Stock purchase, CONSENT AND WAIVER agreement dated as of May
17, 1999 (this "Agreement"), among GREENFIELD ONLINE, INC., a
Connecticut corporation ("Online"), XXXX XXXXXX, an individual
("Nadilo"), XXXX XXXXX, an individual ("Xxxxx") (and together
with Nadilo, the "Purchasers"), and XXXXXX XXXXXXXXXX, an
individual (the "Seller").
Concurrently with the execution of this Agreement, the Seller, Greenfield
Holdings, LLC ("Holdings"), and Online will consummate the transactions
contemplated by the Stock Purchase and Redemption Agreement dated as of May 12,
1999 (as amended, the "Purchase Agreement").
Upon consummation of the transactions contemplated by the Purchase
Agreement, the Seller will be the owner of 2,740 shares of Class A Common Stock
of Online, $0.01 par value per share (the "Class A Common Shares"). Upon the
terms and subject to the conditions of this Agreement, each of the Purchasers
will purchase that number of Class A Common Shares listed on Schedule I hereto
from the Seller, in each case for a cash purchase price listed on Schedule I
hereto for an aggregate purchase price of five hundred thousand eighty-eight
dollars ($500,088) (the "Purchase Price").
Nadilo and Xxxxx hereby agree to be bound by the Shareholders' Agreement of
even date herewith among Online, the Seller and Holdings (as amended, the
"Shareholders' Agreement") as Retained Shareholders (as such term is defined
therein).
NOW, THEREFORE, in consideration of the mutual covenants, representations,
warranties and agreements contained herein, the parties hereto hereby agree as
follows:
1. Consent and Waiver of Rights. Holdings, Greenfield and Online hereby
consent to the Transfer (as defined below) and waive the restrictions under
Section 1 of the Shareholders' Agreement with respect to the transaction
contemplated hereby.
2. Sale and Purchase of Shares. Upon the terms and subject to the
conditions of this Agreement, the Seller shall sell, transfer and convey (the
"Transfer") to each of the Purchasers, and each of the Purchasers shall purchase
and acquire from the Seller for the Purchase Price, that number of Class A
Common Shares listed on Schedule I hereto.
3. Delivery.
(a) The Seller shall deliver to Online for cancellation, against
delivery to the Seller by the Purchasers of the Purchase Price, a stock
certificate representing the aggregate number of Class A Common Shares to be
purchased by the Purchasers (the "Stock Certificate"), with all necessary
documentary or transfer tax stamps affixed (the "Document"), free and clear
of all security interests, liens, pledges, claims, charges, escrows,
encumbrances, options, rights of first refusal, mortgages, indentures,
security agreements or other agreements, arrangements,
contracts, commitments, understandings or obligations (collectively,
"Liens"), whether written or oral and whether or not relating in any way to
credit or the borrowing of money.
(b) Upon receipt of this executed Agreement, Online shall cause to be
issued certificates to each Purchaser representing the number of Class A
Common Shares to be purchased by such Purchaser, free and clear of all Liens.
4. Payment. Concurrently with the receipt by Online of this executed
Agreement, each of the Purchasers shall deliver to the Seller the portion of
the Purchase Price to be paid by such Purchaser, by a certified or bank check
payable to the Seller or a wire transfer of immediately available funds to an
account designated by the Seller.
5. Representations and Warranties of the Seller. The Seller represents
and warrants to each of the Purchasers as follows:
(a) the Seller has full power and authority to execute and deliver this
Ageement and consummate the transactions contemplated hereby;
(b) this Agreement constitutes a legal, valid and binding obligation of
the Seller, enforceable in accordance with its terms, except that such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the rights of creditors generally
or by general equitable principles;
(c) the execution and delivery by the Seller of this Agreement and the
consummation by the Seller of the transactions contemplated hereby (i) will
not violate any law, statute, rule or regulation, (ii) will not require or
make necessary any consent, approval or other action, or notice to, any
person, except for those that have been obtained or made, and (iii) will not
conflict with, or result in a violation of, any agreement or other document
or instrument to which the Seller is a party or by which he, or any of his
assets or properties, is bound; and
(d) the Seller has good and marketable title to all of the Class A
Common Shares, free and clear of all Liens.
