EXHIBIT 10.5
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ZIFF ▇▇▇▇▇ HOLDINGS INC.
STOCK PURCHASE AGREEMENT
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Dated as of August 8, 2002
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TABLE OF CONTENTS
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Page
SECTION 1. AUTHORIZATION AND CLOSING; RESTRUCTURING INVESTMENT REDUCTION .. 2
1A. Authorization of the Purchased Equity Stock ........................ 2
1B. Purchase and Sale of the Purchased Equity .......................... 2
1C. The Closing; Restructuring Investment Reduction .................... 3
SECTION 2. CONDITIONS OF THE PURCHASERS' OBLIGATION AT THE CLOSING ........ 3
2A. Representations and Warranties ..................................... 3
2B. Closing Documents .................................................. 3
2C. Proceedings ........................................................ 3
2D. Compliance with Applicable Laws .................................... 4
2E. Waiver ............................................................. 4
SECTION 3. CONDITIONS OF THE COMPANY'S OBLIGATION AT THE CLOSING .......... 4
3A. Representations and Warranties ..................................... 4
3B. No Action .......................................................... 4
SECTION 4. TRANSFER OF RESTRICTED SECURITIES .............................. 4
4A. Opinion Delivery ................................................... 4
4B. Legend ............................................................. 4
4C. Legend Removal ..................................................... 5
SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY .................. 5
5A. Organization, Corporate Power and Licenses ......................... 5
5B. Capital Stock and Related Matters .................................. 5
5C. Authorization; No Breach ........................................... 6
5D. Litigation, etc .................................................... 6
5E. Brokerage .......................................................... 7
5F. Governmental Consent, etc .......................................... 7
5G. Investment Company ................................................. 7
SECTION 6. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS ............... 7
6A. Investment Representations ......................................... 7
6B. No Breach .......................................................... 8
6C. Organization and Limited Partnership Power ......................... 8
6D. Brokerage .......................................................... 8
SECTION 7. DEFINITIONS .................................................... 8
7A. Definitions ........................................................ 8
SECTION 8. RIGHT TO EXCHANGE PURCHASED EQUITY ............................. 9
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8A. Exchange of Purchased Equity ....................................... 10
8B. Additional Actions ................................................. 10
SECTION 9. MISCELLANEOUS .................................................. 10
9A. Expenses ........................................................... 10
9B. Indemnification .................................................... 10
9C. Survival of Representations and Warranties. ........................ 11
9D. Remedies ........................................................... 11
9E. Consent to Amendments .............................................. 11
9F. Successors and Assigns ............................................. 11
9G. Severability ....................................................... 11
9H. No Third Party Beneficiaries ....................................... 11
9I. Counterparts ....................................................... 11
9J. Descriptive Headings; Interpretation ............................... 11
9K. Governing Law ...................................................... 12
9L. Notices ............................................................ 12
9M. No Strict Construction ............................................. 13
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Exhibits and Schedules
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Exhibit A - Fifth Amended and Restated Certificate of Incorporation
Schedule of Purchasers
Capitalization Schedule
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STOCK PURCHASE AGREEMENT
THIS AGREEMENT (this "Agreement") is made as of August 8, 2002, by and
among Ziff ▇▇▇▇▇ Holdings Inc., a Delaware corporation (the "Company"), and the
purchasers listed on the attached Schedule of Purchasers (the "Purchasers").
Except as otherwise indicated herein, capitalized terms used herein are defined
in Section 7 hereof.
The Purchasers are willing to invest an aggregate $3,000,000 in the Company
(the "Equity Investment") in the form of purchasing (i) an aggregate of 2,850
shares of the Company's Series B Preferred Stock, par value $.01 per share (the
"Series B Preferred"), for an aggregate purchase price of $2,850,000 and (ii) an
aggregate of 150 shares of the Company's Series C Convertible Preferred Stock,
$.01 par value per share (the "Series C Preferred"), for an aggregate purchase
price of $150,000 (such Series B Preferred and Series C Preferred being
purchased hereunder being referred to herein as the "Purchased Equity").
