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EXHIBIT (B)
STOCK PURCHASE AGREEMENT
This Stock Purchase Agreement (this "Agreement") dated August 20, 1999
is between The Times Mirror Company, a Delaware corporation ("Purchaser"), and
Xxxxxxx Technology Partners II, L.P., a Delaware limited partnership ("Seller").
WHEREAS, Seller is the record and beneficial owner of 339,552 shares
(the "Shares") of Common Stock of Alternate Marketing Networks Inc., a Michigan
corporation (the "Company"); and
WHEREAS, Purchaser desires to purchase, and Seller desires to sell, the
Shares;
NOW, THEREFORE, in consideration of the mutual representations,
warranties and agreements of the parties hereto, such parties, intending to be
legally bound, do hereby agree as follows:
1. Sale and Purchase of Shares. Seller hereby sells, assigns and
transfers to Purchaser, and Purchaser hereby purchases from Seller, free and
clear of all liens, claims, encumbrances, security interests, options, changes
and restrictions of any kind, all of Seller's right, title and interest in and
to the Shares, as represented in certificates which have been duly endorsed and
delivered by Seller to the Purchaser for cancellation and reissuance in the name
of and for the benefit of Purchaser. Upon execution and delivery of this
Agreement, Purchaser shall pay to Seller the purchase price of $933,768 by wire
transfer to an account designated by Seller to Purchaser two business days prior
to the Closing Date.
2. Closing. The closing of the purchase and sale of the Shares will take
place on September 10, 1999, at the offices of Xxxxxx, Xxxx & Xxxxxxxx LLP, 000
Xxxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000 unless another time, date or
place is agreed to in writing by the parties hereto.
3. Representations and Warranties of Seller. Seller hereby represents
and warrants to Purchaser that:
(a) Organization, Standing and Authority of Seller. Seller is a
limited partnership duly organized, validly existing and in good standing under
the laws of the State of Delaware and has full power and authority to enter
into, deliver and perform its obligations under, this Agreement.
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(b) Authorization and Enforceability of this Agreement. The
execution, delivery and performance by Seller of this Agreement have been duly
authorized by all necessary partnership action on the part of Seller. This
Agreement has been duly executed and delivered by Seller and constitutes the
legal, valid and binding obligation of Seller, enforceable against it in
accordance with its terms.
(c) No Conflict; Consents of Third Parties. The execution,
delivery and performance by Seller of this Agreement will not (i) violate or
conflict with the certificate of incorporation, by-laws or comparable documents
of Seller, (ii) conflict with, or result in the breach or termination of, or
constitute a default or give rise to any lien, third-party right of termination,
cancellation, modification or acceleration (or any event which might, with the
passage of time or the giving of notice, or both, constitute a default) under,
any lease, contract, indenture, agreement, commitment, license, note, bond,
mortgage or other instrument to which Seller is a party, or any order, judgment
or decree, to which Seller is a party or by which Seller or any of its
properties are bound; or (iii) constitute a violation of or conflict with any
law or regulation applicable to Seller. No consent, approval, permit,
notification or authorization of, or designation, declaration or filing with,
any governmental or regulatory authority or other third party is required on the
part of Seller in connection with the execution, delivery and performance of
this Agreement, other than filings under Section 13 and Section 16 of the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
(d) Ownership of the Shares. Seller is the record and beneficial
owner of the Shares, free and clear, in each case, of any liens, claims,
security interests, options, charges or other encumbrances, restrictions or
third-party rights with respect to the Shares. Seller has full power and
authority to transfer the Shares to Purchaser, free and clear, in each case, of
any liens, claims, security interest, options charges or other encumbrances,
restrictions or third-party rights or claims with respect to the Shares. The
Shares constitute all of the shares of the Company held by Seller.
(e) No Brokers. Seller has not employed any broker, investment
banker or finder in connection with the sale of the Shares.
