Exhibit 10.22
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AMENDED AND RESTATED
STOCKHOLDERS AGREEMENT
among
SYNAPSE GROUP, INC.,
GENERAL ATLANTIC PARTNERS 46, L.P.,
GENERAL ATLANTIC PARTNERS 49, L.P.,
GENERAL ATLANTIC PARTNERS 60, L.P.,
GAP COINVESTMENT PARTNERS, L.P.,
GAP COINVESTMENT PARTNERS II, L.P.
and
THE STOCKHOLDERS NAMED HEREIN
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Dated January 12, 2000
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TABLE OF CONTENTS
Page
1. Definitions..................................................................... 2
2. Restrictions on Transfer of Shares.............................................. 10
2.1 Limitation on Transfer.................................................. 10
2.2 Permitted Transfers..................................................... 10
2.3 Permitted Transfer Procedures........................................... 11
2.4 Transfers in Compliance with Law; Substitution of Transferee............ 11
3. Right of First Offer and Tag-Along Rights....................................... 12
3.1 Proposed Voluntary Transfers............................................ 12
3.1.1 Offering Notice......................................................... 12
3.1.2 Company Option.......................................................... 13
3.1.3 Stockholder Option; Exercise............................................ 13
3.1.4 Closing................................................................. 14
3.1.5 Sale to a Third Party Purchaser......................................... 15
3.1.6 Tag-Along Rights........................................................ 15
3.2 Proposed Voluntary Transfers by Loeb Stockholders....................... 17
3.2.1 Offering Notice......................................................... 17
3.2.2 ▇▇▇▇▇▇ Option........................................................... 17
3.2.3 Closing................................................................. 18
3.2.4 Sale to a Third Party Purchaser......................................... 18
3.3 Involuntary Transfers................................................... 18
3.3.1 Rights of First Offer upon Involuntary Transfer......................... 18
3.3.2 Fair Value.............................................................. 19
3.3.3 Closing................................................................. 20
3.3.4 General................................................................. 20
3.4 [Intentionally left blank].............................................. 21
3.5 Covenant................................................................ 21
4. Rights on Future Issuance of Shares............................................. 21
4.1 Offering Notice......................................................... 21
4.2 Exercise of Rights...................................................... 22
4.3 Closing................................................................. 22
4.4 Sale to Subject Purchaser............................................... 23
5. After-Acquired Securities; Agreement to be Bound................................ 23
5.1 After-Acquired Securities.............................................. 23
5.2 Agreement to be Bound.................................................. 23
6. Corporate Governance........................................................... 24
6.1 General................................................................ 24
6.2 Stockholder Actions.................................................... 24
6.3 Voting of Shares; Irrevocable Proxy.................................... 25
6.4 Election of Directors; Number and Composition.......................... 26
6.5 Removal and Replacement of Directors................................... 26
6.5.1 Removal of General Atlantic Directors.................................. 26
6.5.2 Replacement of Directors............................................... 26
6.6 Reimbursement of Expenses.............................................. 26
6.7 Confidentiality; Noncompete............................................ 27
6.7.1 Company Confidential Information....................................... 27
6.7.2 GAP Confidential Information........................................... 27
6.7.3 Noncompete............................................................. 28
6.7.4 Non-Solicitation of Employees.......................................... 28
6.8 Remedies............................................................... 29
7. Stock Certificate Legend....................................................... 29
8. Key Man Financing Insurance.................................................... 30
8.1 Insurance.............................................................. 30
8.2 Cooperation............................................................ 30
9. Miscellaneous.................................................................. 31
9.1 Notices................................................................ 31
9.2 Successors and Assigns................................................. 31
9.3 Amendment and Waiver................................................... 31
9.4 Authorization to Modify Restrictions................................... 32
9.5 Counterparts........................................................... 32
9.6 Specific Performance................................................... 32
9.7 Headings............................................................... 32
9.8 GOVERNING LAW.......................................................... 32
9.9 Severability........................................................... 32
9.10 Entire Agreement....................................................... 33
9.11 Term of Agreement...................................................... 33
9.12 Further Assurances..................................................... 33
9.13 Pronouns............................................................... 33
9.14 Stock Pledge Agreement................................................. 33
EXHIBITS Page
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A Restated Certificate of Incorporation
B By-laws
C-1 Form of Transfer Agreement (Previously issued shares)
C-2 Form of Transfer Agreement (Newly issued stock)
SCHEDULES
1 Other Investors
9.1 Addresses
1
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT, dated January 12, 2000
(this "Agreement"), among Synapse Group, Inc., a Delaware corporation (the
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"Company"), General Atlantic Partners 46, L.P., a Delaware limited partnership
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("GAP LP"), General Atlantic Partners 49, L.P., a Delaware limited partnership
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("GAP 49"), General Atlantic Partners 60, L.P., a Delaware limited partnership
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("GAP 60"), GAP Coinvestment Partners, L.P., a New York limited partnership
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("GAP Coinvestment"), GAP Coinvestment Partners II, L.P., a Delaware limited
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partnership ("GAP Coinvestment II"), ▇▇▇▇▇▇▇ ▇▇▇▇ ("Loeb"), ▇▇▇ ▇▇▇▇▇▇
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("▇▇▇▇▇▇"), the ▇▇▇ ▇. ▇▇▇▇▇▇ Irrevocable Credit Trust (the "▇▇▇▇▇▇ Trust") and
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the other stockholders listed on Schedule 1 hereto (the "Other Investors").
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WHEREAS, this Agreement is made in connection with the Stock and
Warrant Purchase Agreement, dated as of the date hereof (the "Purchase
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Agreement"), among the Company, GAP 60, GAP Coinvestment II and the other
parties named therein, pursuant to which the Company agreed to issue and sell to
GAP 60, GAP Coinvestment II and such other parties shares of Series B
Convertible Preferred Stock, par value $0.001 per share, of the Company (the
"Series B Preferred Stock") and warrants (the "Warrants") to purchase shares of
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voting common stock, no par value per share, of the Company (the "Voting
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Stock"), at an exercise price of $8.00 per share; and
WHEREAS, in order to induce each of GAP 60, GAP Coinvestment II and
the other parties to the Purchase Agreement to purchase its shares of Series B
Preferred Stock and its Warrants, the parties hereto hereby have agreed to amend
and restate in its entirety the Stockholders Agreement (the "Original
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Agreement"), dated as of March 9, 1998, among the Company, GAP LP, GAP 49, GAP
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Coinvestment, Loeb, Walker and the ▇▇▇▇▇▇ Trust, as amended by Amendment No. 1
thereto, dated as of September 9, 1998 (as amended, the "Original Agreement");
and
WHEREAS, the parties hereto wish to restrict the transfer of the
Shares (as hereinafter defined) and to provide for, among other things, first
offer rights, tag-along rights and rights on future issuances of shares,
corporate governance rights and obligations and certain other rights under
certain conditions.
NOW, THEREFORE, in consideration of the mutual promises and agreements
set forth herein, the adequacy of which are hereby acknowledged, the parties
hereto hereby amend and restate the Original Agreement and agree as follows:
2
1. Definitions. As used in this Agreement, the following terms shall
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have the meanings set forth below:
"Additional Stockholders" means the Other Investors and any Permitted
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Transferee thereof to which Shares are transferred in accordance with Section
2.2 hereof, and the term "Additional Stockholder" shall mean any such Person.
"Affiliate" shall mean a Person who is an "affiliate" as defined in
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Rule 12b-2 of the General Rules and Regulations under the Exchange Act. GAP LP,
GAP 49, GAP 60, GAP Coinvestment and GAP Coinvestment II shall be deemed to be
Affiliates of one another.
"Agreement" has the meaning set forth in the recitals to this
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Agreement.
"Board of Directors" means the Board of Directors of the Company.
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"Business Day" means any day other than a Saturday, Sunday or other
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day on which commercial banks in the State of New York are authorized or
required by law or executive order to close.
"Cause" has the meaning set forth in Section 6.7.3 of this
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Agreement.
"Charter Documents" means the Restated Certificate of Incorporation
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and the By-laws of the Company as in effect on the date hereof, copies of which
are attached hereto as Exhibits A and B, respectively.
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"Commission" means the Securities and Exchange Commission or any
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similar agency then having jurisdiction to enforce the Securities Act.
"Common Stock" means the Voting Stock and the Non-Voting Stock, or any
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other capital stock of the Company into which such stock is reclassified or
reconstituted.
"Common Stock Equivalents" means any security or obligation which is
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by its terms convertible into shares of Common Stock, including, without
limitation, any option, warrant or other subscription or purchase right with
respect to Common Stock.
"Company" has the meaning set forth in the recitals to this
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Agreement.
3
"Company Option" has the meaning set forth in Section 3.1.2 of
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this Agreement.
"Company Option Period" has the meaning set forth in Section
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3.1.2 of this Agreement.
"Company Confidential Information" has the meaning set forth in
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Section 6.7.1 of this Agreement.
"Contract Date" has the respective meanings set forth in Sections
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3.1.5 and 3.2.4 of this Agreement.
"Credit Agreement" has the meaning set forth in Section 8.1 of
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this Agreement.
"Excess New Securities" has the meaning set forth in Section
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4.2(a) of this Agreement.
"Excess Offered Securities" has the meaning set forth in Section
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3.1.3(a) of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
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and the rules and regulations of the Commission thereunder.
"Excluded Transaction" means the issuance and sale by the Company of
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the Investor Warrants and the ▇▇▇▇▇▇ Warrants (and the issuance of Common Stock
upon the exercise of the Investor Warrants and the ▇▇▇▇▇▇ Warrants).
"Fair Value" has the respective meanings set forth in Sections
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3.3.2 and 3.4.2 of this Agreement.
"Family Members" has the meaning set forth in Section 2.2 of this
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Agreement.
"GAP Coinvestment" has the meaning set forth in the recitals to
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this Agreement.
"GAP Coinvestment II" has the meaning set forth in the recitals
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to this Agreement.
4
"GAP Confidential Information" has the meaning set forth in
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Section 6.7.2 of this Agreement.
"GAP LLC" means General Atlantic Partners, LLC, a Delaware limited
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liability company and the general partner of GAP LP, GAP 49 and GAP 60, and any
successor to such entity.
"GAP LP" has the meaning set forth in the recitals to this
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Agreement.
"GAP 49" has the meaning set forth in the recitals to this
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Agreement.
"GAP 60" has the meaning set forth in the recitals to this
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Agreement.
"General Atlantic Director" has the meaning set forth in Section
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6.4 of this Agreement.
