Exhibit 10.14
STOCK PURCHASE AGREEMENT
among
SYNAPSE GROUP, INC.,
and
THE PURCHASER NAMED THEREIN
______________________________
Dated May 17, 2000
______________________________
TABLE OF CONTENTS
-----------------
Page
----
ARTICLE 1 DEFINITIONS......................................... 1
1.1 Definitions.............................................. 1
1.2 Accounting Terms; Financial Statements................... 5
ARTICLE 2 PURCHASE AND SALE OF PURCHASED SHARES............... 5
2.1 Purchase and Sale of the Purchased Shares................ 5
2.2 Closing.................................................. 5
ARTICLE 3 REPRESENTATIONS AND WARRANTIES
OF THE COMPANY........................................... 6
3.1 Corporate Existence and Power............................ 6
3.2 Authorization; No Contravention.......................... 6
3.3 Governmental Authorization; Third Party Consents......... 6
3.4 Binding Effect........................................... 6
3.5 Litigation............................................... 7
3.6 Capitalization........................................... 7
3.7 Consolidated Financial Statements........................ 8
3.8 No Material Adverse Change; Ordinary Course of Business.. 8
3.9 Taxes.................................................... 8
3.10 Disclosure............................................... 9
3.11 Private Offering......................................... 9
3.12 No Default or Breach; Contractual Obligations............ 9
3.13 Broker's, Finder's or Similar Fees....................... 9
ARTICLE 4 REPRESENTATIONS AND WARRANTIES
OF THE PURCHASER......................................... 9
4.1 Existence and Power...................................... 9
4.2 Authorization; No Contravention.......................... 10
4.3 Governmental Authorization; Third Party Consents......... 10
4.4 Binding Effect........................................... 10
4.5 Purchase for Own Account................................. 10
4.6 Investment Experience; Information....................... 11
4.7 Broker's, Finder's or Similar Fees....................... 11
ARTICLE 5 CONDITIONS TO THE OBLIGATION OF THE
PURCHASER TO CLOSE....................................... 12
5.1 Secretary's Certificate.................................. 12
5.2 Stockholders Agreement Amendment......................... 12
5.3 Registration Agreement Amendment......................... 12
5.4 Waiver................................................... 12
5.5 Purchased Shares......................................... 12
5.6 Consents and Approvals................................... 12
i
5.7 Receipt of Consolidated Financial Statements............. 13
ARTICLE 6 CONDITIONS TO THE OBLIGATION OF THE COMPANY
TO CLOSE................................................. 13
6.1 Payment by the Purchaser................................. 13
6.2 Stockholders Agreement Amendment......................... 13
6.3 Registration Agreement Amendment......................... 13
6.4 Waiver................................................... 13
6.5 Consents and Approvals................................... 13
ARTICLE 7 INDEMNIFICATION 14
7.1 Indemnification by the Company........................... 14
7.2 Indemnification by the Purchaser......................... 14
7.3 Notification............................................. 15
ARTICLE 8 MISCELLANEOUS 16
8.1 Survival of Representations and Warranties............... 16
8.2 Notices.................................................. 16
8.3 Successors and Assigns; Third Party Beneficiaries........ 17
8.4 Amendment and Waiver..................................... 17
8.5 Counterparts............................................. 17
8.6 Headings................................................. 17
8.7 Pronouns................................................. 17
8.8 Governing Law............................................ 17
8.9 Severability............................................. 17
8.10 Entire Agreement......................................... 18
8.11 Fees..................................................... 18
8.12 Publicity................................................ 18
8.13 Further Assurances....................................... 18
EXHIBITS
A Registration Agreement Amendment
B Stockholders Agreement Amendment
SCHEDULES
3.6 Capitalization
3.7 Financial Statements
ii
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT is dated as of May 17, 2000 (this
"Agreement"), among Synapse Group, Inc., a Delaware corporation (the "Company"),
--------- -------
and the purchaser listed on the signature page hereto (the "Purchaser").
---------
WHEREAS, pursuant to the terms and conditions set forth in this Agreement,
the Company proposes to issue and sell to the Purchaser 62,500 shares of the
Company's Class B Common Stock, par value $0.001 per share ("Nonvoting Common
----------------
Stock"), for $8.00 per share (the "Purchased Shares"); and
----- ----------------
WHEREAS, each share of Nonvoting Common Stock is convertible (subject to
adjustment) into one share of Voting Common Stock.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set
forth herein and for good and valuable consideration, the receipt and adequacy
of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE 1
DEFINITIONS
-----------
1.1 Definitions. As used in this Agreement, and unless the context
-----------
requires a different meaning, the following terms have the meanings indicated:
"Affiliate" shall mean any Person who is an "affiliate" as defined in
---------
Rule 12b-2 of the General Rules and Regulations under the Exchange Act.
"Agreement" means this Agreement as the same may be amended,
---------
supplemented or modified in accordance with the terms hereof.
"Amended and Restated Shareholders Agreement" means that Amended and
-------------------------------------------
Restated Shareholders Agreement substantially in the form attached hereto as
Exhibit A, which amends and restates that Shareholder Agreement, dated as of
---------
December 1, 1993, among the Company and the stockholders named therein.
"Audited Financial Statements" means, with respect to a fiscal year,
----------------------------
the audited consolidated balance sheet of the Company as of the end of such
fiscal year and the related statements of operations, cash flows and
stockholders' equity for such fiscal year, setting forth in each case in
comparative form the figures for the previous year, all in conformity with GAAP,
in reasonable detail and accompanied by a management summary and analysis of the
operations of the Company for such fiscal year and by the opinion of a
nationally recognized independent certified public accounting firm reasonably
satisfactory to the Purchaser.
"Board of Directors" means the Board of Directors of the Company.
------------------
-1-
"Business Day" means any day other than a Saturday, Sunday or other
------------
day on which commercial banks in the State of New York are authorized or
required by law or executive order to close.