3. Representation and Warranties of Purchaser. Purchaser hereby
represents and warrants to Seller that:
(a) Organization, Standing and Authority of Purchaser. Purchaser
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware and has full power and authority to enter into,
deliver and perform its obligations under, this Agreement.
(b) Authorization and Enforceability of this Agreement. The
execution, delivery and performance by Purchaser of this Agreement have been
duly authorized by all necessary action on the part of Purchaser. This Agreement
has been duly executed and delivered
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by Purchaser and constitutes the legal, valid and binding obligation of
Purchaser, enforceable against it in accordance with its terms.
(c) No Conflict; Consent of Third Parties. The execution,
delivery and performance by Purchaser of this Agreement will not (i) violate
conflict with the certificate of incorporation, by-laws or comparable documents
of Purchaser, (ii) conflict with, or result in the breach or termination of, or
constitute a default or give rise to any lien, third-party right of termination,
cancellation, modification or acceleration (or any event which might, with the
passage of time or the giving of notice, or both, constitute a default) under,
any lease, contract, indenture, agreement, commitment or other instrument to
which Purchaser is a party, or any order, judgment or decree, to which Purchaser
is a party or by which Purchaser or any of its properties are bound; or (iii)
constitute a violation of or conflict with of any law or regulation applicable
to Purchaser. No consent, approval, permit, notification or authorization of, or
designation, declaration or filing with, any governmental or regulatory
authority or other third party is required on the part of Purchaser in
connection with the execution, delivery and performance of this Agreement by
Purchaser, other than filings under Section 13 and Section 16 of the Exchange
Act.
(d) Investment; Restricted Securities. Purchaser is acquiring the
Shares for its own account, for investment and not with a view to the
distribution thereof within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"). Purchaser understands that (i) the Shares have
not been registered under the Securities Act by reason of their issuance by the
Corporation in a transaction exempt from the registration requirements of the
Securities Act; (ii) the Shares must be held by Purchaser indefinitely unless a
subsequent disposition thereof is registered under the Securities Act or is
exempt from registration; and (iii) the exemption from registration afforded by
Rule 144 (the provisions of which are known to the undersigned) promulgated
under the Securities Act depends on the satisfaction of various conditions, and
that, if applicable, Rule 144 may afford the basis for sales only in limited
amounts.
(e) Access to Information; Accredation. Purchaser has had access
to all information purchaser deems desirable in connection with its purchase of
the Shares. Purchaser is an "accredited investor" as such term is defined in
Rule 501 of Regulation D promulgated under the Securities Act.
(f) No Brokers. Purchaser has not employed any broker or finder
in connection with its purchase of the Shares.
5. Indemnification. The parties shall indemnify and hold each other and
their respective affiliates harmless from and against any and all liability,
loss, damage or injury, including reasonable expenses of investigation and
reasonable counsel fees and expenses in connection with any action, suit or
proceeding, arising out of a breach, or allegation which if true would
constitute a breach, of any representation, warranty or covenant set forth
herein, provided that the party seeking to enforce such indemnity shall provide
to the indemnifying party prompt written notice of any claim giving rise to such
indemnity and the opportunity to defend the same
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with counsel of its choosing reasonably acceptable to the indemnified party.
Notwithstanding the foregoing, the indemnification given by Seller to Purchaser
hereunder shall be limited in all events to the purchase price set forth in
Section 1 hereof.
6. Conditions to Closing. The respective obligations of the parties
hereto to consummate the Closing are subject to the satisfaction (or waiver by
each party in writing) on or before the Closing Date of the following
conditions:
(a) Governmental Approvals. Any notice or approvals to or of any
federal, state or foreign governmental authority with respect to the
transactions contemplated hereby shall have been either filed or received.
(b) No Order. No federal, state or foreign governmental authority or
other agency or commission or court of competent jurisdiction shall have
enacted, issued, promulgated, enforced or entered any statute, rule, regulation,
injunction or other order (whether temporary, preliminary or permanent) which
remains in effect, and which has the effect of making the transactions
contemplated hereby illegal or otherwise prohibiting consummation of the
transactions contemplated by this Agreement.
