EXHIBIT A
AGREEMENT
THIS AGREEMENT, dated as of December 27, 2000 between Xxxxxxx
Overseas Holdings Limited, a company organized under the laws of England and
Wales, and Data Broadcasting Corporation, a Delaware corporation ("Seller").
W I T N E S S E T H:
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WHEREAS, Seller is the holder of 5,636,814 shares of the issued and
outstanding common stock, $.01 par value per share (the "Purchase Shares") of
XxxxxxXxxxx.xxx Inc. (the "Company"); and
WHEREAS, Pearson Overseas Holdings Limited, or any other direct or
indirect subsidiary of Xxxxxxx plc to which this Agreement may be assigned by
Xxxxxxx plc pursuant to the provisions of Section 10 below, ("Purchaser")
desires to purchase from Seller and Seller desires to sell to Purchaser the
Purchase Shares upon the terms and for the consideration set forth herein; and
NOW THEREFORE, in consideration of the foregoing and of the mutual
agreements hereinafter set forth, Purchaser and Seller hereby agree as follows:
Section 1. PURCHASE AND SALE OF THE PURCHASE SHARES.
(a) On the terms and subject to the conditions set forth in this
Agreement, at the Closing (as hereinafter defined) Purchaser, in reliance upon
the representations, warranties and agreements of Seller contained herein, shall
purchase from Seller, and Seller, in reliance on the representations, warranties
and agreements of the Purchaser contained herein, shall sell to Purchaser, the
Purchase Shares. Any dividends or distributions made or declared on, or other
rights accruing with respect to, the Purchase Shares on and after the date
hereof shall, conditioned upon the Closing, be property of and for the benefit
of Purchaser and if received by Seller, whether before or after the Closing, be
held in trust by Seller for Purchaser and paid over to the Purchaser at the
Closing or, if later received by Seller, upon receipt thereof by Seller.
(b) The purchase price to be paid by Purchaser for the Purchase
Shares shall equal $4.77 per share or an aggregate of $26,887,602.78 for all of
the Purchase Shares. The total purchase price for the Purchase Shares purchased
by Purchaser hereunder shall be referred to as the "Purchase Price."
Section 2. THE CLOSING.
The closing of the purchase and sale of the Purchase Shares (the
"Closing") will take place at the offices of Xxxxxx, Xxxxx & Xxxxxxx LLP located
at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, on the Record Date (as hereinafter
defined). The date on which the Closing
occurs is referred to herein as the "Closing Date". At the Closing, Seller shall
deliver to Purchaser a certificate representing the Purchase Shares, accompanied
by such duly executed instruments of transfer reasonably satisfactory in form
and substance to Purchaser and its counsel, as may be necessary to convey good
and marketable title to the Shares, free and clear of all Encumbrances, other
than Permitted Encumbrances (as such terms are defined in Section 3.2(b) below),
against delivery therefor of the Purchase Price by wire transfer of immediately
available funds.
Section 3. REPRESENTATIONS AND WARRANTIES OF SELLER.
Seller hereby represents and warrants to Purchaser as follows:
(a) Seller has full corporate power and authority to execute,
deliver and perform this Agreement and the transactions contemplated hereby and
has taken all action required by law or its constitutional documents to
authorize the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Seller and constitutes the legal, valid and binding
obligation of Seller, enforceable against it in accordance with its terms.
(b) Seller has good and marketable title to the Purchase Shares and
the Purchase Shares are owned by Seller, and will be transferred to Purchaser at
the Closing, free of any encumbrances, liens, claims, equities or liabilities of
every nature (an "Encumbrance"), other than any such Encumbrances that arise
under federal or state securities laws, the Registration Rights Agreement and
the Stockholders' Agreement (as such terms are defined below) (the "Permitted
Encumbrances").
(c) The Purchase Shares constitute all of the capital stock of the
Company owned of record or beneficially, directly or indirectly, by Seller, or
any of its respective agents, subsidiaries, affiliates or controlled persons.
(d) Concurrently with the execution hereof, the Board of Directors
of Seller has duly adopted a resolution declaring a cash dividend in an
aggregate amount of $26,887,602.78 (the "Dividend") to all of the holders of the
Company's common stock (including Xxxxxxx Longman, Inc.) setting a record date
of January 8, 2000 (the "Record Date"), to be paid out as soon as practicable on
or following the Record Date and conditioned only upon the occurrence of the
Closing.
Section 4. REPRESENTATIONS AND WARRANTIES OF PURCHASER.