"By-laws" means the by-laws of the Company in effect on the date
-------
hereof, as the same may be amended from time to time.
"Capital Lease Obligations" of any Person shall mean, as of the date
-------------------------
of determination, the obligations of such Person to pay rent or other amounts
under any lease of (or other arrangement conveying the right to use) real or
personal property, or a combination thereof, which obligations are required to
be classified and accounted for as capital leases on a balance sheet of such
Person under GAAP and, for the purposes of this Agreement, the amount of such
obligations at any time shall be the capitalized amount thereof at such time
determined in accordance with GAAP consistently applied.
"Certificate of Incorporation" means the certificate of incorporation
----------------------------
of the Company in effect on the date hereof, as the same may be amended from
time to time.
"Claims" has the meaning set forth in Section 7.1 of this Agreement.
------
"Closing" has the meaning set forth in Section 2.2 of this Agreement.
-------
"Closing Date" has the meaning set forth in Section 2.2 of this
------------
Agreement.
"Commission" means the Securities and Exchange Commission or any
----------
similar agency then having jurisdiction to enforce the Securities Act and the
Exchange Act.
"Common Stock" means the Voting Common Stock and the Nonvoting Common
------------
Stock.
"Common Stock Equivalent" means any security or obligation which is by
-----------------------
its terms convertible into or exchangeable for shares of Common Stock,
including, without limitation, any option, warrant or other subscription or
purchase right with respect to Common Stock.
"Company" has the meaning set forth in the recitals to this Agreement.
-------
"Company Indemnified Party" has the meaning set forth in Section 7.2
-------------------------
of this Agreement.
"Condition of the Company" means the assets, business, properties,
------------------------
prospects, operations or financial condition of the Company.
"Consolidated Financial Statements" has the meaning set forth in
---------------------------------
Section 3.7 of this Agreement.
-2-
"Contractual Obligations" means as to any Person, any provision of any
-----------------------
security issued by such Person or of any agreement, undertaking, contract,
indenture, mortgage, deed of trust or other instrument to which such Person is a
party or by which it or any of its property is bound.
"Credit Agreement" means that Credit Agreement dated as of January 12,
----------------
2000 between the Company and Xxxxxx, as assigned by Xxxxxx to Arena Capital
Investment Fund, L.P. pursuant to that Assignment Agreement dated as of February
1, 2000.
"Disclosure Schedule" has the meaning set forth in Article 3 of this
-------------------
Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
------------
and the rules and regulations of the Commission thereunder.
"GAAP" means generally accepted accounting principles in effect from
----
time to time in the United States.
"Governmental Authority" means the government of any nation, state,
----------------------
city, locality or other political subdivision thereof, any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government, and any corporation or other entity owned or
controlled, through stock or capital ownership or otherwise, by any of the
foregoing.
"Xxxx-Xxxxx-Xxxxxx Act" means the Xxxx-Xxxxx-Xxxxxx Antitrust
---------------------
Improvements Act of 1976, as amended.
"Indemnified Party" has the meaning set forth in Section 7.3 of this
-----------------
Agreement.
"Indemnifying Party" has the meaning set forth in Section 7.3 of this
------------------
Agreement.
"Lender Warrants" means the warrants which may be issued pursuant to
---------------
the Credit Agreement.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
----
assignment, encumbrance, lien (statutory or other) or preference, priority,
right or other security interest or preferential arrangement of any kind or
nature whatsoever (excluding preferred stock and equity related preferences),
including, without limitation, those created by, arising under or evidenced by
any conditional sale or other title retention agreement, the interest of a
lessor under a Capital Lease Obligation, or any financing lease having
substantially the same economic effect as any of the foregoing.
"Losses" has the meaning set forth in Section 7.1 of this Agreement.
------
-3-
"Nonvoting Common Stock" has the meaning set forth in the recitals to
----------------------
this Agreement.
"Orders" has the meaning set forth in Section 3.2 of this Agreement.
------
"Person" means any individual, firm, corporation, partnership, trust,
------
incorporated or unincorporated association, joint venture, joint stock company,
limited liability company, Governmental Authority or other entity of any kind,
and shall include any successor (by merger or otherwise) of such entity.
"Purchased Shares" has the meaning set forth in the recitals of this
----------------
Agreement.
"Purchaser" has the meaning set forth in the recitals to this
---------
Agreement.
"Purchaser Indemnified Party" has the meaning set forth in Section 7.1
---------------------------
of this Agreement.
"Registration Agreement Amendment" means that Amendment No. 1 to
--------------------------------
Amended and Restated Registration Rights Agreement substantially in the form
attached hereto as Exhibit B.
---------
"Requirement of Law" means, as to any Person, any law, statute,
------------------
treaty, rule, regulation, right, privilege, qualification, license or franchise
or determination of an arbitrator or a court or other Governmental Authority or
stock exchange, in each case applicable or binding upon such Person or any of
its property or to which such Person or any of its property is subject or
pertaining to any or all of the transactions contemplated or referred to herein.
"Securities Act" means the Securities Act of 1933, as amended, (or any
--------------
successor statute thereto) and the rules and regulations of the Commission
thereunder.
"Series A Preferred Stock" means the Company's Series A Convertible
------------------------
Preferred Stock, par value $0.001 per share.
"Series B Preferred Stock" means the Company's Series B Convertible
------------------------
Preferred Stock, par value $0.001 per share.
"Series C Preferred Stock" means the Company's Series C Convertible
------------------------
Preferred Stock, par value $0.001 per share.
"Stockholders Agreement Amendment" means that Amendment No. 2 to and
--------------------------------
Waiver of Amended and Restated Stockholders Agreement substantially in the form
attached hereto as Exhibit C.
