Exhibit 99.1
SECURITIES PURCHASE AGREEMENT
AMONG
COINSTAR, INC.
AND
CERTAIN STOCKHOLDERS OF
XXXXX.XXX, INC.
Dated as of June 21, 2001
SECURITIES PURCHASE AGREEMENT
This Securities Purchase Agreement (this "Agreement") is entered into as of
June 21, 2001 among Coinstar, Inc., a Delaware corporation ("Buyer") and certain
stockholders of Xxxxx.xxx, Inc., other than Buyer, listed on the signature pages
hereto (the "Stockholders").
RECITALS
A. The Stockholders own stock, warrants, and other rights related to
Xxxxx.xxx, Inc., and desire and intend to all sell such shares, warrants and
rights to Buyer at the price and on the terms and subject to the conditions set
forth below.
B. Buyer desires and intends to purchase all the Xxxxx.xxx shares,
warrants and rights held by or through the Stockholders at the price and on the
terms and subject to the conditions set forth below.
AGREEMENT
In consideration of the terms hereof, the parties agree as follows:
ARTICLE I - DEFINITIONS
Whenever used in this Agreement, the following capitalized terms have the
following meanings:
"Coinstar Disclosure Documents" means, collectively, Buyer's Annual Report
or Form 10-K for the year ended December 31, 2000, as filed with the Securities
and Exchange Commission ("SEC") on March 30, 2001, and Buyer's Quarterly Report
on Form 10-Q for the quarter period ended March 30, 2001, as filed with the SEC
on May 14, 2001.
"Company" means Xxxxx.xxx, Inc., a Delaware corporation.
"Xxxxx.xxx Shares" means all shares of Xxxxx.xxx capital stock owned by any
of the Stockholders.
"Person" means any individual, group or entity.
"Related Rights" means any interest in Xxxxx.xxx capital stock (including,
without limitation, any options or warrants to purchase Xxxxx.xxx capital stock)
and any claims, causes of action or other rights related thereto.
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"Transaction Documents" means the Release Agreement between Buyer and the
Stockholders in substantially the same form as Exhibit B hereto and the Investor
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Questionnaire in substantially the same form as Exhibit C hereto.
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ARTICLE II - PURCHASE AND SALE OF SHARES
2.1 Purchase and Sale of Shares
On the terms and subject to the conditions of this Agreement, Buyer agrees
to purchase the Xxxxx.xxx Shares and the Related Rights from the Stockholders,
and the Stockholders agree to sell the Xxxxx.xxx Shares and the Related Rights
to Buyer.
2.2 Consideration
2.2.1 The aggregate purchase price for the Xxxxx.xxx Shares and the
Related Rights is one million dollars ($1,000,000) (the "Purchase Price"),
payable in shares of Coinstar, Inc. common stock as provided in this paragraph
2.2.
2.2.2 The Purchase Price will be payable by delivery, as set forth in
subparagraph 2.2.3, to the Stockholders of an aggregate of 52,656 shares of
Coinstar, Inc. Common stock (the "Coinstar Shares"), determined by dividing the
Purchase Price by eighteen dollars and ninety-nine cents ($18.99) (the closing
price of Coinstar, Inc. common stock on Friday, June 8, 2001).
2.2.3 Each Stockholder will receive a pro rata portion of the Coinstar
Shares based on the number of Xxxxx.xxx Shares owned by such Stockholder (and
rounded to the nearest whole share), as provided in Exhibit A.
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2.3 Closing
The closing of the transactions contemplated herein (the "Closing") shall
be on June 29, 2001 and shall be held at the offices of Xxxxxxx Coie LLP at 0000
Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx 00000-0000, or such other time and
date as Buyer and the Company shall agree (the "Closing Date"). At the Closing,
each of Buyer and the Stockholders shall take all such action and deliver all
such funds, documents, instruments, certificates and other items as may be
required, under this Agreement or otherwise, in order to perform or fulfill all
covenants, conditions and agreements on its part to be performed or fulfilled at
or before the Closing Date and to cause all conditions precedent to the other
parties' obligations under this Agreement to be satisfied in full.
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ARTICLE III - REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
To induce Buyer to enter into and perform this Agreement, each Stockholder
represents and warrants to Buyer, severally with respect to such Stockholder
only, as of the date of this Agreement and as of the Closing as follows in this
Article III (which representations and warranties shall survive the Closing as
provided in Article VIII).
3.1 Good Title
Such Stockholder owns, beneficially and of record, the Xxxxx.xxx Shares
listed opposite such Stockholder's name on Exhibit A. Such Xxxxx.xxx Shares are
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owned free and clear of any lien, encumbrance, adverse claim, restriction on
sale, transfer or voting (other than restrictions imposed by applicable
securities laws), preemptive right, option or other right to purchase and upon
the consummation of the sale of such Xxxxx.xxx Shares as contemplated hereby,
Buyer will have good title to such Xxxxx.xxx Shares, free and clear of any lien,
encumbrance, adverse claim, restriction on sale, transfer or voting (other than
restrictions imposed by applicable securities laws), preemptive right, option or
other right to purchaser.