Purchaser hereby represents and warrants to Seller as follows:
(a) Purchaser has full corporate power and authority to execute,
deliver, and perform this Agreement and the transactions contemplated hereby and
has taken all action required by law or its constitutional documents to
authorize the execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby. This Agreement has been duly and validly
executed and delivered by Purchaser and constitutes the legal, valid and binding
obligation of Purchaser, enforceable against it in accordance with its terms.
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(b) Purchaser is purchasing the Purchase Shares for its own account,
not as a nominee or agent, for investment and not with a view to the resale or
distribution of any part thereof. Purchaser has no present intention of selling,
granting any participation in, or otherwise distributing the same.
(c) Purchaser has received all the information it considers
necessary or appropriate for deciding whether to purchase the Purchase Shares.
Purchaser has had an opportunity to ask questions and receive answers from
Seller and the Company and to obtain additional information regarding the terms
and conditions of the offering of the Purchase Shares and the business,
properties, prospects and financial condition of the Company.
(d) Purchaser is an "accredited investor," as such term is defined
in Regulation D under the Securities Act of 1933, as amended (the "Securities
Act"). Purchaser acknowledges that it can bear the economic risk of its
investment in the Purchase Shares, and has such knowledge and experience in
financial or business matters that it is capable of evaluating the merits and
risks of the investment in the Purchase Shares.
(e) Purchaser understands that the Purchase Shares are
characterized as "restricted securities" under the federal securities laws
inasmuch as they are being acquired from Seller in a transaction not
involving a public offering and that under such laws and applicable
regulations such securities may be resold without registration under the
Securities Act only in certain limited circumstances and must be held until
subsequently registered or an exemption from registration is available to
Purchaser. In this connection, Purchaser represents that it is familiar with
Rule 144 under the Securities Act, as presently in effect, and understands
the resale limitations imposed thereby and by the Securities Act.
(f) Purchaser acknowledges and agrees that certificate(s)
representing the Purchase Shares will bear legends relating to the matters
described above in Section 4(e) and relating to the Stockholders' Agreement.
Section 5. CERTAIN COVENANTS OF THE PARTIES.
(a) DISCLOSURE; PUBLICITY. Prior to the Closing, neither party
hereto shall, and each party hereto shall cause its representatives and agents
not to, make any public announcement, statement or press release with respect to
this Agreement or the transactions contemplated hereby or otherwise disclose to
any person (other than its respective officers, directors, employees, agents,
investors, financial representatives and attorneys, in each case on a need to
know basis) the existence, terms, conditions, content or effect of this
Agreement, in each case, without the prior consent of the other party (such
consent not to be unreasonably withheld, delayed or conditioned) unless
disclosure is required by applicable law, governmental regulation or Purchaser's
or Seller's, as the case may be, listing obligations to a securities exchange or
the NASD or the rules and regulations thereof, or by order of a court of
competent jurisdiction.
(b) Seller agrees that it shall assign as of the Closing Date and at
the Closing to Purchaser, all of its rights and obligations pursuant to the
Registration Rights Agreement (the "Registration Rights Agreement") dated as of
January 13, 1999, by and between the Company, Seller, and CBS Broadcasting Inc.,
a New York corporation ("CBS"). Seller further agrees that
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it shall promptly deliver notices to the Company and CBS of such assignment
pursuant to Section 2.1 of the Registration Rights Agreement.
(c) Seller agrees to facilitate Purchaser's assumption of the rights
and obligations of Seller under the Stockholders' Agreement (the "Stockholders'
Agreement") dated as of January 13, 1999 by and among CBS, Seller, the Company
and Xxxxxxxxxxx.Xxx LLC, a Delaware limited liability company, and to the extent
necessary, assist Purchaser in the exercise of such rights and responsibilities
as contemplated by the Stockholders' Agreement. Seller further agrees that to
the extent Seller is requested by Purchaser, Seller shall enter into such
agreements and shall deliver such notices, each at Purchaser's cost and expense,
as are required to effectuate the assumption by Purchaser of Seller's rights and
obligations under the Stockholders' Agreement.
Section 6. CONDITIONS TO OBLIGATION TO CLOSE.
(a) Seller shall not have in any way altered or rescinded the
declaration by its Board of Directors of the Dividend which shall be immediately
paid out to Seller's stockholders following receipt by Seller of the Purchase
Price.
(b) The Registration Rights Agreement shall have been assigned by
Seller to Purchaser.
Section 7. FEES AND EXPENSES; BROKERS.
