SHAREHOLDERS' AGREEMENT
AMONG
GREENFIELD ONLINE, INC.
AND
THE SHAREHOLDERS
(AS DEFINED HEREIN)
May 17, 1999
TABLE OF CONTENTS
Page
Section 1. Restrictions on Transfer of Shareholder Shares; No Preemptive Rights................................1
Section 2. Repurchase of Retained Shareholder Shares from Management Retained Shareholders.....................2
Section 3. Permitted Transfers of Retained Shareholder Shares..................................................3
Section 4. Closing of Transfers................................................................................4
Section 5. Additional Restrictions on Transfer of Shareholder Shares...........................................4
Section 6. Sale of the Company.................................................................................5
Section 7. Election of Directors; Voting.......................................................................6
Section 8. Board Approval; Power of Attorney...................................................................6
Section 9. Regulatory Matters..................................................................................7
Section 10. Joinders; Additional Shares of Stock................................................................8
Section 11. No Conflicting Agreements...........................................................................8
Section 12. Termination.........................................................................................9
Section 13. Definitions.........................................................................................9
Section 14. General Provisions..................................................................................14
ii
SCHEDULES AND EXHIBITS
Exhibit A - Form of Retained Shareholder Joinder
Exhibit B - Form of Investor Joinder
Exhibit C - Small Business Side Letter
Schedule I - Investor
Schedule II - Retained Shareholder
iii
SHAREHOLDERS'
AGREEMENT dated as of May
17, 1999, among GREENFIELD
ONLINE, INC., a Connecticut
corporation (the
"Company"), the Investor
listed on Schedule I hereto
(together with each Person
who becomes an Investor
under this Agreement, the
"Investors"), and the
Retained Shareholder of the
Company listed on Schedule
II hereto (together with
each Person who becomes a
Retained Shareholder under
this Agreement, the
"Retained Shareholders").
The Investors and the Retained Shareholders are collectively referred
to herein as the "Shareholders" and individually as a "Shareholder". Capitalized
terms used herein are defined in Section 13.
The Company and the Shareholders desire to enter into this Agreement
for the purposes, among others, of (i) assuring continuity in the management and
ownership of the capital stock of the Company and (ii) limiting the manner and
terms by which the Retained Shareholder Shares may be transferred.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereby agree as follows:
Section 1. Restrictions on Transfer of Shareholder Shares; No
Preemptive Rights.
(a) No Retained Shareholder shall sell, transfer, assign or otherwise
dispose of (whether with or without consideration and whether voluntarily or
involuntarily or by operation of law or otherwise) (a "Transfer") any interest
in any Retained Shareholder Shares, except pursuant to (i) Sections 1(b) and (c)
hereof, (ii) Sections 2 or 3 hereof, (iii) a Public Sale or (iv) a Sale of the
Company effected in accordance with Section 6 hereof (the Transfers referred in
clauses (ii), (iii) and (iv) being referenced herein as "Exempt Transfers");
provided, however that a Management Retained Shareholder may not Transfer any
interest in any Retained Shareholder Shares until the fourth anniversary of the
date hereof except pursuant to the provisions of Section 3. Notwithstanding
anything in this Agreement to the contrary, no Retained Shareholder shall
Transfer any Shareholder Shares to any Competitor. As used herein, the term
"Competitor" means (i) any Person who is engaged in the Subject Business (as
such term is defined in the Purchase Agreement) and (ii) any Affiliate of a
Person identified in clause (i) above. Pursuant to Section 33-683(b)(2) of the
Connecticut Business Corporation Act (the "CBCA"), the Shareholders hereby waive
any and all preemptive rights to which they may otherwise be entitled pursuant
to Section 33-683 of the CBCA.
(b) Procedure for Transfer of Retained Shareholder Shares by Retained
Shareholders. Prior to making any Transfer other than pursuant to an Exempt
Transfer, a Retained Shareholder shall give written notice (the "Sale Notice")
to the Company and the Investors. The Sale Notice shall disclose in reasonable
detail the identity of the prospective transferee(s), the number of Retained
Shareholder Shares to be Transferred, the terms and
conditions of the proposed Transfer and shall confirm that the offer to purchase
such shares is irrevocable for at least 40 days. The Transferring Shareholder
shall not consummate such Transfer until 40 days after the Sale Notice has been
given to the Company and the Investors, unless the parties to the Transfer have
been finally determined pursuant to this Section 1 prior to the expiration of
such 40-day period (the date of the first to occur of such events is referred to
herein as the "Sale Authorization Date").
(c) First Refusal Rights with Respect to Retained Shareholder Shares.
The Company may elect to purchase all, or any portion, of the Retained
Shareholder Shares to be Transferred upon the same terms and conditions as those
set forth in the Sale Notice by delivering a written notice of such election to
the Transferring Shareholder and the Investors within 20 days after the Sale
Notice has been given to the Company and the Investors. If the Company has not
elected to purchase all of the Retained Shareholder Shares to be Transferred,
the Company shall provide notice of such election to the Investors and the
Investors may elect to purchase all (but not less than all) of their respective
Proportionate Percentage of the Retained Shareholder Shares not purchased by the
Company upon the same terms and conditions as those set forth in the Sale Notice
by giving written notice of such election to the Transferring Shareholder within
30 days after the Sale Notice has been given. In any written notice of such
acceptance, any Investor may offer to purchase any of such Retained Shareholder
Shares not purchased by the other Investors, up to such Investor's ratable share
of such unpurchased Retained Shareholder Shares actually purchased pursuant to
this Section 1(c), in which case any such Retained Shareholder Shares not
accepted by the Investors shall be deemed to have been offered to and accepted
by the Investors that exercised his, her or its option under this sentence on
the above-described terms and conditions. The Transferring Shareholder may
Transfer the Retained Shareholder Shares not elected to be purchased by the
Company and the Investors, at a price and on terms no more favorable to the
transferee(s) thereof than specified in the Sale Notice during the 90-day period
immediately following the Sale Authorization Date. Any Retained Shareholder
Shares not Transferred within such 90-day period shall be subject to the
provisions of Sections 1(b) and (c) upon subsequent Transfer.
Section 2. Repurchase of Retained Shareholder Shares from
Management Retained Shareholders.
(a) In the event of a Termination of Employment of any Management
Retained Shareholder (a "Terminated Shareholder"), the Company or its designee
shall have the right (but not the obligation) to repurchase from such Terminated
Shareholder (and each member of the Group of such Terminated Shareholder) (x)
all or any part of the Retained Shareholder Shares owned by such Terminated
Shareholder or any member of such Terminated Shareholder's Group which
constitute Non-Qualifying Retained Shareholder Shares, (y) if such Termination
of Employment shall be a Termination for Cause, all or part of the Retained
Shareholder Shares owned by such Terminated Shareholder or any member of such
Terminated Shareholder's Group which constitute Qualifying Shareholder Shares
and (z) if such Termination of Employment shall be a Termination for Cause all
or part of any vested Shareholder Shares owned by such Terminated Shareholder or
any member of such Terminated Shareholder's Group. The parties hereto
acknowledge that, as of the date hereof, Xxxxxx Xxxxxxxxxx is not a Management
Retained Shareholder.
