SECURITIES PURCHASE AGREEMENT
March 18, 1998
Xx. Xxxx Xxxx
000 Xxxxxx Xxxx
Xxxxx Xxxxxx, Xxx Xxxxxx 00000
In order to induce Xxxx Xxxx (the "Purchaser") to become a member of the
Board of Directors of Audio Book Club, Inc. (the "Company"), the Company hereby
agrees to (i) sell to the Purchaser the Option and (ii) grant to the Purchaser
the right to purchase the Additional Option (as hereinafter defined), pursuant
to the terms and conditions set forth herein.
1. Purchase of Option.
Subject to Section 9 of this Agreement, the Company hereby agrees to sell
to the Purchaser and Purchaser hereby agrees to purchase from the Company for a
purchase price of Fifty Thousand Dollars ($50,000) (the "Option Purchase Price")
an option (the "Option"), to purchase 50,000 shares (the "Option Shares") of
common stock, no par value (the "Common Stock"), of the Company, at any time
commencing on the date of this Agreement through 5:00 P.M. New York local time
on the fifth year anniversary of the date of this Agreement (the "Exercise
Period"), at an exercise price per Option Share equal to the closing sale price
of the Common Stock, as reported by the American Stock Exchange ("AMEX"), on the
date of this Agreement in the form attached as Exhibit A hereto.
2. Payment for and Delivery of the Option.
Payment of the Option Purchase Price by the Purchaser will be made by check
payable to Company or by wire transfer in accordance with instructions provided
to Purchaser by the Company on the date hereof. Upon payment in full of the
Option Purchase Price, the Company will issue and deliver to Purchaser the
Option.
3. Additional Option.
The Company hereby agrees that, in the event the Purchaser continues to
serve as a participating and active member of the Company's Board of Directors
for six months from the date of this Agreement, the Purchaser shall have the
right, commencing on the six month anniversary of the date of this Agreement and
expiring on the tenth day following the six month anniversary of the date of
this Agreement (the "Additional Option Purchase Period") to
purchase an additional option (the "Additional Option" and together with the
Option, the "Purchaser's Options"). The Additional Option shall be exercisable
to purchase Twenty Five Thousand (25,000) shares ("Additional Option Shares" and
together with the Option Shares, the "Purchaser's Option Shares") of the Common
Stock of the Company for a purchase price of Twenty Five Thousand Dollars
($25,000) (the "Additional Option Purchase Price"). Such Additional Option will
be exercisable at any time, during the five (5)-year period from the date of
issuance to purchase the Additional Option Shares at an exercise price per share
equal to the closing sale price of the Common Stock, as reported by AMEX, on the
date of this Agreement. The Additional Option shall be substantially similar in
form to the Option.
4. Payment and Delivery of the Additional Option.
In the event that the Purchaser elects to purchase the Additional Option,
the Purchaser shall, during the Additional Option Purchase Period, deliver to
the Company at its principal place of business, by check or wire transfer, the
Additional Option Purchase Price. Upon receipt of the Additional Option Purchase
Price, the Company will issue and deliver to the Purchaser the Additional
Option. In the event that Purchaser fails to deliver the Additional Option
Purchase Price to the Company during the Additional Option Purchase Period, the
right to purchase such Additional Option shall terminate.
5. Restrictions on Transfer.
5.1 Purchaser understands that the Purchaser's Options and Purchaser's
Option Shares are "restricted securities" within the meaning of Rule 144
promulgated under the Act.
5.2 Purchaser agrees that it will not, sell, assign or transfer the
Purchaser's Options and the Purchaser's Option Shares in violation of the
Securities Act of 1933, as amended (the "Act"), or any other applicable state
securities laws ("Other Securities Laws") and understands that it cannot sell,
assign or transfer the Purchaser's Option Shares unless the Purchaser's Option
Shares are registered under the Act and Other Securities Laws or an exemption
from such registration is applicable to such transfer.
5.3 Purchaser understands that the certificate(s) representing the
Purchaser's Option Shares will bear a restrictive legend thereon substantially
as follows:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
OR ANY OTHER APPLICABLE SECURITIES LAWS, AND ARE RESTRICTED SECURITIES
AS THAT TERM IS DEFINED UNDER RULE 144 PROMULGATED UNDER THE ACT.