Except as otherwise expressly provided herein, each of the parties
hereto shall defray its own legal and accounting charges and other expenses
incident to the execution of this Agreement and the consummation of the
transactions contemplated hereby. Purchaser on the one hand and Seller on the
other hand each agree to indemnify and hold harmless the other from and against
and in respect of any claim for brokerage or other commissions relative to this
Agreement, or the transactions contemplated hereby, based in any way on
agreements, arrangements or understandings claimed to have been made with any
third party. All stock transfer or other similar taxes in connection with the
consummation of the transactions contemplated hereby, if any, shall be paid 50%
by Seller and 50% by Purchaser.
Section 8. SURVIVAL, INDEMNITIES, SPECIFIC PERFORMANCE.
(a) All agreements, representations and warranties, and covenants
contained herein or made in writing by or on behalf of the parties hereto in
connection with the transactions contemplated hereby shall survive the execution
of this Agreement and the consummation of such transactions.
(b) Seller shall indemnify and hold Purchaser harmless from and
against and will pay to Purchaser the full amount of any loss, claim, damage,
liability or expense (including reasonable attorneys' fees) resulting to
Purchaser either directly or indirectly, from any breach of the representations
and warranties or agreements of Seller contained in this Agreement.
(c) Purchaser shall indemnify and hold Seller harmless from and
against and will pay to Seller the full amount of any loss, claim, damage,
liability or expense (including
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reasonable attorneys' fees) resulting to Seller, either directly or indirectly,
from (i) any breach of the representations and warranties, covenant or
agreements of Purchaser contained in this Agreement and (ii) any breach after
the Closing Date by Purchaser or its nominees or assigns of the Registration
Rights Agreement or the Stockholders Agreement.
(d) The parties recognize that violation of any agreement or
covenant contained in this Agreement will cause immediate irreparable injury for
which no remedy at law is adequate. In the event of a failure by any party to
perform its obligations or honor its covenants hereunder, any other party shall
be entitled to specific performance through injunctive relief in addition to any
other remedies which may be available at law or in equity or pursuant to the
terms of this Agreement.
Section 9. NOTICES.
All notices, requests, demands and other communications which any
party hereto desires to give to the other party hereto shall be in writing and
shall be deemed to have been duly given if delivered in person or mailed by
registered mail, return receipt requested at the following addresses:
(a) if to Purchaser, at
Pearson Overseas Holdings Limited
c/o Pearson plc
0 Xxxxxxxxxx Xxxxxxx
Xxxxxx, X0X 0XX
Xxxxxxx
Attention: Xxxx Xxxxx, Esq., General Counsel
or at such other address as may have been furnished to Seller in writing;
(b) if to Seller, at
Data Broadcasting Corporation
00 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx Xxxx, Vice President and General Counsel
or at such other address as may have been furnished to Purchaser by Seller in
writing.
Section 10. MISCELLANEOUS.
This Agreement shall be interpreted, construed and enforced in
accordance with the laws of the State of New York. This Agreement and the
further instruments required hereunder embody the entire agreement and
understanding between Purchaser and Seller and supersede all prior agreements
and understandings, oral and written, relating to the subject matter hereof, and
this Agreement may not be modified or amended or any term or provision hereof
waived or discharged, except in writing signed by the party against whom such
modification, waiver or discharge is sought to be enforced. This Agreement may
be executed simultaneously
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in two or more counterparts, each of which shall be deemed an original but all
of which together shall constitute one and the same instrument. This Agreement
may be assigned by Pearson Overseas Holdings Limited only to any other direct or
indirect subsidiary of Xxxxxxx plc; provided that such assignment shall not
release Purchaser from its obligations hereunder, and Purchaser shall remain
fully liable for all of Purchaser's obligations hereunder, including without
limitation the payment of the Purchase Price and the indemnification obligations
hereunder. All of the terms of this Agreement shall be binding upon the
respective successors and assigns of the parties hereto and shall inure to the
benefit of and be enforceable by the parties hereto and their respective
permitted successors and assigns. The headings in this Agreement are for
purposes of reference only and shall not limit or otherwise affect the meaning
hereof.
IN WITNESS WHEREOF, the parties hereto have duly caused this
Agreement to be executed by their duly authorized representatives as of the date
first above written.
PEARSON OVERSEAS HOLDINGS LIMITED
By: /s/ XXXXX X. XXXXXXXX
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Name: Xxxxx X. Xxxxxxxx
Title: Director
DATA BROADCASTING CORPORATION
By: /s/ XXXXXX XXXXX
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Name: Xxxxxx Xxxxx
Title: President and Chief Executive
Officer
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