3.2 Authority
Such Stockholder has all requisite power, right and authority to enter into
this Agreement and the other Transaction Documents to which it is a party, to
consummate the transactions contemplated hereby and thereby, and to sell and
transfer such Xxxxx.xxx Shares without the consent or approval of any other
Person. Such Stockholder has taken, or will take prior to the Closing, all
actions necessary for the authorization, execution, delivery and performance of
this Agreement and the other Transaction Documents.
3.3 Enforceability
This Agreement has been, and the other Transaction Documents to which such
Stockholder is a party on the Closing will be, duly executed and delivered by
such Stockholder, and this Agreement is, and each of the other Transaction
Documents to which it is a party on the Closing will be, the legal, valid and
binding obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms.
3.4 No Approvals or Notices Required; No Conflicts
The execution, delivery and performance of this Agreement and the other
Transaction Documents by such Stockholder, and the consummation of the
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transactions contemplated hereby and thereby, will not (a) constitute a
violation (with or without the giving of notice or lapse of time, or both) of
any provision of any law or any judgment, decree, order, regulation or rule of
any court, agency or other governmental authority applicable to such
Stockholder, (b) require any consent, approval or authorization of, or
declaration, filing or registration with, any Person other than compliance with
applicable securities laws, (c) result in the creation of any lien or
encumbrance upon the assets of such Stockholder.
3.5 No Transfer
Such Stockholder represents and warrants that it has not sold, given or
otherwise transferred any of its Xxxxx.xxx Shares or any Related Rights
(including, without limitation, pursuant to a divorce, bankruptcy, business
dissolution or other reorganization) to any other individual or entity.
3.6 Suitability
Such Stockholder is in a financial position to hold the Coinstar Shares to
be acquired by such Stockholder pursuant to this Agreement (the "Acquired
Shares") and is able to bear the economic risk and withstand a complete loss of
his/her/its investment in the Acquired Shares. The investment in the Acquired
Shares is suitable for such Stockholder based upon his/her/its investment
objectives and financial needs, and the Investor has adequate net worth and
means for providing for his/her/its current financial needs and contingencies.
3.7 Risk Factors
Such Stockholder recognizes that the Acquired Shares as an investment
involve a high degree of risk, including those risks described in the Coinstar
Disclosure Documents.
3.8 Access to Information
Such Stockholder has been provided a copy of the Coinstar Disclosure
Documents and has had access to (i) all filings made by Buyer with the SEC under
the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC thereunder, (ii) press
releases of Buyer (available on Buyer's web site at xxx.xxxxxxxx.xxx), including
the press release dated June 15, 2001 and the press release dated June 18, 2001,
and (iii) information regarding Xxxxx.xxx financial condition. As a result,
such Stockholder has had access to full and complete information regarding Buyer
and has utilized such access to his/her/its satisfaction for the purpose of
obtaining information or verifying
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information, and particularly, such Stockholder or his/her/its representative
has been given a reasonable opportunity to ask questions of, and receive answers
from, representatives of Buyer concerning the terms and conditions of the
offering of the Acquired Shares and the purchase by Buyer of the Xxxxx.xxx
Shares, and to obtain any additional information, to the extent reasonably
available to Buyer without unreasonable effort or expense.
3.9 Restricted Securities
Such Stockholder realizes that (i) the Acquired Shares have not been
registered under the Securities Act of 1933, as amended (the "Act"), (ii) the
Acquired Shares are characterized under the Act as "restricted securities" and,
therefore, cannot be sold or transferred unless they are subsequently registered
under the Act or an exemption from such registration is available and (iii) such
Stockholder may not be able to liquidate his/her/its investment in the event of
an emergency or pledge the Acquired Shares as collateral security for loans. In
this connection, such Stockholder represents that he/she/it is familiar with
Rule 144 of the Securities and Exchange Commission (the "SEC") as presently in
effect, and understands the resale limitations imposed thereby and by the Act.
3.10 Exemption Reliance
Such Stockholder has been advised that the Acquired Shares are not being
registered under the Act or the applicable state securities laws but are being
offered and sold pursuant to exemptions from such laws and that Buyer's reliance
upon such exemptions is predicated in part on such Stockholder's representations
contained herein. If other than an individual, such Stockholder represents that
it has not been organized for the purpose of investing in the Acquired Shares.
Such Stockholder represents and warrants that the Acquired Shares are being
purchased for his/her/its own account, for investment and without the intention
of reselling or redistributing the same and that he/she/it has made no agreement
with others regarding any of such Acquired Shares.
