Exhibit 10.2
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ZIFF ▇▇▇▇▇ HOLDINGS INC.
STOCK PURCHASE AGREEMENT
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Dated as of May 2, 2001
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TABLE OF CONTENTS
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Page
1. Authorization and Closing 1
1A. Authorization of the Preferred Stock ..........................1
1B. Purchase and Sale of the Stock ................................1
1C. The Closing ...................................................1
2. Conditions of the Purchaser's Obligation at the Closing 2
2A. Representations and Warranties; Covenants .....................2
2B. Amendment to the Restated Certificate of Incorporation ........2
2C. Joinder to the Investor Rights Agreement ......................2
2D. Securities Law Compliance .....................................2
2E. Closing Documents .............................................2
2F. Proceedings ...................................................3
2G. Compliance with Applicable Laws ...............................3
2H. Waiver ........................................................3
3. Transfer of Restricted Securities 3
3A. General Provisions ............................................3
3B. Opinion Delivery ..............................................3
3C. Legend ........................................................3
3D. Legend Removal ................................................4
4. Representations and Warranties of the Company 4
4A. Organization, Corporate Power and Licenses ....................4
4B. Capital Stock and Related Matters .............................4
4C. Subsidiaries; Investments .....................................5
4D. Authorization; No Breach ......................................5
4E. Litigation, etc. ..............................................5
4F. Brokerage .....................................................6
4G. Governmental Consent, etc. ....................................6
4H. Investment Company ............................................6
5. Representations and Warranties of the Purchaser. 6
5A. Purchaser's Investment Representations ........................6
6. Definitions 7
6A. Definitions ...................................................7
7. Miscellaneous 9
7A. Expenses ......................................................9
7B. Subsequent Employee Agreements ................................9
7C. Indemnification ...............................................9
7D. Survival of Representations and Warranties ....................9
7E. Remedies ......................................................9
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7F. Consent to Amendments .........................................10
7G. Successors and Assigns ........................................10
7H. Severability ..................................................10
7I. No Third Party Beneficiaries ..................................10
7J. Counterparts ..................................................10
7K. Descriptive Headings; Interpretation ..........................10
7L. Governing Law .................................................10
7M. Notices .......................................................11
7N. No Strict Construction ........................................11
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Schedules and Exhibits
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List of Exhibits
List of Disclosure Schedules
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STOCK PURCHASE AGREEMENT
THIS AGREEMENT (this "Agreement") is made as of May 2, 2001, by and
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among Ziff ▇▇▇▇▇ Holdings Inc., a Delaware corporation (the "Company") and the
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purchasers listed on the attached Schedule of Purchasers (the "Purchasers").
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Except as otherwise indicated herein, capitalized terms used herein are defined
in Section 6 hereof.
WHEREAS, the Company is in need of $20 million of equity funding, and has
requested that the Purchasers provide such funding on an expedited basis.
WHEREAS, the parties hereto contemplate that the Company will require additional
equity funding in the future, and have agreed that the current equity investment
to be made by the Purchasers pursuant to this Agreement will be made on a bridge
basis, and that such investment will be converted into, or exchanged for, the
securities to be issued by the Company in connection with a larger equity
financing to be effected within the next several months.
WHEREAS, the Purchasers are willing to purchase an aggregate of $20 million of a
new class of preferred stock of the Company designated as Series A - 2 Preferred
Stock, $.01 par value per share, upon the terms and subject to the conditions
set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, agree as follows:
Section 1. Authorization and Closing.
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11. Authorization of the Preferred Stock. The Company shall (prior
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to Closing, as defined below) authorize the issuance and sale to the Purchasers
of 20,000 shares of its Series A-2 Preferred Stock, par value $.01 per share
(the "Preferred Stock"), having the rights and preferences set forth in the
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Second Restated Certificate of Incorporation attached as Exhibit A hereto.
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12. Purchase and Sale of the Stock. On the basis of the
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representations, warranties, covenants and agreements set forth herein, but
subject to the terms and conditions set forth herein (including without
limitation the condition set forth in Section 1C below), at the Closing the
Company shall sell to the Purchasers and the Purchasers shall purchase from the
Company an aggregate of 20,000 shares of Preferred Stock for an aggregate
purchase price of $20,000,000, which shares of Preferred Stock shall be
purchased by the Purchasers in accordance with the Schedule of Purchasers
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attached hereto.