-2-
(b) The repurchase right of the Company or its designee under this
Section 2 may be exercised by written notice (a "Repurchase Notice"), specifying
the number of Retained Shareholder Shares to be repurchased, and given to the
Terminated Shareholder within 90 days of the Termination Date (or, if the
Company shall not have assigned its rights under this Section 2 and shall be
legally prevented (whether by contract, statute or otherwise) from making such
repurchase during the foregoing 90-day period, then such Repurchase Notice may
be delivered by the Company within 45 days after the date on which it shall be
legally permitted to make such repurchase), but in no event shall the Company be
permitted to make such election after the third anniversary of the Termination
Date. Any such Retained Shareholder Shares which are not purchased by the
Company or its designee during such period may be purchased by the Investors,
such purchase right to be exercisable upon 10 days written notice (a "Purchase
Notice") to the Terminated Shareholder after the date upon which the number of
Shareholder Shares to be repurchased by the Company, if any, shall have been
fully determined. Each such Investor may purchase up to his, her or its Investor
Percentage of such Retained Shareholder Shares. In any such Purchase Notice, an
Investor may offer to accept for purchase any of such Retained Shareholder
Shares not accepted by other Investors up to such Investor's ratable share of
such unaccepted Retained Shareholder Shares, determined by reference to the
actual number of Shareholder Shares owned by each Investor actually purchasing
Retained Shareholder Shares pursuant to this Section 2(b). Upon the delivery of
a Repurchase Notice or Purchase Notice to the Terminated Shareholder, the
Terminated Shareholder shall be obligated to sell or cause to be sold to the
Company, its designee or the Investors, as the case may be, the Retained
Shareholder Shares specified in such Repurchase Notice or Purchase Notice, as
the case may be.
(c) The price per Retained Shareholder Share to be paid under this
Section 2 shall be determined as follows:
(i) in the case of a repurchase of either (A) any
Non-Qualifying Retained Shareholder Shares or (B) any (1) Qualifying
Retained Shareholder Shares or (2) vested Shareholder Shares issued
pursuant to the exercise of an option or warrant, or options or
warrants for such vested Shareholder Shares, in each case in this
clause (B) following a Termination for Cause, the repurchase price to
be paid for each Retained Shareholder Share shall be the original cost
(subject to pro rata adjustment in the event of any stock split, stock
dividend or other subdivision of the Common Shares or reverse stock
split or other combination of the Common Shares or other similar pro
rata recapitalization event affecting the Common Shares) paid for each
such Retained Shareholder Share, provided that the original cost of an
option or warrant to purchase Stock shall be $1.00 in the aggregate for
all options or warrants which comprise a given option or warrant grant.
(d) The purchase price to be paid for any repurchase of Retained
Shareholder Shares pursuant to this Section 2 shall be paid in cash.
Section 3. Permitted Transfers of Retained Shareholder Shares.
The restrictions contained in Section 1(a) hereof shall not apply with
respect to any Transfer of Retained Shareholder Shares by (i) in the case of any
Retained Shareholder who is an individual, pursuant to a gift, will or the
applicable laws of descent and distribution, among such individual's Family
Group or to a trust in which such Retained Shareholder is the settlor and
-3-
such Retained Shareholder or any member of his or her Family Group is or are the
beneficiaries thereof, (ii) in the case of any Retained Shareholder who is not
an individual, to any member of the Group to which such Retained Shareholder
belongs, (iii) repurchase or acquisition of any Retained Shareholder Shares by
an Investor (in which case, such Retained Shareholder Shares shall be deemed to
be Investor Shares) or by the Company pursuant to approval by the Board, or (iv)
any Retained Shareholder to a financial institution in respect of the pledge of
his or her Retained Shareholder Shares to any such financial institution
providing financing to such Retained Shareholder; provided, however, that the
restrictions contained herein shall continue to be applicable to the Retained
Shareholder Shares after any such Transfer pursuant to clauses (i), (ii), (iii)
and (iv) above and; provided further, however, that the transferees of such
Retained Shareholder Shares shall have executed and delivered to the Company a
Retained Shareholder Joinder pursuant to Section 10 hereof.
Section 4. Closing of Transfers.
Transfers of Retained Shareholder Shares by any Shareholder to the
Company or any other Person under the terms of Section 2 or 3 hereof shall be
made at the offices of the Company on a mutually satisfactory Business Day
within 10 days after the expiration of the last applicable period described in
the relevant Section. Delivery of certificates or other instruments evidencing
such Shareholder Shares or shares of Stock, as the case may be, duly endorsed
for transfer and free and clear of all encumbrances, shall be made on such date
against payment of the purchase price therefor.
Section 5. Additional Restrictions on Transfer of Shareholder
Shares.
(a) Legend. The certificates representing the Shareholder Shares shall
bear the following legend:
"THE SALE, TRANSFER, ASSIGNMENT, PLEDGE, OR
ENCUMBRANCE OF THE SECURITIES REPRESENTED BY THIS
CERTIFICATE AND THE RIGHTS OF THE HOLDER OF SUCH
SECURITIES IN RESPECT OF THE ELECTION OF DIRECTORS ARE
SUBJECT TO THE TERMS AND CONDITIONS OF A
SHAREHOLDERS' AGREEMENT DATED AS OF MAY 17, 1999,
AMONG GREENFIELD ONLINE, INC. AND THE HOLDERS OF
OUTSTANDING CAPITAL STOCK OF SUCH CORPORATION. COPIES OF SUCH
AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY
THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF
GREENFIELD ONLINE, INC."
(b) Opinion of Counsel. Unless waived by the Company, no holder of
Shareholder Shares may Transfer any Shareholder Shares (except pursuant to an
effective registration statement under the Securities Act) without first
delivering to the Company an opinion of counsel (reasonably acceptable in form
and substance to the Company) that neither registration nor qualification under
the Securities Act and applicable state securities laws is required in
connection with such Transfer.
-4-
(c) Transfers in Violation of Agreement. Any Transfer or attempted
Transfer of any Shareholder Shares in violation of any provision of this
Agreement shall be void ab initio, and the Company shall not record such
Transfer on its books or treat any purported transferee of such Shareholder
Shares as the owner of such Shareholder Shares for any purpose.
Section 6. Sale of the Company.