3.11 Accreditation
Such Stockholder is an "Accredited Investor" as that term is defined by the
SEC and as certified by such Stockholder in an Investor Questionnaire in the
form of Exhibit C.
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3.12 Legal Advice and Understanding of Agreement
Each Stockholder represents that it has received, or it has had the
opportunity to obtain, independent legal advice with respect to the advisability
of entering into this Agreement and such Stockholder has not relied upon the
legal or other advice of the other party's counsel in entering into this
Agreement. Each Stockholder represents that it has carefully read this
Agreement, that this Agreement has been fully explained to it by its attorney,
that it fully understands all of the terms and provisions of this Agreement and
the Agreement's binding effect, and that it is entering into this Agreement
voluntarily.
ARTICLE IV - REPRESENTATIONS AND WARRANTIES
OF BUYER
To induce the Stockholders to enter into and perform this Agreement, Buyer
represents and warrants to the Stockholders as of the date of this Agreement and
as of the Closing as follows in this Article IV:
4.1 Organization
Buyer is a corporation duly incorporated, validly existing and in good
standing under the laws of the state of Delaware. Buyer has all requisite
corporate power and authority to own, operate and lease its properties and
assets, to carry on its business as now conducted and as proposed to be
conducted, to execute, deliver and perform its obligations under this Agreement
and the other Transaction Documents to which it is a party, and to carry out the
transactions contemplated hereby and thereby.
4.2 Enforceability
All corporate action on the part of Buyer and its officers, directors and
Stockholders necessary for the authorization, execution, delivery and
performance of this Agreement and the other Transaction Documents to which it is
a party, the consummation of the transactions contemplated hereby and thereby,
and the performance of all of Buyer's obligations under this Agreement and the
other Transaction Documents to which it is a party has been taken or will be
taken prior to the Closing. This Agreement has been, and the other Transaction
Documents to which Buyer is a party on the Closing will be, duly executed and
delivered by Buyer, and this Agreement is, and each of the other Transaction
Documents to which Buyer is a party on the Closing will be, a legal, valid and
binding obligation of Buyer, enforceable against Buyer in accordance with its
terms.
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4.3 No Approvals or Notices Required; No Conflicts With Instruments
The execution, delivery and performance by Buyer of this Agreement and the
other Transaction Documents to which it is a party, and the consummation of the
transactions contemplated hereby and thereby, will not (a) constitute a
violation (with or without the giving of notice or lapse of time, or both) of
any provision of any law or any judgment, decree, order, regulation or rule of
any court, agency or other governmental authority applicable to Buyer, (b)
require Buyer to obtain any consent, approval or authorization of, or
declaration, filing or registration with, any Person, or (c) constitute a
violation of any provisions of Buyer's Certificate of Incorporation or Bylaws.
4.4 Claims and Legal Proceedings
There is no claim, action, suit, arbitration, criminal or civil
investigation or proceeding pending or involving or, to Buyer's knowledge,
threatened against Buyer before or by any court or governmental or
nongovernmental department, commission, board, bureau, agency or
instrumentality, or any other Person, that questions the validity of this
Agreement or any action taken or to be taken by Buyer pursuant to this Agreement
or in connection with the transactions contemplated hereby.
4.5 Tax Consequences
Buyer does not make any representation or warranty with respect to, and
expressly disclaims any responsibility for, any Tax consequences to the
Stockholders arising out of the structure or terms of this Agreement, or the
negotiation or consummation hereof. Each Stockholder shall be solely
responsible for any such Tax consequences.
4.6 Validly Issued Securities
The securities to be issued pursuant to this Agreement have been duly
authorized for issuance, and such securities, when issued and delivered to the
Stockholders pursuant to this Agreement, shall be validly issued, fully paid and
nonassessable and will be free of all encumbrances, other than encumbrances
created by the Stockholders themselves.
4.7 Disclosure
The Coinstar Disclosure Documents were prepared in accordance with the
requirements of the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the SEC thereunder and did not, at the time they were filed,
contain any untrue statement of a material fact or omit to state a material fact
required to be stated
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therein or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. Since Buyer's
Quarterly Report on Form 10-Q for the quarter period ended March 30, 2001, as
filed with the SEC on May 14, 2001, there has been no material adverse change in
the business, operations or financial condition of Buyer, other than as
disclosed in the Coinstar Disclosure Documents since such Quarterly Report or in
any press release made generally available to the public and contained on
Buyer's Web site (xxx.xxxxxxxx.xxx) under the tab "News."
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ARTICLE V - CONDITIONS PRECEDENT TO OBLIGATIONS OF BUYER
The obligations of Buyer to perform and observe the covenants, agreements
and conditions to be performed and observed by it at or before the Closing shall
be subject to the satisfaction of the following conditions, which may be
expressly waived only in writing signed by Buyer.
