EXHIBIT 10.34
AMENDMENT NO. 1 TO
STOCK PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO STOCK PURCHASE AGREEMENT (this
"Amendment") is made as of August 12, 2002, by and among Ziff ▇▇▇▇▇ Holdings
Inc., a Delaware corporation (the "Company"), and ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners III,
L.P., ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners Dutch III-A, L.P., ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners Dutch
III-B, L.P. and ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners III-C, L.P. (collectively, the
"Purchasers"). Unless otherwise indicated, capitalized terms not defined herein
shall have the meanings assigned to such terms in the Stock Purchase Agreement
by and among the Company and the Purchasers, dated as of June 28, 2002 (the
"Pre-Amendment Stock Purchase Agreement").
WHEREAS, the Company, the Purchasers and certain other Persons
have entered into a Series D Preferred Stock Purchase Agreement (the "Series D
Stock Purchase Agreement") pursuant to which the Purchasers and such certain
other Persons will, among other things, purchase shares of the Company's Series
D Redeemable Preferred Stock, par value $.01 per share (the "Series D
Preferred").
WHEREAS, Section 8C of the Series D Stock Purchase Agreement
provides, among other things, that the purchasers of Series D Preferred shall
not be entitled to receive, and the Company shall not be permitted to make, any
cash payment from the Company to such purchasers as a result of the Company's
breach of any of the representations and warranties contained therein or made in
writing by the Company in connection therewith until the New Notes (as defined
therein) have been paid in full, together with all interest and premium, if any.
WHEREAS, the Company and the Purchasers desire to add to the
Pre-Amendment Stock Purchase Agreement a provision similar to the provision in
Section 8C of the Series D Stock Purchase Agreement described in the immediately
preceding recital.
WHEREAS, the Company and the Purchasers desire to amend the
Pre-Amendment Stock Purchase Agreement on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual agreements and
covenants made herein and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto, intending
to be legally bound, hereby agrees as follows:
1. Amendment of the Pre-Amendment Stock Purchase Agreement.
Section 8C of the Pre-Amendment Stock Purchase Agreement is hereby amended by
adding the following at the end of Section 8C.
Notwithstanding anything else contained herein to the contrary, the
Purchasers shall not be entitled to receive, and the Company shall not
be permitted to make, any cash payment from the Company to such
Purchasers as a result of the Company's breach of any of the
representations and warranties contained in this Agreement or made in
writing by the Company in connection therewith until the
new senior subordinated compounding notes of Ziff ▇▇▇▇▇ Media in the
aggregate principal amount of $95,000,000 (the "New Notes") have been
paid in full in cash, together with all interest and premium, if any.
If any such cash payments are deferred pursuant to the immediately
preceding sentence, the Company shall immediately make such deferred
payment (together with interest on the amount so deferred calculated at
a per annum rate equal to the Prime Rate (as defined below) for the
period from when the payment was initially deferred until the time of
actual payment) immediately upon the payment in full in cash of the New
Notes (together with all interest and premium, if any). For purposes
hereof, "Prime Rate" shall mean the variable rate per annum equal to
the rate of interest most recently published by The Wall Street Journal
as the "prime rate" at large United States money centers.
2. Effectiveness. Pursuant to Section 9E of the Pre-Amendment
Stock Purchase Agreement, this Amendment shall be effective and binding upon
execution hereof by the Company and the Purchasers, and the Pre-Amendment Stock
Purchase Agreement shall be deemed amended as of the date first written above
immediately following such execution by the Company and the Purchasers. Any
reference in the Pre-Amendment Stock Purchase Agreement to "Agreement" shall
hereafter be deemed to refer to the Pre-Amendment Stock Purchase Agreement as
hereby amended.
3. Miscellaneous.
(a) Counterparts. This Amendment may be executed in any number of
counterparts, any one of which need not contain the signatures of more than one
party, but all of such counterparts shall constitute one amendment.
(b) Governing Law. All issues and questions concerning the
constriction, validity, enforcement and interpretation of this Amendment shall
be governed by, and construed in accordance with, the laws of the State of New
York, without giving effect to any choice of law or conflict of law provision or
rule (whether of the State of New York or any other jurisdiction) that would
cause the application of the law of any jurisdiction other than the State of New
York. In furtherance of the foregoing, the internal law of the State of New York
shall control the interpretation and construction of this Amendment, even though
under that jurisdiction's choice of law or conflict of law analysis, the
substantive law of some other jurisdiction would ordinarily apply.
(c) Effect on Pre-Amendment Stock Purchase Agreement. Except
as expressly modified by this Amendment, the Pre-Amendment Stock Purchase
Agreement remains in full force and effect.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this
Amendment No. 1 To Stock Purchase Agreement on the day and year first above
written.
ZIFF ▇▇▇▇▇ HOLDINGS INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Its: Chief Operating Officer and
Chief Financial Officer
▇▇▇▇▇▇ ▇▇▇▇▇ & PARTNERS III, L.P.
▇▇▇▇▇▇ ▇▇▇▇▇ & PARTNERS DUTCH III-A, L.P.
▇▇▇▇▇▇ ▇▇▇▇▇ & PARTNERS DUTCH III-B, L.P.
▇▇▇▇▇▇ ▇▇▇▇▇ & PARTNERS III-C, L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners Management III, L.P.
Its: General Partner
By: ▇▇▇▇▇▇ ▇▇▇▇▇ & Partners Management III, L.L.C.
Its: General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Member