(a) Approved Sale. If the Board or if the holders of a majority of the
Investor Shares then outstanding approve a Sale of the Company (an "Approved
Sale"), the holders of Retained Shareholder Shares shall consent to and raise no
objections against the Approved Sale, and if the Approved Sale is structured as
(i) a merger or consolidation of the Company or a sale of all or substantially
all of the Company's assets, each holder of Retained Shareholder Shares hereby
waives any dissenters rights, appraisal rights or similar rights in connection
with such merger, consolidation or asset sale, or (ii) a sale of the Company's
Stock, the holders of Retained Shareholder Shares hereby agree to sell their
Retained Shareholder Shares on the terms and conditions approved by the Board or
the holders of a majority of the then outstanding Investor Shares, as the case
may be. The holders of Retained Shareholder Shares shall take all necessary and
desirable actions in connection with the consummation of the Approved Sale,
including, but not limited to, the execution of such agreements and such
instruments and other actions reasonably necessary to provide the
representations, warranties, indemnities, covenants, conditions, non-compete
agreements, escrow agreements and other provisions and agreements relating to
such Approved Sale. In the event that any holder of Retained Shareholder Shares
fails for any reason to take any of the foregoing actions, he, she or it hereby
grants an irrevocable power of attorney to any Shareholder, Board member or the
Company to take all actions and execute and deliver all documents deemed by such
Persons necessary to effectuate the terms of this Section 6. Any Retained
Shareholder who shall Transfer Retained Shareholder Shares in connection with an
Approved Sale shall receive the same type of consideration in respect of his
Retained Shareholder Shares and upon the same terms and conditions as all other
Shareholders participating in such Approved Sale.
(b) Purchaser Representative. If the Company or the holders of the
Company's securities enter into any negotiation or transaction for which
Regulation D (or any similar rule or regulation thereunder) promulgated by the
Securities and Exchange Commission may be available with respect to such
negotiation or transaction (including a merger, consolidation or other
reorganization), each holder of Retained Shareholder Shares shall, at the
request of the Company, appoint a purchaser representative (as such term is
defined in Rule 501 promulgated under Regulation D) reasonably acceptable to the
Company. If any holder of Retained Shareholder Shares appoints a purchaser
representative designated by the Company, the Company shall pay the fees of such
purchaser representative, but if any holder of Retained Shareholder Shares
declines to appoint the purchaser representative designated by the Company such
holder shall appoint another purchaser representative (reasonably acceptable to
the Company), and such holder shall be responsible for the fees of the purchaser
representative so appointed.
-5-
Section 7. Election of Directors; Voting.
(a) The number of directors constituting the Board of the Company, as
fixed from time to time by the Board in accordance with the Company's by-laws,
shall initially be five (5). Notwithstanding any provision in the Company's
by-laws, the number of directors constituting the Board shall not be changed
without the consent of a majority of the Investor Shares. At each annual meeting
of the holders of any class of Stock, and at each special meeting of the holders
of any class of Stock called for the purpose of electing directors of the
Company, and at any time at which holders of any class of Stock shall have the
right to, or shall, vote for or consent in writing to the election of directors
of the Company, then, and in each such event, the Shareholders shall vote all of
the Shareholder Shares owned by them or their Affiliates, and their respective
transferees shall so vote for, or consent in writing with respect to such shares
in favor of, the election of a Board of the Company constituted as follows:
(i) two (2) directors who shall be designated and approved by
the Management Retained Shareholders holding at least a majority of the
then outstanding Retained Shareholder Shares held by Management
Retained Shareholders; and
(ii) three (3) directors who shall be designated and approved
by the holders of at least a majority of the then outstanding Investor
Shares.
The parties hereby designate and approve the following individuals to
serve as the initial members of the Board effective as of the day after the
Closing Date (i) the Management Retained Shareholders hereby designate and
approve Xxxx Xxxxxxx and Xxxx Xxxxxx as directors pursuant to Section 8(a)(i)
hereof, and (ii) the Investor hereby designates and approves Xxxxxxx Xxxxxx,
Xxxxx Xxxxxxxx and Xxxx Xxxxxxx as directors pursuant to Section 8(a)(ii)
hereof. The directors designated under Section 8(a)(i) shall designate one of
such directors to serve on the Board's compensation committee. The directors
designated under Section 8(a)(ii) shall designate one of such directors to serve
on the Board's compensation committee and on each other committee of the Board.
(b) The holders of Shareholder Shares shall vote their shares (i) to
remove any director whose removal is required by the party or parties with the
power to designate such director and (ii) to fill any vacancy created by the
removal, resignation or death of a director, in each case for the election of a
new director designated and approved, if approval is required, in accordance
with the provisions of this Section 7. Vacancies of the Board shall be filled
within 30 days of the date such vacancy is created or immediately before the
first action to be taken by the Board after the date such vacancy is created.
Section 8. Board Approval; Power of Attorney.
(a) Consistent with the requirements of applicable law, the Board
shall act by a majority as constituted in a supervisory role with respect to the
Company and shall be responsible for strategic decisions relating to the
Company.
-6-
(b) The following transactions by the Company or any Subsidiary
thereof shall require the specific approval of a majority of the Board
(notwithstanding any law requiring the specific approval of a percentage higher
than a majority of the Board) as constituted:
(i) the Company's annual budget and capital expenditures
which shall exceed 15% of the annual budget theretofore approved by the
Board;
(ii) the hiring or dismissal of any employee, agent,
representative or consultant who or which is or will be paid an
aggregate annual compensation or consideration in excess of $125,000;
(iii) the direct or indirect investment in, purchase or other
acquisition of, in one or a series of transactions, any business,
assets, securities or other property of another Person, other than in
the ordinary course of business;
(iv) any transaction (other than in the ordinary course of
business, consistent with past practices) involving aggregate
consideration to or from the Company or any Subsidiary in excess of
$250,000;
(v) any agreement or transaction between the Company and any
Affiliate of the Company; provided, however, that the foregoing shall
not restrict (A) transactions between the Company and any of its
Subsidiaries, if any, or among any of such Subsidiaries, if any, (B)
payments to employees of the Company in the ordinary course of business
of the Company or any of its Subsidiaries, (C) transactions pursuant to
any stock option or other incentive-based plan for employees of the
Company that is approved by the Board, and (D) transactions
contemplated by this Agreement;
(vi) any amendment or modification of the Company's articles
of incorporation or by-laws; and
(vii) an Approved Sale, or any Public Offering of the Stock of
the Company.
Section 9. Regulatory Matters.
(a) Each Shareholder agrees to cooperate with the Company in all
reasonable respects in complying with the terms and provisions of the letter
agreement dated the date hereof among the Company, the Investor and certain
other parties, a copy of which is attached hereto as Exhibit C, regarding small
business matters (the "Small Business Sideletter"), including, without
limitation, voting to approve amending the Company's articles or certificate of
incorporation, the Company's bylaws or this Agreement in a manner reasonably
acceptable to the Shareholders or any Regulated Holder (as defined in the Small
Business Sideletter) entitled to make such request pursuant to the Small
Business Sideletter in order to remedy a Regulatory Problem (as defined in the
Small Business Sideletter). Anything contained in this Section 9 to the contrary
notwithstanding, no Shareholder shall be required under this Section 9 to take
any action that would adversely affect in any material respect such
Shareholder's rights under this Agreement or as a shareholder of the Company.