"General Atlantic Stockholders" means GAP LP, GAP 49, GAP 60, GAP
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Coinvestment, GAP Coinvestment II and any Permitted Transferee of either of them
to which Shares are transferred in accordance with Section 2.2, and the term
"General Atlantic Stockholder" shall mean any such Person.
"Governmental Authority" means the government of any nation, state,
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city, locality or other political subdivision thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Initial Public Offering" means an underwritten initial public
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offering of equity securities of the Company pursuant to an effective
Registration Statement filed under the Securities Act.
"Initiating Stockholder" has the meaning set forth in Section
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3.1.6 of this Agreement.
"Insured" has the meaning set forth in Section 8.1 of this
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Agreement.
"Investor Warrants" means those warrants to purchase Common Stock
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issued by the Company pursuant to that Stock and Warrant Purchase Agreement
dated as of January 12, 2000 between the Company and the Purchasers named
therein.
5
"Involuntary Transfer" means any transfer, proceeding or action by or
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in which a Stockholder shall be deprived or divested of any right, title or
interest in or to any of the Shares, including, without limitation, any seizure
under levy of attachment or execution, any transfer in connection with
bankruptcy (whether pursuant to the filing of a voluntary or an involuntary
petition under the United States Bankruptcy Code of 1978, or any modifications
or revisions thereto) or other court proceeding to a debtor in possession,
trustee in bankruptcy or receiver or other officer or agency, any transfer to a
state or to a public officer or agency pursuant to any statute pertaining to
escheat or abandoned property and any transfer pursuant to a divorce or
separation agreement or a final decree of a court in a divorce action, but
excluding any transfer upon the death of a Stockholder.
"Involuntary Transferee" has the meaning set forth in Section
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3.3.1 of this Agreement.
"IPO Effectiveness Date" means the date upon which the Company
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closes its Initial Public Offering.
"Key Man Financing Insurance" has the meaning set forth in
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Section 8.1 of this Agreement.
"Lenders" has the meaning set forth in Section 8.1 of this
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Agreement.
"Liens" has the meaning set forth in Section 3.1.4 of this
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Agreement.
"Loeb" has the meaning set forth in the recitals to this
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Agreement.
"Loeb Option" has the meaning set forth in Section 3.1.1.A of
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this Agreement.
"Loeb Option Period" has the meaning set forth in 3.1.1.A of this
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Agreement.
"Loeb Stockholder" means Loeb and any Permitted Transferee of Loeb to
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which Shares are transferred in accordance with Section 2.2.
"Major Stockholders" means Walker, Loeb, the ▇▇▇▇▇▇ Trust and any
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Permitted Transferee of any of them to which Shares are transferred in
accordance with Section 2.2, and the term "Major Stockholder" shall mean any
such Person.
6
"Minor Stockholders" means ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
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▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇ and ▇.▇. ▇▇▇▇.
"Minor Stockholders Agreement" means the Shareholder Agreement, dated
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December 1, 1993, among the Company, Walker, Loeb, and the other parties listed
on the signature page thereto.
"New Issuance Notice" has the meaning set forth in Section 4.1 of
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this Agreement.
"New Securities" has the meaning set forth in Section 4.1 of this
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Agreement.
"Noncompete Period" has the meaning set forth in Section 6.7.3 of
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this Agreement.
"Non-Voting Stock" means the non-voting common stock of the
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Company, no par value per share.
"Offer Price" has the respective meanings set forth in Sections
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3.1.1 and 3.2.1 of this Agreement.
"Offered Securities" has the respective meanings set forth in
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Sections 3.1.1 and 3.2.1 of this Agreement.
"Offering Notice" has the respective meanings set forth in
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Sections 3.1.1 and 3.2.1 of this Agreement.
"Option Period" has the meaning set forth in Section 3.1.3(a) of
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this Agreement.
"Original Agreement" has the meaning set forth in the recitals to
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this Agreement.
"Other Investors" has the meaning set forth in the recitals to
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this Agreement.
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"Other Stockholder" means (a) any transferee of a ▇▇▇▇▇▇ Stockholder,
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a General Atlantic Stockholder or an Additional Stockholder (in each case other
than a Permitted Transferee thereof) who has agreed to be bound by the terms and
conditions of this Agreement in accordance with Section 2.4 and to whom Shares
have been transferred in accordance with Section 3.1.5 and (b) any Person other
than a Major Stockholder, a General Atlantic Stockholder, or an Additional
Stockholder who has agreed to be bound by the terms and conditions of this
Agreement in accordance with Section 5.2.
"Permitted Transferee" has the meaning set forth in Section 2.2
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of this Agreement.
"Person" means any individual, corporation, partnership, limited
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liability company, firm, joint venture, association, joint stock company, trust,
unincorporated organization, Governmental Authority or other entity.
"Preferred Stock" means the Series A Preferred Stock and the
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Series B Preferred Stock.
"PriceLine" has the meaning set forth in Section 2.2 of this
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Agreement.
"Proportionate Percentage" has the meaning set forth in Section
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4.2(a) of this Agreement.
"Proposed Price" has the meaning set forth in Section 4.1 of this
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Agreement.
"Purchase Agreement" has the meaning set forth in the recitals to
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this Agreement.
"Registration Rights Agreement" means the Amended and Restated
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Registration Rights Agreement, dated the date hereof, among the Company, GAP LP,
GAP Coinvestment and the other parties listed on the signature page thereto.
"Registration Statement" means a registration statement filed
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pursuant to the Securities Act.
"Rightholder" has the respective meanings set forth in Sections
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3.1.3, 3.3.1, 3.4.1 and 4.2(a) of this Agreement.
8
"Securities Act" means the Securities Act of 1933, as amended, and the
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rules and regulations of the Commission thereunder.
"Series A Preferred Stock" means the Series A Convertible
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Preferred Stock, par value $0.001 per share, of the Company.
"Series B Preferred Stock" has the meaning set forth in the
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recitals to this Agreement.
"Shares" means, with respect to each Stockholder, all shares, whether
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now owned or hereafter acquired, of Common Stock, Preferred Stock and Warrants
owned thereby; provided, however, for the purposes of any computation of the
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number of Shares either outstanding or owned or held by any Stockholder or
otherwise to be determined pursuant to Sections 2, 3 and 4.2, the shares of
Common Stock issuable upon conversion, exercise or exchange of all Common Stock
Equivalents shall be deemed outstanding whether or not such conversion, exercise
or exchange has actually been effected.
"Stockholders" means (a) the Major Stockholders, the Additional
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Stockholders and the General Atlantic Stockholders and any transferee thereof
who has agreed to be bound by the terms and conditions of this Agreement in
accordance with Section 2.4 and (b) any Person who has agreed to be bound by the
terms and conditions of this Agreement in accordance with Section 5.2(a), and
the term "Stockholder" shall mean any such Person.
"Stockholders Meeting" has the meaning set forth in Section 6.1
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of this Agreement.
"Subject Purchaser" has the meaning set forth in Section 4.1 of
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this Agreement.
"Subsidiaries" means, as of the relevant date of determination, with
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respect to any Person, a corporation or other Person of which 50% or more of the
voting power of the outstanding voting equity securities or 50% or more of the
outstanding economic equity interest is held, directly or indirectly, by such
Person. Unless otherwise qualified, or the context otherwise requires, all
references to a "Subsidiary" or to "Subsidiaries" in this Agreement shall refer
to a Subsidiary or Subsidiaries of the Company.
"Tag-Along Rightholder" has the meaning set forth in Section
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3.1.6(a) of this Agreement.
9
"Third Party Purchaser" has the respective meanings set forth in
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Sections 3.1.1, 3.1.6 and 3.2.1 of this Agreement.
"transfer" has the meaning set forth in Section 2.1 of this
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Agreement.
"Transferred Shares" has the meaning set forth in Section 3.3.1
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of this Agreement.
"Transferring Stockholder" has the respective meanings set forth
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in Section 3.1.1 and 3.2.1 of this Agreement.
"Voting Stock" has the meaning set forth in the recitals to this
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Agreement.
"▇▇▇▇▇▇" has the meaning set forth in the recitals to this
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Agreement.
"▇▇▇▇▇▇ Option" has the meaning set forth in Section 3.2.2 of
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this Agreement.
"▇▇▇▇▇▇ Option Period" has the meaning set forth in Section 3.2.2
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of this Agreement.
"▇▇▇▇▇▇ Stockholder" means ▇▇▇▇▇▇, the ▇▇▇▇▇▇ Trust and any Permitted
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Transferee of either of them to which Shares are transferred in accordance with
Section 2.2.
"▇▇▇▇▇▇ Trust" has the meaning set forth in the recitals to this
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Agreement.
"▇▇▇▇▇▇ Warrants" means those warrants to purchase Common Stock to be
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issued by the Company to ▇▇▇▇▇▇ (or any assignee) pursuant to that Credit
Agreement dated as of January 12, 2000 between the Company and ▇▇▇▇▇▇.
"Warrants" has the meaning set forth in the recitals to this
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Agreement.
"Written Consent" has the meaning set forth in Section 6.1 of
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this Agreement.
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2. Restrictions on Transfer of Shares.
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2.1 Limitation on Transfer. No Stockholder shall sell, give,
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assign, hypothecate, pledge, encumber, grant a security interest in or otherwise
dispose of (whether by operation of law or otherwise) (each a "transfer") any
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Shares or any right, title or interest therein or thereto, except in accordance
with the provisions of this Agreement, and in the event of such transfer, any
transferee obtaining any record or beneficial interest or right to vote such
Shares hereunder shall agree to be bound by this Agreement and shall comply with
Section 2.4. Any attempt to transfer any Shares or any rights thereunder in
violation of the preceding sentence shall be null and void ab initio and the
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Company shall not register any such transfer.