5.1 Accuracy of Representations and Warranties
Each of the representations and warranties of the Stockholders contained in
this Agreement and the other Transaction Documents to which each is a party
shall be true and correct as of the date hereof and at and as of the Closing
Date as though made on that date; except to the extent such representations and
warranties are made as of a specified date, in which case such representations
and warranties shall be true and correct as of the specified date.
5.2 Performance of Agreements
The Stockholders shall have performed all obligations and agreements and
complied with all covenants and conditions contained in this Agreement or any
other Transaction Document to be performed and complied with by them at or prior
to the Closing.
5.3 Legal Proceedings
No order of any court or administrative agency shall be in effect that
enjoins, restrains, conditions or prohibits consummation of this Agreement, and
no litigation, investigation or administrative proceeding shall be pending or
threatened that would
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enjoin, restrain, condition or prevent consummation of this Agreement or the
transactions contemplated hereby.
5.4 Delivery of Certificates
The Stockholders shall deliver to Buyer at Closing certificates
representing the Xxxxx.xxx Shares, duly endorsed for transfer on the Company's
books.
5.5 Termination of Options and Warrants
The Stockholders shall surrender to Buyer at Closing all options, warrants
and other contractual rights to purchase capital stock of the Company.
5.6 Execution and Delivery of Transaction Documents
Every Stockholder shall have executed and delivered the Transaction
Documents (including, without limitation, the Release Agreement by and between
the Stockholders and Buyer in the form of Exhibit B) to Buyer.
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5.7 Execution of this Agreement
All Stockholders shall have executed this Agreement no later than 5 p.m. on
Thursday, June 21, 2001.
ARTICLE VI - CONDITIONS PRECEDENT TO OBLIGATIONS OF THE STOCKHOLDERS
The obligations of the Stockholders to perform and observe the covenants,
agreements and conditions to be performed and observed by each of them at or
before the Closing shall be subject to the satisfaction of the following
conditions, which may be expressly waived only in writing signed by the Company
and the Stockholders.
6.1 Accuracy of Representations and Warranties
Each of the representations and warranties of Buyer contained in this
Agreement and the other Transaction Documents to which it is a party shall be
true and correct as of the date hereof and at and as of the Closing Date as
though made on that date, except to the extent such representations and
warranties are made as of a specified date, in which case such representations
and warranties shall be true and correct as of the specified date.
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6.2 Performance of Agreements
Buyer shall have performed all obligations and agreements and complied with
all covenants and conditions contained in this Agreement or any other
Transaction Document to be performed and complied with by it at or prior to the
Closing.
ARTICLE VII - TERMINATION, AMENDMENT AND WAIVER
7.1 Termination
This Agreement may be terminated at any time prior to the Closing
(notwithstanding any approval of this Agreement by the Stockholders):
(a) by Buyer, if the Stockholders shall have breached any of their
representations, warranties or agreements herein;
(b) by Stockholders, if Buyer shall have breached any of its
representations, warranties or agreements herein;
(c) by Buyer or Stockholders if the Closing has not occurred by
Friday, July 20, 2001; or
(d) by Buyer or Stockholders if there shall be any law or regulation
that makes consummation of the sale of the Xxxxx.xxx Shares by the Stockholders
to Buyer or issuance of the Coinstar Shares by Buyer to the Stockholders illegal
or otherwise prohibited or if any judgment, injunction, order or decree
enjoining Buyer or the Company from consummating the sale of the Shares by the
Stockholders to Buyer is entered and such judgment, injunction, order or decree
shall become final and nonappealable.
7.2 Effect of Termination
In the event of the termination of this Agreement pursuant to paragraph
7.1, there shall be no further obligation on the part of any party, except that
paragraphs 7.2, 9.1, 9.2, 9.3 and 9.6 shall survive any such termination and
nothing shall relieve any party from liability for any breach.
7.3 Amendment
Buyer and the Stockholders may amend, modify or supplement this Agreement
at any time, but only in writing duly executed on behalf of each of the parties
to be bound thereby.
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7.4 Waiver
At any time prior to the Closing, any party may (a) extend the time for the
performance of any obligation or other act of any other party, (b) waive any
inaccuracy in the representations and warranties contained in any Transaction
Document, or (c) waive compliance with any agreement or condition in any
Transaction Document. Any such extension or waiver shall be valid only if set
forth in an instrument in writing signed by each party or parties to be bound.
The failure of any party at any time or times to require performance of any
provisions shall in no manner affect its right at a later time to enforce the
same. No waiver by any party of any condition or of any breach of any terms,
covenants, representations, warranties or agreements contained in this Agreement
shall be deemed to be a further or continuing waiver of any such condition or
breach in other instances or a waiver of any other condition or any breach of
any other terms, covenants, representations, warranties or agreements.