---------
"Subsidiaries" means, as of the relevant date of determination, with
------------
respect to any Person, a corporation or other Person of which 50% or more of the
voting power of the outstanding voting equity securities or 50% or more of the
outstanding economic
-4-
equity interest is held, directly or indirectly, by such Person. Unless
otherwise qualified, or the context otherwise requires, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a Subsidiary
or Subsidiaries of the Company.
"Tax", "Taxes" and "Tax Returns" have the meanings set forth in
--- ----- -----------
Section 3.9 of this Agreement.
"Transaction Documents" means collectively, this Agreement, the
---------------------
Stockholders Agreement Amendment and the Registration Agreement Amendment.
"Voting Common Stock" means the Company's Class A common stock, par
-------------------
value $0.001 per share.
"Xxxxxx" means Xxx Xxxxxx.
------
"Warrants" means those warrants to acquire Voting Common Stock issued
--------
pursuant to the Stock and Warrant Purchase Agreement, dated as of January 12,
2000, between the Company and the Purchasers listed therein.
1.2 Accounting Terms; Financial Statements. All accounting terms used
--------------------------------------
herein not expressly defined in this Agreement shall have the respective
meanings given to them in accordance with sound accounting practice. The term
"sound accounting practice" shall mean such accounting practice as, in the
opinion of the independent certified public accountants regularly retained by
the Company, conforms at the time to GAAP applied on a consistent basis except
for changes with which such accountants concur.
ARTICLE 2
PURCHASE AND SALE OF PURCHASED SHARES
-------------------------------------
2.1 Purchase and Sale of the Purchased Shares. Subject to the terms and
-----------------------------------------
conditions set forth herein, the Company agrees to issue and sell to the
Purchaser, and the Purchaser agrees that he will purchase from the Company, on
the Closing Date, the Purchased Shares.
2.2 Closing. The closing of the sale and purchase of the Purchased Shares
-------
(the "Closing") shall take place at the Boston offices of Xxxx & Xxxx LLP, no
-------
later than 10:00 a.m., local time, on the date hereof, or at such other time,
place and date that the Company and the Purchaser may agree in writing (the
"Closing Date"). On the Closing Date, the Company shall send by overnight
------------
courier to the Purchaser a certificate representing the Purchased Shares against
delivery by such Purchaser to the Company of the aggregate purchase price
therefor by wire transfer of immediately available funds.
-5-
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
----------------------------------------------
Except as described in a disclosure schedule (the "Disclosure Schedule")
-------------------
attached hereto setting forth certain exceptions to the representations and
warranties described below, the Company represents and warrants to the Purchaser
as follows:
3.1 Corporate Existence and Power. The Company: (a) is a corporation
-----------------------------
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (b) has all requisite corporate power and
authority to own and operate its property, to lease the property it operates as
lessee and to conduct the business in which it is currently, or is proposed to
be, engaged; (c) is duly qualified as a foreign corporation, licensed and in
good standing under the laws of each jurisdiction in which its ownership, lease
or operation of property or the conduct of its business require such
qualification, except where such failure would not result in a material adverse
effect on the Condition of the Company; and (d) has the corporate power and
authority to execute, deliver and perform its obligations under this Agreement
and each of the other Transaction Documents to which it is a party.
3.2 Authorization; No Contravention. The execution, delivery and
-------------------------------
performance by the Company of this Agreement and each of the other Transaction
Documents and the transactions contemplated hereby and thereby: (a) have been
duly authorized by all necessary corporate action of the Company; (b) do not
contravene the terms of the Certificate of Incorporation or the By-laws; (c) do
not violate, conflict with or result in any breach or contravention of, or the
creation of any Lien under, any material Contractual Obligation of the Company,
or any Requirement of Law applicable to the Company; and (d) do not violate any
judgment, injunction, writ, award, decree or order of any nature (collectively,
"Orders") of any Governmental Authority against, or binding upon, the Company.
------
3.3 Governmental Authorization; Third Party Consents. Except for the
------------------------------------------------
approval of the stockholders of the Company, which will be obtained prior to the
Closing, the consent of the Company's lender, Arena Capital Investment Fund,
L.P., and applicable requirements under the Xxxx-Xxxxx-Xxxxxx Act, the
Securities Act and state securities or blue sky laws, no approval, consent,
compliance, exemption, authorization or other action by, or notice to, or filing
with, any Governmental Authority or any other Person, and no lapse of a waiting
period under a Requirement of Law, is necessary or required in connection with
the execution, delivery or performance by, or enforcement against, the Company
of this Agreement and the other Transaction Documents or the transactions
contemplated hereby and thereby.
3.4 Binding Effect. This Agreement has been duly executed and delivered
--------------
by the Company and, when executed, each of the other Transaction Documents will
be duly executed and delivered by the Company, and this Agreement and the other
Transaction Documents will constitute legal, valid and binding obligations of
the Company enforceable against the Company in accordance with their respective
terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization,
-6-
fraudulent conveyance or transfer, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity
relating to enforceability (regardless of whether considered in a proceeding at
law or in equity).
3.5 Litigation. There are no actions, suits, proceedings, claims,
----------
complaints, disputes, arbitrations or investigations pending or, to the
knowledge of the Company, threatened, at law, in equity, in arbitration or
before any Governmental Authority against the Company. No Order has been issued
by any court or other Governmental Authority against the Company purporting to
enjoin or restrain the execution, delivery or performance of this Agreement or
any other Transaction Document.