13. The Closing. The closing of the purchase and sale of the Stock
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(the "Closing") shall take place at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, at 10:00 a.m. on May 2, 2001, or at such
other place or on such other date as may be mutually agreeable to the Company
and the Purchasers. At the Closing, the Company shall deliver to the Purchasers
stock certificates evidencing the Stock to be purchased by each such Purchaser,
registered in the Purchaser's or its nominee's name, upon payment of the
purchase price thereof by
wire transfer of immediately available funds in the aggregate amount referenced
in Section 1B above.
Section 2. Conditions of the Purchasers' Obligation at the Closing.
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The obligations of the Purchasers to purchase and pay for the Preferred Stock at
the Closing is subject to the satisfaction as of the Closing of the following
conditions:
21. Representations and Warranties; Covenants. The representations
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and warranties contained in Section 4 hereof shall be true and correct in all
material respects at and as of the Closing as though then made, except to the
extent of changes caused by the execution, delivery and performance of the
agreements expressly referred to in this Section 2, and the Company shall have
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performed in all material respects all of the covenants and agreements required
to be performed by it hereunder prior to or at the Closing.
22. Second Amended and Restated Certificate of Incorporation. The
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Company's Restated Certificate of Incorporation shall have been amended and
restated to include the provisions set forth in Exhibit A hereto, shall be in
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full force and effect under the laws of Delaware as of the Closing as so amended
and shall not have been further amended or modified.
23. Securities Law Compliance. The Company shall have made all
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filings under all applicable federal and state securities laws necessary to
consummate the issuance of the Securities pursuant to this Agreement in
compliance with such laws.
24. Closing Documents. The Company shall have delivered to the
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Purchaser all of the following documents:
(i) an Officer's Certificate, dated the date of the Closing,
stating that the conditions specified in Sections 2A and 2B, have been
fully satisfied;
(ii) certified copies of the resolutions duly adopted by the
Company's board of directors authorizing the execution, delivery and
performance of this Agreement, the filing of the Second Amended and
Restated Certificate of Incorporation referred to in Section 2B, the
issuance and sale of the Preferred Stock, and the consummation of all
other transactions contemplated by this Agreement (the "Transactions");
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(iii) certified copies of the Company's Second Amended and
Restated Certificate of Incorporation and Bylaws, each as in effect at
the Closing;
(iv) certificates evidencing the Preferred Stock, issued in the
Purchasers' respective names; and
(v) such other documents relating to the Transactions as the
Purchasers or their special counsel may reasonably request.
25. Proceedings. All corporate and other proceedings taken or
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required to be taken by the Company in connection with the Transactions to be
consummated at or prior to the
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Closing and all documents incident thereto shall be reasonably satisfactory in
form and substance to the Purchasers.
26. Compliance with Applicable Laws. The purchase of the Securities
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by the Purchasers hereunder shall not be prohibited by any applicable law or
governmental rule or regulation.
27. Waiver. Any condition specified in this Section 2 may be waived
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if consented to by the Purchasers.
Section 3. Transfer of Restricted Securities.
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31. General Provisions. In addition to restrictions on transfer
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contained in the Investor Rights Agreement, shares of Restricted Stock are
transferable only pursuant to (i) Public Offerings registered under the
Securities Act, (ii) Rule 144 or Rule 144A of the Securities and Exchange
Commission (or any similar rule or rules then in force) if such rule is
available and (iii) subject to the conditions specified in Section 3B below, any
other legally available means of transfer.
