EXHIBIT 10.5
REDEMPTION AGREEMENT
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This Redemption Agreement (this "Agreement") is dated as of the 19th day of
March, 1997 by and among Logical Design Solutions, Inc., a New Jersey
corporation (the "Company"), and the persons set forth on Schedule 1.1 (each an
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"Investor" and collectively the "Investors").
Pursuant to the terms of a 9% Senior Subordinated Debenture and Warrant
Purchase Agreement of even date (the "Purchase Agreement"), the Investors have
acquired warrants (the "Warrants") to purchase an aggregate of 215,000 shares of
the common stock, no par value per share, of the Company. Capitalized terms used
herein and not otherwise defined in this Agreement shall have the meanings
assigned to them in the Purchase Agreement.
In consideration of the execution and deliver, of the Purchase Agreement
and the agreements set forth below, the parties agree with each other as
follows:
1. Option to Sell Warrants to Company.
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Upon the first to occur of: (i) the liquidation, dissolution or
winding up of the Company; (ii) the sale of all or substantially all of the
Company's assets; (iii) the merger or consolidation of the Company with any
Person, or the transfer of ownership of any voting shares of the Company to any
Person as a consequence of which transaction described in this clause (iii)
those Persons who held all of the voting shares of the Company immediately prior
to such transfer do not hold a majority of the voting shares of the Company
after the consummation of such transfer (a "Control Sale") (the items described
in clauses (i) - (iii) referred to herein collectively as a "Liquidity Event"),
or (iv) March 19, 2003, the Investors may require the Company to redeem the
Warrants then held by them on the terms set forth herein; provided, however,
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that if such request is made pursuant to clause (iv), then the Warrants as to
which redemption has been requested shall be redeemed one-half on March 19,
2003, and one-half on March 19, 2004. The Company shall use its best efforts to
give the Investors not less than 30 day's advance written notice of any proposed
Liquidity Event, and, in the event that a Liquidity Event shall not occur on or
before January 15, 2003, the Company shall give Investors notice on such date
that the Investors may elect to request redemption of Warrants on March 19,
2003. Following receipt of such notice, any Investor or Investors holding an
aggregate of not less than twenty percent (20%) of the total Shares held by the
Investors may notify the Company that it or they intend to offer to the Company
any or all of the Warrants then held by them for purchase by the Company. The
Company shall promptly give notice of such intention to all other Investors who
own Shares, and any Investor may, within ten (10) days of such notice, give the
Company notice that it intends to offer to the Company any or all of the
Warrants then held by it. The Company shall repurchase all Warrants so offered
under this Agreement as set forth below. The option to sell Warrants pursuant to
this Section 1 shall be referred to as the "Option."
2. Price.
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(a) The price to be paid by the Company for the Warrants to be sold
under the Option shall be the fair market value of the Warrant Shares issuable
upon exercise thereof, as of
the date of such proposed repurchase. In the case of redemption requested in
connection with a Liquidity Event, fair market value of Warrant Shares shall be
the price payable to holders of shares of Common Stock in connection with such
Liquidity Event. In the case of a redemption requested pursuant to clause (iv)
of Section 1, fair market value shall be as agreed upon in good faith by the
Company and the Representative (who shall be a Person selected by the Investors
owning a majority of the Warrants to be redeemed hereunder and who shall be
hereinafter referred to as the "Representative"), taking into account, in
valuing such Warrants, all relevant facts and circumstances; provided, however,
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that there shall be no discount to reflect the fact that the Warrants are
illiquid or represent a minority interest in the Company. If no such agreement
is reached within thirty (30) days after notice is given to the Company of the
Investors' exercise of the Option under clause (iv), the fair market value shall
be determined by appraisal as set forth below.
(b) All appraisals shall be undertaken by two appraisers, one selected by
the Board of Directors of the Company and one selected by the Representative. No
Director who is affiliated with an Investor shall vote on the selection of the
appraiser chosen by the Company. The fair market value shall be the fair market
value arrived at by those appraisers within thirty (30) days following the
appointment of the last appraiser to be appointed. In the event that the two
appraisers agree in good faith on such fair market value within such a period of
time, such agreed value shall be used for these purposes. If the appraisers
cannot agree but their valuations are within 10% of each other, the fair market
value shall be the mean of the two valuations. If the appraisers cannot agree
and the differences in the valuations are greater than 10%, the appraisers shall
select a third appraiser who will calculate fair market value independently,
and, except as provided in the next sentence, the fair market value of the
Warrants shall be the average of the two fair market values arrived at by the
appraisers who are closest in amount. If one appraiser's valuation is the mean
of the other two valuations, such mean valuation shall be the fair market value.