3.6 Capitalization. On the Closing Date, after giving effect to the
--------------
transactions contemplated by this Agreement and assuming the consummation of the
transactions contemplated by that Stock Purchase Agreement, dated as of May 17,
2000, between the Company and NSSI Holdings Inc., a subsidiary of Time Inc., the
authorized capital stock of the Company shall consist of: (a) 58,000,000 shares
of Voting Common Stock, of which 7,368,000 shares shall be issued and
outstanding; (b) 37,000,000 shares of Nonvoting Common Stock, of which
25,434,228 shares shall be issued and outstanding; (c) 2,600,000 shares of
Series A Preferred Stock, of which 2,591,178.24 shares shall be issued and
outstanding; (d) 5,000,000 shares of Series B Preferred Stock, all of which
shall be issued and outstanding; and (e) 3,125,000 shares of Series C Preferred
Stock, all of which shall be issued and outstanding. Schedule 3.6 sets forth,
------------
at and on the Closing Date and assuming the consummation of the transactions
contemplated by that Stock Purchase Agreement, dated as of May 17, 2000, between
the Company and NSSI Holdings Inc., a subsidiary of Time Inc., a true and
complete capitalization table of the Company on a fully-diluted basis. The
Company has reserved an aggregate of 62,500 shares of Voting Common Stock for
issuance upon conversion of the Purchased Shares. Except for the Warrants and
the Lender Warrants, and except as set forth on Schedule 3.6, there are no
------------
options, warrants, conversion privileges, subscription or purchase rights or
other rights presently outstanding to purchase or otherwise acquire (i) any
authorized but unissued, unauthorized or treasury shares of the Company's
capital stock, (ii) any Common Stock Equivalents or (iii) other securities of
the Company. Prior to the Closing Date, the Purchased Shares shall have been
duly authorized, and when issued and sold to the Purchaser after payment
therefor in accordance herewith, will be validly issued, fully paid and
nonassessable and, assuming the accuracy of the representations and warranties
of the Purchaser set forth in Article 4, will be issued in compliance with the
registration and qualification requirements of all applicable federal and state
securities laws (or pursuant to exemptions therefrom). The shares of Voting
Common Stock issuable upon conversion of the Purchased Shares are duly
authorized and, when issued in compliance with the provisions of the Certificate
of Incorporation, will be validly issued, fully paid and nonassessable. The
Company has no Subsidiaries and has no commitment or obligation to acquire any
capital stock or direct or indirect equity interest in any corporation,
partnership, limited liability company, joint venture or other business entity,
other than (x) Synapse Solutions, Inc., a Delaware corporation, NewSub Magazine
Services, LLC, a Delaware limited liability company, and SynapseConnect, Inc., a
Delaware corporation, each of which is wholly-owned by the
-7-
Company, and (y) Gift Services, LLC, a limited liability company in which the
Company has a 49% ownership interest.
3.7 Consolidated Financial Statements. The Company has delivered to
---------------------------------
Purchaser its Audited Consolidated balance sheets as of December 31, 1999 and
1998 and the related consolidated statements of operations, stockholder deficit
and cash flows for each of the three years in the period ended December 31,
1999, a copy of which is attached as Schedule 3.7 hereto (the "Consolidated
------------ ------------
Financial Statements"). The Consolidated Financial Statements present fairly in
--------------------
all material respects the financial position of the Company and its Subsidiaries
as of December 31, 1999 and 1998 and the results of the Company's operations and
cash flows for each of the three years in the period ended December 31, 1999 in
conformity with GAAP.
3.8 No Material Adverse Change; Ordinary Course of Business. Since
-------------------------------------------------------
December 31, 1999: (a) there has not been any material adverse change, nor to
the knowledge of the Company is any such change threatened, in the Condition of
the Company; (b) the Company has not participated in any transaction or
otherwise acted outside the ordinary course of business, including, without
limitation, declaring or paying any dividend or declaring or making any
distribution to its stockholders except out of the earnings of the Company; and
(c) the Company has not increased the compensation of any of its officers or the
rate of pay of any of its employees, except as part of regular compensation
increases in the ordinary course of business.
3.9 Taxes. Except as described in the Disclosure Schedule: (a) the
-----
Company has paid or accrued all federal, state, county, local, foreign and other
taxes, including, without limitation, income taxes, estimated taxes, excise
taxes, sales taxes, use taxes, gross receipts taxes, franchise taxes, employment
and payroll related taxes, property taxes and import duties, profits taxes,
premium taxes, occupancy taxes, ad valorem taxes, severance taxes, capital levy,
production taxes, transfer taxes, withholding taxes, unemployment compensation
taxes, and other governmental charges and assessments whether or not measured in
whole or in part by net income, and including deficiencies, interest, additions
to tax or interest, and penalties with respect thereto, and including expenses
associated with disputing any proposed adjustments relating to the foregoing
(hereinafter, "Taxes" or, individually, a "Tax") which have come due, other than
----- ---
Taxes being disputed, in appropriate proceedings, by the Company in good faith
for which adequate reserves have been made in accordance with GAAP; (b) the
Company has timely filed or caused to be timely filed all tax returns, reports,
forms and other such documents ("Tax Returns") that it is required to file
-----------
(including all applicable extensions), and all such Tax Returns are accurate and
complete in all material respects; (c) with respect to all Tax Returns of the
Company, (i) there is no unassessed Tax deficiency proposed or, to the knowledge
of the Company, threatened against the Company, (ii) no audit is in progress, no
extension of time is in force with respect to any date on which any Tax Return
was or is to be filed and no waiver or agreement is in force for the extension
of time for the assessment or payment of any Tax, (iii) to the knowledge of the
Company, there has been no additional Tax assessment against the Company
heretofore proposed, and (iv) no waivers of the statute of limitation or
extension of time within which to assess any Tax
-8-
have been heretofore granted by the Company; and (d) there are no Liens for
Taxes on the assets of the Company except for Liens for Taxes not yet due.
3.10 Disclosure. This Agreement and the documents and certificates
----------
furnished to the Purchaser by the Company, taken as a whole, do not contain any
untrue statement of a material fact or to the Company's knowledge omit to state
a material fact necessary in order to make the statements contained herein or
therein, in the light of the circumstances under which they were made, not
misleading.
3.11 Private Offering. No form of general solicitation or general
----------------
advertising was used by the Company or its representatives in connection with
the sale of the Purchased Shares. Assuming the accuracy of the representations
and warranties of the Purchaser set forth in Article 4, no registration of the
Purchased Shares, pursuant to the provisions of the Securities Act or any state
securities or "blue sky" laws, will be required by the sale of the Purchased
Shares.