7. Conditions to Purchaser's Obligations. The obligations of Purchaser
to consummate the Closing are subject to the satisfaction (or waiver by
Purchaser in writing) on or before the Closing Date of the following conditions:
(a) Representations, Warranties and Covenants. The representations and
warranties of Seller made in this Agreement shall be true ad correct as of the
date of this Agreement and on and as of the Closing Date, and Seller shall have
performed or complied with, or shall have caused to be performed or complied
with, all obligations and covenants required by this Agreement to be performed
or complied with by Seller by the time of the closing; and Purchaser shall have
received from Seller a certificate dated the Closing Date and signed by an
authorized officer of Seller confirming the foregoing.
(b) Resolutions. Purchaser shall have received from Seller certified
copies of resolutions duly adopted by the General Partner of Seller authorizing
the execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby, and all such resolutions shall have not
been revoked and shall remain in full force and effect.
(c) Resignation of Xxxxx Xxxxxxx as Director. Xxxxx Xxxxxxx shall have
resigned from the Board of Directors of the Company and shall have executed and
delivered a written resignation letter to the Company in connection therewith.
8. Conditions to Seller's Obligations. The obligations of Seller to
consummate the Closing are subject to the satisfaction (or waiver by Seller in
writing) on or before the Closing Date of the following conditions:
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(a) Representations, Warranties and Covenants. The representations and
warranties of Purchaser made in this Agreement shall be true and correct in all
material respects as of the date of this Agreement and on and as of the Closing
Date, as though made on and as of the Closing Date, and Purchaser shall have
performed or complied with all obligations and covenants required by this
Agreement to be performed or complied with by Purchaser at the time of the
Closing; and Seller shall have received from Purchaser a certificate dated the
Closing Date and signed by an authorized officer of Purchaser confirming the
foregoing.
(b) Resolutions. Seller shall have received from Purchaser certified
copies of resolutions duly adopted by the Board of Directors of Purchaser
authorizing the execution, delivery and performance of this Agreement and the
consummation of the transactions hereby contemplated hereby, and all such
resolutions shall have not been revoked and shall remain in full force and
effect.
9. Notices. All notices or other communications required or permitted to
be given hereunder shall be in writing and shall be delivered by hand or sent
prepaid telecopy, or sent, postage prepaid, by registered, certified or express
mail, or reputable overnight courier service and shall be deemed given when so
delivered by hand or telecopied, or if mailed, three days after mailing (one
business day in the case of express mail or overnight courier service), and
shall be addressed to each party at the address for such party on the signature
page hereto, or at such other addresses as the parties may advise each other in
writing from time to time.
10. Expenses. Whether or not the transactions contemplated hereby are
consummated, and except as otherwise provided in this Agreement, all fees,
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such fees,
costs or expenses.
11. Attorneys' Fees. Should any arbitration or litigation be commenced
concerning this Agreement or the rights or duties of any party with respect to
it, the party prevailing shall be entitled, in addition to such other relief as
may be granted, to a reasonable sum for such party's attorneys' fees and
expenses determined by the court in such arbitration or litigation or in a
separate action brought for that purpose.
12. Assignment. This Agreement and the rights and obligations hereunder
shall not be assignable or transferable by Purchaser or Seller without the prior
written consent of the other parties hereto; provided, however, that Purchaser
shall be permitted to assign this Agreement or any of its rights, interest or
obligations hereunder to any of its affiliates without the prior written
approval or any other party; and provided, further, however, that no assignment
shall limit or affect the assignor's obligations hereunder.
13. No Third-Party Beneficiaries. This Agreement is for the sole benefit
of the parties hereto and their permitted assigns and nothing herein expressed
or implied shall give or be construed to give any person or entity, other than
the parties hereto and such assigns, any legal or equitable rights hereunder.
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14. Counterparts; Facsimile. This Agreement may be executed and
delivered in one or more counterparts and via facsimile, all of which shall be
considered one and the same agreement, and shall become effective when one or
more such counterparts have been signed by each of the parties and delivered or
faxed to the other party.