2.2 Permitted Transfers. Notwithstanding anything to the
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contrary contained in this Agreement, subject to Sections 2.3 and 2.4, (a) any
▇▇▇▇▇▇ Stockholder may transfer all or a portion of his or its Shares (i) to or
among a member of ▇▇▇▇▇▇'▇ immediate family, which shall include his spouse,
siblings, children or grandchildren ("Family Members"), (ii) to or among any
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trust, corporation, partnership or limited liability company, all of the
beneficial interests in which shall be held, directly or indirectly, by ▇▇▇▇▇▇
and/or one or more Family Members of ▇▇▇▇▇▇ or which is an Affiliate of ▇▇▇▇▇▇;
provided, however, that during the period that any such trust, corporation,
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partnership or limited liability company holds any right, title or interest in
any Shares, no Person other than a ▇▇▇▇▇▇ Stockholder or one or more Family
Members of a ▇▇▇▇▇▇ Stockholder may be or become beneficiaries, stockholders,
limited or general partners or members thereof, (iii) pursuant to an agreement
substantially similar to the Subscription and Exchange Agreement, dated as of
February 12, 1998, among PriceLine LLC ("PriceLine"), ▇▇▇▇▇▇ and GAP
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Coinvestment whereby units of PriceLine are convertible, under certain
circumstances, by GAP Coinvestment into shares of Common Stock and (iv) to Loeb
or any Permitted Transferee of Loeb that is described in clauses (b)(i) and
(b)(ii) of this Section 2.2; provided that no such transfer of Shares to Loeb or
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any such Permitted Transferee of Loeb shall be made with the intent to adversely
affect any rights of the General Atlantic Stockholders under this Agreement, the
Purchase Agreement or the Registration Rights Agreement; (b) any Loeb
Stockholder may transfer all or a portion of his or its Shares (i) to or among
one or more Family Members of Loeb, (ii) to or among any trust, corporation,
partnership or limited liability company, all of the beneficial interests in
which shall be held, directly or indirectly, by Loeb and/or one or more Family
Members of Loeb or which is an Affiliate of Loeb; provided, however, that during
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the period that any such trust, corporation, partnership or limited liability
company holds any right, title or interest in any Shares, no Person other than a
Loeb Stockholder or one or more Family Members of a Loeb Stockholder may be or
become beneficiaries, stockholders, limited or general partners or members
thereof, (iii) to any ▇▇▇▇▇▇ Stockholder and (iv) subject to Sections 3.1.6, 3.2
and 3.3 herein, to or among any Person, (c) each of GAP LP, GAP 49, GAP 60, GAP
11
Coinvestment and GAP Coinvestment II may transfer all or a portion of its Shares
to (i) any of its Affiliates and (ii) if the IPO Effectiveness Date shall not
have occurred by March 9, 2003, any of its limited partners and (d) each of the
Other Investors may transfer all or a portion of its, his or her Shares (as the
case may be) to (i) in the event such Other Investor is not an individual, to an
Affiliate thereof, and (ii) in the event such Other Investor is an individual,
to a Family Member or a trust, corporation, partnership or other entity, the
sole owner(s) of which is/are such Other Investor or such Other Investor's
Family Members (the Persons referred to in the preceding clauses (a), (b), (c)
and (d) are each referred to hereinafter as a "Permitted Transferee"). A
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Permitted Transferee of Shares pursuant to this Section 2.2 may transfer its
Shares pursuant to this Section 2.2 only to the transferor Stockholder or to a
Person that is a Permitted Transferee of such transferor Stockholder.
2.3 Permitted Transfer Procedures. If any Stockholder wishes to
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transfer Shares to a Permitted Transferee under Section 2.2, such Stockholder
shall give notice to the Company of its intention to make any transfer permitted
under Section 2.2 not less than ten (10) days prior to effecting such transfer,
which notice shall state the name and address of each Permitted Transferee to
whom such transfer is proposed and the number of Shares proposed to be
transferred to such Permitted Transferee.
2.4 Transfers in Compliance with Law; Substitution of
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Transferee. Notwithstanding any other provision of this Agreement, no transfer
may be made pursuant to this Section 2 or Section 3 unless (a) the transferee
has agreed in writing to be bound by the terms and conditions of this Agreement
pursuant to an instrument substantially in the form attached hereto as Exhibit
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C-1, (b) the transfer complies in all respects with the applicable provisions of
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this Agreement and (c) the transfer complies in all respects with applicable
federal and state securities laws, including, without limitation, the Securities
Act. If requested by the Company in its reasonable judgment, an opinion of
counsel to such transferring Stockholder, in form and substance reasonably
satisfactory to the Company, shall be supplied to the Company at such
transferring Stockholder's expense, to the effect that such transfer complies
with the applicable federal and state securities laws. Upon becoming a party to
this Agreement, (i) the Permitted Transferee of a ▇▇▇▇▇▇ Stockholder shall be
substituted for, and shall enjoy the same rights and be subject to the same
obligations as, the transferring ▇▇▇▇▇▇ Stockholder hereunder with respect to
the Shares transferred to such Permitted Transferee, (ii) the Permitted
Transferee of a General Atlantic Stockholder shall be substituted for, and shall
enjoy the same rights and be subject to the same obligations as, a General
Atlantic Stockholder hereunder with respect to the Shares transferred to such
Permitted Transferee, (iii) the Permitted Transferee of a Loeb Stockholder shall
be substituted for, and shall enjoy the same rights and be subject to the same
obligations as, a Loeb Stockholder hereunder with respect to the Shares
transferred to such Permitted Transferee, (iv) the Permitted Transferee of an
Additional Stockholder shall
12
be substituted for, and shall enjoy the same rights and be bound by the same
obligations as an Additional Stockholder hereunder with respect to shares
transferred to such Permitted Transferee, (v) an Other Stockholder shall be
subject to the same obligations as, but none of the rights of, the transferring
▇▇▇▇▇▇ Stockholder, General Atlantic Stockholder, or Additional Stockholder, as
the case may be, and (vi) the transferee of an Other Stockholder shall be
substituted for, and shall be subject to the same obligations as, the
transferring Other Stockholder hereunder with respect to the Shares transferred
to such transferee.
3. Right of First Offer and Tag-Along Rights.
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3.1 Proposed Voluntary Transfers by ▇▇▇▇▇▇ Stockholders,
General Atlantic Stockholders or Additional Stockholders.
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3.1 Offering Notice. Subject to Section 2, if any ▇▇▇▇▇▇
---------------
Stockholder, General Atlantic Stockholder or Additional Stockholder (for
purposes of this Section 3.1.1, a "Transferring Stockholder") wishes to transfer
------------------------
all or any portion of its or his Shares to any Person (other than a Permitted
Transferee) (for purposes of this Section 3.1.1, a "Third Party Purchaser"),
---------------------
such Transferring Stockholder shall offer such Shares first to the Company by
sending written notice (for purposes of this Section 3.1.1, the "Offering
--------
Notice") to the Company, with a copy to Loeb, Walker, the General Atlantic
------
Stockholders and the Additional Stockholders who, in each case, is not a
Transferring Stockholder, which shall state (a) the number of Shares proposed to
be transferred (for purposes of this Section 3.1.1, the "Offered Securities")
------------------
and (b) the proposed purchase price per Share which the Transferring Stockholder
is willing to accept (for purposes of this Section 3.1.1, the "Offer Price").
-----------
Upon delivery of the Offering Notice, such offer shall be irrevocable unless and
until the rights of first offer provided for herein shall have been waived or
shall have expired.
3.1.1.A Loeb Option. If the Transferring Stockholder is a ▇▇▇▇▇▇
-----------
Stockholder, then for a period of fifteen (15) days after the giving of the
Offering Notice pursuant to Section 3.1.1 (the "Loeb Option Period"), Loeb shall
------------------
have the right (the "Loeb Option") to purchase any or all of the Offered
-----------
Securities at a purchase price equal to the Offer Price and upon the terms and
conditions set forth in the Offering Notice. The right of Loeb to purchase any
or all of the Offered Securities under this Section 3.1.1.A shall be exercisable
by delivering written notice of the exercise thereof, prior to the expiration of
the 15-day period referred to above, to the Transferring Stockholder, with a
copy to the Company, ▇▇▇▇▇▇, the General Atlantic Stockholders and the
Additional Stockholders (who, in each case, is not a Transferring Stockholder),
which notice shall state the number of Offered Securities proposed to be
purchased by Loeb. The failure of Loeb to respond within such 15-day period
shall be deemed to be a waiver of Loeb's rights under this Section 3.1.1.▇.
▇▇▇▇
13
may waive his rights under this Section 3.1.1.A prior to the expiration of the
15-day period by giving written notice to the Transferring Stockholder, with a
copy to the Company, ▇▇▇▇▇▇, the General Atlantic Stockholders and the
Additional Stockholders.
3.1.2 Company Option. For a period of fifteen (15) days (a)
--------------
after the giving of the Offering Notice pursuant to Section 3.1.1 if the
Transferring Stockholder is not a ▇▇▇▇▇▇ Stockholder or (b) if Loeb does not
elect to purchase all of the Offered Securities pursuant to Section 3.1.1.A,
after the earlier to occur of (i) the expiration of the Loeb Option Period or
(ii) the date upon which the Transferring Stockholder shall have received
written notice from Loeb of his exercise of the Loeb Option or his waiver
thereof (the "Company Option Period"), the Company shall have the right (the
---------------------
"Company Option") to purchase any or all of the remaining Offered Securities or
---------------
all of the Offered Securities, as the case may be, at a purchase price equal to
the Offer Price and upon the terms and conditions set forth in the Offering
Notice. The right of the Company to purchase any or all of the Offered
Securities under this Section 3.1.2 shall be exercisable by delivering written
notice of the exercise thereof, prior to the expiration of the 15-day period
referred to above, to the Transferring Stockholder, with a copy to Loeb, Walker,
the General Atlantic Stockholders and the Additional Stockholders (who, in each
case, is not a Transferring Stockholder), which notice shall state the number of
Offered Securities proposed to be purchased by the Company. The failure of the
Company to respond within such 15-day period shall be deemed to be a waiver of
the Company's rights under this Section 3.1.2. The Company may waive its rights
under this Section 3.1.2 prior to the expiration of the 15-day period by giving
written notice to the Transferring Stockholder, with a copy to Walker, Loeb, the
General Atlantic Stockholders and the Additional Stockholders.
3.1.3 Stockholder Option; Exercise.
----------------------------
(a) If the Company does not elect to purchase all of the Offered
Securities which it has the right to purchase pursuant to Section 3.1.2, then
for a period of fifteen (15) days after the earlier to occur of (i) the
expiration of the Company Option Period pursuant to Section 3.1.2 or (ii) the
date upon which the Transferring Stockholder shall have received written notice
from the Company of its exercise of the Company Option pursuant to Section 3.1.2
or its waiver thereof (for purposes of this Section 3.1.3, the "Option Period"),
-------------
each of ▇▇▇▇▇▇, ▇▇▇▇ (if the Transferring Stockholder is not a ▇▇▇▇▇▇
Stockholder), the General Atlantic Stockholders and the Additional Stockholders
(who, in each case, is not a Transferring Stockholder) (each, for the purposes
of this Section 3.1.3(a), a "Rightholder") shall have the right to purchase all,
-----------
but not less than all, of the remaining Offered Securities at a purchase price
at least equal to the Offer Price and upon the terms and conditions set forth in
the Offering Notice. Unless otherwise agreed among all of the Rightholders,
each such
14
Rightholder shall have the right to purchase that percentage of the remaining
Offered Securities determined by dividing (i) the total number of Shares then
owned by such Rightholder by (ii) the total number of Shares then owned by all
such Rightholders. If any Rightholder does not fully subscribe for the number
or amount of Offered Securities it or he is entitled to purchase, then each
other participating Rightholder shall have the right to purchase that percentage
of the Offered Securities not so subscribed for (for purposes of this Section
3.1.3, the "Excess Offered Securities") determined by dividing (x) the total
-------------------------
number of Shares then owned by such fully participating Rightholder by (y) the
total number of Shares then owned by all fully participating Rightholders who
elected to purchase Offered Securities. The procedure described in the
preceding sentence shall be repeated until there are no remaining Excess Offered
Securities or until no Rightholder wishes to purchase any additional Excess
Offered Securities. If Loeb, the Company and/or the Rightholders do not
purchase all, but not less than all, of the Offered Securities pursuant to
Section 3.1.1.A, Section 3.1.2 and/or Section 3.1.3, respectively, the
Transferring Stockholder may, subject to Section 3.1.6, sell the Offered
Securities to a Third Party Purchaser in accordance with Section 3.1.5.