32. Opinion Delivery. In connection with the transfer of any shares
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of Restricted Stock (other than a transfer described in Section 3A(i) or (ii)
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above), upon the request of the Company, the holder thereof shall deliver
written notice to the Company describing in reasonable detail the transfer or
proposed transfer, together with an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ or other counsel
which (to the Company's reasonable satisfaction) is knowledgeable in securities
law matters to the effect that such transfer of shares of Restricted Stock may
be effected without registration of such shares under the Securities Act. In
addition, if the holder of the shares of Restricted Stock delivers to the
Company an opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ or such other counsel that no subsequent
transfer of such shares shall require registration under the Securities Act, the
Company shall promptly upon such contemplated transfer deliver new certificates
for such shares which do not bear the Securities Act legend set forth in Section
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3C. If the Company is not required to deliver new certificates for such shares
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not bearing such legend, the holder thereof shall not transfer the same until
the prospective transferee has confirmed to the Company in writing its agreement
to be bound by the conditions contained in this Section 3.
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33. Legend. Each certificate representing shares of Restricted
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Stock shall be imprinted with a legend in substantially the following form:
"The securities represented by this certificate were originally issued
on May 2, 2001, and have not been registered under the Securities Act
of 1933, as amended or any applicable state securities laws. The
transfer of the securities represented by this certificate is subject
to the conditions specified in a Stock Purchase Agreement dated as of
May 2, 2001 and an Investor Rights Agreement, dated as of April 5, 2000
as amended and modified from time to time, between the issuer (the
"Company") and certain investors, and the Company reserves the right to
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refuse the transfer of such securities until such conditions have been
fulfilled with respect to such transfer. A copy of such conditions
shall be furnished by the Company to the holder hereof upon written
request and without charge."
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34. Legend Removal. If any shares of Restricted Stock become
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eligible for sale pursuant to Rule 144(k), the Company shall, upon the request
of the holder of such Restricted Securities, remove the legend set forth in
Section 3C from the certificates for such Restricted Securities.
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Section 4. Representations and Warranties of the Company. As a
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material inducement to the Purchasers to enter into this Agreement and purchase
the Preferred Stock hereunder, the Company hereby represents and warrants to
each Purchasers as of the date hereof as follows:
41. Organization, Corporate Power and Licenses. The Company is a
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corporation duly organized, validly existing and in good standing under the laws
of Delaware and is qualified to do business in every jurisdiction in which the
failure to so qualify would reasonably be expected to have a material adverse
effect on the financial condition, operating results, assets, operations or
business prospects of the Company and its Subsidiaries taken as a whole. The
Company possesses all requisite corporate power and authority and all material
licenses, permits and authorizations necessary to own and operate its
properties, to carry on its businesses as now conducted and presently proposed
to be conducted and to carry out the transactions contemplated by this Agreement
(including, without limitation, the issuance of the Preferred Stock hereunder).
The copies of the Company's Second Amended and Restated Certificate of
Incorporation and Bylaws which have been furnished to the Purchasers reflect all
amendments made thereto at any time prior to the date of this Agreement and are
correct and complete.
42. Capital Stock and Related Matters.
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(i) As of the Closing and immediately thereafter, the authorized
capital stock of the Company shall consist of (a) 100,000,000 shares of Common
Stock, of which 76,049,301.77 shares shall be issued and outstanding; (b)
350,000 shares of Series A-1 Preferred Stock, of which 337,582.50 shares shall
be issued and outstanding and (c) 95,000 shares of Series A-2 Preferred Stock,
of which 20,000 shares shall be issued and outstanding. The attached
Capitalization Schedule sets forth the ownership of the Company as of and
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immediately after the Closing. As of the Closing, the Company shall not have
outstanding (or any commitments to issue) any stock or securities convertible or
exchangeable for any shares of its capital stock or containing any profit
participation features, nor shall it have outstanding any rights or options to
subscribe for or to purchase its capital stock or any stock or securities
convertible into or exchangeable for its capital stock or any stock appreciation
rights or phantom stock plans, except as set forth on the attached
Capitalization Schedule. As of the Closing, the Company shall not be subject to
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any obligation (contingent or otherwise) to repurchase or otherwise acquire or
retire any shares of its capital stock or any warrants, options or other rights
to acquire its capital stock except pursuant to the Executive Stock Agreements
and the Investor Rights Agreement. All of the outstanding shares of the
Company's capital stock are, and as of the Closing shall be, validly issued,
fully paid and nonassessable.
