, 1999, by and between ▇▇▇▇▇.▇▇▇ NETWORKS, INC., a Delaware
corporation (the "COMPANY"), and HEARST COMMUNICATIONS, INC. ("PURCHASER").
WHEREAS, the Company desires to issue, and Purchaser desires to acquire,
stock of the Company as herein described, on the terms and conditions
hereinafter set forth;
WHEREAS, the issuances hereunder are intended to comply with the
provisions of Rule 506 promulgated by the Securities and Exchange Commission
under the Securities Act of 1933, as amended (the "ACT").
NOW THEREFORE, IT IS AGREED between the parties as follows:
1. PURCHASE AND SALE OF STOCK. Purchaser hereby agrees to purchase from
the Company, and the Company hereby agrees to sell to Purchaser, a whole number
of shares of common stock of the Company equal to (I) the sum of (a) one-third
(33.33%) of (i) the total number of shares of common stock of the Company
actually sold in the Company's initial public offering (the "INITIAL PUBLIC
OFFERING") (excluding any shares issuable upon exercise of any overallotment
option granted to the underwriters of the Initial Public Offering) under a
registration statement on Form S-1 (No. 333-78363) filed with the Securities and
Exchange Commission ("SEC") under the Securities Act of 1933, as amended (the
"ACT") plus (ii) the total number of shares of common stock sold in the Disney
private placement as described in the registration statement plus (iii) the
total number of shares of common stock sold to Torstar pursuant to that certain
Amendment No. 1 to Stock Purchase Agreement dated September 3, 1999 (such shares
as described in this subsection (a) are hereafter referred to as the "INITIAL
PURCHASER STOCK"), plus (b) that number of shares of the common stock of the
Company which could be purchased at the IPO Price (as defined in the next
sentence) for $5 million (such shares being referred to hereafter as the
"ADDITIONAL PURCHASER STOCK,") less (II) the total number of shares of common
stock sold to Purchaser pursuant to that certain Amendment No. 1 to Stock
Purchase Agreement dated September 3, 1999. The shares of common stock to be
sold to Purchaser as determined by the prior sentence shall be referred to
hereafter as the "STOCK." The term "IPO PRICE" means the initial price per share
to the public of the common stock being offered in the Initial Public Offering,
as reflected on the cover page of the final prospectus filed with the SEC
pursuant to Rule 424(b) filed under the Act. The total purchase price for the
Stock shall be the product of the total number of shares of Stock multiplied by
the IPO Price. The closing hereunder (the "CLOSING"), including payment for and
delivery of the Stock in cash shall occur at the offices of ▇▇▇▇▇▇ Godward LLP,
counsel to the Company ("COMPANY COUNSEL"), ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, concurrently with the closing of the
Initial Public Offering, or at such other time and place as the parties may
mutually agree.
2. OPTION TO PURCHASE STOCK. Purchaser shall have the option ("OPTION")
to purchase a number of shares equal to the product of (a) the ratio of (i) the
number of shares, if any, purchased by the underwriters in the Initial Public
Offering in connection with the exercise of any over-allotment option granted by
the Company to (ii) the total number of shares sold in the Initial Public
Offering and (b)
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the number of shares of Initial Purchaser Stock, at a per share price equal to
the IPO Price (the "OPTION STOCK"). Upon exercise by the underwriters of their
over-allotment option or portion thereof, Purchaser may exercise such Option in
the same proportion exercised by the underwriters as determined above and in the
same period of time as exercised by the underwriters. Upon receipt of notice
from the underwriters that such entire over-allotment option or portion thereof
shall be exercised, the Company shall immediately give notice to the Purchaser
and the Purchaser shall then in the same period of time as the underwriters
exercise the Option (or portion thereof as determined by the proportion
exercised by the underwriters of their over-allotment option specified above)
upon written or telegraphic notice by Purchaser to the Company setting forth the
aggregate number of shares of the Option Stock as to which the Purchaser is
exercising its Option. Delivery of certificates for the shares of Option Stock,
and payment therefor, shall be made on the third business day after the exercise
of such option at the offices of Company Counsel. Purchaser shall have no rights
to exercise the foregoing Option except upon the last to occur of the (A)
closing of the Initial Public Offering; (B) closing of the sale of Stock
contemplated under Section 1, above; and (C) exercise of the underwriters'
over-allotment option as described above.
3. LIMITATIONS ON TRANSFER. Purchaser shall not assign, hypothecate,
donate, encumber or otherwise dispose of any interest in the Stock or Option
Stock except in compliance with the provisions herein and applicable securities
laws. The Company and its transfer agent shall not be required (a) to transfer
on its books any shares of Stock or Option Stock of the Company which shall have
been transferred in violation of any of the provisions set forth in this
Agreement or (b) to treat as owner of such shares or to accord the right to vote
as such owner or to pay dividends to any transferee to whom such shares shall
have been so transferred.