(b) The right of each Rightholder to purchase the remaining Offered
Securities under subsection (a) above shall be exercisable by delivering written
notice of the exercise thereof, prior to the expiration of the 15-day period
referred to in subsection (a) above, to the Transferring Stockholder with a copy
to the Company and the other Rightholders. Each such notice shall state (i) the
number of Shares held by such Rightholder and (ii) the number of Shares that
such Rightholder is willing to purchase pursuant to this Section 3.1.3. The
failure of a Rightholder to respond within such 15-day period to the
Transferring Stockholder shall be deemed to be a waiver of such Rightholder's
rights under this Section 3.1.3, provided that each Rightholder may waive its
--------
rights under this Section 3.1.3 prior to the expiration of such 15-day period by
giving written notice to the Transferring Stockholder, with a copy to the
Company.
3.1.4 Closing. The closing of the purchases of Offered
-------
Securities subscribed for by Loeb under Section 3.1.1.A, by the Company under
Section 3.1.2 and/or the Rightholders under Section 3.1.3 shall be held at the
executive office of the Company at 10:00 a.m., local time, on the 30th day after
(a) the giving by Loeb of the notice contemplated by Section 3.1.1.A, if Loeb
has proposed to purchase all of the Offered Securities, (b) the giving by the
Company of the notice contemplated by Section 3.1.2, if the Company has proposed
to purchase all of the remaining Offered Securities or (c) the earlier of (i)
the giving by the last Rightholder of the notice contemplated by Section
3.1.3(b) and (ii) the expiration of the 15-day period referred to in Section
3.1.3(b), or at such other time and place as the parties to the transaction may
agree. At such closing, the Transferring Stockholder shall deliver certificates
representing the Offered Securities, duly endorsed for transfer and
15
accompanied by all requisite transfer taxes, if any, and such Offered Securities
shall be free and clear of any liens, claims, options, charges, encumbrances or
rights ("Liens") (other than those arising hereunder and those attributable to
-----
actions by the purchasers) and the Transferring Stockholder shall so represent
and warrant, and shall further represent and warrant that it is the sole
beneficial and record owner of such Offered Securities. Loeb, the Company or
each Rightholder, as the case may be, purchasing Offered Securities shall
deliver at the closing payment of the purchase price in full in immediately
available funds for the Offered Securities purchased by it or him. At such
closing, all of the parties to the transaction shall execute such additional
documents as are otherwise necessary or appropriate.
3.1.5 Sale to a Third Party Purchaser. Unless Loeb, the
-------------------------------
Company and/or the Rightholders elect to purchase all, but not less than all, of
the Offered Securities under Sections 3.1.1.A, 3.1.2 and 3.1.3, respectively,
the Transferring Stockholder may, subject to Section 3.1.6, sell the Offered
Securities to a Third Party Purchaser on terms and conditions no less favorable
to the Transferring Stockholder than those set forth in the Offering Notice and
at a purchase price per share no less than the Offer Price; provided, however,
-------- -------
that such sale is bona fide and made pursuant to a contract entered into within
ninety (90) days of the earlier to occur of (a) the waiver by Loeb, the Company
and/or the Rightholders of their options to purchase the Offered Securities and
(b) the expiration of the Option Period (for purposes of this Section 3.1.5, the
earlier of such dates being referred to herein as the "Contract Date"). If such
-------------
sale is not consummated within ninety (90) days of the Contract Date for any
reason, then the restrictions provided for herein shall again become effective,
and no transfer of such Offered Securities may be made thereafter by the
Transferring Stockholder without again offering the same to the Company, the
General Atlantic Stockholders, the Additional Stockholders, ▇▇▇▇▇▇ and ▇▇▇▇ in
accordance with this Section 3.1.
3.1.6 Tag-Along Rights.
----------------
(a) If any Major Stockholder (the "Initiating Stockholder") is
----------------------
transferring Offered Securities to any Person (other than a Permitted
Transferee) (for purposes of this Section 3.1.6, a "Third Party Purchaser"),
---------------------
then each of the General Atlantic Stockholders, each of the Additional
Stockholders and each of the Major Stockholders (who is not the Initiating
Stockholder) (each, a "Tag-Along Rightholder") shall have the right to sell to
---------------------
such Third Party Purchaser upon the terms and conditions set forth in the
Offering Notice, up to that number of Shares held by such Tag-Along Rightholder
equal to that percentage of the Offered Securities determined by dividing (i)
the total number of Shares then owned by such Tag-Along Rightholder by (ii) the
total number of Shares then owned by all such Tag-Along Rightholders exercising
their rights pursuant to this Section 3.1.6 plus the total
----
16
number of Shares then owned by the Initiating Stockholder; provided that
--------
notwithstanding anything to the contrary set forth in the Agreement, for
purposes of this Section 3.1.6, a Permitted Transferee of Loeb shall mean only
those Persons described in clauses (b)(i), (b)(ii) and (b)(iii) of Section 2.2
herein and this Section 3.1.6 shall apply to transfers by any Loeb Stockholder
to any Person other than those Persons described in clauses (b)(i), (b)(ii) and
(b)(iii) of Section 2.2 herein. Subject to Section 3.1.6(b), the Transferring
Stockholder and the Tag-Along Rightholder(s), together, shall effect the sale of
the Offered Securities and such Tag-Along Rightholder(s) shall sell up to the
number of Offered Securities permitted to be sold pursuant to this Section
3.1.6(a), and the number of Offered Securities to be sold to such Third Party
Purchaser by the Initiating Stockholder shall be reduced accordingly.
(b) In order to exercise its right to sell Shares to a
Third Party Purchaser pursuant to this Section 3.1.6, a Tag-Along Rightholder
must agree to make substantially the same representations, warranties, covenants
and indemnities and other similar agreements as the Initiating Stockholder
agrees to make in connection with the proposed sale by it of Offered Securities
to a Third Party Purchaser; provided, however, that (i) the General Atlantic
-------- -------
Stockholders and the Additional Stockholders shall not be required to make any
representations and warranties concerning the business of the Company, (ii) any
representations and warranties made by the Tag-Along Rightholders shall be
several and not joint and (iii) any liability for indemnities given by a Tag-
Along Rightholder shall be capped at the amount received by such Tag-Along
Rightholder for its or his Shares. The Initiating Stockholder shall give notice
to each Tag-Along Rightholder of each proposed sale by it of Offered Securities
which gives rise to the rights of the Tag-Along Rightholders set forth in this
Section 3.1.6 at least thirty (30) days prior to the proposed consummation of
such sale, setting forth the name of the Initiating Stockholder, the number of
Offered Securities, the name and address of the proposed Third Party Purchaser,
the proposed amount and form of consideration and terms and conditions of
payment offered by such Third Party Purchaser, the percent of Shares that such
Tag-Along Rightholder may sell to such Third Party Purchaser (determined in
accordance with Section 3.1.6(a)) and a representation that such Third Party
Purchaser has been informed of the "tag-along" rights provided for in this
Section 3.1.6 and has agreed to purchase Shares in accordance with the terms
hereof. The tag-along rights provided by this Section 3.1.6 must be exercised by
such Tag-Along Rightholder wishing to sell its Shares within fifteen (15) days
following receipt of the notice required by the preceding sentence, by delivery
of a written notice to such Transferring Stockholder indicating such Tag-Along
Rightholder's wish to exercise its rights and specifying the number of Shares
(up to the maximum number of Shares owned by such Tag-Along Rightholder
permitted to be sold to such Third Party Purchaser) it wishes to sell, provided
--------
that such Tag-Along Rightholder may waive its rights under this Section 3.1.6
prior to the expiration of such 15-day period by giving written notice to the
Initiating Stockholder, with a copy to the Company. The failure of a Tag-
17
Along Rightholder to respond within such 15-day period shall be deemed to be a
waiver of such Tag-Along Rightholder's rights under this Section 3.1.6. If such
Third Party Purchaser fails to purchase Shares from any Tag-Along Rightholder
that has properly exercised its tag-along rights pursuant to this Section
3.1.6(b), or if such Initiating Stockholder has not delivered the notice
contemplated by this Section 3.1.6(b) (containing, without limitation, the
representation required therein) to each Tag-Along Rightholder, then, in either
such event, such Initiating Stockholder shall not be permitted to consummate the
proposed sale of the Offered Securities, and any such attempted sale shall be
null and void and the Company shall not register any such transfer.
3.2 Proposed Voluntary Transfers by Loeb Stockholders.
-------------------------------------------------
3.2.1 Offering Notice. Subject to Section 2, if any Loeb
---------------
Stockholder (for purposes of this Section 3.2.1, a "Transferring Stockholder")
------------------------
wishes to transfer all or any portion of its or his Shares to any Person (other
than a Permitted Transferee) (for purposes of this Section 3.2.1, a "Third Party
-----------
Purchaser"), such Transferring Stockholder shall offer such Shares first to
---------
▇▇▇▇▇▇ by sending written notice (for purposes of this Section 3.2.1, the
"Offering Notice") to ▇▇▇▇▇▇, with a copy to the Company, the General Atlantic
----------------
Stockholders and the Additional Stockholders, which shall state (a) the number
of Shares proposed to be transferred (for purposes of this Section 3.2.1, the
"Offered Securities") and (b) the proposed purchase price per Share which the
-------------------
Transferring Stockholder is willing to accept (for purposes of this Section
3.2.1, the "Offer Price"), provided that notwithstanding anything to the
----------- --------
contrary contained in this Agreement, for purposes of Section 3.2, a Permitted
Transferee of Loeb shall mean only those Persons described in clauses (b)(i) and
(b)(ii) of Section 2.2. Upon delivery of the Offering Notice, such offer shall
be irrevocable unless and until the rights of first offer provided for herein
shall have been waived or shall have expired.