(ii) There are no statutory or, to the Company's actual knowledge,
contractual stockholders preemptive rights or rights of refusal with respect to
the issuance of the Preferred Stock hereunder or any other capital stock or
other securities of the Company, except as set forth in the Investor Rights
Agreement. Based upon the representations and warranties of the Purchasers set
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forth herein, and to the Company's knowledge, the Company has not violated any
applicable federal or state securities laws in connection with the offer, sale
or issuance of any of its capital stock or other securities, and the offer, sale
and issuance of the Preferred Stock hereunder do not require registration under
the Securities Act or any applicable state securities laws. To the Company's
actual knowledge, there are no agreements between the Company's stockholders
with respect to the voting or transfer of the Company's capital stock or with
respect to any other aspect of the Company's affairs, except for the Investor
Rights Agreement and Executive Stock Agreements between the Company and certain
of its executives. The Company has not granted any registration rights other
than under the Investor Rights Agreement .
43. Authorization; No Breach. The execution, delivery and
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performance of this Agreement (including the issuance and delivery of the
Preferred Stock hereunder) and the Company's Second Amended and Restated
Certificate of Incorporation have been duly and validly authorized by the
Company's board of directors. This Agreement constitutes a valid and binding
obligation of the Company, enforceable in accordance with its terms. The
execution and delivery by the Company of this Agreement, the offering, sale and
issuance of the Preferred Stock hereunder and the fulfillment of and compliance
with the respective terms hereof and thereof by the Company, do not and shall
not (i) conflict with or result in a breach of the terms, conditions or
provisions of, (ii) constitute a default under, (iii) result in the creation of
any lien, security interest, charge or encumbrance upon the Company's capital
stock or assets pursuant to, (iv) give any third party the right to modify,
terminate or accelerate any obligation under, (v) result in a violation of, or
(vi) require any authorization, consent, approval, exemption or other action by
or notice or declaration to, or filing with, any court or administrative or
governmental body or agency or other Person pursuant to, the Second Amended and
Restated Certificate of Incorporation or Bylaws of the Company, or any law,
statute, rule or regulation to which the Company is subject, or any agreement,
instrument, order, judgment or decree to which the Company is subject.
44. Litigation, etc. There are no actions, suits, proceedings,
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orders, investigations or claims pending or, to the Company's actual knowledge,
threatened against the Company or pending or threatened by the Company against
any third party, at law or in equity, or before or by any governmental
department, commission, board, bureau, agency or instrumentality (including any
actions, suits, proceedings or investigations with respect to the transactions
contemplated by this Agreement) or otherwise.
45. Brokerage. There are no claims for brokerage commissions,
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finders' fees or similar compensation in connection with the transactions
contemplated by this Agreement based on any arrangement or agreement binding
upon the Company.
46. Governmental Consent, etc. To the actual knowledge of the
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Company: (i) no permit, consent, approval or authorization of, or declaration to
or filing with, any governmental authority is required in connection with the
execution, delivery and performance by the Company of this Agreement, or the
consummation by the Company of the Transactions and (ii) no permit, consent,
approval or authorization of, or declaration to or filing with, any governmental
authority was required in connection with the formation of the Company, other
than filing with the Delaware Secretary of State.
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47. Investment Company. The Company is not an "investment company"
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as defined under the Investment Company Act of 1940, as amended.
Section 5. Representations and Warranties of the Purchasers.
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51. Purchasers' Investment Representations. As a material
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inducement to the Company to enter into this Agreement and to sell the Preferred
Stock hereunder, each Purchaser represents and warrants, severally and not
jointly, to the Company as of the date hereof as follows:
(i) Such Purchaser is acquiring the Restricted Stock purchased
hereunder for its own account with the present intention of holding such
securities for purposes of investment, has no intention of selling such
securities in a public distribution in violation of the federal securities laws
or any applicable state securities laws, was not organized or reorganized for
the purpose of purchasing the Restricted Stock purchased hereunder, and conducts
other business or holds other investments; provided that nothing contained
herein shall prevent such Purchaser and subsequent holders of Restricted Stock
from transferring such securities in compliance with the provisions of Section 3
hereof and the Investor Rights Agreement.