4. RESTRICTIVE LEGENDS. All certificates representing the Stock shall
have endorsed thereon legends in substantially the following forms (in addition
to any other legend which may be required by other agreements between the
parties hereto):
(a) THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. THEY MAY NOT BE SOLD,
OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR AN OPINION OF
COUNSEL SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
(b) Any legend required by appropriate blue sky officials.
5. PURCHASER REPRESENTATIONS. In connection with the purchase of the
Stock, Purchaser represents to the Company the following:
(a) Purchaser has all necessary power and authority under all
applicable provisions of law to execute and deliver this Agreement and to carry
out its provisions. All action on Purchaser's part required for the lawful
execution and delivery of this Agreement has been or will be effectively taken
prior to the Closing. Upon its execution and delivery, this Agreement will be a
valid and binding obligation of Purchaser, enforceable in accordance with its
terms.
(b) Purchaser is aware of the Company's business affairs and
financial condition and has acquired sufficient information about the Company to
reach an informed and knowledgeable decision to acquire the Stock and the Option
Stock. Purchaser is purchasing the Stock and Option Stock, if any, for
investment for Purchaser's own account only and not with a view to, or for
resale in connection with, any "DISTRIBUTION" thereof within the meaning of the
Act.
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(c) Purchaser understands that the Stock and Option Stock, if
any, have not been registered under the Act by reason of a specific exemption
therefrom, which exemption depends upon, among other things, the bona fide
nature of Purchaser's investment intent as expressed herein.
(d) Purchaser further acknowledges and understands that the
Stock and Option Stock, if any, must be held indefinitely unless it is
subsequently registered under the Act or an exemption from such registration is
available. Purchaser further acknowledges and understands that the Company is
under no obligation to register the Stock or Option Stock. Purchaser understands
that the certificate evidencing the Stock and the Option Stock will be imprinted
with a legend which prohibits its transfer unless it is registered or such
registration is not required in the opinion of counsel for the Company.
(e) Purchaser is familiar with the provisions of Rule 144, under
the Act, as in effect from time to time, which, in substance, permits limited
public resale of "RESTRICTED SECURITIES" acquired, directly or indirectly, from
the issuer thereof (or from an affiliate of such issuer), in a non-public
offering subject to the satisfaction of certain conditions including, among
other things: (i) availability of certain public information about the Company
and (ii) the resale occurring following the required holding period under Rule
144 after the Purchaser has purchased, and made full payment of (within the
meaning of Rule 144), the securities to be sold.
(f) Purchaser further understands that at the time Purchaser
wishes to sell the Stock there may be no public market upon which to make such a
sale, and that, even if such a public market then exists, the Company may not be
satisfying the current public information requirements of Rule 144, and that, in
such event, Purchaser would be precluded from selling the Stock under Rule 144
even if the minimum holding period requirement had been satisfied.
(g) Purchaser is a "QUALIFIED INSTITUTIONAL BUYER" as that term
is defined in Rule 144A under the Act.
6. COMPANY REPRESENTATIONS. The Company hereby represents and warrants
to the Purchaser as follows:
(a) The Company has all requisite corporate power and authority
to execute and deliver this Agreement, to issue and sell the Stock and the
Option Stock, and to carry out the provisions of this Agreement.
(b) All corporate action on the part of the Company, its
officers, directors and stockholders necessary for the authorization of this
Agreement, the performance of all obligations of the Company hereunder and
thereunder at the Closing and the authorization, sale, issuance and delivery of
the Stock and Option Stock has been taken or will be taken prior to the Closing.
Upon its execution and delivery, this Agreement will be a valid and binding
obligation of the Company, enforceable in accordance with its terms.
(c) When issued in compliance with the provisions of this
Agreement, the Stock and the Option Stock will be validly issued, fully paid and
nonassessable, and will be free of any liens or encumbrances; provided, however,
that the Stock and the Option Stock may be subject to restrictions on transfer
under state and/or federal securities laws as set forth herein or as otherwise
required by such laws at the time a transfer is proposed.
7. CONDITIONS TO PURCHASER'S OBLIGATIONS AT THE CLOSING. Purchaser's
obligations to purchase the Stock at the Closing (or the Option Stock at any
subsequent closing) are subject to the satisfaction, or at prior to such
Closing, of the following conditions:
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(a) REPRESENTATIONS AND WARRANTS TRUE; PERFORMANCE OF
OBLIGATIONS. The representations and warranties made by the Company in Section 6
hereof shall be true and correct in all material respects as of the Closing (or
any subsequent closing as the case may be) with the same force and effect as if
they had been made as of the Closing, and the Company shall have performed all
obligations and conditions herein required to be performed or observed by it on
or prior to the Closing.