The capital structure of the Company and Ziff ▇▇▇▇▇ Media Inc., the
Company's principal operating subsidiary, may be restructured pursuant to the
terms and conditions of the Offering Memorandum, Solicitation of Releases,
Consents and Acceptances and Disclosure Statement of the Company and Ziff ▇▇▇▇▇
Media Inc. dated June 17, 2002 (the "Exchange Offer") which, among other things,
requires the Purchasers to invest $80,000,000 in the Company (the "Restructuring
Investment").
As a condition to the willingness of the Purchasers to make the Equity
Investment in the form of Series B Preferred and Series C Preferred, the
Purchasers have required that (i) the Company agree to exchange the Purchased
Equity for certain securities described in the Exchange Offer and (ii) the
Restructuring Investment be reduced dollar for dollar by the aggregate amount of
the Equity Investment.
Pursuant to the Stock Purchase Agreement dated April 30, 2002, by and among
the Company and the Purchasers (the "April Stock Purchase Agreement"), the (i)
Purchasers previously purchased an aggregate of 2,850 shares of Series B
Preferred for an aggregate purchase price of $2,850,000 and an aggregate of 150
shares of the Company's Series C Preferred for an aggregate purchase price of
$150,000 (such Series B Preferred and Series C Preferred being referred to
herein as the "April Purchased Equity"); (ii) the Company agreed to exchange the
April Purchased Equity for certain securities described in the Exchange Offer;
and (iii) the Company agreed that the Restructuring Investment would be reduced
by $3,000,000.
Pursuant to the Stock Purchase Agreement dated May 31, 2002, by and among
the Company and the Purchasers (the "May Stock Purchase Agreement"), the (i)
Purchasers previously purchased an aggregate of 2,945 shares of Series B
Preferred for an aggregate purchase price of $2,945,000 and an aggregate of 155
shares of the Company's Series C Preferred for an aggregate purchase price of
$155,000 (such Series B Preferred and Series C Preferred being referred to
herein as the "May Purchased Equity"); (ii) the Company agreed to exchange the
May Purchased Equity for certain securities described in the Exchange Offer; and
(iii) the Company agreed that the Restructuring Investment would be reduced by
$3,100,000.
Pursuant to the Stock Purchase Agreement dated June 28, 2002, by and among
the Company and the Purchasers (the "June Stock Purchase Agreement"), the (i)
Purchasers previously purchased an aggregate of 3,800 shares of Series B
Preferred for an aggregate purchase price of $3,800,000 and an aggregate of 200
shares of the Company's Series C Preferred for an aggregate purchase price of
$200,000 (such Series B Preferred and Series C Preferred being referred to
herein as the "June Purchased Equity"); (ii) the Company agreed to exchange the
June Purchased Equity for certain securities described in the Exchange Offer;
and (iii) the Company agreed that the Restructuring Investment would be reduced
by $4,000,000.
The Purchasers and the Company have agreed that, in exchange for the
Purchasers foregoing the receipt of $7,368,600 in cash as partial consideration
for the Purchasers exchanging their 12% Senior Subordinated Notes due 2010 of
Ziff ▇▇▇▇▇ Media Inc., the Restructuring Investment would be reduced by
$7,368,600.
NOW, THEREFORE, in consideration of the mutual covenants contained herein
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto, intending to be legally bound,
agree as follows:
Section 1. Authorization and Closing; Restructuring Investment Reduction.
1A. Authorization of the Purchased Equity Stock. Prior to Closing (as
defined below), the Company shall authorize the issuance and sale to the
Purchasers of the Purchased Equity, having the rights and preferences set forth
in the Fifth Restated Certificate of Incorporation of the Company attached
hereto as Exhibit B (the "Fifth Charter").
1B. Purchase and Sale of the Purchased Equity. On the basis of the
representations, warranties, covenants and agreements set forth herein, but
subject to the terms and conditions set forth herein (including without
limitation the condition set forth in Section 1C below and the covenants of the
Company set forth in Section 8 below), at the Closing the Company shall sell to
the Purchasers and the Purchasers shall purchase from the Company an aggregate
of 2,850 shares of Series B Preferred for an aggregate purchase price of
$2,850,000 and an aggregate of 150 shares of Series C Preferred for an aggregate
purchase price of $150,000. The obligations of each Purchaser shall be several,
with each Purchaser obligated only to purchase the number of shares of Purchased
Equity set forth opposite such Purchaser's name on the Schedule of Purchasers
attached hereto.