ARTICLE VIII - SECURITIES ISSUES AND REGISTRATION RIGHTS
8.1 No Admission
Buyer is entering into this Agreement and the Transaction Documents in
order to avoid the distraction to management of dealing with potential claims
released pursuant to the Release Agreement attached as Exhibit B, and in order
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to fully satisfy any obligation it may have to the Stockholders in connection
with Xxxxx.xxx. This Agreement will not be interpreted or construed as an
admission or concession of liability by any of the parties with regard to any
matter.
8.2 Stockholder Representative
To facilitate the implementation of Article VIII, the Stockholders elect
Xxxxxxx Partners, LP as Stockholder Representative. The Stockholder
Representative shall act as follows:
(a) The Stockholder Representative shall have authority to act for
and on behalf of all Stockholders with respect to all matters arising in
connection with this Agreement, including, without limitation, the power and
authority, in their sole discretion, to
(i) take any action contemplated to be taken by the
Stockholders under this Article VIII;
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(ii) negotiate, determine, defend and settle any disputes that
may arise under or in connection with this Agreement; and
(iii) make, execute, acknowledge and deliver any releases,
assurances, receipts, requests, instructions, notices, agreements, certificates
and any other instruments, and generally do any and all things and take any and
all actions that may be requisite, proper or advisable in connection with this
Agreement.
(b) The Stockholder Representative shall not be liable to any person
or entity for any action taken or any omission to act, in good faith, in
connection with their responsibilities as Stockholder Representative under this
Agreement.
(c) The Stockholder Representative may be changed by a vote of the
majority of the Stockholders or their successor in interest weighted by the
amount of their percentage interest in the Coinstar Shares.
8.3 Registration Rights
No later than thirty (30) days after the Closing, Buyer agrees to file a
registration statement on Form S-3, or if Form S-3 is not then available, on
such Form as is available to Buyer (the "Registration Statement"), to register
for sale to the public the Coinstar Shares issued pursuant to the terms of this
Agreement and any securities issued as a dividend thereon or in exchange
therefor ("Registrable Securities"). Buyer agrees to use its best efforts to
have such Registration Statement declared effective by the SEC no later than
ninety (90) days after the Closing and to maintain such effectiveness until the
earlier of (i) one year after the Closing or (ii) the date by which all
Registrable Securities have been sold by the Stockholders pursuant to such
Registration Statement (the "Effectiveness Period"), at which time Buyer shall
no longer have any obligation to maintain the effectiveness of the Registration
Statement. Buyer agrees during the Effectiveness Period (i) to prepare and file
with the SEC such amendments and supplements to the Registration Statement as
may be necessary to keep the Registration Effective and comply with the
provisions of the Securities Act of 1933, as amended, with respect to the
disposition of all the Registrable Securities covered thereby during the
Effectiveness Period, (ii) to furnish each Stockholder such number of
prospectuses and other documents that are included in the Registration Statement
as such Stockholder may reasonably request from time to time, and (iii) upon the
sale of any Registrable Securities pursuant to the Registration Statement,
promptly remove all restrictive legends from all certificates evidencing such
Registrable Securities. Buyer shall bear all expenses (including, without
limitation, legal and accounting costs and registration fees) incurred in
preparing and filing the Registration Statement. All broker discounts and other
selling costs and any fees of Stockholders' legal counsel, accountants or other
advisors applicable to the
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Registration Statement or the sale of Registable Securities shall be borne by
the Stockholders. Each Stockholder agrees to cooperate with Buyer and furnish
Buyer with such information regarding such Stockholder as Buyer may reasonably
request in connection with the Registration Statement.
ARTICLE IX - GENERAL
9.1 Expenses
Whether or not the transactions contemplated by this Agreement are
consummated, each party shall each pay its own fees and expenses for the
negotiation, preparation and carrying out of this Agreement and the other
Transaction Documents (including legal and accounting fees and expenses);
provided, however, that in the event that the transactions contemplated by this
Agreement are closed in accordance with the terms and conditions set forth
herein, Buyer will reimburse up to five thousand dollars ($5000) worth of legal
fees and costs incurred in Xxxxxx, Xxxxxxxx and Xxxxx'x review of this Agreement
and the Release Agreement . The Stockholders shall pay any transfer or similar
taxes that may be payable in connection with the transactions contemplated by
this Agreement.
9.2 Specific Enforcement
The parties expressly agree that they will be irreparably damaged if this
Agreement is not specifically enforced. Upon a breach or threatened breach of
the terms, covenants and/or conditions of this Agreement by any party, Buyer and
the Stockholders shall, in addition to all other remedies, be entitled to a
temporary or permanent injunction, without showing any actual damage, and/or a
decree for specific performance, in accordance with the provisions of this
Agreement.