THESE SECURITIES MAY
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NOT BE SOLD, PLEDGED, TRANSFERRED, DISTRIBUTED OR OTHERWISE DISPOSED
OF IN ANY MANNER UNLESS THEY ARE REGISTERED UNDER THE ACT AND ANY
APPLICABLE SECURITIES LAWS, OR UNLESS THE REQUEST FOR TRANSFER IS
ACCOMPANIED BY AN OPINION OF COUNSEL, REASONABLY SATISFACTORY TO THE
COMPANY, STATING THAT THE TRANSFER WILL NOT RESULT IN A VIOLATION OF
THE ACT OR ANY APPLICABLE STATE SECURITIES LAWS."
5.4 Purchaser understands that Purchaser except as otherwise provided
herein, Purchaser has no rights whatsoever to request, and that the Company is
under no obligation whatsoever to furnish, a registration of the Purchaser's
Option Shares under the Act or any Other Securities Laws.
6. Registration Rights.
6.1 Registrable Securities. As used herein the term "Registrable Security"
means each of the Purchaser's Option Shares and any shares of Common Stock
issued upon any stock split or stock dividend in respect of such Purchaser's
Option Shares; provided, however, that with respect to any particular
Registrable Security, such security shall cease to be a Registrable Security
when, as of the date of determination, (i) it has been effectively registered
under the Act and disposed of pursuant thereto, (ii) registration under the Act
is no longer required for subsequent public distribution of such security, or
(iii) it has ceased to be outstanding. The term "Registrable Securities" means
any and/or all of the securities falling within the foregoing definition of a
"Registrable Security." In the event of any merger, reorganization,
consolidation, recapitalization or other change in corporate structure affecting
the Common Stock, such adjustment shall be made in the definition of
"Registrable Security" as is appropriate in order to prevent any dilution or
enlargement of the rights granted pursuant to this Section 6.
6.2 Piggyback Registration. If, at any time during the two years following
the date of this Agreement, the Company proposes to prepare and file any new
registration statement covering equity or debt securities of the Company, or any
such securities of the Company held by its shareholders (in any such case, other
than in connection with a merger, acquisition or pursuant to Form S-8 or
successor form) (for purposes of this Section 6, collectively, the "Registration
Statement"), it will give written notice of its intention to do so by registered
mail ("Notice"), at least twenty (20) days prior to the filing of each such
Registration Statement, to all holders of the Registrable Securities. Upon the
written request of such a holder (a "Requesting Holder"), made within (10) days
after receipt of the Notice, that the Company include any of the Requesting
Holder's Registrable Securities in the proposed Registration Statement,
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the Company shall, as to each such Requesting Holder, use its best efforts to
effect the registration under the Act of the Registrable Securities which it has
been so requested to register ("Piggyback Registration"), at the Company's sole
cost and expense and at no cost or expense to the Requesting Holders other than
any applicable underwriting or brokerage discounts and expenses of counsel, if
any, for the Requesting Holders or expenses of any other advisor to the
Requesting Holders, provided, however, that if, in the written opinion of the
Company's managing underwriter, if any, for the offering, the inclusion of all
or a portion of the Registrable Securities requested to be registered, when
added to the securities being registered by the Company or the selling
shareholder(s), will exceed the maximum amount of the Company's securities which
can be marketed (i) at a price reasonably related to their then current market
value, or (ii) without otherwise materially adversely affecting the entire
offering, then the Company may exclude from such offering all or a portion of
the Registrable Securities which it has been requested to register.
Notwithstanding the provisions of this Section 6.2, the Company shall have
the right at any time after it shall have given written notice pursuant to this
Section 6.2 (irrespective of whether any written request for inclusion of such
securities shall have already been made) to elect not to file any such proposed
Registration Statement, or to withdraw the same after the filing but prior to
the effective date thereof.