1C. The Closing; Restructuring Investment Reduction. The closing of the
purchase and sale of the Purchased Equity (the "Closing") shall take place at
the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, at
10:00 a.m. on August 8, 2002, or at such other place or on such other date as
may be mutually agreeable to the Company and the Purchasers. At the Closing, the
Company shall deliver to each Purchaser stock certificates evidencing the
Purchased Equity to be purchased by such Purchaser, registered in the
Purchaser's or its nominee's name, upon payment of the purchase price thereof by
wire transfer of immediately available funds in the amount set forth opposite
such Purchaser's name on the Schedule of Purchasers attached hereto. Upon
payment of the aggregate amount set forth on the Schedule of Purchasers, the
Restructuring
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Investment will automatically be reduced dollar for dollar by the aggregate
amount of the Equity Investment and the Purchasers will only be obligated to
fund the Restructuring Investment (as previously reduced by the April Stock
Purchase Agreement, the May Stock Purchase Agreement, the June Stock Purchase
Agreement and the transactions described in the last recital of this Agreement)
as it has been reduced by this Section 1C.
Section 2. Conditions of the Purchasers' Obligation at the Closing. The
obligations of the Purchasers to purchase and pay for the Purchased Equity at
the Closing is subject to the satisfaction as of the Closing of the following
conditions:
2A. Representations and Warranties. The representations and warranties
contained in Section 5 hereof shall be true and correct in all material respects
at and as of the Closing as though then made.
2B. Closing Documents. The Company shall have delivered to the Purchaser
all of the following documents:
(1) certified copies of the resolutions duly adopted by the Company's
board of directors authorizing the execution, delivery and performance of
this Agreement, the issuance and sale of the Purchased Equity and the
consummation of all other transactions contemplated by this Agreement (the
"Transactions");
(2) certified copies of the Fifth Charter and Bylaws, each as in
effect at the Closing;
(3) certificates evidencing the Purchased Equity, issued in the
Purchasers' respective names; and
(4) such other documents relating to the Transactions as the
Purchasers or their special counsel may reasonably request.
2C. Proceedings. All corporate and other proceedings taken or required to
be taken by the Company in connection with the Transactions to be consummated at
or prior to the Closing and all documents incident thereto shall be reasonably
satisfactory in form and substance to the Purchasers.
2D. Compliance with Applicable Laws. The purchase of the Purchased Equity
by the Purchasers hereunder shall not be prohibited by any applicable law or
governmental rule or regulation.
2E. Waiver. Any condition specified in this Section 2 may be waived if
consented to by the Purchasers.
Section 3. Conditions of the Company's Obligation at the Closing. The
obligations of the Company to consummate the transactions contemplated hereby is
subject to satisfaction of the following conditions:
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3A. Representations and Warranties. The representations and warranties
contained in Section 6 hereof shall be true and correct in all material respects
at and as of the Closing as though then made.
3B. No Action. No action or proceeding before any court or government body
will be pending or, to the knowledge of the Company, threatened which, in the
reasonable judgment of the Company, makes it inadvisable or undesirable to
consummate the transactions contemplated by this Agreement by reason of the
probability that the action or proceeding will result in a judgment, decree or
order that would prevent the carrying out of this Agreement or any of the
transactions contemplated hereby, declare unlawful the transactions contemplated
hereby or cause such transactions to be rescinded.
Section 4. Transfer of Restricted Securities.
4A. Opinion Delivery. In connection with the transfer of any shares of
Restricted Stock, upon the request of the Company, the holder thereof shall
deliver written notice to the Company describing in reasonable detail the
transfer or proposed transfer, together with an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ or
other counsel which (to the Company's reasonable satisfaction) is knowledgeable
in securities law matters to the effect that such transfer of shares of
Restricted Stock may be effected without registration of such shares under the
Securities Act. In addition, if the holder of the shares of Restricted Stock
delivers to the Company an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ or such other counsel
that no subsequent transfer of such shares shall require registration under the
Securities Act, the Company shall promptly upon such contemplated transfer
deliver new certificates for such shares which do not bear the Securities Act
legend set forth in Section 4B. If the Company is not required to deliver new
certificates for such shares not bearing such legend, the holder thereof shall
not transfer the same until the prospective transferee has confirmed to the
Company in writing its agreement to be bound by the conditions contained in this
Section 4.