9.3 Consequential Damages
No party shall be liable to the other parties for any special, indirect,
incidental or consequential damages resulting from any breach of this Agreement.
9.4 Assignment
This Agreement shall not be assigned by operation of law or otherwise,
except that Buyer may assign all or any of its rights and obligations to any of
its affiliates. In the event of any such permitted assignment, Buyer shall
guarantee the performance of such obligations by such assignee.
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9.5 Notices
Unless otherwise provided, any notice under this Agreement shall be given
in writing and shall be deemed effectively given (a) upon personal delivery to
the party to be notified, (b) upon confirmation of receipt by fax by the party
to be notified, (c) one business day after deposit with a reputable overnight
courier, prepaid for overnight delivery and addressed as set forth in (d), or
(d) three days after deposit with the U.S. Post Office, postage prepaid,
registered or certified with return receipt requested and addressed to the party
to be notified at the address indicated for such party below, or at such other
address as such party may designate by 10 days' advance written notice to the
other parties given in the foregoing manner.
TO BUYER:
Coinstar, Inc.
0000 000/xx/ Xxx X.X.
Xxxxxxxx, XX , 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxx Xxxxx
with a copy to:
Xxxxxxx Coie LLP
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Tel: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxxx, Esq.
TO THE STOCKHOLDER REPRESENTATIVE:
Xxxxxxx Partners, LP
000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
with copy to:
Xxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx & Xxxxx
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18th Floor
Second & Seneca Building
0000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: (000) 000-0000 x0000
9.6 Governing Law; Jurisdiction; Venue
This Agreement shall be governed by and construed under the laws of the
state of Washington without regard to conflict of laws principles to the
contrary. The parties irrevocably consent to the jurisdiction and venue of the
state and federal courts located in King County, Washington in connection with
any action relating to this Agreement.
9.7 Successors and Assigns
The terms and conditions of this Agreement shall inure to the benefit of
and be binding on the respective successors and assigns of the parties.
9.8 Severability
If one or more provisions of this Agreement are held to be unenforceable
under applicable law, such provision shall be excluded from this Agreement, and
the balance of this Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
9.9 Entire Agreement; Counterparts; Termination of Other Agreements
This Agreement constitutes the entire agreement among the parties with
respect to this subject matter and supersedes all prior agreements and
undertakings, both written and oral, among the parties with respect to this
subject matter. Without limiting the foregoing, as of the Closing, each
Stockholders hereby terminates and irrevocably waives any and all rights that it
may have under the Xxxxx.xxx Securities Purchase Agreement dated as of February
10, 2000, the Xxxxx.xxx Shareholders Agreement dated as of February 10, 2000 and
the Xxxxx.xxx Registration Rights Agreement dated as of February 10, 2000. This
Agreement may be executed in two or more counterparts, which together shall
constitute one instrument.
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((SIGNATURE PAGE FOLLOWS))
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In witness whereof, the Parties have entered into this Agreement as of the
date first set forth above.
COINSTAR:
COINSTAR, INC.
By: /s/ Xxxxx X. Xxxxxxx
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Xxxxx X. Xxxxxxx
Its: Chief Financial Officer
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Address: 0000 000xx Xxxxxx XX
Xxxxxxxx, XX 00000
Fax: 000-000-0000
Telephone: 000 000-0000
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STOCKHOLDERS:
ACORN VENTURES IS, LLC
By: /s/ Xxxxx Xxxxx
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Its: Acorn Ventures, Inc. Manager
Xxxxx Xxxxx, President
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Address: 1309 - 000/xx/ Xxxxxx XX,
#000 Xxxxxxxx, XX. 00000
Fax: 000-000-0000
Telephone: 000-000-0000
INTERNET VENTURES, LLC
By: /s/ Xxxxx Xxxxx
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Its: Acorn Ventures, Inc. Manager
Xxxxx Xxxxx, President
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Address: 1309 - 000/xx/ Xxxxxx XX,
#000 Xxxxxxxx, XX. 00000
Fax: 000-000-0000
Telephone: 000-000-0000
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XXXX XXXXX
/s/ Xxxx X. Xxxxx
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Xxxx Xxxxx
Address: 0000 Xxxxxxx Xxxxxx
0000 0/xx/ Xxxxxx
Xxxxxxx, XX. 00000-0000
Fax: 000-000-0000
Telephone: 000-000-0000
XXXXX DRUM
/s/ Xxxxx Drum
--------------------------------
Xxxxx Drum
Address: 00000 XX 00xx Xxxxx
Xxxxxxxx, XX. 00000
Fax: 000-000-0000
Telephone: 000-000-0000
-00-
XXXX XXXX
/s/ Xxxx X. Drum
--------------------------------
Xxxx Drum
Address: 00000 XX 00xx Xxxxx
Xxxxxxxx, XX. 00000
Fax: 000-000-0000
Telephone: 000-000-0000
XXXXXXX XXXXXXX, Xx.