-7-
(b) The Company and each Shareholder agree not to amend or waive the
voting or other provisions of the Company's articles or certificate of
incorporation, the Company's bylaws or this Agreement if such amendment or
waiver would cause any Regulated Holder to have a Regulatory Problem (as defined
in the Small Business Sideletter). The Investor agrees to notify the Company as
to whether or not it or any of its Affiliates would have a Regulatory Problem
promptly after the Investor has notice of such amendment or waiver.
Section 10. Joinders; Additional Shares of Stock.
(a) Any transferee of Stock of the Company from an Investor (other
than the Company, a Retained Shareholder or a transferee in a Public Sale)
shall, as a condition to such Transfer, become an Investor for purposes of this
Agreement, and if such transferee is not already bound hereby as an Investor,
he, she or it shall execute and deliver to the Company an Investor Joinder. Any
transferee of Stock of the Company from a Retained Shareholder (other than the
Company, an Investor or a transferee in a Public Sale) shall, as a condition to
such Transfer, become a Retained Shareholder for purposes of this Agreement, and
if such transferee is not already bound hereby as a Retained Shareholder, he,
she or it shall execute and deliver to the Company a Retained Shareholder
Joinder. Any transferee of Stock from Xxxxxx Xxxxxxxxxx shall, as a further
condition to such Transfer, agree to bound by the terms and conditions of
Section 1.8 (if applicable) of the Purchase Agreement with respect to such
Stock.
(b) In the event additional shares of Stock are issued by the Company
to a Shareholder at any time during the term of this Agreement, either directly
or upon the exercise or exchange of securities of the Company exercisable for or
exchangeable into shares of Stock, such additional shares of Stock shall, as a
condition to such issuance, become subject to the terms and provisions of this
Agreement.
(c) In the event additional shares of Stock are issued by the Company
to any Person that is (i) an employee, manager, officer, director or consultant
of the Company or (ii) a third party investor which is not an Affiliate of the
Company, such Person, as a condition to receiving such shares of Stock shall
agree to execute and deliver to the Company a joinder in substantially the form
of Exhibit A (in the case of clause (i)) or Exhibit B (in the case of clause
(ii)), and to be deemed a Shareholder hereunder and agree that such additional
shares will be subject to the terms and provisions of this Agreement provided
that if such Person was a Retained Shareholder prior thereto, such Person shall
be deemed to have continued such status and if such Person was an Investor prior
thereto, such Person shall be deemed to have continued such status.
Section 11. No Conflicting Agreements.
No Shareholder shall enter into any stockholder agreements or
arrangements of any kind with any Person with respect to any Stock on terms
inconsistent with the provisions of this Agreement (whether or not such
agreements or arrangements are with other Shareholders or with Persons that are
not parties to this Agreement), including, but not limited to, agreements or
arrangements with respect to the acquisition or disposition of Stock in a manner
that is inconsistent with this Agreement.
-8-
Section 12. Termination.
(a) The provisions of this Agreement specified below shall terminate
and, except as otherwise expressly provided herein, shall be of no further force
or effect and shall not be binding upon any party hereto, at the times specified
below:
(i) Sections 1, 2 (with respect to all Qualifying Retained
Shareholder Shares) 5, 6, 7, 8 and 10 hereof shall terminate upon the
first to occur of a Sale of the Company or a Qualified Public Offering;
(ii) Section 2 hereof shall terminate as to (x) those
Non-Qualifying Retained Shareholder Shares that are registered in a
Qualified Public Offering or sold pursuant to a Sale of the Company or
(y) those Retained Shareholder Shares Transferred in compliance with
this Agreement to any Person other than to a Retained Shareholder or
other than to a member of any Retained Shareholder's Group;
(iii) all provisions of this Agreement shall terminate upon
the first to occur of (A) the dissolution, liquidation or winding-up of
the Company and (B) the approval of such termination by (1) the Company
and (2) the holders of a majority of the then outstanding Investor
Shares.
(b) As to any particular Shareholder, this Agreement shall no longer be
binding or of further force or effect as to such Shareholder, except as noted
below or otherwise expressly provided herein, as of the date such Shareholder
has Transferred all such Shareholder's Shareholder Shares and the transferee(s)
of such Shareholder Shares, if required by this Agreement, shall have become a
party hereto; provided, however, that no such termination shall be effective if
such Shareholder or such transferee(s) is/are in breach of this Agreement.
Section 13. Definitions.
"Affiliate" means, with respect to any Person, any of (a) a director,
officer, partner or member of such Person, (b) a spouse, parent, sibling or
descendant of such Person or a spouse, parent, sibling or descendant of a
director, officer, or partner of such Person and (c) any other Person that,
directly or indirectly, through one or more intermediaries, controls, or is
controlled by, or is under common control with, another Person. The term
"control" includes, without limitation, the possession, directly or indirectly,
of the power to direct the management and policies of a Person, whether through
the ownership of voting securities, by contract or otherwise.
"Approved Sale" shall have the meaning set forth in Section 6.
"Board" means the board of directors of the Company.
"Business Day" means any day that is not a Saturday, Sunday or a day
on which banking institutions in New York, New York are not required to be open.
"Class A Common," means the Class A Common Stock, $0.01 par value per
share, of the Company.
-9-
"Class B Common" means the Class B Common Stock, $0.01 par value per
share, of the Company.
"Closing Date" shall have the meaning ascribed thereto in the Purchase
Agreement.
"Common Shares" means the Class A Common and/or the Class B Common, as
applicable.
"Company" shall have the meaning set forth in the Caption.
"Disability" shall have the meaning, in the case of any Retained
Shareholder, set forth in the Employment Agreement, if any, of such Retained
Shareholder, or in the absence of such an Employment Agreement, shall mean the
physical or mental inability of the Retained Shareholder (i) to substantially
perform all of his or her duties for a period of 90 consecutive days or longer
or for any 90 days in any period of 365 consecutive days, or (ii) that, in the
opinion of a physician selected by the Board (excluding the Retained Shareholder
if the Retained Shareholder is a member of the Board at such time), is likely to
prevent the Retained Shareholder from substantially performing all of his or her
duties for more than 90 days in any period of 365 consecutive days.
"Employment Agreement" shall mean the employment agreement between the
Company or any of its Subsidiaries and the appropriate Retained Shareholder.
"Exempt Transfers" shall have the meaning set forth in Section 1.