4B. Legend. Each certificate representing shares of Restricted Stock shall
be imprinted with a legend in substantially the following form:
"The securities represented by this certificate were originally issued
on _________ __, 2002, and have not been registered under the
Securities Act of 1933, as amended or any applicable state securities
laws. The transfer of the securities represented by this certificate is
subject to the conditions specified in a Stock Purchase Agreement dated
as of _________ __, 2002 and an Investor Rights Agreement, dated as of
April 5, 2000 as amended and modified from time to time, between the
issuer (the "Company") and certain investors, and the Company reserves
the right to refuse the transfer of such securities until such
conditions have been fulfilled with respect to such transfer. A copy of
such conditions shall be furnished by the Company to the holder hereof
upon written request and without charge."
4C. Legend Removal. If any shares of Restricted Stock become eligible for
sale pursuant to Rule 144(k), the Company shall, upon the written request of the
holder of such Restricted
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Securities, remove the legend set forth in Section 4B from the certificates for
such Restricted Securities.
Section 5. Representations and Warranties of the Company. As a material
inducement to the Purchasers to enter into this Agreement and purchase the
Purchased Equity, the Company hereby represents and warrants to each Purchaser
as of date hereof as follows:
5A. Organization, Corporate Power and Licenses. The Company is a
corporation duly organized, validly existing and in good standing under the laws
of Delaware and is qualified to do business in every jurisdiction in which the
failure to so qualify would reasonably be expected to have a material adverse
effect on the financial condition, operating results, assets, operations or
business prospects of the Company and its Subsidiaries taken as a whole. The
Company possesses all requisite corporate power and authority and all material
licenses, permits and authorizations necessary to own and operate its
properties, to carry on its businesses as now conducted and presently proposed
to be conducted and to carry out the transactions contemplated by this Agreement
(including, without limitation, the issuance of the Purchased Equity hereunder).
The copies of the Company's Fifth Charter and Bylaws which have been furnished
to the Purchasers reflect all amendments made thereto at any time prior to the
date of this Agreement and are correct and complete.
5B. Capital Stock and Related Matters.
(1) Immediately prior to the Closing, the authorized capital stock of
the Company shall consist of (a) 100,000,000.00 shares of Common Stock, of
which 2,361,326.16 shares shall be issued and outstanding; (b) 400,000.00
shares of Series A Preferred, of which 329,127.50 shares shall be issued
and outstanding, (c) 142,500.00 shares of Series B Preferred, of which
107,880.57 shares shall be issued and outstanding, (d) 7,500.00 shares of
Series C Preferred, of which 5,677.92 shares shall be issued and
outstanding, (e) 100,000 shares of Series D Preferred, none of which shall
be issued and outstanding, (f) 30,000 shares of Series E Preferred, none of
which shall be issued and outstanding and (g) 30,000 shares of Series E-1
Preferred, none of which shall be issued and outstanding. The attached
Capitalization Schedule sets forth the ownership of the Company immediately
prior to the Closing. As of the Closing, the Company shall not have
outstanding (or any commitments to issue) any stock or securities
convertible or exchangeable for any shares of its capital stock or
containing any profit participation features, nor shall it have outstanding
any rights or options to subscribe for or to purchase its capital stock or
any stock or securities convertible into or exchangeable for its capital
stock or any stock appreciation rights or phantom stock plans, except as
set forth on the attached Capitalization Schedule or as contemplated by
this Agreement or the Exchange Offer. As of the Closing, the Company shall
not be subject to any obligation (contingent or otherwise) to repurchase or
otherwise acquire or retire any shares of its capital stock or any
warrants, options or other rights to acquire its capital stock, except
pursuant to the Executive Stock Agreements and the Investor Rights
Agreement or as contemplated by this Agreement or the Exchange Offer. All
of the outstanding shares of the Company's capital stock are, and as of the
Closing shall be, validly issued, fully paid and nonassessable.