3.12 No Default or Breach; Contractual Obligations. All of the
---------------------------------------------
Contractual Obligations which are material to the Condition of the Company are
valid, subsisting, in full force and effect and binding upon the Company, except
as such enforceability may be limited by bankruptcy, moratorium or similar laws
affecting or relating to creditors' rights generally, and general principles of
equity, and the Company has paid in full or accrued all amounts due thereunder
and has satisfied in full or provided for all of its liabilities and obligations
thereunder in all material respects. To the knowledge of the Company, no other
party to any such Contractual Obligation is in default thereunder, nor does any
condition exist that with notice or lapse of time or both would constitute a
default by such other party thereunder. The Company has not received notice of,
and is not in default under or with respect to, any Contractual Obligation of
the Company in any respect, which, individually or together with all such
defaults, could have a material adverse effect on (a) the Condition of the
Company or (b) the ability of the Company to perform its obligations under this
Agreement or the other Transaction Documents.
3.13 Broker's, Finder's or Similar Fees. There are no brokerage
----------------------------------
commissions, finder's fees or similar fees or commissions payable by the Company
in connection with the transactions contemplated hereby based on any agreement,
arrangement or understanding with the Company or any action taken by the
Company.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
-----------------------------------------------
The Purchaser hereby represents and warrants to the Company, as of the date
hereof and as of the Closing Date, as follows:
4.1 Existence and Power. It is, if applicable, a partnership or other
-------------------
entity duly organized, validly existing and in good standing under the laws of
the jurisdiction of its formation and has all requisite power and authority, or
requisite legal capacity (in the case
-9-
of an individual), as the case may be, to execute, deliver and perform its
obligations under this Agreement and each of the other Transaction Documents to
which it is a party.
4.2 Authorization; No Contravention. The execution, delivery and
-------------------------------
performance by it of this Agreement and each of the other Transaction Documents
to which it is a party and the transactions contemplated hereby and thereby:
(a) have been duly authorized by all necessary partnership or other action, if
applicable; (b) do not contravene the terms of its organizational documents, or
any amendment thereof, if applicable; (c) do not violate, conflict with or
result in any breach or contravention of or the creation of any Lien under, any
Contractual Obligation of it, or any Requirement of Law applicable to it; and
(d) do not violate any Orders of any Governmental Authority against, or binding
upon, it.
4.3 Governmental Authorization; Third Party Consents. Except for
------------------------------------------------
applicable requirements under the Xxxx-Xxxxx-Xxxxxx Act, the Securities Act and
state securities or blue sky laws, no approval, consent, compliance, exemption,
authorization, or other action by, or notice to, or filing with, any
Governmental Authority or any other Person, and no lapse of a waiting period
under any Requirement of Law is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, it of this
Agreement and each of the other Transaction Documents or the transactions
contemplated hereby and thereby.
4.4 Binding Effect. This Agreement and each of the other Transaction
--------------
Documents have been duly executed and delivered by it, and constitutes its
legal, valid and binding obligations, enforceable against it in accordance with
their terms, except as enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, fraudulent conveyance or transfer, moratorium or
similar laws affecting the enforcement of creditors' rights generally or by
equitable principles relating to enforceability (regardless of whether
considered in a proceeding at law or in equity).
4.5 Purchase for Own Account. The Purchased Shares to be acquired by it
------------------------
pursuant to this Agreement are being or will be acquired for investment for its
own account and with no intention of distributing or reselling, or granting any
participation in, such Purchased Shares or any part thereof in any transaction
that would be in violation of the securities laws of the United States of
America, or any state, without prejudice, however, to the rights of it at all
times to sell or otherwise dispose of all or any part of such Purchased Shares
under an effective registration statement under the Securities Act, or under an
exemption from such registration available under such laws, and subject,
nevertheless, to the disposition of it's property being at all times within its
control. If it should in the future decide to dispose of any of such Purchased
Shares, it understands and agrees that it may do so only in compliance with the
Securities Act and applicable state securities laws, as then in effect. It
agrees to the imprinting, so long as required by law, of legends on certificates
representing all of its Purchased Shares as required by any applicable state
securities laws and to the following effect (and acknowledges that the Company
will make a notation on its transfer books to such effect):
-10-
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR THE SECURITIES LAWS OF ANY JURISDICTION OF THE UNITED
STATES. THE SECURITIES MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND UNDER THE
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN OPINION OF
COUNSEL REASONABLY SATISFACTORY TO SYNAPSE GROUP, INC. (THE
"COMPANY"), IF REQUESTED BY THE COMPANY, THAT THERE IS AN
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH
ACT AND SUCH LAWS.
THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE, ENCUMBRANCE OR OTHER
DISPOSITION (EACH A "TRANSFER") AND VOTING OF ANY OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY THE
TERMS OF AN AMENDED AND RESTATED STOCKHOLDERS AGREEMENT AMONG THE
COMPANY AND THE STOCKHOLDERS NAMED THEREIN. THE COMPANY WILL NOT
REGISTER THE TRANSFER OF SUCH SECURITIES ON THE BOOKS OF THE
COMPANY UNLESS AND UNTIL THE TRANSFER HAS BEEN MADE IN COMPLIANCE
WITH THE TERMS OF SUCH AGREEMENT. THE COMPANY WILL MAIL A COPY OF
THE AGREEMENT, TOGETHER WITH A COPY OF THE EXPRESS TERMS OF THE
SECURITIES AND THE OTHER CLASS OR CLASSES AND SERIES OF SHARES,
IF ANY, WHICH THE COMPANY IS AUTHORIZED TO ISSUE, TO THE RECORD
HOLDER OF THIS CERTIFICATE, WITHOUT CHARGE, WITHIN FIVE DAYS
AFTER RECEIPT OF A WRITTEN REQUEST THEREFOR.