3.2.2. ▇▇▇▇▇▇ Option. For a period of fifteen (15) days after
-------------
the giving of the Offering Notice pursuant to Section 3.2.1 (the "▇▇▇▇▇▇ Option
-------------
Period"), ▇▇▇▇▇▇ shall have the right (the "▇▇▇▇▇▇ Option") to purchase all but
------ -------------
not less than all of the Offered Securities at a purchase price equal to the
Offer Price and upon the terms and conditions set forth in the Offering Notice.
The right of ▇▇▇▇▇▇ to purchase the Offered Securities under this Section 3.2.2
shall be exercisable by the delivery by ▇▇▇▇▇▇ of a written notice of the
exercise thereof, prior to the expiration of the 15-day period referred to
above, to the Transferring Stockholder, with a copy to the Company, the General
Atlantic Stockholders and the Additional Stockholders, which notice shall state
▇▇▇▇▇▇'▇ intention to purchase the Offered Securities. The failure of ▇▇▇▇▇▇ to
respond within such 15-day period shall be deemed to be a waiver of ▇▇▇▇▇▇'▇
rights under Section 3.2.2. ▇▇▇▇▇▇ may waive his rights under Section 3.2.2
prior to the expiration of the 15-day period by giving written notice to the
18
Transferring Stockholder, with a copy to the Company, the General Atlantic
Stockholders and the Additional Stockholders.
3.2.3 Closing. The closing of the purchases of Offered
-------
Securities subscribed for by ▇▇▇▇▇▇ under Section 3.2.2 shall be held at the
executive office of the Company at 10:00 a.m., local time, on the 30th day after
the earlier of (a) the giving by ▇▇▇▇▇▇ of the notice contemplated by Section
3.2.2 or (b) the expiration of the 15-day period referred to in Section 3.2.2,
or at such other time and place as the parties to the transaction may agree. At
such closing, the Transferring Stockholder shall deliver certificates
representing the Offered Securities, duly endorsed for transfer and accompanied
by all requisite transfer taxes, if any, and such Offered Securities shall be
free and clear of any Liens (other than those arising hereunder and those
attributable to actions by the purchaser) and the Transferring Stockholder shall
so represent and warrant, and shall further represent and warrant that it is the
sole beneficial and record owner of such Offered Securities. ▇▇▇▇▇▇ shall
deliver at the closing payment of the purchase price in full in immediately
available funds for the Offered Securities. At such closing, all of the parties
to the transaction shall execute such additional documents as are otherwise
necessary or appropriate.
3.2.4 Sale to a Third Party Purchaser. Unless ▇▇▇▇▇▇
-------------------------------
elects to purchase all, but not less than all, of the Offered Securities under
Section 3.2.2, the Transferring Stockholder may, subject to Section 3.1.6, sell
the Offered Securities to a Third Party Purchaser on terms and conditions no
less favorable to the Transferring Stockholder than those set forth in the
Offering Notice and at a purchase price per share no less than the Offer Price;
provided, however, that such sale is bona fide and made pursuant to a contract
-------- -------
entered into within ninety (90) days of the earlier to occur of (a) the waiver
by ▇▇▇▇▇▇ of his option to purchase the Offered Securities and (b) the
expiration of the ▇▇▇▇▇▇ Option Period (for purposes of this Section 3.2.4, the
earlier of such dates being referred to herein as the "Contract Date"). If such
-------------
sale is not consummated within ninety (90) days of the Contract Date for any
reason, then the restrictions provided for herein shall again become effective,
and no transfer of such Offered Securities may be made thereafter by the
Transferring Stockholder without again offering the same to ▇▇▇▇▇▇ in accordance
with this Section 3.2.
3.3 Involuntary Transfers.
---------------------
3.3.1 Rights of First Offer upon Involuntary Transfer.
-----------------------------------------------
Subject to compliance with applicable law, if an Involuntary Transfer of any
Shares (the "Transferred Shares") owned by any Stockholder shall occur, then the
------------------
Company, the Major Stockholders, the General Atlantic Stockholders and the
Additional Stockholders (unless such Stockholder is the Involuntary Transferee)
(for the purpose of Section 3.3, the "Rightholders")
------------
19
shall have the same rights as specified in Sections 3.1.2 and 3.1.3,
respectively, with respect to such Transferred Shares as if the Involuntary
Transfer had been a proposed voluntary transfer by a Transferring Stockholder
and such transfer of the Transferred Shares shall be governed by Section 3.1
except that (a) the time periods shall run from the later of (i) the date of
receipt by the Company of actual notice of the Involuntary Transfer (and the
Company shall immediately give notice to the Rightholders of the date of receipt
of such notice) and (ii) the date the purchase price is agreed to pursuant to
clause (d) below, (b) such rights shall be exercised by notice to the transferee
of such Transferred Shares (the "Involuntary Transferee") rather than to the
----------------------
Stockholder who suffered or will suffer the Involuntary Transfer, (c) the
Involuntary Transferee shall be required to sell to the Company and/or the
Rightholders all or any portion of the Transferred Shares which the Company
and/or the Rightholders notify such Involuntary Transferee that they wish to
purchase, and (d) the purchase price per Transferred Share shall be agreed upon
by the Involuntary Transferee and the Company and/or the purchasing
Rightholders, as the case may be; provided, however, that if such parties fail
-------- -------
to agree as to such purchase price, the purchase price shall be the Fair Value
thereof as determined in accordance with Section 3.3.2 and provided further that
-------- -------
in the event that the Company and/or the Rightholders elect to purchase Shares
pursuant to this Section 3.3.1, the Company and/or the Rightholders, as the case
may be, shall purchase, in their respective percentages calculated in accordance
with Sections 3.1.1 and/or 3.1.2, from the Minor Stockholders any Shares that
the Minor Stockholders elect to transfer pursuant to Section 4 of the Minor
Stockholders Agreement and pursuant to this Section 3.3.1, and the number of
Shares purchased from the Involuntary Transferee shall be reduced accordingly.
3.3.2 Fair Value. If the parties fail to agree upon the
----------
purchase price of the Transferred Shares in accordance with Section 3.3.1
hereof, then the Company and/or the Rightholders shall purchase the Transferred
Shares at a purchase price equal to the Fair Value (as hereinafter defined)
thereof. The Fair Value of the Transferred Shares shall be determined by a
panel of three independent appraisers, which shall be nationally recognized
investment banking firms or nationally recognized experts experienced in the
valuation of corporations engaged in the business, or a business similar to the
business, conducted by the Company. Within five (5) Business Days after the
date the applicable parties determine that they cannot agree as to the purchase
price, the Involuntary Transferee, on the one hand, and the Board of Directors
and/or the purchasing Rightholders, as the case be, on the other hand, shall
each designate one such appraiser that is willing and able to conduct such
determination. If either the Involuntary Transferee, on the one hand, or the
Board of Directors and/or the purchasing Rightholders, as the case may be, on
the other hand, fails to make such designation within such period, then the
other party that has made the designation shall have the right to make the
designation on its behalf. The two appraisers designated shall, within a period
of five (5) Business Days after the designation of the second appraiser,
designate a third
20
appraiser. The three appraisers shall conduct their determination as promptly
as practicable, and the Fair Value of the Transferred Shares shall be the
average of the determinations of the two appraisers that are closer to each
other than to the determination of the third appraiser, which third
determination shall be discarded; provided, however, that if the determinations
-------- -------
of two appraisers are equally close to the determination of the third appraiser,
then the Fair Value of the Transferred Shares shall be the average of the
determinations of all three appraisers. Such determination of the Fair Value of
the Transferred Shares shall be final and binding on the Involuntary Transferee,
the Company and the Rightholders. The Involuntary Transferee shall be
responsible for the fees and expenses of the appraiser designated by or on
behalf of it, and the Company and/or the purchasing Rightholders, as the case
may be, shall be responsible for the fees and expenses of the appraiser
designated by or on behalf of the Board of Directors and/or the purchasing
Rightholders, as the case may be. The Involuntary Transferee, on the one hand,
and the Company and/or the purchasing Rightholders, as the case, may be on the
other hand, shall each share half the fees and expenses of the appraiser
designated by the first two appraisers. For purposes of this Section 3.3.2, the
"Fair Value" of the Transferred Shares means the fair market value of such
Transferred Shares determined in accordance with this Section 3.3.2 based upon
all considerations that the appraisers determine to be relevant.
3.3.3 Closing. The closing of any purchase under this
-------
Section 3.3 shall be held at the executive office of the Company at 10:00 a.m.,
local time, on the 30th day after (a) the giving by the Company of the notice
contemplated by Section 3.3.1, if the Company has proposed to purchase all of
the Transferred Shares, or (b) the earlier of (i) the giving by the last
Rightholder of the notice contemplated by Section 3.3.1 and (ii) the expiration
of the 15-day period referred to in Section 3.3.1, or at such other time and
place as the parties to the transaction may agree. At such closing, the
Involuntary Transferee shall deliver certificates, if applicable, or other
instruments or documents representing the Transferred Shares being purchased
under this Section 3.3, duly endorsed with a signature guarantee for transfer
and accompanied by all requisite transfer taxes, if any, and such Transferred
Shares shall be free and clear of any Liens (other than those arising hereunder)
arising through the action or inaction of the Involuntary Transferee and the
Involuntary Transferee shall so represent and warrant, and further represent and
warrant that it is the beneficial owner of such Transferred Shares. Each
Rightholder purchasing such Transferred Shares shall deliver at closing payment
of the purchase price in full in immediately available funds for such
Transferred Shares. At such closing, all parties to the transaction shall
execute such additional documents as are otherwise necessary or appropriate.
3.3.4 General. In the event that the provisions of this
-------
Section 3.3 shall be held to be unenforceable with respect to any particular
Involuntary Transfer, the Company and the Rightholders shall have the rights
specified in Sections 3.1.2
21
and 3.1.3, respectively, with respect to any transfer by an Involuntary
Transferee of such Shares, and each Rightholder agrees that any Involuntary
Transfer shall be subject to such rights, in which case the Involuntary
Transferee shall be deemed to be the Transferring Stockholder for purposes of
Sections 3.1.2 and 3.1.3 of this Agreement and shall be bound by the provisions
of Sections 3.1.2 and 3.1.3 and other related provisions of this Agreement.
3.4 [Intentionally left blank].
--------------------------
3.5 Covenant. Each of ▇▇▇▇▇▇ and ▇▇▇▇ hereby covenant and agree
--------
that he shall use best efforts to promptly cause the Minor Stockholders to enter
into a consent and waiver in which the Minor Stockholders consent and agree that
the Minor Stockholders Agreement shall not apply to any Shares purchased by the
General Atlantic Stockholders after the date hereof.