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(2) There are no statutory or, to the Company's actual knowledge,
contractual stockholders preemptive rights or rights of refusal with
respect to the issuance of the Purchased Equity hereunder or any other
capital stock or other securities of the Company, except as set forth in
the Investor Rights Agreement. Based upon the representations and
warranties of the Purchasers set forth herein, and to the Company's
knowledge, the Company has not violated any applicable federal or state
securities laws in connection with the offer, sale or issuance of any of
its capital stock or other securities, and the offer, sale and issuance of
the Purchased Equity hereunder do not require registration under the
Securities Act or any applicable state securities laws. To the Company's
actual knowledge, there are no agreements between the Company's
stockholders with respect to the voting or transfer of the Company's
capital stock or with respect to any other aspect of the Company's affairs,
except for the Investor Rights Agreement and Executive Stock Agreements.
The Company has not granted any registration rights other than under the
Investor Rights Agreement.
5C. Authorization; No Breach. The execution, delivery and performance of
this Agreement (including the issuance and delivery of the Purchased Equity
hereunder) have been duly and validly authorized by the Company's board of
directors. This Agreement constitutes a valid and binding obligation of the
Company, enforceable in accordance with its terms. The execution and delivery by
the Company of this Agreement, the offering, sale and issuance of the Purchased
Equity hereunder and the fulfillment of and compliance with the respective terms
hereof and thereof by the Company, do not and shall not (i) conflict with or
result in a breach of the terms, conditions or provisions of, (ii) constitute a
default under, (iii) result in the creation of any lien, security interest,
charge or encumbrance upon the Company's capital stock or assets pursuant to,
(iv) give any third party the right to modify, terminate or accelerate any
obligation under, (v) result in a violation of, or (vi) require any
authorization, consent, approval, exemption or other action by or notice or
declaration to, or filing with, any court or administrative or governmental body
or agency or other Person pursuant to, the Fifth Charter or Bylaws of the
Company, or any law, statute, rule or regulation to which the Company is
subject, or any agreement, instrument, order, judgment or decree to which the
Company is subject.
5D. Litigation, etc. There are no actions, suits, proceedings, orders,
investigations or claims pending or, to the Company's actual knowledge,
threatened against the Company or pending or threatened by the Company against
any third party, at law or in equity, or before or by any governmental
department, commission, board, bureau, agency or instrumentality (including any
actions, suits, proceedings or investigations with respect to the transactions
contemplated by this Agreement) or otherwise.
5E. Brokerage. There are no claims for brokerage commissions, finders' fees
or similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement binding upon the Company.
5F. Governmental Consent, etc. To the actual knowledge of the Company: (i)
no permit, consent, approval or authorization of, or declaration to or filing
with, any governmental authority is required in connection with the execution,
delivery and performance by the Company of this Agreement, or the consummation
by the Company of the Transactions and (ii) no permit, consent,
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approval or authorization of, or declaration to or filing with, any governmental
authority was required in connection with the formation of the Company, other
than filing with the Delaware Secretary of State.
5G. Investment Company. The Company is not an "investment company" as
defined under the Investment Company Act of 1940, as amended.
Section 6. Representations and Warranties of the Purchasers. As a material
inducement to the Company to enter into this Agreement and to sell the Purchased
Equity hereunder, each Purchaser represents and warrants, severally and not
jointly, to the Company as of the date hereof as follows:
6A. Investment Representations.
(1) Such Purchaser is acquiring the Restricted Stock purchased
hereunder for its own account with the present intention of holding such
securities for purposes of investment, has no intention of selling such
securities in a public distribution in violation of the federal securities
laws or any applicable state securities laws, was not organized or
reorganized for the purpose of purchasing the Restricted Stock purchased
hereunder, and conducts other business or holds other investments; provided
that nothing contained herein shall prevent such Purchaser and subsequent
holders of Restricted Stock from transferring such securities in compliance
with the provisions of Section 4 hereof and the Investor Rights Agreement.
(2) Such Purchaser is an "accredited investor" (as defined under
Regulation D under the Securities Act), is sophisticated in financial
matters and is able to evaluate the risks and benefits of the investment in
the Purchased Equity.