4.6 Investment Experience; Information. It is an "Accredited Investor" as
----------------------------------
defined in Rule 501(a) under the Securities Act. It has received a copy of the
closing binder of documents entered into in connection with the Company's sale
of Series B Preferred Stock and execution of the Credit Agreement on January 12,
2000.
4.7 Broker's, Finder's or Similar Fees. There are no brokerage
----------------------------------
commissions, finder's fees or similar fees or commissions payable by it, in
connection with the transactions contemplated hereby based on any agreement,
arrangement or understanding with it or any action taken by it.
-11-
ARTICLE 5
CONDITIONS TO THE OBLIGATION OF THE PURCHASER
TO CLOSE
--------
The obligation of the Purchaser to purchase the Purchased Shares, to pay
the purchase price therefor at the Closing and to perform its other obligations
hereunder shall be subject to the satisfaction as determined by, or waiver by,
such Purchaser of the following conditions on the Closing Date.
5.1 Secretary's Certificate. The Purchaser shall have received a
-----------------------
certificate from the Company, in form and substance reasonably satisfactory to
the Purchaser, dated the Closing Date and signed by the Secretary or an
Assistant Secretary of the Company, certifying that the attached copies of the
Certificate of Incorporation, the By-laws and resolutions of the Board of
Directors approving this Agreement and each of the other Transaction Documents
and the transactions contemplated hereby and thereby, are all true, complete and
correct and remain unamended and in full force and effect.
5.2 Stockholders Agreement Amendment. The Company and the stockholders
--------------------------------
named therein shall have duly executed and delivered the Stockholders Agreement
Amendment.
5.3 Registration Agreement Amendment. The Company and the stockholders
--------------------------------
named therein shall have duly executed and delivered the Registration Agreement
Amendment.
5.4 Amended and Restated Shareholders Agreement. Each of the stockholders
-------------------------------------------
party to the Amended and Restated Shareholders Agreement shall have duly
executed and delivered the Amended and Restated Shareholders Agreement.
5.5 Purchased Shares. The Company shall have sent by overnight courier to
----------------
the Purchaser certificates in definitive form representing the Purchased Shares.
5.6 Consents and Approvals. All consents, exemptions, authorizations, or
----------------------
other actions by, or notices to, or filings with, Governmental Authorities and
other Persons in respect of all Requirements of Law and with respect to all
Contractual Obligations which are necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Company and
the Purchaser of this Agreement and each of the other Transaction Documents
shall have been obtained and be in full force and effect, including without
limitation, all applicable waiting periods (and any extensions thereof) under
the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated, and
the Purchaser shall have been furnished with appropriate evidence thereof and
all applicable waiting periods shall have expired without any action being taken
or threatened which would have a material adverse effect on the Condition of the
Company.
-12-
5.7 Receipt of Consolidated Financial Statements. The Company shall have
--------------------------------------------
delivered the Consolidated Financial Statements to the Purchaser, in form and
substance reasonably satisfactory to the Purchaser.
ARTICLE 6
CONDITIONS TO THE OBLIGATION OF THE COMPANY
TO CLOSE
--------
The obligation of the Company to sell the Purchased Shares and to perform
its obligations hereunder shall be subject to the satisfaction as determined by,
or waiver by, the Company of the following conditions on or before the Closing
Date:
6.1 Payment by the Purchaser. The Purchaser shall have purchased and paid
------------------------
for the Purchased Shares.
6.2 Stockholders Agreement Amendment. The Purchaser shall have duly
--------------------------------
executed and delivered the Stockholders Agreement Amendment and an
Acknowledgement and Agreement attached as Exhibit C-2 to that Amended and
Restated Stockholders Agreement dated as of January 12, 2000.
6.3 Registration Agreement Amendment. The Purchaser shall have duly
--------------------------------
executed and delivered the Registration Agreement Amendment.
6.4 Amended and Restated Shareholders Agreement. Each of the stockholders
-------------------------------------------
party to the Amended and Restated Shareholders Agreement shall have duly
executed and delivered the Amended and Restated Shareholders Agreement.
6.5 Consents and Approvals. All consents, exemptions, authorizations, or
----------------------
other actions by, or notices to, or filings with, Governmental Authorities and
other Persons in respect of all Requirements of Law and with respect to all
Contractual Obligations which are necessary or required in connection with the
execution, delivery or performance by, or enforcement against, the Company and
the Purchaser of this Agreement and each of the other Transaction Documents
shall have been obtained and be in full force and effect, including without
limitation, all applicable waiting periods (and any extensions thereof) under
the Xxxx-Xxxxx-Xxxxxx Act shall have expired or otherwise been terminated, and
the Company shall have been furnished with appropriate evidence thereof and all
applicable waiting periods shall have expired without any action being taken or
threatened which would have a material adverse effect on the Condition of the
Company.