4. Rights on Future Issuance of Shares.
-----------------------------------
4.1 Offering Notice. Except for (a) capital stock or any other
---------------
security convertible into capital stock of the Company which may be issued to
employees, consultants or directors of the Company pursuant to any stock option
plan or other employee benefit arrangement approved by the Board of Directors,
(b) a subdivision of the outstanding shares of Common Stock into a larger number
of shares of Common Stock, (c) capital stock or any other security convertible
into capital stock of the Company issued in consideration of the acquisition by
the Company or any of its Subsidiaries of another Person, (d) capital stock or
any other securities convertible into or exchangeable for capital stock of the
Company issued upon or in connection with the exercise, conversion or exchange
of any Common Stock Equivalent, or (e) any issuance or sale in connection with
an Excluded Transaction, if the Company wishes to issue any shares of capital
stock or any other security convertible into or exchangeable for capital stock
of the Company (collectively, "New Securities") to any Person (the "Subject
-------------- -------
Purchaser") prior to the IPO Effectiveness Date, then the Company shall offer
---------
such New Securities first to the General Atlantic Stockholders, the Major
Stockholders and the Additional Stockholders by sending written notice (the "New
---
Issuance Notice") to the General Atlantic Stockholders, the Major Stockholders
---------------
and the Additional Stockholders, which New Issuance Notice shall state (a) the
number of New Securities proposed to be issued and (b) the proposed purchase
price per share of the New Securities that the Company is willing to accept (the
"Proposed Price"). Upon delivery of the New Issuance Notice, such offer shall
--------------
be irrevocable unless and until the rights provided for in Section 4.2 shall
have been waived or shall have expired.
22
4.2 Exercise of Rights.
------------------
(a) For a period of thirty (30) days after the giving of
the New Issuance Notice, the General Atlantic Stockholders, the Major
Stockholders and the Additional Stockholders (each, for the purpose of Section
4, a "Rightholder") shall have the right to purchase its Proportionate
-----------
Percentage (as hereinafter defined) of the New Securities at a purchase price
equal to the Proposed Price and upon the terms and conditions set forth in the
New Issuance Notice. Each of the Rightholders shall have the right to purchase
that percentage of the New Securities determined by dividing (i) the total
number of Shares then owned by such Rightholder exercising its rights under this
Section 4.2 by (ii) the total number of Shares then owned by all of the
Rightholders exercising their rights under this Section 4.2 (the "Proportionate
-------------
Percentage"). If any Rightholder does not fully subscribe for the number or
----------
amount of New Securities that it or he is entitled to purchase pursuant to the
preceding sentence, then each Major Stockholder, each General Atlantic
Stockholder and each Additional Stockholder who elected to purchase New
Securities shall have the right to purchase that percentage of the remaining New
Securities not so subscribed for (the "Excess New Securities") determined by
---------------------
dividing (x) the total number of Shares then owned by such fully participating
Rightholder by (y) the total number of Shares then owned by all fully
participating Rightholders who elected to purchase Excess New Securities. The
procedure described in the preceding sentence shall be repeated until there are
no remaining Excess New Securities or until no Rightholder wishes to purchase
any additional Excess New Securities. Notwithstanding anything to the contrary
contained in this Agreement, the Minor Stockholders shall have the right to
purchase shares pursuant to this Section 4 in an amount no less than the amount
they have the right to receive pursuant to Section 13 of the Minor Stockholders
Agreement.
(b) The right of each Rightholder to purchase the New
Securities under subsection (a) above shall be exercisable by delivering written
notice of the exercise thereof, prior to the expiration of the 30-day period
referred to in subsection (a) above, to the Company, which notice shall state
the amount of New Securities that such Rightholder elects to purchase pursuant
to Section 4.2(a). The failure of a Rightholder to respond within such 30-day
period shall be deemed to be a waiver of such Rightholder's rights under Section
4.2(a), provided that each Rightholder may waive its rights under Section 4.2(a)
--------
prior to the expiration of such 30-day period by giving written notice to the
Company.
4.3 Closing. The closing of the purchase of New Securities
-------
subscribed for by the Rightholders under Section 4.2 shall be held at the
executive offices of the Company at 10:00 a.m., local time, on the 45th day
after the giving of the New Issuance Notice pursuant to Section 4.1, or at such
other time and place as the parties to the transaction may
23
agree. At such closing, the Company shall deliver certificates representing the
New Securities purchased by the participating Rightholders, duly registered in
the names of such Rightholders, and such New Securities shall be issued free and
clear of all Liens and the Company shall so represent and warrant, and further
represent and warrant that such New Securities shall be, upon issuance thereof
to the Rightholders and after payment therefor, duly authorized, validly issued,
fully paid and nonassessable. The Rightholders purchasing the New Securities
shall deliver at the closing payment of the purchase price in full in
immediately available funds for the New Securities purchased by him or it. At
such closing, all of the parties to the transaction shall execute such
additional documents as are otherwise necessary or appropriate.
4.4 Sale to Subject Purchaser. Unless all of the New Securities
-------------------------
are purchased pursuant to Section 4.2, the Company may sell to the Subject
Purchaser all of the New Securities not purchased by the Rightholders pursuant
to Section 4.2 on terms and conditions that are no more favorable to the Subject
Purchaser than those set forth in the New Issuance Notice; provided, however,
-------- -------
that such sale is bona fide and made pursuant to a contract entered into within
six (6) months of the earlier to occur of (a) the waiver by the Rightholders of
their option to purchase the New Securities pursuant to Section 4.2 and (b) the
expiration of the 30-day period referred to in Section 4.2. If such sale is not
consummated within such 6-month period for any reason, then the restrictions
provided for herein shall again become effective, and no issuance and sale of
New Securities may be made thereafter by the Company without again offering the
same to the Rightholders in accordance with this Section 4. The closing of any
issue and sale to the Subject Purchaser pursuant to this Section 4.4 shall be
held at the time and place as the parties to the transaction may agree.
5. After-Acquired Securities; Agreement to be Bound.
------------------------------------------------
5.1 After-Acquired Securities. All of the provisions of this
-------------------------
Agreement shall apply to all of the Shares and Common Stock Equivalents now
owned or which may be issued or transferred hereafter to a Stockholder in
consequence of any additional issuance, purchase, exchange or reclassification
of any of such Shares or Common Stock Equivalents, corporate reorganization, or
any other form of recapitalization, consolidation, merger, share split or share
dividend, or which are acquired by a Stockholder in any other manner.
5.2 Agreement to be Bound. The Company shall not issue any
---------------------
Shares or any Common Stock Equivalents to any Person not a party to this
Agreement other than issuances to employees, consultants or directors of the
Company pursuant to any stock option plan or other employee benefit arrangement
approved by the Board of Directors unless either (a) such Person has agreed in
writing to be bound by the terms and conditions of this
24
Agreement pursuant to an instrument substantially in the form attached hereto as
Exhibit C-2 or (b) such Person has entered into an agreement with the Company
-----------
restricting the transfer of its or his Shares in form and substance reasonably
satisfactory to the Major Stockholders and the General Atlantic Stockholders.
Upon becoming a party to this Agreement, such Person shall be deemed to be, and
shall be subject to the same obligations as an Other Stockholder hereunder.
Any issuance of Shares or any Common Stock Equivalents by the Company in
violation of this Section 5.2 shall be null and void ab initio.
-- ------
6. Corporate Governance.
--------------------
6.1 General. From and after the execution of this Agreement,
-------
each Stockholder shall vote its or his Shares at any regular or special meeting
of stockholders of the Company (a "Stockholders Meeting"), or in any written
--------------------
consent executed in lieu of such a meeting of stockholders (a "Written
-------
Consent"), and shall take all other actions necessary, to give effect to the
-------
provisions of this Agreement (including, without limitation, Section 6.4 hereof)
and to ensure that the Charter Documents do not, at any time hereafter, conflict
in any respect with the provisions of this Agreement. In addition, each
Stockholder shall vote its or his Shares at any Stockholders Meeting or act by
Written Consent with respect to such Shares, upon any matter submitted for
action by the Company's stockholders or with respect to which such Stockholder
may vote or act by Written Consent, in conformity with the specific terms and
provisions of this Agreement and the Charter Documents.
6.2 Stockholder Actions. In order to effectuate the provisions
-------------------
of this Section 6, each Stockholder (a) hereby agrees that when any action or
vote is required to be taken by such Stockholder pursuant to this Agreement,
such Stockholder shall use its best efforts to call, or cause the appropriate
officers and directors of the Company to call, a Stockholders Meeting or to
execute or cause to be executed a Written Consent to effectuate such stockholder
action, (b) shall use its best efforts to cause the Board of Directors to adopt,
either at a meeting of the Board of Directors or by unanimous written consent of
the Board of Directors, all the resolutions necessary to effectuate the
provisions of this Agreement and (c) shall use its best efforts to cause the
Board of Directors to cause the Secretary of the Company, or if there be no
secretary, such other officer of the Company as the Board of Directors may
appoint to fulfill the duties of Secretary, not to record any vote or consent
contrary to the terms of this Section 6.
25
6.3 Voting of Shares; Irrevocable Proxy.
-----------------------------------
(a) Each General Atlantic Stockholder hereby grants to
▇▇▇▇▇▇ a proxy to vote its Voting Stock, which proxy is irrevocable and coupled
with an interest, until the earlier of (i) the IPO Effectiveness Date or (ii)
December 31, 1999; provided, however, the grant by each General Atlantic
-------- -------
Stockholder of such proxy (x) shall not relieve the Company of its obligation to
provide each General Atlantic Stockholder all notices, documents and other
information provided, or required to be provided, to other Stockholders in their
capacity as Stockholders and (y) shall not restrict any General Atlantic
Stockholder from exercising its right as a stockholder to attend and participate
in Stockholders Meetings, other than to vote the Voting Stock held by such
General Atlantic Stockholder.
(b) The Major Stockholders hereby covenant and agree with
the General Atlantic Stockholders that no later than sixty (60) days after the
Closing Date (as defined in the Purchase Agreement), they will cause the Company
to amend its Certificate of Incorporation to provide that each share of
Nonvoting Stock owned or hereafter acquired by the General Atlantic Stockholders
shall be automatically converted into and exchanged for one share of Voting
Stock upon the earlier of (i) the IPO Effectiveness Date (as defined in the
Purchase Agreement) and (ii) June 30, 2001; provided, that in the event of a
--------
conversion pursuant to clause (ii) above, the amendment will also provide for a
conversion into Voting Stock of a number of shares of Nonvoting Stock held by
▇▇▇▇▇▇ and ▇▇▇▇ so that the percentage of Voting Stock held by the Purchasers
following such conversions shall not exceed the percentage of Common Stock then
held by the Purchasers. The Company agrees to pay for all expenses incurred in
connection with any governmental filing required by virtue of the conversion of
the Nonvoting Stock of the General Atlantic Stockholders into Voting Stock.