(ii) Such Purchaser is an "accredited investor" (as defined)
under Regulation D under the Securities Act, is sophisticated in financial
matters and is able to evaluate the risks and benefits of the investment in the
Preferred Stock.
(iii) Such Purchaser is able to bear the economic risk of its
investment in the Preferred Stock for an indefinite period of time because the
Preferred Stock has not been registered under the Securities Act and, therefore,
cannot be sold unless subsequently registered under the 1933 Act or an exemption
from such registration is available.
(iv) Such Purchaser has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the offering of the
Preferred Stock and has had full access to such other information concerning the
Company as it has requested.
(v) This Agreement constitutes the legal, valid and binding
obligation of such Purchaser, enforceable in accordance with its terms, and the
execution, delivery and performance of this Agreement by such Purchaser does not
and shall not conflict with, violate or cause a breach of any agreement,
contract or instrument to which such Purchaser is a party or any judgment, order
or decree to which such Purchaser is subject.
(vi) Such Purchaser is a resident of the state indicated in its
address as set forth on the Schedule of Purchasers attached hereto.
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Section 6. Definitions.
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61. Definitions. For the purposes of this Agreement, the
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following terms have the meanings set forth below:
"HSR Act" shall mean the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
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Improvements Act of 1976, as amended.
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"Independent Third Party" means any Person who, immediately
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prior to the contemplated transaction, does not own in excess of 5% of the
Company's Common Stock on a fully-diluted basis (a "5% Owner"), who is not
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controlling, controlled by or under common control with any such 5% Owner and
who is not the spouse or descendent (by birth or adoption) of any such 5% Owner
or a trust for the benefit of such 5% Owner and/or such other Persons.
"Investor Rights Agreement" means the that certain agreement
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dated as of April 5, 2000, as amended, by and among the Company and its
stockholders.
"Officer's Certificate" means a certificate signed by the
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Company's president or its chief financial officer, stating that (i) the officer
signing such certificate has made or has caused to be made such investigations
as are necessary in order to permit him to verify the accuracy of the
information set forth in such certificate and (ii) to the best of such officer's
actual knowledge, such certificate does not misstate any material fact and does
not omit to state any fact necessary to make the certificate not misleading.
"Person" means an individual, a partnership, a corporation, a
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limited liability company, an association, a joint stock company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Public Offering" means any offering of the Company's equity
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securities to the public pursuant to an effective registration statement under
the Securities Act, or any comparable statement under any similar federal
statute then in force.
"Restricted Stock" means (i) the Preferred Stock issued
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hereunder, and (ii) any Preferred Stock issued with respect to the Preferred
Stock referred to in clause (i) above by way of a stock dividend or stock split
or in connection with a combination of shares, recapitalization, merger,
consolidation or other reorganization. As to any particular shares of Restricted
Stock, such shares shall cease to be Restricted Stock when they have (a) been
effectively registered under the Securities Act and disposed of in accordance
with the registration statement covering them, (b) been distributed to the
public through a broker, dealer or market maker pursuant to Rule 144 (or any
similar provision then in force) under the Securities Act or become eligible for
sale pursuant to Rule 144(k) (or any similar provision then in force) under the
Securities Act or (c) been otherwise transferred and new certificates for them
not bearing the Securities Act legend set forth in Section 3C have been
delivered by the Company. Whenever any particular securities cease to be
Restricted Stock, the holder thereof shall be entitled to receive from the
Company, without expense, new shares of like tenor not bearing a Securities Act
legend of the character set forth in Section 3C.
"Sale of the Company" means the sale of the Company to an
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Independent Third Party or group of Independent Third Parties pursuant to which
such party or parties acquire (i) capital stock of the Company possessing the
voting power under normal circumstances to elect a majority of the Board
(whether by merger, consolidation or sale or transfer of the Company's capital
stock) or (ii) all or substantially all of the Company's assets determined on a
consolidated basis.
"Securities Act" means the Securities Act of 1933, as amended,
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or any similar federal law then in force.
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"Securities and Exchange Commission" means the U.S. Securities
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and Exchange Commission and includes any governmental body or agency succeeding
to the functions thereof.