-13-
ARTICLE 7
INDEMNIFICATION
---------------
7.1 Indemnification by the Company. Except as otherwise provided in this
------------------------------
Article 7, the Company agrees to indemnify, defend and hold harmless the
Purchaser and his Affiliates and its respective officers, directors, agents,
employees, subsidiaries, partners, members and controlling persons (each, a
"Purchaser Indemnified Party") to the fullest extent permitted by law from and
---------------------------
against any and all losses and any and all actions, proceedings, claims,
complaints, disputes, arbitrations or investigations or written threats thereof
(collectively, "Claims") (including any Claim by a third party), damages,
------
expenses (including reasonable fees, disbursements and other charges of counsel
incurred by the Purchaser Indemnified Party in any action between the Company
and the Purchaser Indemnified Party or between the Purchaser Indemnified Party
and any third party or otherwise) or other liabilities (collectively, "Losses")
------
resulting from, arising out of or relating to the breach by the Company of any
representation or warranty or covenant set forth in Article 3, or relating to
the breach of any other agreement by the Company in this Agreement or the other
Transaction Documents; provided, that the Company shall not be liable under this
--------
Section 7.1 to a Purchaser Indemnified Party to the extent that it is finally
judicially determined that such Losses resulted primarily from the material
breach by such Purchaser Indemnified Party of any representation, warranty,
covenant or other agreement of such Purchaser Indemnified Party contained in
this Agreement or other Transaction Documents; and provided, further, that if
-------- -------
and to the extent that such indemnification is unenforceable for any reason, the
Company shall make the maximum contribution to the payment and satisfaction of
such Losses which shall be permissible under applicable laws. Notwithstanding
anything to the contrary contained herein, the amount of any payment by the
Company to any Purchaser Indemnified Party herewith in respect of any Loss shall
not exceed the aggregate purchase price paid by the Purchaser for the Purchased
Shares. In connection with the obligation of the Company to indemnify for
expenses as set forth above, the Company shall, upon presentation of appropriate
invoices containing reasonable detail, reimburse each Purchaser Indemnified
Party for all such expenses (including reasonable fees, disbursements and other
charges of counsel incurred by the Purchaser Indemnified Party) only (a) after
the final resolution or disposition of such Claim and (b) if such Purchaser
Indemnified Party prevails in such Claim; provided, however, that if a Purchaser
-----------------
Indemnified Party is reimbursed hereunder for any expenses, such reimbursement
of expenses shall be refunded to the extent it is finally judicially determined
that the Losses in question resulted primarily from the willful misconduct or
gross negligence of such Purchaser Indemnified Party.
7.2 Indemnification by the Purchaser. Except as otherwise provided in
--------------------------------
this Article 7, the Purchaser agrees to indemnify, defend and hold harmless the
Company and its officers, directors, shareholders, agents, employees,
subsidiaries, partners, members and controlling persons (each, a "Company
-------
Indemnified Party") to the fullest extent permitted by law from and against any
-----------------
and all Losses resulting from, arising out of or relating to any breach of the
representation or warranty or covenant set forth in Article 4; provided, that
--------
the Purchaser shall not be liable under this Section 7.2 to a Company
Indemnified Party to the extent that it is finally judicially determined that
such Losses
-14-
resulted primarily from the material breach by such Company Indemnified Party of
any representation, warranty, covenant or other agreement of such Company
Indemnified Party contained in this Agreement or the other Transaction
Documents; and provided, further, that if and to the extent that such
-------- -------
indemnification is unenforceable for any reason, the Purchaser shall make the
maximum contribution to the payment and satisfaction of such Losses which shall
be permissible under applicable laws. The aggregate amount of indemnification
payments payable to the Company Indemnified Party shall not exceed the aggregate
purchase price paid by the Purchaser for the Purchased Shares.
7.3 Notification. Each Purchaser Indemnified Party or Company Indemnified
------------
Party, as the case may be (for purposes of this Section 7.3, an "Indemnified
-----------
Party"), under this Article 7 shall, promptly after the receipt of notice of the
-----
commencement of any action, investigation, claim or other proceeding against
such Indemnified Party in respect of which indemnity may be sought from the
Company or the Purchaser, as the case may be (an "Indemnifying Party"), under
------------------
this Article 7, notify the Indemnifying Party in writing of the commencement
thereof. The omission of any Indemnified Party to so notify the Indemnifying
Party of any such action shall not relieve the Indemnifying Party from any
liability which it may have to such Indemnified Party (a) other than pursuant to
this Article 7 or (b) under this Article 7 unless, and only to the extent that,
such omission results in the Indemnifying Party's forfeiture of substantive
rights or defenses. In case any such action, claim or other proceeding shall be
brought against any Indemnified Party, and it shall notify the Indemnifying
Party of the commencement thereof, the Indemnifying Party shall be entitled to
assume the defense thereof at its own expense, with counsel satisfactory to such
Indemnified Party in its reasonable judgment; provided, however, that any
-----------------
Indemnified Party may, at its own expense, retain separate counsel to
participate in such defense at its own expense. Notwithstanding the foregoing,
in any action, claim or proceeding in which both the Indemnifying Party, on the
one hand, and an Indemnified Party, on the other hand, are, or are reasonably
likely to become, a party, such Indemnified Party shall have the right to employ
separate counsel at the expense of the Indemnifying Party and to control its own
defense of such action, claim or proceeding if, in the reasonable opinion of
counsel to such Indemnified Party, a conflict or potential conflict exists
between the Indemnifying Party, on the one hand, and such Indemnified Party, on
the other hand, that would make such separate representation advisable;
provided, however, that the Indemnifying Party shall not be liable for the fees
-----------------
and expenses of more than one counsel to all Indemnified Parties. The
Indemnifying Party agrees that it will not, without the prior written consent of
the Indemnified Party, settle, compromise or consent to the entry of any
judgment in any pending or threatened claim, action or proceeding relating to
the matters contemplated hereby (if any Indemnified Party is a party thereto or
has been actually threatened to be made a party thereto) unless such settlement,
compromise or consent includes an unconditional release of each Indemnified
Party from all liability arising or that may arise out of such claim, action or
proceeding. The Indemnifying Party shall not be liable for any settlement of
any claim, action or proceeding effected against an Indemnified Party without
the Indemnifying Party's written consent, which consent shall not be
unreasonably withheld. The rights accorded to an Indemnified Party hereunder
shall be in addition to any rights that any Indemnified Party may have at common
law, by separate agreement or otherwise; provided, however, that notwithstanding
-----------------
the foregoing or anything to the contrary contained in this
-15-
Agreement, nothing in this Article 7 should restrict or limit any rights that
any Indemnified Party may have to seek equitable relief.