"Family Group" means an individual's spouse and descendants (whether
natural or adopted) and any trust solely for the benefit of such individual
and/or the individual's spouse or descendants.
"Group" means:
(i) in the case of any Shareholder which is a partnership or a limited
liability company, (a) such partnership or limited liability company and any of
its limited or general partners or members, (b) any corporation or other
business organization to which such partnership or limited liability company
shall sell all or substantially all of its assets or with which it shall be
merged and (c) any Affiliate of such partnership or limited liability company;
(ii) in the case of any Shareholder which is a corporation, (a) such
corporation, (b) any corporation or other business organization to which such
corporation shall sell or transfer all or substantially all of its assets or
with which it shall be merged and (c) any Affiliate or shareholder of such
corporation; and
(iii) in the case of any Shareholder who is an individual, such
Shareholder's Family Group.
-10-
"Independent Third Party" means any Person who, immediately prior to
the contemplated transaction, individually and with its Group does not own in
excess of 5% of the Common Shares on a fully diluted basis.
"Investor Joinder" means a joinder agreement, substantially in the
form of Exhibit B hereto, by which a Person becomes an Investor after the date
hereof.
"Investor Shares" means any Shareholder Shares held by an Investor.
"Investor" shall have the meaning set forth in the Caption.
"Investor Percentage" means, as to each Investor, the fraction,
expressed as a percentage, the numerator of which is the total number of shares
of Stock of the Company held by such Investor, and the denominator of which is
the total number of shares of Stock of the Company held by all of the Investors.
"Management Retained Shareholder" means any Retained Shareholder who
is an officer or employee of the Company or any Subsidiary, and includes such
officer's or employee's Family Group.
"Non-Qualifying Retained Shareholder Shares" means all Retained
Shareholder Shares constituting outstanding shares of Stock held by a Management
Retained Shareholder that are not Qualifying Retained Shareholder Shares and
which were not acquired upon the exercise of any option or warrant.
"Person" shall be construed broadly and shall include, without
limitation, an individual, a partnership, an investment fund, a limited
liability company, a corporation, an association, a joint stock company, a
trust, a joint venture, an unincorporated organization and a governmental entity
or any department, agency or political subdivision thereof.
"Proportionate Percentage" means the pro rata percentage of Stock
being offered for sale that each Investor shall be entitled to purchase, which
pro rata percentage, as to each such Investor, shall be the percentage figure
which expresses the ratio between the number of Common Shares owned by such
Investor and the aggregate number of Common Shares owned by all Shareholders (in
each case calculated on a fully diluted basis) excluding, in the case of
Sections 1(b) and (c) hereof, the Stock proposed to be Transferred by a Retained
Shareholder.
"Public Offering" means the sale, in an underwritten public offering
registered under the Securities Act, of the Common Shares, other than any
offering made in connection with a business acquisition or an employee benefit
plan.
"Public Sale" means any sale of Shareholder Shares to the public
pursuant to an offering registered under the Securities Act or subsequent to the
Company registering any offering Shareholder Shares under the Securities Act to
the public through a broker, dealer or market maker (pursuant to the provisions
of Rule 144 promulgated under the Securities Act or otherwise).
-11-
"Purchase Agreement" means the Stock Purchase and Redemption Agreement
dated as of May 12, 1999, among the Company and the Shareholders, as amended,
modified or supplemented from time to time.
"Purchase Notice" shall have the meaning set forth in Section 2.
"Qualified Public Offering" means the sale by one or more Persons in
an underwritten Public Offering under the Securities Act of equity securities of
the Company (or its successor) which results in the aggregate gross proceeds to
the Company from such sales (before underwriters' discounts and selling
commissions) greater than or equal to $30 million and following which such
securities are listed or admitted for trading on a nationally-recognized
securities exchange or on the Nasdaq National Market System.
"Qualifying Retained Shareholder Shares" means, in the case of
Retained Shareholder Shares constituting outstanding shares of Stock held by a
Management Retained Shareholder which were not acquired upon the exercise of any
option or warrant, (i) on the first anniversary of the applicable Retained
Shares Acquisition Date, 25% of the Retained Shareholder Shares so acquired on
such Retained Shares Acquisition Date; and (ii) on each six-month anniversary
thereafter, 12.5% of the Shareholder Shares acquired on such Retained Shares
Acquisition Date, until 100% of the Shareholder Shares acquired on such Retained
Shares Acquisition Date have become Qualifying Retained Shareholder Shares.
Prior to the first anniversary of the applicable Retained Shares Acquisition
Date, none of the Retained Shareholder Shares held by such Management
Shareholder shall be Qualifying Retained Shareholder Shares. In the case of any
Management Retained Shareholder, any Retained Shareholder Shares may be subject
to such accelerated vesting as set forth in the Joinder executed by such
Management Retained Shareholder.
"Repurchase Notice" shall have the meaning set forth in Section 2.
"Retained Shareholder Joinder" means a joinder agreement,
substantially in the form of Exhibit A hereto, by which a person becomes a
Retained Shareholder after the date hereof.
"Retained Shareholder Shares" shall mean any Shareholder Shares held
by a Retained Shareholder or the Retained Shareholder's Group.
"Retained Shares Acquisition Date" means, as to Shareholder Shares
acquired by a Management Retained Shareholder as part of a single transaction,
the date on which the Management Retained Shareholder acquired such Shareholder
Shares.
"Sale Authorization Date" shall have the meaning set forth in Section
1(b).
"Sale Notice" has the meaning set forth in Section 1(b).
"Sale of the Company" means the sale of the Company to an Independent
Third Party or group of Independent Third Parties that are Affiliates pursuant
to which such party or parties acquire (i) capital stock of the Company
possessing the voting power to elect a majority
-12-
of the Board (whether by merger,
consolidation or issuance, sale or transfer of the Company's capital stock) or
(ii) all or substantially all of the Company's assets determined on a
consolidated basis.
"Securities Act" means the Securities Act of 1933, as amended from
time to time.
"Shareholder" shall have the meaning set forth in the Preamble.
"Shareholder Shares" means (i) any Common Shares purchased or
otherwise acquired by any Shareholder (including, without limitation, any shares
of Common Shares purchased upon exercise of an option or warrant to acquire
Common Shares or a similar security or Shareholder Shares acquired upon the
consummation of a merger), (ii) any equity securities issued or issuable
directly or indirectly with respect to the Common Shares referred to in clause
(i) above by way of stock dividend or stock split or in connection with a
combination of shares, exchange of capital stock, recapitalization, merger,
consolidation or other reorganization and (iii) any other shares of Stock of the
Company held by a Shareholder.
"Small Business Side Letter" has the meaning set forth in Section
9(a).
"Stock" means, with respect to any Person, such Person's capital stock
or any options, warrants or other securities (including debt securities) that
are directly or indirectly convertible into, or exercisable or exchangeable for,
such Person's capital stock. Whenever a reference herein to Stock is referring
to any derivative security, such term shall include such derivative security and
all underlying Stock directly or indirectly issuable upon conversion, exchange
or exercise of such derivative security.