6. Representations and Warranties of Purchasers. Each of the Purchasers,
severally and not jointly, represents and warrants to the Seller as follows:
(a) Such Purchaser has the full power and authority to execute and
deliver this Agreement and consummate the transactions contemplated hereby
(solely or as to itself);
(b) the execution and delivery by such Purchaser of this Agreement and
the consummation by such Purchaser of the transactions contemplated hereby
(i) will not violate any law, statute, rule or regulation, (ii) will not
require or make necessary any consent, approval or other action, or notice
to, any person, except for those that have been obtained or made, and (iii)
will not conflict with, or result in a violation of, any agreement or other
document or instrument to which such Purchaser is a party or by which he, or
any of his assets or properties, is bound; and
2
(c) this Agreement constitutes a legal, valid and binding obligation of
such Purchaser, enforceable in accordance with its terms, except that such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the rights of creditors generally
or by general equitable principles;
(d) this Agreement is made with each of the Purchasers in reliance upon
such Purchaser's representation to the Seller, which by executing this
Agreement each Purchaser hereby severally confirms, that:
(i) he understands that his interest in Online will not be
registered or qualified under any state securities or blue sky
laws and cannot be resold without such registration or
qualification or an exemption therefrom;
(ii) he understands that his Class A Common Shares have not
been registered under the Securities Act of 1933, as amended
(the "Securities Act"), and the Transfer is being made in
reliance on an exemption from registration thereunder for
transactions not involving a public offering, and that such
Class A Common Shares may not be sold, transferred or
otherwise disposed of except as permitted under the Securities
Act and applicable state securities laws pursuant to
registration or exemption therefrom;
(iii) he is acquiring his Class A Common Shares for his own
account for investment purposes only and not with a view to
resale, assignment or other distribution, in whole or in part,
and no other person has or will have a direct or indirect
beneficial interest in such Class A Common Shares;
(iv) he understands that the Class A Common Shares are a
speculative investment and involve a high degree of risk, the
transferability of the Class A Common Shares is substantially
restricted, there will be no public market for such Class A
Common Shares and it may not be possible for such Purchaser to
liquidate his investment in Online;
(v) he is able to bear the substantial economic risks of an
investment in such Class A Common Shares and can afford a
complete loss of such investment;
(vi) he has such knowledge and experience in financial,
investment and business matters so as to enable him, to use
the information made available to him in connection with the
purchase of such Class A Common Shares, to evaluate the merits
and risks of such purchase, and to make an informed investment
decision with respect thereto;
3
(vii) he has carefully considered and has, to the extent he
believes such discussions necessary, discussed with his
professional legal, tax, accounting and financial advisors the
suitability of his purchase of such Class A Common Shares;
(viii) he has had an opportunity to ask questions of, and
receive answers from, Online, or a person or persons acting on
its behalf, concerning the terms and conditions of his
purchase of such Class A Common Shares, and all such questions
have been answered to his full satisfaction;
(ix) he has had the opportunity to review any documents
relating to Online requested by him and to conduct due
diligence, and such due diligence review has been fully
satisfactory to him;
(x) he is not purchasing such Class A Common Shares as a
result of, or subsequent to, any advertisement, article,
notice or other communication published in any newspaper,
magazine or similar medium or broadcast over radio or
television, or any seminar or meeting whose attendees have
been invited by any general solicitation or general
advertising;
(xi) he has shared primary responsibility for the management
of Online's affairs since on or before October 1, 1997 with
the other Purchaser and, on the basis of his shared management
of Online, he has sufficient information and knowledge with
respect to the business and prospects of Online to make an
informed decision in connection with an investment in the
Class A Common Shares; and
(xii) except as contained in this Agreement, he is not relying
upon any representation, warranty or information furnished by
the Seller with respect to Online.
7. Purchase Agreement Indemnity.
(a) If the Seller shall be required to make any indemnification payments
under the Purchase Agreement for any Losses (as defined in the Purchase
Agreement) in an amount in excess of $2,200,000 in the aggregate, the
Purchasers hereunder shall immediately pay to the Seller their respective
Proportionate Percentage (as defined below) of an aggregate amount equal to
33.33% of the amount by which such payments exceed $2,200,000; provided,
however, that the sum of the amount payable by Nadilo shall not exceed
$300,000 in the aggregate and the sum of the amount payable by Xxxxx shall
not exceed $100,000. "Proportionate Percentage" means, in the case of Nadilo,
75%, and in the case of Xxxxx, 25%.
(b) Each of the Purchasers and the Seller acknowledge that other than as
set forth in this Section 7, neither Purchaser has any indemnification,
contribution or similar obligation to
4
the Seller in respect of any transaction contemplated under the Purchase
Agreement (or the Related Documents (as such term is defined therein)). The
Seller and the Purchasers agree that each of the Company and Holdings is a
third party beneficiary of the foregoing acknowledgement.
8. Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
9. Entire Agreement; Interpretation. This Agreement embodies the
complete agreement and understanding among the parties hereto with respect to
the subject matter hereof and thereof and supersedes and preempts any prior
understandings, agreements or representations by or among the parties,
written or oral, which may have related to the subject matter hereof or
thereof in any way. Any terms defined in this Agreement shall apply to the
singular and plural forms of the terms defined. Whenever the context
requires, any pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include," "includes" and "including" shall be deemed
to be followed by the phrase "without limitation".
10. Governing Law. All questions concerning the construction,
interpretation and validity of this Agreement shall be governed by and
construed and enforced in accordance with the domestic laws of the State of
New York, without giving effect to any choice or conflict of law provision or
rule (whether in the State of New York or any other jurisdiction) that would
cause the application of the laws of any jurisdiction other than the State of
New York. In furtherance of the foregoing, the internal law of the State of
New York will control the interpretation and construction of this Agreement,
even if under such jurisdiction's choice of law or conflict of law analysis,
the substantive law of some other jurisdiction would ordinarily apply.
* * *
5
IN WITNESS WHEREOF, the parties have caused this Stock Purchase, Consent
and Waiver Agreement to be executed and delivered on the date first above
written.
SELLER:
/s/
---------------------------------
Xxxxxx Xxxxxxxxxx
PURCHASERS:
/s/
---------------------------------
Xxxx Xxxxxx
/s/
---------------------------------
Xxxx Xxxxx
GREENFIELD ONLINE, INC.
By: /s/
-----------------------------
Name: Xxxx Xxxxxx
Title: President
Solely for purposes of
Section 1 and Section 7(b):
GREENFIELD HOLDINGS, LLC
By: /s/
-----------------------------
Name: Xxxxxxx Xxxxxx
Title: President
6
Schedule I
Number of Class A
Common Shares Per Share
Purchaser to be purchased Purchase Price Total Purchase Price
--------- --------------- -------------- --------------------
Xxxx Xxxxxx 2,329 shares $182.51 $425,075
Xxxx Xxxxx 411 shares $182.51 $ 75,013
------------ --------
Total 2,740 shares $500,088
============ ========
7