ARTICLE 8
MISCELLANEOUS
-------------
8.1 Survival of Representations and Warranties. Except for the
------------------------------------------
representations and warranties set forth in Sections 3.1, 3.2, 3.4, 3.6, 3.7,
3.9, 3.13, 4.1, 4.2, 4.4, 4.5, 4.6 and 4.7 herein, which shall survive the
execution and delivery of this Agreement, any investigation by or on behalf of
the Company or the Purchaser, or acceptance of the Purchased Shares or
termination of this Agreement, all of the representations and warranties made
herein shall survive the execution and delivery of this Agreement, any
investigation by or on behalf of the Company or the Purchaser, or acceptance of
the Purchased Shares or termination of this Agreement until forty-five (45) days
after receipt by Purchaser of the Audited Financial Statements of the Company
for the fiscal year ending December 31, 2000.
8.2 Notices. All notices, demands and other communications provided for
-------
or permitted hereunder shall be made in writing and shall be by registered or
certified first-class mail, return receipt requested, telecopier, courier
service or personal delivery to the addresses set forth below:
(a) if to the Company:
Synapse Group, Inc.
0 Xxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxxxx Xxxx
with a copy to:
Xxxx and Xxxx LLP
00 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq.
(b) if to the Purchaser, to the addresses indicated on the
signature page hereto.
All such notices and communications shall be deemed to have been duly given when
delivered by hand, if personally delivered; when delivered by courier, if
delivered by commercial courier service; five (5) Business Days after being
deposited in the mail, postage prepaid, if mailed; and when receipt is
mechanically acknowledged, if properly telecopied.
-16-
8.3 Successors and Assigns; Third Party Beneficiaries. This Agreement
-------------------------------------------------
shall inure to the benefit of and be binding upon the successors and permitted
assigns of the parties hereto. Subject to applicable securities laws, the
Purchaser may assign any of its rights under this Agreement to any of its
Affiliates upon notice to the Company, provided such Affiliate is not directly
or indirectly engaged in a business competitive with the business of the
Company. The Company may not assign any of its rights under this Agreement
without the written consent of the Purchaser. Except as provided in Article 7,
no Person other than the parties hereto and their successors and permitted
assigns is intended to be a beneficiary of this Agreement.
8.4 Amendment and Waiver.
--------------------
(a) No failure or delay on the part of the Company or the Purchaser in
exercising any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy preclude any other or further exercise thereof or the exercise of any
other right, power or remedy. The remedies provided for herein are cumulative
and are not exclusive of any remedies that may be available to the Company or
the Purchaser at law, in equity or otherwise.
(b) Any amendment, supplement or modification of or to any provision
of this Agreement, any waiver of any provision of this Agreement, and any
consent to any departure by the Company or the Purchaser from the terms of any
provision of this Agreement, shall be effective only if it is made or given in
writing and signed by the Company and the Purchaser.
8.5 Counterparts. This Agreement may be executed in any number of
------------
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
8.6 Headings. The headings in this Agreement are for convenience of
--------
reference only and shall not limit or otherwise affect the meaning hereof.
8.7 Pronouns. All pronouns and any variations thereof refer to the
--------
masculine, feminine or neuter, singular or plural, as the context may require.
8.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
-------------
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
PRINCIPLES OF CONFLICTS OF LAW OF ANY JURISDICTION.
8.9 Severability. If any one or more of the provisions contained herein,
------------
or the application thereof in any circumstance, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired, unless the provisions held
invalid, illegal or unenforceable shall substantially impair the benefits of the
remaining provisions hereof.
-17-
8.10 Entire Agreement. This Agreement, together with the exhibits and
----------------
schedules hereto and the other Transaction Documents, is intended by the parties
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and therein. There are no
restrictions, promises, warranties or undertakings, other than those set forth
or referred to herein or therein. This Agreement, together with the exhibits
hereto, and the other Transaction Documents supersede all prior agreements and
understandings between the parties with respect to such subject matter.
8.11 Fees. Each of the parties hereto shall bear its own costs and
----
expenses incurred in connection with the transactions contemplated by the
Transaction Documents, including, without limitation, its fees, disbursements
and other charges of counsel.
8.12 Publicity. Except as may be required by any applicable Requirement
---------
of Law, none of the parties hereto shall issue a publicity release or public
announcement or otherwise make any public disclosure concerning this Agreement
or the transactions contemplated hereby, without prior approval by the other
parties hereto (which approval shall not be unreasonably withheld); provided,
--------
however, that nothing in this Agreement shall restrict the Purchaser from
-------
disclosing information: (a) that is already publicly available; (b) to the
prospective transferee in connection with any contemplated transfer of any of
the Purchased Shares; and (c) to its attorneys, accountants, consultants and
other advisors to the extent necessary to obtain their services in connection
with that Purchaser's investment in the Company. If any announcement is
required by any applicable Requirement of Law to be made by any party hereto,
prior to making such announcement such party will deliver a draft of such
announcement to the other parties and shall give the other parties an
opportunity to comment thereon.
8.13 Further Assurances. Each of the parties shall execute such documents
------------------
and perform such further acts (including, without limitation, obtaining any
consents, exemptions, authorizations or other actions by, or giving any notices
to, or making any filings with, any Governmental Authority or any other Person,
and otherwise fulfilling, or causing the fulfillment of, the conditions to
Closing set forth in Articles 5 and 6) as may be reasonably required or
desirable to carry out or to perform the provisions of this Agreement and to
consummate and make effective as promptly as possible the transactions
contemplated by this Agreement.
[Remainder of this page intentionally left blank.]
-18-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed and delivered by their respective officers hereunto duly authorized on
the date first above written.
the "Company"
SYNAPSE GROUP, INC.
By: /s/ Xxxxxxx X. Xxxx
--------------------
Name: Xxxxxxx Xxxx
Title: President
the "Purchaser"
/s/ Xxxxxxx Xxxxxxxx
--------------------
XXXXXXX XXXXXXXX
Address:
000 Xxxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: ____________________
Telecopier: (000) 000-0000
-19-