"Securities Exchange Act" means the Securities Exchange Act of
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1934, as amended, or any similar federal law then in force.
"Subsidiary" means, with respect to any Person, any
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corporation, limited liability company, partnership, association or other
business entity of which (i) if a corporation, a majority of the total voting
power of shares of stock entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof
is at the time owned or controlled, directly or indirectly, by that Person or
one or more of the other Subsidiaries of that Person or a combination thereof,
or (ii) if a limited liability company, partnership, association or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest in a limited liability company, partnership, association or
other business entity if such Person or Persons shall be allocated a majority of
limited liability company, partnership, association or other business entity
gains or losses or shall be or control any managing director or general partner
of such limited liability company, partnership, association or other business
entity.
Section 7. Miscellaneous.
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71. Expenses. The Company shall pay to the Purchasers, and hold
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the Purchasers harmless against liability for the payment of, (i) the fees and
expenses of its special counsel arising in connection with the negotiation and
execution of this Agreement and the consummation of the transactions
contemplated by this Agreement, which shall be payable at the Closing or, if the
Closing does not occur, payable upon demand, (ii) the fees and expenses incurred
with respect to any amendments or waivers (whether or not the same become
effective) under or in respect of this Agreement, the agreements contemplated
hereby or the Second Amended and Restated Certificate of Incorporation, (iii)
the fees and expenses incurred with respect to the enforcement of the rights
granted under this Agreement, the agreements contemplated hereby and the Second
Amended and Restated Certificate of Incorporation, (iv) the reasonable fees and
expenses incurred by the Purchasers in connection with any transaction, claim or
event which WS believes affects the Company and as to which the Purchasers seeks
the advice of outside professionals, and (iv) the fees and expenses incurred by
the Purchasers in connection with a Sale of the Company.
72. Subsequent Employee Agreements. After the date hereof, any
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agreement entered into by the Company providing for the issuance to employees of
stock or other equity securities exercisable for or convertible into stock shall
contain repurchase provisions granting the Purchasers the right to repurchase
the employee stock to the extent not repurchased by the Company, on terms no
less favorable than are contained in the Executive Stock Agreements entered into
by the Company as of the date hereof; provided, however, that the requirement
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contained herein can be waived in writing by the Purchasers.
73. Indemnification. The Company hereby covenants and agrees to
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indemnify and hold harmless the Purchasers, their respective officers,
directors, stockholders, affiliates,
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successors, assigns, agents and other representatives, from and against any and
all damages, losses, claims, liabilities, deficiencies, costs and expenses
(including, without limitation, reasonable attorneys' fees), resulting from any
material breach of any of the representations, warranties or covenants of the
Company under this Agreement.
74. Survival of Representations and Warranties. All
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representations and warranties contained herein or made in writing by any party
in connection herewith shall survive the execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby,
regardless of any investigation made by the Purchasers or on their behalf,
through the first anniversary of the Closing; provided, however, that the
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representations and warranties contained in Section 4B, Section 4C and Section
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4D hereof shall survive the Closing for the applicable statute of limitations,
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giving effect to any waiver, mitigation or extension thereof.
75. Remedies. The Purchasers shall have all rights and remedies
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set forth in this Agreement, the Investor Rights Agreement, the Second Amended
and Restated Certificate of Incorporation and all rights and remedies which the
Purchasers have been granted at any time under any other agreement or contract
and all of the rights which the Purchasers have under any law. The Purchasers
shall be entitled to enforce such rights specifically (without posting a bond or
other security), to recover damages by reason of any breach of any provision of
this Agreement and to exercise all other rights granted by law.
76. Consent to Amendments. Except as otherwise expressly
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provided herein, the provisions of this Agreement may be amended and the Company
may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, only if the Company has obtained the written
consent of the Purchasers.
77. Successors and Assigns. Except as otherwise expressly
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provided herein, all covenants and agreements contained in this Agreement by or
on behalf of any of the parties hereto shall bind and inure to the benefit of
the respective successors and assigns of the parties hereto whether so expressed
or not. In addition, and whether or not any express assignment has been made,
the provisions of this Agreement which are for the Purchasers' benefit as a
purchaser or holder of any class of Preferred Stock are also for the benefit of,
and enforceable by, any subsequent holder of such Preferred Stock.