(c) Each of GAP 49 and GAP Coinvestment hereby grants to
▇▇▇▇▇▇ and Loeb a proxy (limited as provided in clause (z) below) to vote its
Series A Preferred Stock (and any Voting Stock into which such Series A
Preferred Stock may be converted), which proxy is irrevocable and coupled with
an interest, until the earlier of (i) the IPO Effectiveness Date and (ii)
September 9, 2000; provided, however, the grant by each such General Atlantic
-------- -------
Stockholder of such proxy (x) shall not relieve the Company of its obligation to
provide each General Atlantic Stockholder all notices, documents and other
information provided, or required to be provided, to other Stockholders in their
capacity as Stockholders, (y) shall not restrict any General Atlantic
Stockholder from exercising its right as a stockholder to attend and participate
in Stockholders Meetings, other than to vote its Preferred Stock (or Voting
Stock into which such Preferred Stock has been converted) and (z) shall not
extend to the right of such General Atlantic Stockholder to vote its Preferred
Stock in any class vote to
26
approve or disapprove an amendment to the Company's Certificate of Incorporation
referred to in Section 242 of the Delaware General Corporation Law.
6.4 Election of Directors; Number and Composition. Each
---------------------------------------------
Stockholder shall vote its or his Shares at any Stockholders Meeting, or act by
Written Consent with respect to such Shares, and take all other actions
necessary to ensure that the number of directors constituting the entire Board
of Directors shall be not less than three (3) and not greater than seven (7).
So long as the General Atlantic Stockholders and/or any Affiliate thereof in the
aggregate own shares of Common Stock or Common Stock Equivalents that represent
(after giving effect to any adjustments) at least 3% of the total number of
shares of Common Stock outstanding on a fully diluted basis, each Stockholder
shall vote its or his shares at any Stockholders Meeting called for the purpose
of filling the positions on the Board of Directors, or in any Written Consent
executed for such purpose, for and to take all other actions necessary to ensure
the election to the Board of Directors, of one individual designated by the
General Atlantic Stockholders (who shall initially be ▇▇▇▇▇▇▇ ▇. ▇▇▇▇) (the
"General Atlantic Director").
-------------------------
6.5 Removal and Replacement of Directors.
------------------------------------
6.5 Removal of General Atlantic Directors. If at any time
-------------------------------------
the General Atlantic Stockholders notify the other Stockholders of their wish to
remove at any time and for any reason (or no reason) the General Atlantic
Director, then each Stockholder shall vote all of its or his Shares so as to
remove such General Atlantic Director.
6.5 Replacement of Directors. If at any time, a vacancy is
------------------------
created on the Board of Directors by reason of the incapacity, death, removal or
resignation of the General Atlantic Director, then the General Atlantic
Stockholders shall designate an individual to fill such vacancy until the next
Stockholders Meeting.
6.6 Reimbursement of Expenses. Notwithstanding anything to
-------------------------
the contrary contained in this Agreement, the Company shall reimburse the
General Atlantic Stockholders, or their respective designees, for all reasonable
travel and accommodation expenses incurred by any General Atlantic Director in
connection with the performance of his duties as a director of the Company upon
presentation of appropriate documentation therefor.
27
6.7 Confidentiality; Noncompete.
---------------------------
6.7.1 Company Confidential Information. Each Stockholder
--------------------------------
recognizes and acknowledges that such Stockholder shall acquire information that
could include, in whole or in part, information concerning the Company's
financial affairs, business strategy, know-how, marketing, suppliers, customers,
accounting, business relationships, employees and trade secrets or other
confidential or proprietary information belonging to the Company or relating to
the Company's affairs (collectively, the "Company Confidential Information");
--------------------------------
(b) the Company Confidential Information is the property of the Company; (c) the
use, misappropriation or disclosure of the Company Confidential Information
would constitute a breach of trust and could cause irreparable injury to the
Company; and (d) it is essential to the protection of the Company's good will
and to the maintenance of the Company's competitive position that the Company
Confidential Information be kept secret. Each Stockholder covenants that he
shall not, without the prior written consent of the Company in each instance,
divulge or disclose to anyone other than an officer, director, employee, or
authorized representative of the Company any Company Confidential Information or
use any Company Confidential Information for any purpose other than for the
benefit of the Company, nor shall the Stockholder cause or permit any other
person controlled by him to do any of the foregoing; provided, however, that
-------- -------
this restriction shall not apply to (i) any Company Confidential Information
that enters the public domain through no fault of the Stockholder, (ii) any use
and disclosure of Company Confidential Information in the proper conduct of the
business of the Company and consistent with the instructions of the Company,
(iii) any Company Confidential Information that the Stockholder is required to
disclose pursuant to an order of a court of competent jurisdiction or another
government agency having appropriate authority and (iv) any disclosure by GAP
LP, GAP 49 or GAP 60 to (a) members of GAP LLC, (b) employees of General
Atlantic Service Corporation or (c) any limited partner of GAP LP, GAP 49 or GAP
60 consistent with GAP LP's, GAP 49's or GAP 60's periodic reporting
requirements.
6.7.2 GAP Confidential Information. Each Major Stockholder
----------------------------
recognizes and acknowledges that such Major Stockholder shall acquire
information that could include, in whole or in part, information concerning the
financial affairs, business strategy, know-how, marketing, suppliers, customers,
accounting, business relationships, employees and trade secrets of the General
Atlantic Stockholders or other confidential or proprietary information belonging
to the General Atlantic Stockholders or relating to the General Atlantic
Stockholders' affairs (collectively, the "GAP Confidential Information"); (b)
----------------------------
the GAP Confidential Information is the property of the General Atlantic
Stockholders; (c) the use, misappropriation or disclosure of the GAP
Confidential Information would constitute a breach of trust and could cause
irreparable injury to the General Atlantic
28
Stockholders; and (d) it is essential to the protection of the General Atlantic
Stockholders' good will and to the maintenance of the General Atlantic
Stockholders' competitive position that the GAP Confidential Information be kept
secret. Each Major Stockholder and Additional Stockholder covenants that he
shall not, without the prior written consent of the General Atlantic
Stockholders in each instance, divulge or disclose to anyone any GAP
Confidential Information or use any GAP Confidential Information for any
purpose, nor shall such Major Stockholder or Additional Stockholder cause or
permit any other person controlled by him to do any of the foregoing; provided,
--------
however, that this restriction shall not apply to (i) any GAP Confidential
-------
Information that enters the public domain through no fault of such Major
Stockholder or Additional Stockholder and (ii) any GAP Confidential Information
that the Stockholder is required to disclose pursuant to an order of a court of
competent jurisdiction or another government agency having appropriate
authority.
6.7.3 Noncompete. Each of ▇▇▇▇▇▇ and Loeb agrees that,
----------
during the time that he is employed by the Company and for a period following
the end of such employment of (i) two years in the event that (a) ▇▇▇▇▇▇ or ▇▇▇▇
is terminated for Cause (as hereinafter defined) or (b) ▇▇▇▇▇▇ or Loeb
voluntarily terminates his employment with the Company or (ii) one year if
▇▇▇▇▇▇ of ▇▇▇▇ is otherwise terminated (the applicable period being referred to
herein as the "Noncompete Period"), he shall not directly or indirectly in any
-----------------
manner or under any circumstance, own, invest in, participate in, manage,
operate, organize, serve as an employee, contractor, advisor or consultant to,
or allow the use of his name in connection with, any other company or business
venture that provides services substantially similar to the magazine
subscription and other credit card enhancement services provided by, and any
other businesses that utilize marketing through the use of materials included in
credit card statements engaged in by, the Company in or for the market of the
United States of America and Canada, except that ▇▇▇▇▇▇ or Loeb, respectively,
may hold a passive investment of stock of less than five percent (5%) of
outstanding shares in a corporation whose shares are publicly traded. As used
herein, the term "Cause" shall mean (a) a reasonable determination by the Board
-----
of Directors of the Company that ▇▇▇▇▇▇ or ▇▇▇▇ has repeatedly refused to follow
the reasonable directives made to such Party by the Board, (b) the recklessness
or willful misconduct in the performance of duties assigned to ▇▇▇▇▇▇ or Loeb by
the Board, (c) indictment of any felony or any misdemeanor involving moral
turpitude or fraud, or (d) financial dishonesty, including, without limitation,
misappropriation of funds or property of the Company, or any attempt by the
▇▇▇▇▇▇ or ▇▇▇▇ to secure any personal profit related to the business or business
opportunities of the Company.
6.7.4 Non-Solicitation of Employees. Each of ▇▇▇▇▇▇ and Loeb
-----------------------------
agree that during the Noncompete Period he shall not, directly or indirectly,
solicit or
29
induce, or attempt to solicit or induce any employee of the Company to leave the
Company for any reason whatsoever, or hire any employee of the Company.
6.8 Remedies. In the event of the breach or a threatened breach
--------
by any Stockholder of any of the provisions of Section 6.7, the Company, the
General Atlantic Stockholders or the Stockholders, in addition and supplementary
to other rights and remedies existing in its favor, may apply to any court of
law or equity of competent jurisdiction for specific performance and/or
injunctive or other relief in order to enforce or prevent any violations of the
provisions hereof (without posting a bond or other security).
7. Stock Certificate Legend. A copy of this Agreement shall be
------------------------
filed with the Secretary of the Company and kept with the records of the
Company. Each certificate representing Shares now held or hereafter acquired by
any Stockholder shall for as long as this Agreement is effective bear legends as
required by any applicable state securities laws and substantially in the
following forms:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE SECURITIES
---
LAWS OF ANY JURISDICTION OF THE UNITED STATES. THE SECURITIES MAY NOT BE
TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
SUCH ACT AND UNDER THE APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
OPINION OF COUNSEL TO THE COMPANY OR OTHER COUNSEL REASONABLY SATISFACTORY
TO THE COMPANY, IF REQUESTED BY THE COMPANY, THAT THERE IS AN APPLICABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS.
THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE, ENCUMBRANCE OR OTHER
DISPOSITION (EACH A "TRANSFER") AND VOTING OF ANY OF THE SECURITIES
--------
REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY THE TERMS OF THE AMENDED
AND RESTATED STOCKHOLDERS AGREEMENT, DATED AS OF JANUARY 12, 2000, AMONG
SYNAPSE GROUP, INC. AND THE OTHER STOCKHOLDERS NAMED THEREIN. THE COMPANY
WILL NOT REGISTER THE TRANSFER OF SUCH SECURITIES ON THE BOOKS OF THE
COMPANY UNLESS AND UNTIL THE TRANSFER HAS BEEN MADE IN COMPLIANCE WITH
30
THE TERMS OF THE STOCKHOLDERS AGREEMENT. THE COMPANY WILL MAIL A COPY OF
SUCH AGREEMENT, TOGETHER WITH A COPY OF THE EXPRESS TERMS OF THE SECURITIES
AND THE OTHER CLASS OR CLASSES AND SERIES OF SHARES, IF ANY, WHICH THE
COMPANY IS AUTHORIZED TO ISSUE, TO THE RECORD HOLDER OF THIS CERTIFICATE,
WITHOUT CHARGE, WITHIN FIVE DAYS AFTER RECEIPT OF A WRITTEN REQUEST
THEREFOR.
8. Key Man Financing Insurance.
---------------------------
8.1 Insurance. The Company shall use its best efforts to
---------
obtain, keep in effect, and pay premiums upon, insurance ("Key Man Financing
-----------------
Insurance") on the life of Loeb (the "Insured") payable to the Company in the
--------- -------
amount of $5,000,000. In the event that any insurance proceeds are paid to the
Company pursuant to such Key Man Financing Insurance, the Company shall apply
such insurance proceeds first to repay any outstanding amounts owed by the
Company pursuant to the the Loan and Security Agreement, dated as of the date
hereof (the "Credit Agreement"), among the financial institutions listed on the
signature pages thereof (the "Lenders"), Bank of America, N.A., as
administrative and syndication agent for the Lenders, Bank of America, N.A., as
issuer of letters of credit, and each of the Company, NewSub Magazine Services
LLC, a Delaware limited liability company, NewSub Special Services, Inc., a
Delaware corporation, and ▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇, Inc., a Delaware corporation.
8.2 Cooperation. The Insured agrees to submit to any physical
-----------
examination required by any prospective insurer, and will otherwise cooperate
with the Company in connection with any life insurance on such Insured's life as
the Company may wish to obtain pursuant to Section 8.1. In connection with any
insurance Loeb or ▇▇▇▇▇▇ intends to purchase on the life of the other party,
▇▇▇▇▇▇ and Loeb agree to submit to any physical examination required by any
prospective insurer, and will otherwise cooperate with the other party in
connection with any such life insurance on such party's life. In the event the
Company cannot obtain insurance for an Insured at a cost substantially
equivalent to the cost of obtaining such insurance for a healthy individual of
such Insured's age and gender, the Company may, at its option, purchase the
amount of insurance, if any, that can be purchased at a cost substantially
equivalent to the cost of obtaining such insurance for a healthy individual of
such Insured's age and gender.
31
9. Miscellaneous.
-------------
9.1 Notices. All notices, demands or other communications
-------
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first class mail, return receipt requested, telecopier,
courier service, overnight mail or personal delivery to the addresses listed on
Schedule 9.1 hereto. Any party may by notice given in accordance with this
Section 9.1 designate another address or Person for receipt of notices
hereunder. All such notices and communications shall be deemed to have been
duly given when delivered by hand, if personally delivered; when delivered by
courier or overnight mail, if delivered by commercial courier service or
overnight mail; five (5) Business Days after being deposited in the mail,
postage prepaid, if mailed; and when receipt is mechanically acknowledged, if
properly telecopied.
9.2 Successors and Assigns. This Agreement shall be binding
----------------------
upon and inure to the benefit of the parties and their respective successors,
permitted assigns, heirs, legatees and legal representatives. This Agreement is
not assignable except in connection with a transfer of Shares in accordance with
this Agreement.
9.3 Amendment and Waiver.
--------------------
(a) Except as specifically set forth in this Agreement, no
failure or delay on the part of any party hereto in exercising any right, power
or remedy hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or remedy preclude any other or
further exercise thereof or the exercise of any other right, power or remedy.
The remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to the parties hereto at law, in equity or
otherwise.
(b) Any amendment, supplement or modification of or to any
provision of this Agreement, any waiver of any provision of this Agreement, and
any consent to any departure by any party from the terms of any provision of
this Agreement, shall be effective only if it is made or given in writing and
signed by (i) the Company, (ii) the Major Stockholders holding Shares
representing at least eighty (80) percent of the Shares owned by all of the
Major Stockholders, and (iii) the General Atlantic Stockholders holding Shares
representing at least a majority of the Shares owned by all of the General
Atlantic Stockholders; provided, however, that ▇▇▇▇▇▇ and ▇▇▇▇ shall be
-------- -------
permitted to amend, supplement, modify, waive or consent to depart from Section
3.2 if such amendment, supplement, modification, waiver or consent shall not
have an adverse effect on any General
32
Atlantic Stockholder. Any amendment, supplement, modification, waiver or consent
pursuant to this Section 9.3 shall be binding upon the Company and all of the
Stockholders.
9.4 Authorization to Modify Restrictions. It is the intention
------------------------------------
of the parties that the provisions of Section 6.7 hereof shall be enforceable to
the fullest extent permissible under applicable law, but that the
unenforceability (or modification to conform to such law) of any provision or
provisions hereof shall not render unenforceable, or impair, the remainder
thereof. If any provision or provisions hereof shall be deemed invalid or
unenforceable, either in whole or in part, this Agreement shall be deemed
amended to delete or modify, as necessary, the offending provision or provisions
and to alter the bounds thereof in order to render it valid and enforceable.
9.5 Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed an original, and all of which taken
together shall constitute one and the same instrument.
9.6 Specific Performance. The parties hereto intend that each
--------------------
of the parties have the right to seek damages or specific performance in the
event that any other party hereto fails to perform such party's obligations
hereunder. Therefore, if any party shall institute any action or proceeding to
enforce the provisions hereof, any party against whom such action or proceeding
is brought hereby waives any claim or defense therein that the plaintiff party
has an adequate remedy at law.
9.7 Headings. The headings in this Agreement are for
--------
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
9.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
-------------
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAW OF ANY JURISDICTION.
9.9 Severability. If any one or more of the provisions
------------
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions hereof.
33
9.10 Entire Agreement. This Agreement, together with the
----------------
exhibits hereto, is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein and therein. There are no restrictions, promises, warranties
or undertakings, other than those set forth or referred to herein or therein.
This Agreement, together with the exhibits hereto, supersedes all prior
agreements and understandings between the parties with respect to such subject
matter, including, without limitation, the Original Agreement.
9.11 Term of Agreement. This Agreement shall become effective
-----------------
upon the execution hereof and shall terminate upon the IPO Effectiveness Date.
Notwithstanding any provision to the contrary contained herein, Section 6.7
shall survive the termination of this Agreement.
9.12 Further Assurances. Each of the parties shall, and shall
------------------
cause their respective Affiliates to, execute such instruments and take such
action as may be reasonably required or necessary to carry out the provisions
hereof and the transactions contemplated hereby.
9.13 Pronouns. All pronouns and any variations thereof refer to
--------
the masculine, feminine and neuter, singular or plural, as the context may
require.
9.14 Stock Pledge Agreement. The General Atlantic Stockholders,
----------------------
the Company, ▇▇▇▇▇▇, Loeb and the Additional Stockholders hereby acknowledge and
agree that the Company, ▇▇▇▇▇▇ and ▇▇▇▇ and/or their Affiliates are entering
into one or more stock pledge agreements in connection with the Credit Agreement
pursuant to which they will ▇▇▇▇▇ ▇ ▇▇▇▇ and security interest in all or a
certain portion of their shares of the Company and that the provisions of this
Agreement shall not affect the granting of such lien and security interest or to
any transfer of such shares to the Lenders or Agent and this Agreement shall not
be binding upon the Lenders or Agent.
IN WITNESS WHEREOF, the undersigned have executed, or have cause to be
executed, this Stockholders Agreement on the date first written above.
SYNAPSE GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: President
GENERAL ATLANTIC PARTNERS 46, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC, its General
Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: A Managing Member
GENERAL ATLANTIC PARTNERS 49, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC, its General
Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: A Managing Member
GENERAL ATLANTIC PARTNERS 60, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC, its General
Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: A Managing Member
GAP COINVESTMENT PARTNERS, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: A General Partner
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: A General Partner
▇▇▇▇▇▇▇ LIMITED PARTNERSHIP
By: Its General Partner:
BF PARTNERS LLC
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: President
/s/ Tas Parafestas
--------------------------------------------------
TAS PARAFESTAS, AS TRUSTEE OF THE ▇▇▇▇ CREEK TRUST
NS INVESTORS LIMITED PARTNERSHIP
By: Its General Partners:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇▇ ▇. O'▇▇▇▇▇▇▇
▇▇▇▇▇ & COMPANY, INCORPORATED
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------
Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director, CEO
36
HIWAN HOLDINGS, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇▇▇▇▇▇, Chairman of the Board
BRENTWOOD INVESTMENT FUND, LLC
By: Its Managing Member:
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Member
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ AND ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------------
▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇
--------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇
--------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇
37
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ AND ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
___________________________________________________
▇.▇. ▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇ ▇▇▇▇▇▇
---------------------------------------------------
▇▇▇ ▇▇▇▇▇▇
THE ▇▇▇ ▇. ▇▇▇▇▇▇ IRREVOCABLE CREDIT TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇ III, Trustee
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
38
_________________________________________________________
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇, trustee
---------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇, Trustee u/ The ▇▇▇▇▇▇▇ ▇▇▇▇ Irrevocable
Trust f/b/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Loeb dated December 28, 1995
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇, trustee
---------------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇, Trustee u/ The ▇▇▇▇▇▇▇ ▇▇▇▇ Irrevocable
Trust f/b/o ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ dated December 28,
1995
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, as Trustee of The ▇▇▇▇▇▇▇ ▇▇▇▇ Irrevocable
Trust u/a dated 3/24/99 f/b/o Marc ▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, as Trustee of The ▇▇▇▇▇▇▇ ▇▇▇▇ Irrevocable
Trust u/a dated 3/24/99 f/b/o ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, as Trustee of The ▇▇▇▇▇▇▇ ▇▇▇▇ Irrevocable
Trust u/a dated 3/24/99 f/b/o ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
39
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, III
-----------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇, III
PROMERICA CAPITAL, L.P.
By: Authorized Signatory of the Managing Member
/s/ Tas Parafestas
-------------------------------------------
Name: Tas Parafestas
40
WFIP I, LLC
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------------
Name: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Managing Member, President and Secretary
41
GAGE MARKETING GROUP, LLC
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chief Investment Officer
42
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