6.3 Demand Registration.
(a) If the Purchaser's Option Shares have not been registered under the Act
within two (2) years from the date of this Agreement, then at any time during
the period from such two (2) year date until the end of six (6) months from such
two (2) year date, any "Majority Holder" (as such term is defined in Section
6.3(c) below) of the Registrable Securities shall have the right (which right is
in addition to the Piggyback Registration rights provided for under Section 6.2
hereof), exercisable by written notice to the Company (the "Demand Registration
Request"), to have the Company prepare and file with the Securities and Exchange
Commission (the "Commission") on one occasion, at the sole expense of the
holder(s) of Registrable Securities, a Registration Statement and such other
documents, including a prospectus, as may be necessary (in the opinion of both
counsel for the Company and counsel for such Majority Holder) in order to comply
with the provisions of the Act, so as to permit a public offering and sale of
the Registrable Securities by the holders thereof for nine (9) consecutive
months.
(b) The Company agrees to give written notice of any Demand Registration
Request to all holders of the Registrable Securities within ten (10) days from
the date of the Company's
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receipt of any such Demand Registration Request. After receiving notice from the
Company as provided in this Section 6.3(b), holders of Registrable Securities
may request the Company to include their Registrable Securities in the
Registration Statement to be filed pursuant to Section 6.3(a) hereof by
notifying the Company of their decision to have such securities included within
ten (10) days of their receipt of the Company's notice. The Company's
obligations under Section 6.2 and this Section 6.3 are subject to the holders of
Registrable Securities furnishing the Company with such appropriate information
in connection the filing of a Registration Statement as the Company shall
reasonably request in writing.
(c) The term "Majority Holder" as used in Section 6.3 hereof shall mean any
holder or any combination of holders of Registrable Securities, if included in
such holders' Registrable Securities are that aggregate number of shares of
Common Stock (including Purchaser's Option Shares already issued and Purchaser's
Option Shares issuable pursuant to the exercise of outstanding Purchaser
Options, as would constitute a majority of the aggregate number of shares of
Common Stock (including Purchaser's Option Shares already issued, and
Purchaser's Option Shares issuable pursuant to the exercise of outstanding
Purchaser Options) included in all the Registrable Securities.
(d) Notwithstanding the foregoing provisions of this Section 6.3, no Demand
Registration Request shall obligate the Company to undergo an audit, other than
in the ordinary course of its business.
6.4 Covenants of the Company With Respect to Registration. The Company
covenants and agrees as follows:
(a) In connection with any registration under Section 6.3 hereof, the
Company shall file the Registration Statement as expeditiously as possible, but
in any event no later than forty-five (45) days following receipt of any demand
therefor, shall use its reasonable efforts to have any such Registration
Statement declared effective at the earliest possible time, and shall furnish
each holder of Registrable Securities such number of prospectuses as shall
reasonably be requested.
(b) The Company will take all necessary action which may be required in
qualifying or registering the Registrable Securities included in a Registration
Statement, for offering and sale under the securities or blue sky laws of up to
three (3) states as are reasonably requested by the holders of such securities,
provided that the Company shall not be obligated to execute or file any general
consent to service of process or to qualify as a foreign corporation to do
business under the laws of any such jurisdiction.
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6.5 Indemnification.
(a) The Company's obligations under this Section 6 are conditioned upon
receipt from any holder of Registrable Securities to be sold pursuant to a
Registration Statement, and its successors and assigns, of an agreement to
severally, and not jointly, indemnify, the Company, its officers and directors
and each person, if any, who controls the Company within the meaning of Section
15 of the Act or Section 20(a) of the Exchange Act, against all loss, claim,
damage or expense or liability (including all expenses reasonably incurred in
investigating, preparing or defending against any claim whatsoever) to which
they may become subject under the Act, the Exchange Act or otherwise, arising
from information furnished by or on behalf of such holder, or its successors or
assigns, for inclusion in such Registration Statement in a form acceptable to
the Company and its counsel.
(b) If the Company shall enter into an underwriting agreement with a
managing underwriter selected for such underwritten offering the Company may
require that the holders of Registrable Securities shall be parties to any
underwriting agreement relating to an underwritten sale of their Registrable
Securities.