78. Severability. Whenever possible, each provision of this
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Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
79. No Third Party Beneficiaries. Nothing herein expressed or
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implied is intended or shall be construed to confer upon or give to any Person
other than the parties hereto and their respective permitted successors and
assigns, any rights or remedies under or by reason of this Agreement.
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710. Counterparts. This Agreement may be executed
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simultaneously in two or more counterparts, any one of which need not contain
the signatures of more than one party, but all such counterparts taken together
shall constitute one and the same Agreement.
711. Descriptive Headings; Interpretation. The descriptive
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headings of this Agreement are inserted for convenience only and do not
constitute a substantive part of this Agreement. The use of the word "including"
in this Agreement shall be by way of example rather than by limitation.
712. Governing Law. All issues and questions concerning the
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construction, validity, enforcement and interpretation of this Agreement and the
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of Illinois, without giving effect to any choice of
law or conflict of law rules or provisions (whether of the State of Illinois or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Illinois. In furtherance of the foregoing,
the internal law of the State of Illinois shall control the interpretation and
construction of this Agreement (and all schedules and exhibits hereto), even
though under that jurisdiction's choice of law or conflict of law analysis, the
substantive law of some other jurisdiction would ordinarily apply.
713. Notices. All notices, demands or other communications to
-------
be given or delivered under or by reason of the provisions of this Agreement
shall be in writing and shall be deemed to have been given when delivered
personally to the recipient, sent to the recipient by reputable overnight
courier service (charges prepaid) or mailed to the recipient by certified or
registered mail, return receipt requested and postage prepaid. Such notices,
demands and other communications shall be sent to the Purchasers at the
addresses indicated on the Schedule of Purchasers attached hereto, to the
----------------------
Company at the following address:
Ziff ▇▇▇▇▇ Holdings Inc.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
with a copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party.
-10-
714. No Strict Construction. The parties hereto have
----------------------
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
715. Right to Exchange Preferred Stock Upon Subsequent Equity
--------------------------------------------------------
Financing. If the Company engages in an equity financing within twelve months
---------
after the Closing pursuant to which the Purchasers or any of their affiliates
purchase equity securities of the Company, the Purchasers shall have the right
to exchange the Preferred Stock purchased hereunder (including any accrued and
unpaid dividends on such Preferred Stock) for the equity securities to be
purchased in such subsequent equity financing. For purposes of determining the
consideration attributable to the Preferred Stock in any such exchange, the
Preferred Stock shall be valued at its liquidation value plus all accrued and
unpaid dividends thereon through the effective date of the exchange.
* * *
-11-
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement on the date first written above.
ZIFF ▇▇▇▇▇ HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------
Its: Chief Operating Officer
-------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ & PARTNERS III, L.P.
▇▇▇▇▇▇ ▇▇▇▇▇ & PARTNERS DUTCH III-A, L.P.
▇▇▇▇▇▇ ▇▇▇▇▇ & PARTNERS DUTCH III-B, L.P.
▇▇▇▇▇▇ ▇▇▇▇▇ & PARTNERS III-C, L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners Management III, L.P.
Its: General Partner
By: ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners Management III,
L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------------------
Its: Member
LIST OF EXHIBITS AND SCHEDULES
------------------------------
Exhibits
--------
Exhibit A - Second Amended and Restated of Certificate of Incorporation
Disclosure Schedules
--------------------
Capitalization Schedule
Schedule of Purchasers.