"Subsidiary" means, with respect to any Person, any other Person of
which the securities having a majority of the ordinary voting power in electing
the board of directors (or other governing body) are, at the time as of which
any determination is being made, owned by such first Person either directly or
through one or more of its Subsidiaries.
"Terminated Shareholder" shall have the meaning set forth in Section
2(a).
"Termination Date" shall mean as to such Retained Shareholder, the
effective date of the Termination of Employment of such Retained Shareholder.
"Termination for Cause" shall have the meaning, in the case of any
Management Retained Shareholder, set forth in the Employment Agreement, if any,
of such Management Retained Shareholder, or in the absence of such an Employment
Agreement, shall mean a Termination of Employment for Cause (as defined herein).
"Termination of Employment" shall mean, as to any Management Retained
Shareholder, the termination of the employment with the Company or any of its
Subsidiaries of such Management Retained Shareholder for any reason whatsoever,
including, but not limited to, termination by Resignation, discharge (either
pursuant to a Termination of Employment for Cause or otherwise), retirement,
death, Disability or non-renewal of an Employment Agreement.
-13-
"Termination of Employment for Cause" shall mean (i) the Management
Retained Shareholder's material breach of any of the terms of his Employment
Agreement; (ii) the conviction of a crime involving fraud, theft or dishonesty
by the Management Retained Shareholder; (iii) the Management Retained
Shareholder's willful and continuing disregard of lawful instructions of the
Board or superiors (if any); (iv) the continued use of alcohol or drugs by the
Management Retained Shareholder to an extent that, in the good faith
determination of the Board, such use interferes in any manner with the
performance of the Management Retained Shareholder's duties and responsibilities
as an employee of the Company; or (v) the conviction of the Management Retained
Shareholder for violating any law constituting a felony (including the Foreign
Corrupt Practices Act of 1977).
"Transfer" has the meaning set forth in Section 1(a).
"Voting Stock" means the capital stock, of any class, of the Company
entitled to vote for the election of directors of the Company.
Section 14. General Provisions.
(a) Amendment; Waiver and Release. Except as otherwise provided herein,
no modification, amendment or waiver of any provision of this Agreement shall be
effective unless such modification, amendment or waiver is approved in writing
by the Company and the holders of at least a majority of the Voting Stock held
by the Shareholders; provided, however, that no such modification, amendment or
waiver that would be adverse to the interests of any (i) Retained Shareholder
shall be made without the prior written consent of a majority in interest of the
Retained Shareholders, and (ii) Investor shall be made without the prior written
consent of a majority in interest of the Investors. The failure of any party to
enforce any of the provisions of this Agreement shall in no way be construed as
a waiver of such provisions and shall not affect the right of such party
thereafter to enforce each and every provision of this Agreement in accordance
with its terms.
(b) Severability. It is the desire and intent of the parties hereto
that the provisions of this Agreement be enforced to the fullest extent
permissible under the laws and public policies applied in each jurisdiction in
which enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated by a court of competent jurisdiction to be
invalid, prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of such
provision in any other jurisdiction. Notwithstanding the foregoing, if such
provision could be more narrowly drawn so as not to be invalid, prohibited or
unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so
narrowly drawn, without invalidating the remaining provisions of this Agreement
or affecting the validity or enforceability of such provision in any other
jurisdiction
(c) Entire Agreement. Except as otherwise expressly set forth herein,
this document and the other documents referred to herein constitute the complete
agreement and understanding among the parties hereto with respect to the subject
matter hereof and thereof and supersede and preempt any prior understandings,
agreements or representations by or among the parties, written or oral, which
may have related to the subject matter hereof in any way.
-14-
(d) Successors and Assigns. Except as otherwise provided herein, this
Agreement shall bind and inure to the benefit of and be enforceable by the
Company and its successors and assigns and the Shareholders and any subsequent
holders of Shareholder Shares and the respective successors and assigns of each
of them, so long as they hold Shareholder Shares. The Investor may assign its
rights under this Agreement to any of its members without the consent of any
other party hereto. None of the provisions hereof shall create, or be construed
or deemed to create, any right of employment in favor of any Person by the
Company or any of its Subsidiaries. This Agreement is not intended to create any
third party beneficiaries.
(e) Counterparts. This Agreement may be executed in separate
counterparts each of which shall be an original and all of which taken together
shall constitute one and the same agreement.
(f) Remedies. The Company and the Shareholders shall be entitled to
enforce their rights under this Agreement specifically to recover damages by
reason of any breach of any provision of this Agreement and to exercise all
other rights existing in their favor. The parties hereto agree and acknowledge
that money damages may not be an adequate remedy for any breach of the
provisions of this Agreement and that the Company and any Shareholder may in
his, her or its sole discretion apply to any court of law or equity of competent
jurisdiction for specific performance and/or injunctive relief (without posting
a bond or other security) in order to enforce or prevent any violation of the
provisions of this Agreement.
(g) Notices. All notices or other communications pursuant to this
Agreement shall be in writing and shall be deemed to be sufficient if delivered
personally, telecopied, sent by nationally-recognized, overnight courier or
mailed by registered or certified mail (return receipt requested), postage
prepaid, to the parties at the following addresses (or at such other address for
a party as shall be specified by like notice):
(i) if to the Company, to:
Greenfield Online, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Chief Executive Officer
Telecopier: (000) 000-0000;
with copies to:
Xxxxxxx Xxxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopier: (000) 000-0000
-15-
(ii) if to the Investor, to:
Greenfield Holdings, LLC
c/o InSight Capital Partners III, L.P.
000 Xxxx 00xx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxx
Telecopier: (000) 000-0000;
with a copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Nissan, Esq.
Telecopier: (000) 000-0000; and
(iii) if to any Retained Shareholder or any other Investor, at
the address set forth on the signature page hereto or in the applicable
Retained Shareholder Joinder or Investor Joinder.
All such notices and other communications shall be deemed to have been
given and received (A) in the case of personal delivery, on the date of such
delivery, (B) in the case of delivery by telecopy (if confirmed), on the date of
such delivery, (C) in the case of delivery by nationally-recognized, overnight
courier, on the Business Day following dispatch, and (D) in the case of mailing,
on the third Business Day following such mailing.
(h) Construction. Where specific language is used to clarify by example
a general statement contained herein, such specific language shall not be deemed
to modify, limit or restrict in any manner the construction of the general
statement to which it relates. The language used in this Agreement shall be
deemed to be the language chosen by the parties to express their mutual intent,
and no rule of strict construction shall be applied against any party.