(b) LEGAL INVESTMENT. As of the Closing, the sale and issuance
of the Stock (or the Option Stock as the case may be) shall be legally permitted
by all laws and regulations to which Purchaser and the Company are subject.
(c) CONSENTS, PERMITS, AND WAIVERS. The Company shall have
obtained any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by the Agreement.
(d) EFFECTIVENESS OF REGISTRATION STATEMENT. A registration
statement relating to the Initial Public Offering shall have become effective
and no stop order suspending the effectiveness thereof shall have been issued
and no proceedings therefor shall be pending or threatened by the Securities and
Exchange Commission.
8. CONDITIONS TO OBLIGATIONS OF THE COMPANY. The Company's obligation to
issue and sell the Stock at the Closing (or the Option Stock at any subsequent
closing) is subject to the satisfaction, on or prior to such Closing, of the
following conditions:
(a) REPRESENTATIONS AND WARRANTIES TRUE. The representations and
warranties in Section 5 made by Purchaser shall be true and correct in all
material respects at the date of the Closing (or any subsequent closing as the
case may be), with the same force and effect as if they had been made on and as
of said date.
(b) PERFORMANCE OF OBLIGATIONS. Purchaser shall have performed
and complied with all agreements and conditions herein required to be performed
or complied with by Purchaser on or before the Closing.
(c) LEGAL INVESTMENT. As of the Closing, the sale and issuance
of the Stock (or the Option Stock as the case may be) shall be legally permitted
by all laws and regulations to which Purchaser and the Company are subject.
(d) CONSENTS, PERMITS, AND WAIVERS. The Company shall have
obtained any and all consents, permits and waivers necessary or appropriate for
consummation of the transactions contemplated by the Agreement.
(e) EFFECTIVENESS OF REGISTRATION STATEMENT. A registration
statement relating to the Initial Public Offering shall have become effective
and no stop order suspending the effectiveness thereof shall have been issued
and no proceedings therefor shall be pending or threatened by the Securities and
Exchange Commission.
9. MISCELLANEOUS.
(a) TERMINATION. This Agreement shall terminate in its entirety
and shall be of no further force and effect in the event that a registration
statement relating to the Initial Public Offering shall not have been declared
effective and the sale contemplated by Section 1 hereof completed on or prior to
December 31, 1999.
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(b) NOTICES. Any notice required or permitted hereunder shall be
given in writing and shall be deemed effectively given upon personal delivery or
sent by telegram or fax or upon deposit in the United States Post Office, by
registered or certified mail with postage and fees prepaid, addressed to the
other party hereto at his address hereinafter shown below its signature or at
such other address as such party may designate by ten (10) days advance written
notice to the other party hereto.
(c) SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of the successors and assigns of the Company and, subject to the
restrictions on transfer herein set forth, be binding upon Purchaser,
Purchaser's successors and assigns.
(d) ATTORNEYS' FEES, SPECIFIC PERFORMANCE. Purchaser shall
reimburse the Company for all costs incurred by the Company in enforcing the
performance of, or protecting its rights under, any part of this Agreement,
including reasonable costs of investigation and attorneys' fees.
(e) GOVERNING LAW; VENUE. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware. The parties
agree that any action brought by either party to interpret or enforce any
provision of this Agreement shall be brought in, and each party agrees to, and
does hereby, submit to the jurisdiction and venue of, the appropriate state or
federal court for the district encompassing the Company's principal place of
business.
(f) FURTHER EXECUTION. The parties agrees to take all such
further action(s) as may reasonably be necessary to carry out and consummate
this Agreement as soon as practicable, and to take whatever steps may be
necessary to obtain any governmental approval in connection with or otherwise
qualify the issuance of the securities that are the subject of this Agreement.
(g) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes and merges all prior agreements or understandings, whether written or
oral. This Agreement may not be amended, modified or revoked, in whole or in
part, except by an agreement in writing signed by each of the parties hereto.
(h) SEVERABILITY. If one or more provisions of this Agreement
are held to be unenforceable under applicable law, the parties agree to
renegotiate such provision in good faith. In the event that the parties cannot
reach a mutually agreeable and enforceable replacement for such provision, then
(i) such provision shall be excluded from this Agreement, (ii) the balance of
the Agreement shall be interpreted as if such provision were so excluded and
(iii) the balance of the Agreement shall be enforceable in accordance with its
terms.
(i) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute one instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
▇▇▇▇▇.▇▇▇ NETWORKS, INC.
By:
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Chief Executive Officer
Address: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
PURCHASER:
HEARST COMMUNICATIONS, INC.
By:
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Title:
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Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
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