7. Purchaser's Representations and Warranties.
In order to induce the Company to execute this Agreement and to consummate
the transactions set forth herein, Purchaser hereby represents and warrants with
and covenants to the Company as follows:
7.1 Purchaser acknowledges that Purchaser has received and reviewed copies
of the Company's Prospectus dated October 22, 1997 relating to the Company's
initial public offering and Form 10-QSB for the three months ended September 31,
1997 and has had the opportunity to ask questions of and receive answers from
qualified representatives of the Company concerning the business and financial
condition of the Company and the terms and conditions of this Agreement, and all
of such questions have been answered to Purchaser's satisfaction.
7.2 Purchaser represents that the Purchaser is a sophisticated investor
familiar with the type of risks inherent in the acquisition of securities such
as the Purchaser's Options and the Purchaser's Option Shares and that, by reason
of his knowledge and experience in financial and business matters in general,
and investments of this type in particular, Purchaser is capable of evaluating
the merits and risks of an investment in the Purchaser's Options and Purchaser's
Option Shares.
7.3 Purchaser is able to bear the economic risk of an investment in the
Purchaser's Options and Purchaser's Option
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Shares, including, without limiting the generality of the foregoing, the risk of
losing part or all of Purchaser's investment in the Purchaser's Options and
Purchaser's Option Shares and Purchaser's probable inability to sell or transfer
the Purchaser's Options and Purchaser's Option Shares for an indefinite period
of time.
7.4 Purchaser is acquiring the Purchaser's Options and Purchaser's Option
Shares for Purchaser's own account and for the purpose of investment and not
with a view to, or for resale in connection with, any distribution within the
meaning of the Act or Other Securities Laws.
7.5 Purchaser further acknowledges that the Purchaser's Options and
Purchaser's Option Shares have not been registered under the Act or any of the
Other Securities Laws, and may not be sold, transferred or otherwise disposed of
except if an effective registration statement is then in effect or pursuant to
an exemption from registration under said Act.
7.6 Purchaser acknowledges that the Company has relied on the
representations contained herein and that the statutory basis for exemption from
the requirements of Section 5 of the Act may not be present if, notwithstanding
such representations, Purchaser were acquiring the Shares for resale or
distribution upon the occurrence or non-occurrence of some predetermined event.
8. The Company's Representations and Warranties.
In order to induce Purchaser to execute this Agreement and to consummate
the transactions set forth therein, the Company hereby represents and warrants
with and covenants to Purchaser as follows:
8.1 The Company is a corporation duly organized, validly existing and in
good standing under the laws of Florida and has all requisite corporate power
and authority to own and operate its properties and to carry on its business as
currently conducted and to enter into this Agreement and issue the Purchaser's
Options and Purchaser's Option Shares pursuant hereto.
8.2 This Agreement has been duly authorized, executed and delivered by or
on behalf of the Company and constitutes the valid and binding obligation of the
Company enforceable against the Company in accordance with its terms.
8.3 The issuance of the Purchaser's Option Shares upon exercise of the
Purchaser's Options by the Purchaser or the holder thereof has been duly
authorized and when issued upon exercise of the Purchaser's Options and payment
therefore is
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received by the Company will be validly issued, fully paid and nonassessable.
8.4 As of the date of this Agreement the Company has 6,153,920 shares of
Common Stock and options to purchase approximately 285,000 shares of Common
Stock outstanding.
9. Conditions to this Agreement.
This Agreement and the parties' obligations hereunder are conditioned upon
(i) AMEX's approval of the Company's additional listing application and (ii) the
consent of L.H. Friend, Weinress, Xxxxxxxx & Xxxxxxx, Inc. to the issuance of
the Purchaser's Options and the Purchaser's Option Shares upon exercise of the
Purchaser's Option.
10. Miscellaneous.
10.1 The Purchaser has carefully reviewed the jurisdictional notice below
and agrees to abide by any restrictions contained therein applicable to
Purchaser.