(i) GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (EXCEPT WITH RESPECT TO
MATTERS RELATED SOLELY TO CORPORATE GOVERNANCE IN WHICH CASE THIS AGREEMENT
(SOLELY AS TO SUCH MATTERS) WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF CONNECTICUT), WITHOUT GIVING EFFECT TO ANY CHOICE OF
LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF NEW YORK OR ANY
OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION OTHER THAN THE
STATE OF NEW YORK TO BE APPLIED. IN FURTHERANCE OF THE FOREGOING, THE INTERNAL
LAWS 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
CONFLICTS OF LAW ANALYSIS, THE SUBSTANTIVE LAW OF SOME OTHER JURISDICTION WOULD
ORDINARILY APPLY.
(j) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT.
(k) Descriptive Headings. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a part of this
Agreement.
(l) Nouns and Pronouns. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms,
and the singular form of names and pronouns shall include the plural and
vice-versa.
(m) Effectiveness. This Agreement shall not be deemed effective until
the consummation of the Closing (as defined in the Purchase Agreement) under the
Purchase Agreement.
* * * * *
-17-
IN WITNESS WHEREOF, the parties hereto have executed this
Shareholders' Agreement on the day and year first above written.
GREENFIELD ONLINE, INC.
/s/ Xxxx Xxxxxx
----------------------------
Name: Xxxx Xxxxxx
Title: President
Investor:
GREENFIELD HOLDINGS, LLC
/s/ Xxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxx Xxxxxx
Title: President
Retained Shareholder:
/s/ Xxxxxx Xxxxxxxxxx
----------------------------
Xxxxxx Xxxxxxxxxx
c/o Greenfield Consulting, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
EXHIBIT A
RETAINED SHAREHOLDER JOINDER
By execution of this Retained Shareholder Joinder, the undersigned
agrees to become a party to that certain Shareholders' Agreement dated as of May
__, 1999, among Greenfield Online, Inc., a Connecticut corporation, and its
shareholders. The undersigned shall have all the rights, and shall observe all
the obligations, applicable to a Retained Shareholder.
Name:_________________________
Address for with copies
Notices: to:
------------------------------ ------------------------------
------------------------------ ------------------------------
------------------------------ ------------------------------
------------------------------ ------------------------------
Signature:
--------------------
Date:
------------------------
Page 20
EXHIBIT B
INVESTOR JOINDER
By execution of this Investor Joinder, the undersigned agrees to
become a party to that certain Shareholders' Agreement dated as of May __, 1999,
among Greenfield Online, Inc., a Connecticut corporation, and its shareholders.
The undersigned shall have all the rights, and shall observe all the
obligations, applicable to an Investor.
Name:_________________________
Address for with copies
Notices: to:
------------------------------ ------------------------------
------------------------------ ------------------------------
------------------------------ ------------------------------
------------------------------ ------------------------------
Signature:
--------------------
Date:
------------------------
Page 21
EXHIBIT C
SMALL BUSINESS SIDE LETTER
May 17, 0000
Xxxxxxxxxx Xxxxxx, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Ladies and Gentlemen:
Reference is made to that certain Stock Purchase and Redemption
Agreement (the "Purchase Agreement"), dated as of May 12, 1999, among Greenfield
Online, Inc. (the "Company"), Greenfield Holdings, LLC ("Investor") and the
other parties identified therein, pursuant to which the Investor is acquiring
certain of the Company's Class B Common Shares (the "Shares"). Imprimis SB, L.P.
and UBS Capital II LLC are Small Business Investment Companies (the "SBICs")
licensed by the United States Small Business Administration ("SBA") and are
members of the Investor.
In order for the SBICs to acquire and hold, indirectly through the
Investor, the Shares, the SBICs and the Investor must obtain from the Company
certain representations and rights as set forth below. As a material inducement
to the Investor to enter into the Purchase Agreement and to acquire the Shares,
the Company hereby makes the following representations and warranties and agrees
to comply with the following covenants:
Small Business Matters.
(n) The Company, together with its "affiliates" (as that term is
defined in Title 13, Code of Federal Regulations,ss. 121.103), is a "small
business concern" within the meaning of the Small Business Investment Act of
1958, as amended ("SBIA"), and the regulations thereunder, including Title 13,
Code of Federal Regulations,ss. 121.301(c), because it either:
Check One
Page 22
(i) including its affiliates, has a tangible net worth not in excess of
$18 million, and average net income after Federal income taxes (excluding any
carry-over losses) for the preceding 2 completed fiscal years not in
excess of $6 million (after giving pro forma effect to the transactions
contemplated by the Purchase Agreement (including the financing thereof) in the
manner set forth in Title 13, Code of Federal Regulations,ss. 107.750); or
(ii) does not exceed the size standard in number of employees or
millions of dollars under the SIC (Standard Industrial Classification) System
for the industry in which it combined with its affiliates is primarily engaged;
and in which it alone is primarily engaged.
The information set forth in the Small Business Administration Forms
480, 652 and Parts A and B of Form 1031 regarding the Company and its
affiliates, when delivered to the SBICs and the Investor, will be accurate and
complete and will be in form and substance acceptable to such Persons (as
defined below). Copies of such forms shall be completed and executed by the
Company and delivered at the closing under the Purchase Agreement (the
"Closing").
(o) Neither the Company's nor any of its Subsidiaries' (as defined
below) primary business activity involves, directly or indirectly, providing
funds to others, the purchase or discounting of debt obligations, factoring or
long-term leasing of equipment with no provision for maintenance or repair, and
neither the Company nor any of its Subsidiaries is classified under Major Group
65 (Real Estate) of the SIC Manual. The assets of the business of the Company
and its Subsidiaries (the "Business") will not be reduced or consumed, generally
without replacement, as the life of the Business progresses, and the nature of
the Business does not require that a stream of cash payments be made to the
Business's financing sources, on a basis associated with the continuing sale of
assets (examples of such businesses would include real estate development
projects and oil and gas xxxxx). (See 13 CFRss. 107.720)
(p) At Closing or within one year thereafter, no more than 49 percent
of the employees or tangible assets of the Company and its Subsidiaries will be
located outside the United States. This subsection (c) does not prohibit such
proceeds from being used to acquire foreign materials and equipment or foreign
property rights for use or sale in the United States.
(q) There are no other SBICs that own any Securities (as defined below)
issued by the Company. Without the Investor's consent, the Company will not
issue Securities to any SBICs in the future if such issuance would cause the
SBICs or the Investor to be deemed to be a member of an "Investor Group" in
"Control" of the Company (as such terms are defined in 13 CFRss. 107.865).
2. Regulatory Compliance.
(a) Regulatory Compliance Cooperation.