----------------------
Capitalization Schedule
-----------------------
Outstanding Capital Stock As of Closing
---------------------------------------
--------------------------------------------------------------------------------------------------------------------
No. of Shares of No. of Shares of No. of Shares of
Series A-1 Series A-2 Common Stock
Preferred Stock Preferred Stock
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ & Partners II, L.P. 89,288.12 18,797,498.79
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ & Partners Dutch, L.P. 5,711.88 1,202,501.21
--------------------------------------------------------------------------------------------------------------------
Abu Dhabi Investment Authority 14,250.00 3,000,000.00
--------------------------------------------------------------------------------------------------------------------
The Chase Manhattan Bank as Trustee for First Plaza 9,500.00 2,000,000.00
Group Trust
--------------------------------------------------------------------------------------------------------------------
Co-Investment Partners, L.P. 14,250.00 3,000,000.00
--------------------------------------------------------------------------------------------------------------------
DLJ Diversified Partners, L.P. 1,749.34 368,282.80
--------------------------------------------------------------------------------------------------------------------
DLJ Diversified Partners-A, L.P. 649.65 136,767.60
--------------------------------------------------------------------------------------------------------------------
DLJ EAB Partners, L.P. 134.34 28,282.80
--------------------------------------------------------------------------------------------------------------------
DLJ ESC II L.P. 5,642.42 1,187,878.80
--------------------------------------------------------------------------------------------------------------------
DLJ First Esc L.P. 57.58 12,121.20
--------------------------------------------------------------------------------------------------------------------
DLJ Merchant Banking Partners II-A, L.P. 1,191.61 250,865.40
--------------------------------------------------------------------------------------------------------------------
DLJ Merchant Banking Partners II, L.P. 29,921.45 6,299,252.40
--------------------------------------------------------------------------------------------------------------------
DLJ Millennium Partners, L.P. 483.80 101,851.80
--------------------------------------------------------------------------------------------------------------------
DLJ Millennium Partners-A, L.P. 94.36 19,865.40
--------------------------------------------------------------------------------------------------------------------
DLJ Offshore Partners II, C.V. 1,471.38 309,764.40
--------------------------------------------------------------------------------------------------------------------
DLJMB Funding II, Inc. 6,104.07 1,285,067.40
--------------------------------------------------------------------------------------------------------------------
GS Private Equity Partners II, L.P. 4,225.99 889,682.00
--------------------------------------------------------------------------------------------------------------------
GS Private Equity Partners II Offshore, L.P. 2,188.51 460,739.80
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
GS Private Equity Partners II - Direct Investment 1,750.81 368,591.80
Fund, L.P.
--------------------------------------------------------------------------------------------------------------------
GS Private Equity Partners III, L.P. 4,429.43 932,511.20
--------------------------------------------------------------------------------------------------------------------
GS Private Equity Partners III Offshore, L.P. 1,032.61 217,391.40
--------------------------------------------------------------------------------------------------------------------
GS Private Equity Partners Connecticut, L.P. 622.65 131,083.80
--------------------------------------------------------------------------------------------------------------------
NAS Partners I L.L.C. 54.98 11,575.00
--------------------------------------------------------------------------------------------------------------------
Nassau Capital Partners Fund III L.P. 7,070.02 1,488,425.00
--------------------------------------------------------------------------------------------------------------------
Norwest Equity Partners VII, L.P. 7,125.00 1,500,000.00
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇. 8,455.00 4,146,000.00
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 142.50 522,916.67
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ 475.00 127,288.13
--------------------------------------------------------------------------------------------------------------------
▇▇ ▇▇▇▇▇▇▇ 285.00 552,916.67
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ & Partners III, L.P. 118,750.00 18,613.3334 25,000,000.00
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ & Partners Dutch III-A, L.P. 606.0606
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ & Partners Dutch III-B, L.P. 606.0606
--------------------------------------------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ & Partners III-C, L.P. 174.5454
--------------------------------------------------------------------------------------------------------------------
Other Management Stockholders 1,353,721.98
--------------------------------------------------------------------------------------------------------------------
Total Authorized Shares: 350,000.00 95,000.00 100,000,000.00
--------------------------------------------------------------------------------------------------------------------
SCHEDULE OF PURCHASERS
-----------------------------------------------------------------------------------
HOLDER NUMBER OF SHARES OF SERIES
A-2 PREFERRED
-----------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ & Partners III, L.P. 8,613.3334
c/o ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ & Partners Dutch III-A, L.P. 606.0606
c/o ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
-----------------------------------------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇ & Partners Dutch III-B, L.P. 606.0606
c/o ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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▇▇▇▇▇▇ ▇▇▇▇▇ & Partners III-C, L.P. 174.5454
c/o ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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