THE SECURITIES OFFERED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR THE SECURITIES LAWS OF CERTAIN STATES AND ARE BEING
OFFERED AND SOLD IN RELIANCE ON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF
SAID ACT AND SUCH LAWS. THE SECURITIES ARE SUBJECT TO THE RESTRICTIONS ON
TRANSFERABILITY AND RESALE AND MAY NOT BE TRANSFERRED OR RESOLD EXCEPT AS
PERMITTED UNDER SAID ACT AND SUCH LAWS PURSUANT TO REGISTRATION OR EXEMPTION
THEREFROM. INVESTORS SHOULD BE AWARE THAT THEY WILL BE REQUIRED TO BEAR THE
FINANCIAL RISKS OF THIS INVESTMENT FOR AN INDEFINITE PERIOD OF TIME. THE
SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE
COMMISSION, ANY STATE SECURITIES COMMISSION OR ANY OTHER REGULATORY AUTHORITY.
NOR HAVE ANY OF THE FOREGOING AUTHORITIES PASSED UPON OR ENDORSED THE MERITS OF
THIS OFFERING OR THE ACCURACY OR ADEQUACY OF THE ANY INFORMATION PROVIDED TO THE
INVESTOR IN CONNECTION WITH THE PURCHASE OF THE SECURITIES OFFERED HEREBY. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
10.2 The representations and warranties contained herein shall be true at
and as of the respective dates of delivery of the certificates representing the
Purchaser's Options and Purchaser's Option Shares to Purchaser as though such
representations and warranties were made at and as of such respective dates and
all commitments and covenants made herein shall survive such respective dates.
10.3 All communications hereunder will be in writing and, except as
otherwise provided, will be delivered at, or mailed by certified mail, return
receipt requested, or telegraphed to, the following addresses: if to Purchaser,
addressed to Xx. Xxxx
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Wolf, 000 Xxxxxx Xxxx, Xxxxx Xxxxxx, Xxx Xxxxxx 00000; if to the Company to:
Audio Book Club, Inc., 0000 Xxxxxxxxx Xxxxxxxxx, X.X., Xxxxx 000, Xxxx Xxxxx,
Xxxxxxx 00000, with a copy to Xxxxxx Xxxxxxxxxx, LLP, Attention: Xxxxxx X.
Xxxxxxx, Esq., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
10.4 This Agreement shall be deemed to have been made and delivered in New
York City and shall be governed as to validity, interpretation, construction,
effect and in all other respects by the internal laws of the State of New York.
Each of Purchaser and the Company (1) agrees that any legal suit, action or
proceeding arising out of or relating to this Agreement, shall be instituted
exclusively in New York State Supreme Court, County of New York, or in the
United States District Court for the Southern District of New York, (2) waives
any objection which the Purchaser or the Company may have now or hereafter to
the venue of any such suit, action or proceeding, and (3) irrevocably consents
to the jurisdiction of the New York State Supreme Court, County of New York, and
the United States District Court for the Southern District of New York in any
such suit, action or proceeding. Each of the Purchaser and the Company further
agrees to accept and acknowledge service of any and all process which may be
served in any such suit, action or proceeding in the New York State Supreme
Court, County of New York, or in the United States District Court for the
Southern District of New York and agrees that service of process upon the
Purchaser or the Company, as the case may be, mailed by certified mail to the
Purchaser's address or the Company's address, as the case may be, shall be
deemed in every respect effective service of process upon the Purchaser or the
Company, as the case may be, in any such suit, action or proceeding.
10.5 Each party hereto agrees to use its best efforts to take any action
which may be necessary or appropriate or reasonably requested by the other party
hereto in order to effectuate or implement the provisions of this Agreement.
10.6 The rights and obligations of the parties under this Agreement shall
bind and inure to the benefit of the parties and their respective successors and
assigns.
10.7 This Agreement may be executed in separate counterparts, all of which
shall constitute one agreement.
10.8 All notices required or permitted to be given hereunder shall be
personally delivered, sent by courier service or mailed by certified or
registered mail, postage prepaid, to the respective parties at the addresses set
forth herein and shall be deemed given upon receipt.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first above written.
PURCHASER:
/s/ Xxxx Xxxx
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Xxxx Xxxx
SELLER:
AUDIO BOOK CLUB, INC.
By:/s/ Xxxx Xxxx
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Name: Xxxx Xxxx
Title: Executive Vice-President
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