(3) Such Purchaser is able to bear the economic risk of its investment
in the Purchased Equity for an indefinite period of time because the
Purchased Equity has not been registered under the Securities Act and,
therefore, cannot be sold unless subsequently registered under the 1933 Act
or an exemption from such registration is available.
(4) Such Purchaser has had an opportunity to ask questions and receive
answers concerning the terms and conditions of the offering of the
Purchased Equity and has had full access to such other information
concerning the Company as it has requested.
(5) Such Purchaser is a resident of the state indicated in its address
as set forth on the Schedule of Purchasers attached hereto.
6B. No Breach. This Agreement constitutes the legal, valid and binding
obligation of such Purchaser, enforceable in accordance with its terms, and the
execution, delivery and performance of this Agreement by such Purchaser does not
and shall not conflict with, violate or cause a breach of any agreement,
contract or instrument to which such Purchaser is a party or any judgment, order
or decree to which such Purchaser is subject.
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6C. Organization and Limited Partnership Power. Such Purchaser is a limited
partnership duly organized, validly existing and in good standing under the laws
of the state of its formation. Such Purchaser possesses all requisite limited
partnership power and authority to carry out the transactions contemplated by
this Agreement.
6D. Brokerage. There are no claims for brokerage commissions, finders' fees
or similar compensation in connection with the transactions contemplated by this
Agreement based on any arrangement or agreement binding upon such Purchaser.
Section 7. Definitions.
7A. Definitions. For the purposes of this Agreement, the following terms
have the meanings set forth below:
"Common Stock" means the Company's Common Stock, par value $.001 per share.
"Executive Stock Agreements" means the Executive Stock Agreements entered
into by the Company from time to time with certain of its executives.
"Investor Rights Agreement" means the that certain agreement dated as of
April 5, 2000, as amended, by and among the Company and its stockholders.
"Person" means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Restricted Stock" means (i) the Purchased Equity issued hereunder, and
(ii) any preferred stock issued with respect to the Purchased Equity referred to
in clause (i) above by way of a stock dividend or stock split or in connection
with a combination of shares, recapitalization, merger, consolidation or other
reorganization. As to any particular shares of Restricted Stock, such shares
shall cease to be Restricted Stock when they have (a) been effectively
registered under the Securities Act and disposed of in accordance with the
registration statement covering them, (b) been distributed to the public through
a broker, dealer or market maker pursuant to Rule 144 (or any similar provision
then in force) under the Securities Act or become eligible for sale pursuant to
Rule 144(k) (or any similar provision then in force) under the Securities Act or
(c) been otherwise transferred and new certificates for them not bearing the
Securities Act legend set forth in Section 4B have been delivered by the
Company. Whenever any particular securities cease to be Restricted Stock, the
holder thereof shall be entitled to receive from the Company, without expense,
new shares of like tenor not bearing a Securities Act legend of the character
set forth in Section 4B.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
"Securities and Exchange Commission" means the U.S. Securities and Exchange
Commission and includes any governmental body or agency succeeding to the
functions thereof.
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"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar federal law then in force.
"Series A Preferred" means the Company's Series A Preferred Stock, par
value $.01 per share.
"Series D Preferred" means the Company's Series D Redeemable Preferred
Stock, par value $.01 per share.
"Series E Preferred" means the Company's Series E Preferred Stock, par
value $.01 per share.
"Series E-1 Preferred" means the Company's Series E-1 Preferred Stock, par
value $.01 per share.
"Subsidiary" means, with respect to any Person, any corporation, limited
liability company, partnership, association or other business entity of which
(i) if a corporation, a majority of the total voting power of shares of stock
entitled (without regard to the occurrence of any contingency) to vote in the
election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a majority
of the partnership or other similar ownership interest thereof is at the time
owned or controlled, directly or indirectly, by any Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof, a
Person or Persons shall be deemed to have a majority ownership interest in a
limited liability company, partnership, association or other business entity if
such Person or Persons shall be allocated a majority of limited liability
company, partnership, association or other business entity gains or losses or
shall be or control any managing director or general partner of such limited
liability company, partnership, association or other business entity.