/s/ Xxxxxxx Xxxxxxx, Xx.
--------------------------------
Xxxxxxx Xxxxxxx, Xx.
Address: NW Financial Advisory Services
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX. 00000
Fax: 000-000-0000
Telephone: 000-000-0000
-21-
XXXXXX XXXXXXX
/s/ Xxxxxx X. Xxxxxxx
---------------------------------
Xxxxxx Xxxxxxx
Address: NW Financial Advisory Services
000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX. 00000
Fax: 000-000-0000
Telephone: 000-000-0000
XXXXX XXXXX
/s/ Xxxxx X. Xxxxx
---------------------------------
Xxxxx Xxxxx
Address: X.X. Xxx 000
Xxxxxxxx, XX. 00000
Fax: 000-000-0000
Telephone: 000-000-0000
-22-
XXXXXX XXXXXX
/s/ Xxxxxx X. Xxxxxx
---------------------------------
Xxxxxx Xxxxxx
Address: 0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX. 00000
Fax: 000-000-0000
Telephone: 000-000-0000
XXXXXXX XXXXXXXXX
/s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Xxxxxxx Xxxxxxxxx
Address: 00 X Xxxxxxx XX
Xxxxxxx, XX 00000
Fax: 000-000-0000
Telephone: 000-000-0000
XXXXX XXXXXXXXX
/s/ X.X. Xxxxxxxxx
---------------------------------
Xxxxx Xxxxxxxxx
Address: 00 X Xxxxxxx XX
Xxxxxxx, XX 00000
Fax: 000-000-0000
Telephone: 000-000-0000
-00-
XXXXX XXXXXXXX FAMILY TRUST
DTD 2-18-93
By: /s/ Xxxxx Xxxxx
-------------------------
Its:
-----------------------
Address: Xxx Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: 000-000-0000
Telephone: 000-000-0000
XXXX XXXXX
/s/ Xxxx Xxxxx
-----------------------------
Xxxx Xxxxx
Address: 5505 Lk. Xxxxxxxxxx Xxxx. XX
Xx. 0X
Xxxxxxxx, XX. 00000
Fax: 000-000-0000
Telephone: 000-000-0000
-00-
XXXXXX XXXXX
/s/ Xxxxxx Xxxxx
-------------------------------------
Xxxxxx Xxxxx
Address: 5505 Lk. Xxxxxxxxxx Xxxx. XX
Xx. 0X
Xxxxxxxx, XX. 00000
Fax: 000-000-0000
Telephone: 000-000-0000
XXXXXX XXXXXXXX
/s/ Xxxxxx Xxxxxxxx
-------------------------------------
Xxxxxx Xxxxxxxx
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX. 00000-0000
Fax: 000-000-0000
Telephone: 000-000-0000
-25-
XXXXXX XXXXXXXXX
/s/ Xxxxxx Xxxxxxxxx
-------------------------------------
Xxxxxx Xxxxxxxxx
Address: 4823 LK. XX. XXXX XX #0
Xxxxxxxx, XX 00000-0000
Fax: 000-000-0000
Telephone: 000-000-0000
XXXXXX XXXXXXXX
/s/ Xxxxxx Xxxxxxxx
-------------------------------------
Xxxxxx Xxxxxxxx
Address: Xxxxx 0000
0000 Xxxxx Xxxxxx Xxxxxx XX
Xxxxxxxxxx, XX 00000
Fax: 000-000-0000
Telephone: 000-000-0000
-00-
XXXXX XXXXXXX
/s/ R. Xxxxx Xxxxxxx
-------------------------------------
Xxxxx Xxxxxxx
Address: Xxxxx 0000
0000 Xxxxx Xxxxxx Xxxxxx XX
Xxxxxxxxxx, XX 00000
Fax: 000-000-0000
Telephone: 000-000-0000
THE CASCADE GROUP, LLC
By: /s/ Xxxx Xxxxxx
--------------------------------
Its: CFO
--------------------------------
Address: 0000 Xxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Fax: 000-000-0000
Telephone: 000-000-0000
-27-
CLEAR FIR PARTNERS, L.P.