15. Entire Agreement. This Agreement (including the Exhibit hereto)
contains the entire agreement and understanding between the parties hereto with
respect to the subject matter hereof and supersede all prior agreements and
understanding relating to such subject matter.
16. Severability. If any provision of this Agreement or the application
of any such provision to any person or circumstance shall be held invalid,
illegal or unenforceable in any respect by a court of competent jurisdiction,
such invalidity, illegality or unenforceability shall not affect any other
provision hereof.
17. Amendment. This Agreement may be amended by action taken by
Purchaser and Seller at any time only by an instrument in writing signed on
behalf of each of the parties hereto.
18. Extension; Waiver. At any time prior to the Closing Date, any party
hereto may (a) extend the time for the performance of any of the obligations or
other acts of any other party, (b) waive any inaccuracies in the representations
and warranties of any other party contained herein or in any document,
certificate or writing delivered pursuant hereto or (c) waive compliance by any
other party with any of the agreements or conditions contained herein. Any
agreement on the part of any party hereto to any such extension or waiver shall
be valid only if set forth in an instrument, in writing, signed on behalf of
such party. The failure of any party hereto to assert any of its rights
hereunder shall not constitute a waiver of such rights.
19. Interpretation of this Agreement.
(a) Construction. Unless the context of this Agreement clearly
requires otherwise, references to the plural include the singular, the singular
includes the plural, the part includes the whole, "including" is not limiting
and "or" has the inclusive meaning represented by the phrase "and/or." The words
"hereof," "herein," "hereby," "hereunder," and similar terms in this Agreement
refer to this Agreement as a whole (including the Preamble, the Recitals and the
Exhibits) and not to any particular provision of this Agreement.
(b) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed entirely within such State.
(c) Headings, Exhibits and Schedules. The headings contained in
this Agreement and in any Exhibit are for reference purposes only and shall not
affect in any way the meaning or interpretation of this Agreement. Any
capitalized terms used in any Exhibit but not otherwise defined therein shall
have the meaning as defined in this Agreement.
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(d) Representation By Counsel; Interpretation. Purchaser and
Seller each
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acknowledges that each party to this Agreement has been represented by counsel
in connection with this Agreement and the transactions contemplated by this
Agreement. Accordingly, any rule of law, including Section 1654 of the
California Civil Code or any comparable provision of New York law, or any legal
decision that would require interpretation of any claimed ambiguities in this
Agreement against the party that drafted it has no application and is expressly
waived. The provisions of this Agreement shall be interpreted in a reasonable
manner to effect the intent of Seller and Purchaser.
20. Publicity. Purchaser and Seller agree that, from the date of this
Agreement through the Closing Date, no public release or announcement concerning
the transactions contemplated hereby shall be issued by any party without the
prior consent of each other party (which consent shall not be unreasonably
withheld), except as such release or announcement may be required by law or the
rules or regulations of any United States securities exchange, NASDAQ, or the
Securities and Exchange Commission, in which case the party required to make the
release or announcement shall allow each other party reasonable time to comment
on such release or announcement in advance of such issuance.
IN WITNESS WHEREOF, the parties have duly executed this agreement as of
the date first written above.
XXXXXXX TECHNOLOGY PARTNERS II, L.P.
By: /s/ XXXXX XXXXXXX
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Name: Xxxxx Xxxxxxx
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Title: General Partner
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Address for Notices:
000 Xxxx Xxxxxxxxx
Xxxxxxxxx Xxxx, XX 00000
Attention: Xx. Xxxxx Xxxxxxx
Telecopier: (000) 000-0000
THE TIMES MIRROR COMPANY
By: /s/ XXXXXX X. BLOOD
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Name: Xxxxxx X. Blood
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Title: Vice President, Strategic Planning
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Address for Notices:
000 X. Xxxxx Xxxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xx. Xxxxxx X. Blood
Telecopier: (000) 000-0000