Section 8. Right to Exchange Purchased Equity.
8A. Exchange of Purchased Equity. Concurrently with the consummation of the
transactions contemplated by the Exchange Offer, the Purchasers shall exchange
all, but not less than all, of the Purchased Equity for (i) shares of Series D
Preferred (the "Exchange Equity") and (ii) a proportionate amount of the Equity
Sponsor Warrants (as defined in the Exchange Offer). The numbers of shares of
Exchange Equity that the Purchasers shall receive in exchange for the Purchased
Equity shall be the number of shares of Exchange Equity that have an aggregate
liquidation value equal to the aggregate liquidation value of the Purchased
Equity plus all accumulated and unpaid dividends thereon.
8B. Additional Actions. The Company shall take all actions necessary
(including executing all necessary agreements and instruments and obtaining all
necessary third party and stockholder consents) in order to effect promptly any
exchange of securities requested by the Purchasers pursuant to this Section 8.
The Purchased Equity delivered by the Purchasers in any
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exchange pursuant to this Section 8 will be deemed to have cash value equal to
the aggregate purchase price paid by the Purchasers for such Purchased Equity
plus the aggregate amount of accumulated and unpaid dividends thereon through
the date of such exchange.
Section 9. Miscellaneous.
9A. Expenses. The Company shall pay to the Purchasers, and hold the
Purchasers harmless against liability for the payment of, (i) the reasonable
fees and expenses of its special counsel arising in connection with the
negotiation and execution of this Agreement and the consummation of the
transactions contemplated by this Agreement (excluding the transactions
contemplated by Section 8), which shall be payable at the Closing, (ii) the
reasonable fees and expenses of its special counsel arising in connection with
the consummation of the transactions contemplated by Section 8 of this
Agreement, which shall be payable upon consummation of such transactions, (iii)
the fees and expenses incurred with respect to any amendments or waivers
(whether or not the same become effective) under or in respect of this Agreement
or the agreements contemplated hereby (including any agreements under or in
respect of Section 8 of this Agreement) and (iv) the reasonable fees and
expenses incurred with respect to the enforcement of the rights granted under
this Agreement or the agreements contemplated hereby (including any agreements
under or in respect of Section 8 of this Agreement).
9B. Indemnification. The Company hereby covenants and agrees to indemnify
and hold harmless the Purchasers, their respective officers, directors,
stockholders, partners, affiliates, successors, assigns, agents and other
representatives, from and against any and all damages, losses, claims,
liabilities, deficiencies, costs and expenses (including, without limitation,
reasonable attorneys' fees), resulting from any material breach of any of the
representations, warranties or covenants of the Company under this Agreement.
9C. Survival of Representations and Warranties. All representations and
warranties contained herein or made in writing by any party in connection
herewith shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, regardless of any
investigation made by the Purchasers or on their behalf, through the first
anniversary of the Closing; provided, however, that the representations and
warranties contained in Section 5B, Section 5C and Section 5E hereof shall
survive the Closing for the applicable statute of limitations, giving effect to
any waiver, mitigation or extension thereof.
9D. Remedies. The Purchasers shall have all rights and remedies set forth
in this Agreement, the Investor Rights Agreement, the Fifth Charter and all
rights and remedies which the Purchasers have been granted at any time under any
other agreement or contract and all of the rights which the Purchasers have
under any law. The Purchasers shall be entitled to enforce such rights
specifically (without posting a bond or other security), to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights granted by law.
9E. Consent to Amendments. Except as otherwise expressly provided herein,
the provisions of this Agreement may be amended and the Company may take any
action herein
10
prohibited, or omit to perform any act herein required to be performed by it,
only if the Company has obtained the written consent of the Purchasers.
9F. Successors and Assigns. Except as otherwise expressly provided herein,
all covenants and agreements contained in this Agreement by or on behalf of any
of the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not. In
addition, and whether or not any express assignment has been made, the
provisions of this Agreement which are for the Purchasers' benefit as a
purchaser or holder of any class of the Company's preferred stock are also for
the benefit of, and enforceable by, any subsequent holder of such preferred
stock.