By: /s/ Xxxx Xxxxxx
------------------------------
Its: CFO
------------------------------
Address: 000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Fax: 000-000-0000
------------------------
Telephone: 000-000-0000
------------------------
KELLET PARTNERS, LP
By: /s/ Xxxx Xxxxxx
------------------------------
Its: CFO
------------------------------
Address: 000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Fax: 000-000-0000
------------------------
Telephone: 000-000-0000
------------------------
-28-
XXXX XXXXXX
/s/ Xxxx Xxxxxx
-----------------------------------
Xxxx Xxxxxx
Address: 000 Xxxxxxxx Xxxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Fax: 000-000-0000
------------------------
Telephone: 000-000-0000
------------------------
-29-
Exhibit A
---------
Schedule of Stockholders
Xxxxx.xxx Pro Rata Coinstar, Inc.
Name, Address, Fax and Telephone Shares Percentage Shares/1/
-------------------------------- ------ ---------- ---------
*Acorn Ventures IS, LLC 475,000 shares 8.6364% 4548
1309 - 000/xx/ Xxxxxx XX, #000 of Series A
Xxxxxxxx, XX 00000 Preferred Stock
*Internet Ventures, LLC 2,000,000 shares 36.3636% 19149
1309 - 000/xx/ Xxxxxx XX, #000 of Series A
Xxxxxxxx, XX 00000 Preferred Stock
*Xxxxxxx Partners, LP 865,000 shares 15.7273% 8282
000 Xxxxxxxx Xxxxxxx of Series A
Suite 1800 Preferred Stock
Xxxxxxx, XX 00000
The Cascade Group, LLC 10,000 shares of 0.1818% 96
2415 Carillon Point Series A
Xxxxxxxx, XX 00000 Preferred Stock
Clear Fir Partners, L.P. 100,000 shares 1.8182% 957
2415 Carillon Point of Series A
Xxxxxxxx, XX 00000 Preferred Stock
Xxxx Xxxxxx 25,000 shares of 0.4545% 239
000 Xxxxxxxx Xxxxxxx Series A
Suite 1800 Preferred Stock
Xxxxxxx, XX 00000
Xxxx Xxxxx 25,000 shares of 0.4545% 239
0000 Xxxxxxx Xxxxxx Series A
0000 0/xx/ Xxxxxx
Xxxxxxx, XX 00000-0000
Xxxxx and Xxxx Drum 100,000 shares 1.8182% 957
--------------
/1/ Total possible shares. May be reduced for reimbursement of attorney's
fees pursuant to paragraph 9.1.
-30-
00000 XX 00/xx/ Xxxxx of Series A
Xxxxxxxx, XX 00000 Preferred Stock
Xxxxxxx and Xxxxxx Xxxxxxx 25,000 shares of 0.4545% 239
000 Xxxxxxxx Xxxxxx Series A
Xxxxxxx, XX 00000 Preferred Stock
*Xxxxx Xxxxx 500,000 shares 9.0909% 4787
500 - 000/xx/ Xxxxxx XX, #0000 of Series A
Xxxxxxxx, XX 00000 Preferred Stock
*Xxxxxx Xxxxxx 200,000 shares 3.6364% 1915
0000 Xxxxx Xxxxx Xxxx of Series A
Xxxxxxxx, XX 00000 Preferred Stock
Xxxxxxx and Xxxxx Xxxxxxxxx 50,000 shares of 0.9091% 479
5 Brook Bay Series A
Xxxxxx Xxxxxx, XX 00000 Preferred Stock
Xxxxx Xxxxxxxx Family Trust dtd 2-18-93 25,000 shares of 0.4545% 000
Xxxxxxxxx & Xxxxx Series A
Xxx Xxxx Xxxxxx Xxxxxxxxx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Bernee & Xxxx Xxxxx 100,000 shares 1.8182% 000
Xxx Xxxxxxxx Xxxxx of Series A
0000 Xxxx Xxxxxxxxxx Xxxx. XX, #0X Preferred Stock
Xxxxxxxx, XX 00000
Xxxxxx Xxxxxxxx 100,000 shares 1.8182% 000
Xxxxx Xxxxx of Series A
0000 Xxxxxxxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
*Xxxxxx Xxxxxxxxx 500,000 shares 9.0909% 4787
00000 Xxxxxxxxxxx Xxxxx of Series A
Xxxxxx Xxxxxx, XX 00000 Preferred Stock
*Xxxxxx Xxxxxxxx 300,000 shares 5.4545% 2872
Suite 1000 of Series A
0000 Xxxxx Xxxxxx Xxxxxx XX Xxxxxxxxx Xxxxx
Xxxxxxxxxx, X.X. 00000
Xxxxx Xxxxxxx 100,000 shares 1.8182% 957
Suite 1000 of Series A
0000 Xxxxx Xxxxxx Xxxxxx XX Xxxxxxxxx Xxxxx
Xxxxxxxxxx, X.X. 00000
-31-
Totals: 5,500,000 shares 100% 52656
-32-
Exhibit B
---------
Form of Settlement and Release Agreement
-33-
Exhibit C
---------
FORM OF INVESTOR QUESTIONNAIRE
-34-
