AMENDMENT NO. 1
TO
STOCK PURCHASE AGREEMENT
THIS AMENDMENT is made as of the 25th day of June, 1999, by and
between Xxxxxx'x, Inc., a Delaware corporation (the "Company") and Media
General, Inc., a Virginia corporation ("Investor").
R E C I T A L S:
WHEREAS, the Company and Investor are parties to that certain
Stock Purchase Agreement dated September 4, 1997 (the "Stock Purchase
Agreement");
WHEREAS, in order to induce and facilitate the Company's
completion of its proposed initial public offering of its common stock, $0.01
par value per share (the "Common Stock"), the Company and Investor agreed to
execute this Amendment to the Stock Purchase Agreement;
A G R E E M E N T:
NOW, THEREFORE, in consideration of the foregoing premises and
other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. Section 6.1 of the Stock Purchase Agreement is hereby
deleted and amended in its entirety to read as follows:
"6.1 FINANCIAL STATEMENTS. For so long as the Investor is a
stockholder of the Company and until such time as the Company shall have a class
of securities registered under the Securities Exchange Act of 1934, the Company
shall deliver to Investor:
(a) as soon as practicable, but in any event within 90
days after the end of each fiscal year of the Company, the consolidated balance
sheet and statements of income and cash flow for such fiscal year, prepared in
accordance with generally accepted accounting principles, consistently applied;
and audited by a nationally recognized firm of independent certified public
accountants;
(b) within 45 days of the end of each quarter, (i) the
consolidated balance sheets of the Company and its subsidiaries and statements
of income and cash flow for such quarter certified by the Company's Chief
Financial Officer as presenting fairly the consolidated financial position and
results of operations of the Company and its consolidated subsidiaries in
accordance with generally accepted accounting principles, consistently applied
(with the exception of supporting footnotes) and (ii) comparisons of such
statements to budget for and as of the end of such quarter in reasonable detail;
and
(c) such other information relating to the financial
condition, business prospects or corporate affairs of the Company as Investor
may from time to time reasonably request to comply with applicable Securities
and Exchange Commission and other governmental filing requirements and such
other information as Investor may reasonably request, including, but not limited
to, any reports or information furnished to the Company's lenders or reports or
other filings made to or filed with governmental authorities and internally
generated periodic financial reports; provided, however, that the Company shall
not be obligated under this Section 6.1(c) to provide information which it deems
in good faith to be a trade secret or similar confidential information."
2. Section 6.2(a) of the Stock Purchase Agreement is hereby
deleted and amended in its entirety to read as follows:
"(a) This Section has been intentionally omitted."
3. Section 6.3 of the Stock Purchase Agreement is hereby
deleted and amended in its entirety to read as follows:
"6.3 BOARD REPRESENTATION. Prior to a firm commitment,
underwritten public offering of the Company's Common Stock (a "Qualified
Offering"), the Investor shall be entitled to designate a board member,
reasonably satisfactory to the Company, to the Company's Board of Directors, to
serve until the next annual meeting of the Company's stockholders, and the
Company agrees not to maintain a Board of Directors that exceeds ten directors.
Subsequent to a Qualified Offering, the Company shall have no further obligation
pursuant to this Section 6.3."
4. Section 6.4 of the Stock Purchase Agreement is hereby
deleted and amended in its entirety to read as follows:
"6.4 STANDSTILL AGREEMENT. For a period of three years
subsequent to June 11, 1999, unless otherwise approved by a majority of the
disinterested members of the Company's Board of Directors, Investor and its
Affiliates shall not, directly or indirectly, acquire beneficial ownership of or
voting control over any shares of Common Stock if the effect of such acquisition
would be to increase the aggregate number of shares of Common Stock then
beneficially owned, directly or indirectly, or over which there is voting
control by Investor and its Affiliates to greater than forty-nine percent (49%)
of shares of Common Stock outstanding. Notwithstanding the foregoing, in the
event the Company redeems or repurchases outstanding shares of Common Stock,
Investor shall not be prevented by the effect of such repurchase or redemption
from exercising warrants to purchase Common Stock of the Company held by
Investor as of the date hereof. For purposes of this Amendment No. 1,
"Affiliate" of Investor shall mean any person directly or indirectly
controlling, controlled by, or under common control with Investor, including
officers and directors. For purposes of this Section 6.4, "voting control"
shall mean the power to vote or to direct the voting, whether directly or
indirectly, through an Affiliate, contractual right, verbal understanding, or
otherwise. For purposes of this Section 6.4, "beneficial ownership" shall have
the same meaning as in Rule 13d-3(d)(1) promulgated under the Securities
Exchange Act of 1934."
[The remainder of this page has been intentionally left blank.]
IN WITNESS WHEREOF, the parties have executed this Amendment No. 1
to the Stock Purchase Agreement as of the date first written above.
XXXXXX'X, INC
By: /s/ Xxxxxxx X. Spain
-------------------------------------
Xxxxxxx X. Spain
Chairman and Chief Executive Officer
0000 Xx Xxxxxx Xxxxx, #000
Xxxxxx, Xxxxx00000
MEDIA GENERAL, INC.
By: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Name:
Title:
000 Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