9G. Severability. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
9H. No Third Party Beneficiaries. Nothing herein expressed or implied is
intended or shall be construed to confer upon or give to any Person other than
the parties hereto and their respective permitted successors and assigns, any
rights or remedies under or by reason of this Agreement.
9I. Counterparts. This Agreement may be executed simultaneously in two or
more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together shall constitute one and the
same Agreement.
9J. Descriptive Headings; Interpretation. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a substantive
part of this Agreement. The use of the word "including" in this Agreement shall
be by way of example rather than by limitation.
9K. Governing Law. All issues and questions concerning the construction,
validity, enforcement and interpretation of this Agreement and the exhibits and
schedules hereto shall be governed by, and construed in accordance with, the
laws of the State of New York, without giving effect to any choice of law or
conflict of law rules or provisions (whether of the State of New York or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York. In furtherance of the foregoing,
the internal law of the State of New York shall control the interpretation and
construction of this Agreement (and all schedules and exhibits hereto), even
though under that jurisdiction's choice of law or conflict of law analysis, the
substantive law of some other jurisdiction would ordinarily apply.
9L. Notices. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given (i) when delivered personally to
the recipient, (ii) one business day after
11
being sent to the recipient by reputable overnight courier service (charges
prepaid), (iii) upon machine-generated acknowledgment of receipt after
transmittal by facsimile if so acknowledged to have been received before 5:00
p.m. on a business day at the location of receipt and otherwise on the next
following business day, provided that such notice, demand or other communication
is also deposited within 24 hours thereafter with a reputable overnight courier
service (charges prepaid) for delivery to the same Person, or (iv) 5 days after
being mailed to the recipient by certified or registered mail, return receipt
requested and postage prepaid. Such notices, demands and other communications
shall be sent to the Purchasers at the addresses and telecopier numbers
indicated on the Schedule of Purchasers attached hereto, and to the Company at
the following address and telecopier number:
Ziff ▇▇▇▇▇ Holdings Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Chief Executive Officer
with a copy to:
Ziff ▇▇▇▇▇ Holdings Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
or to such other address and telecopier number or to the attention of such other
person as the recipient party has specified by prior written notice to the
sending party.
9M. No Strict Construction. The parties hereto have participated jointly in
the negotiation and drafting of this Agreement. In the event an ambiguity or
question of intent or interpretation arises, this Agreement shall be construed
as if drafted jointly by the parties hereto, and no presumption or burden of
proof shall arise favoring or disfavoring any party by virtue of the authorship
of any of the provisions of this Agreement.
* * *
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date first written above.
ZIFF ▇▇▇▇▇ HOLDINGS INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Its: Chief Operating Officer and
Chief Financial Officer
▇▇▇▇▇▇ ▇▇▇▇▇ & PARTNERS III, L.P.
▇▇▇▇▇▇ ▇▇▇▇▇ & PARTNERS DUTCH III-A, L.P.
▇▇▇▇▇▇ ▇▇▇▇▇ & PARTNERS DUTCH III-B, L.P.
▇▇▇▇▇▇ ▇▇▇▇▇ & PARTNERS III-C, L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners Management III, L.P.
Its: General Partner
By: ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners Management III, L.L.C.
Its: General Partner
By: /s/ Avy ▇. ▇▇▇▇▇
-----------------------------------
Its: Member
EXHIBIT A
FIFTH AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION OF THE COMPANY
See attached.
SCHEDULE OF PURCHASERS
----------------------------------------------------------------------------------------
HOLDER NUMBER OF NUMBER OF PURCHASE
SHARES OF SHARES OF PRICE TO
SERIES B SERIES C BE PAID BY
PREFERRED PREFERRED HOLDER
----------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ & Partners III, L.P. 2,666.316 140.3324 $2,806,648.00
c/o ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ & Partners Dutch III-A, L.P. 80.28168 4.225352 $84,507.00
c/o ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ & Partners Dutch III-B, L.P. 80.28168 4.225352 $84,507.00
c/o ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ & Partners III-C, L.P. 23.12114 1.216902 $24,338.00
c/o ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
----------------------------------------------------------------------------------------
Total 2,850.00 150.00 $3,000,000.00
----------------------------------------------------------------------------------------