In the event that the two original appraisers cannot agree upon a third
appraiser within ten (10) days following the end of the thirty (30) day period
referred to above, then the third appraiser shall be appointed by the American
Arbitration Association in Boston, Massachusetts. The expenses of the appraiser
chosen by the Company will be borne by it, the expenses of the appraiser chosen
by the Investors will be borne by them, pro rata based on the number of Warrants
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being redeemed, and the expenses of the third appraiser will be borne 50% by the
Company and 50% by the Investors, pro rata based on the number of Warrants being
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redeemed; provided, however that in the event any Investor previously offering
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his Warrants for repurchase shall notify the Company of its election not to sell
any or all of its Warrants, such Investor will be obligated to pay a portion of
the expenses of the third appraiser otherwise payable by the Company equal to a
fraction, the numerator of which is the number of Warrants such Investor
originally elected to be redeemed and the denominator of which is the total
number of Warrants the Investors requested to be redeemed.
3. Payment.
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(a) Within fifteen (15) days following the determination of fair market
value, as provided above, the Company shall purchase the Warrants tendered to it
at the price
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established by this Agreement (the "Redemption Price"), and the
Investors shall deliver to the Company, upon receipt of payment therefor, the
certificates for the Warrants duly endorsed by them for transfer.
(b) Payment shall be made by check or wire transfer of funds to such bank
account as each Investor shall direct.
4. Termination of Option. The obligations of the Company to purchase the
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Warrants as provided in this Agreement shall terminate immediately prior to the
consummation of a Liquidity Event.
5. Notices. All notices or other communications required or permitted to be
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delivered hereunder shall be in writing signed by the party giving the notice
and sent by telecopier, express delivery service, or regular or certified mail
to the address specified in the Purchase Agreement.
6. Entire Agreement. This Agreement and the agreements referred to herein
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constitute the entire agreement of the parties with respect to the matters
contemplated herein. This Agreement and such other agreements supersede any and
all prior understandings as to the subject matter of this Agreement.
7. Amendments, Waivers and Consents. Any provision in this Agreement to the
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contrary notwithstanding, changes in or additions to this Agreement may be made,
and compliance with any covenant or provision herein set forth may be omitted or
waived, if the Company shall obtain consent thereto in writing from Persons
holding an aggregate of at least a majority of the Warrants owned by the
Investors.
8. Binding Effect; Assignment. This Agreement shall be binding upon and
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inure to the benefit of the successors and assigns of the respective parties
hereto.
9. General. The headings contained in this Agreement are for reference
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purposes only and shall not in any way affect the meaning or interpretation of
this Agreement. In this Agreement the singular includes the plural, the plural
the singular, the masculine gender includes the neuter, masculine and feminine
genders. This Agreement shall be governed by and construed under the laws of The
Commonwealth of Massachusetts.
10. Severability. If any provision of this Agreement shall be found by any
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court of competent jurisdiction to be invalid or unenforceable, the parties
hereby waive such provision to the extent that it is found to be invalid or
unenforceable. Such provision shall, to the maximum extent allowable by law, be
modified by such court so that it becomes enforceable, and, as modified, shall
be enforced as any other provision hereof, with all the other provisions hereof
continuing in full force and effect.
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11. Counterparts. This Agreement may be executed in counterparts, all of
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which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as an instrument under SEAL as of the date for first above written.
LOGICAL DESIGN SOLUTIONS, INC.
/s/ Xxxx Xxx Xxxxxx
By:__________________________________
Name: Xxxx Xxx Xxxxxx
Title: President
SUMMIT VENTURES IV, L.P.
By: Summit Partners IV, L.P.,
its General Partner
By: Stamps, Xxxxxxx & Co. IV,
its General Partner
/s/ Xxxxx Xxxxx
By:__________________________________
General Partner
SUMMIT INVESTORS, L.P.
/s/ Xxxxx Xxxxx
By:__________________________________
Authorized Signatory
/s/ Xxxx X. Xxxxxx
_____________________________________
Xxxx X. Xxxxxx
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SCHEDULE 1.1
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Investors
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Name and Address
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Summit Ventures IV, L.P.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxx
Summit Investors III, L.P.
000 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxx
Xxxx X. Xxxxxx
00 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
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