Page 23
(i) In the event that the Investor or any of the SBICs
reasonably determines that it has a Regulatory Problem (as defined
below), the Company agrees to take all such actions as are reasonably
requested by such Person in order (A) to effectuate and facilitate any
transfer by the Investor of any Securities of the Company then held by
it to any Person designated by the Investor or the SBIC, (B) to permit
the Investor (or any of its Affiliates) to exchange all or any portion
of the voting Securities then held by such Person on a share-for-share
basis for shares of a class of non-voting Securities of the Company,
which non-voting Securities shall be identical in all respects to such
voting Securities, except that such new Securities shall be non-voting
and shall be convertible into voting Securities on such terms as are
requested by the Investor and reasonably acceptable to the Company in
light of regulatory considerations then prevailing, and (C) to continue
and preserve the respective allocation of the voting interests with
respect to the Company arising out of the Investor's ownership of
voting Securities and/or provided for in the Shareholders' Agreement
(as defined below) before the transfers and amendments referred to
above (including entering into such additional agreements as are
requested by the Investor to permit any Person(s) designated by the
Investor to exercise any voting power which is relinquished by the
Investor upon any exchange of voting Securities for non-voting
Securities of the Company). If the Investor elects to transfer
Securities of the Company to a Regulated Holder (as defined below) in
order to avoid a Regulatory Problem, the Company and such Regulated
Holder shall enter into such mutually acceptable agreements as such
Regulated Holder may reasonably request in order to assist such
Regulated Holder in complying with applicable laws and regulations to
which it is subject. Such agreements may include restrictions on the
redemption, repurchase or retirement of Securities of the Company that
would result or be reasonably expected to result in such Regulated
Holder holding more voting securities or total securities (equity and
debt) than it is permitted to hold under such laws and regulations.
(ii) In the event the Investor has the right to acquire any of
the Company's Securities from the Company or any other Person (as the
result of a preemptive offer, pro rata offer or otherwise), and the
Investor reasonably determines that it or any Affiliate has a
Regulatory Problem, at the Investor's request the Company will offer to
sell to the investor non-voting Securities (or, if the Company is not
the proposed seller, will arrange for the exchange of any voting
securities for non-voting securities immediately prior to or
simultaneous with such sale) on the same terms as would have existed
had the investor acquired the Securities so offered and immediately
requested their exchange for non-voting Securities pursuant to
subsection (i) above.
(iii) In the event that any Affiliate of the Company ever
offers to issue any of its Securities to the Investor, then the Company
will cause such Affiliate to enter into
Page 24
agreements with the Investor substantially similar to this Section 2(a) and
Section 2(b) below.
(b) Information Rights and Related Covenants.
(i) The Company hereby agrees to provide to the Investor and
the SBA access to its books and records for all purposes required by
the SBA.
(ii) The Company hereby agrees to provide to the Investor and
the SBA a certificate of its chief financial officer certifying
compliance by the Company with the provisions of this Agreement
(provided that such certificate may be truthfully given).
(iii) Promptly after the end of each fiscal year (but in any
event prior to February 28 of each year), the Company shall provide to
the Investor a written assessment, in form and substance reasonably
satisfactory to the Investor, of the economic impact of the financing
hereunder, specifying the full-time equivalent jobs created or
retained, the impact of the financing on the consolidated revenues and
profits of the Business and on taxes paid by the Business and its
employees (See 13 CFRss. 107.630(e)).
(iv) Upon the request of the Investor or any of its
Affiliates, the Company will (A) provide to such Person such financial
statements and other information as such Person may from time to time
reasonably request for the purpose of assessing the Company's financial
condition and (B) furnish to such Person all information reasonably
requested by it in order for it to prepare and file SBA Form 468 and
any other information reasonably requested or required by any
governmental agency asserting jurisdiction over such Person.
(v) For a period of one year following the date hereof,
neither the Company nor any of its Subsidiaries will change its
business activity if such change would render the Company ineligible to
receive financial assistance from an SBICs under the SBIA and the
regulations thereunder (within the meanings of 13 XXXxx.xx. 107.720 and
107.760(b)).
(vi) The Company will at all times comply with the
non-discrimination requirements of 13 C.F.R., Parts 112, 113 and 117.
(vii) The Company will notify the Investor from time to time
when the number of its shareholders increases to or above or decreases
below 50.
3. Definitions.
-----------
Page 25
"Affiliate" means, with respect to any Person, (i) a director, officer
or stockholder of such Person, (ii) a spouse, parent, sibling or descendant of
such Person (or spouse, parent, sibling or descendant of any director or
executive officer of such Person), and (iii) any other Person that, directly or
indirectly through one or more intermediaries, Controls, or is Controlled by, or
is under common Control with, such Person.
"Control" means, with respect to any Person, the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.
"Person" shall be construed broadly and shall include an individual, a
partnership, a corporation, a limited liability company, an association, a joint
stock company, a trust, a joint venture, an unincorporated organization or a
governmental entity (or any department, agency or political subdivision
thereof).
"Regulated Holder" means any holder of the Company's Securities that
is (or that is a subsidiary of a bank holding company that is) subject to the
various provisions of Regulation Y of the Board of Governors of the Federal
Reserve Systems, 12 C.F.R., Part 225 (or any successor to Regulation Y).
"Regulatory Problem" means (i) any set of facts or circumstances
wherein it has been asserted by any governmental regulatory agency (or the
Investor believes that there is a significant risk of such assertion) that such
Person (or any bank holding company that controls such Person) is not entitled
to hold, or exercise any material right with respect to, all or any portion of
the Securities of the Company which such Person holds or (ii) when such Person
and its Affiliates would own, Control or have power (including voting rights)
over a greater quantity of Securities of the Company than is permitted under any
law or regulation or any requirement of any governmental authority applicable to
such Person or to which such Person is subject.
"Securities" means, with respect to any Person, such Person's capital
stock or any options, warrants or other Securities which are directly or
indirectly convertible into, or exercisable or exchangeable for, such Person's
capital stock (whether or not such derivative Securities are issued by the
Company). Whenever a reference herein to Securities refers to any derivative
Securities, the rights of the Investor shall apply to such derivative Securities
and all underlying Securities directly or indirectly issuable upon conversion,
exchange or exercise of such derivative Securities.
"Shareholders' Agreement" means the Shareholders' Agreement to be
entered into on the date of the Closing among the Company and certain
shareholders of the Company.
Page 26
"Subsidiary" means, with respect to any Person, any other Person of
which the securities having a majority of the ordinary voting power in electing
the board of directors (or other governing body), at the time as of which any
determination is being made, are owned by such first Person either directly or
through one or more of its Subsidiaries.
* * * *
Page 27
Please indicate your acceptance of the terms of this letter agreement
by returning a signed copy to the undersigned.
IMPRIMIS SB, L.P.
By:
-----------------------------------
Name:
Title:
UBS CAPITAL II LLC
By:
-----------------------------------
Name:
Title:
By:
-----------------------------------
Name:
Title:
Agreed as of the date
first set forth above:
Greenfield Online, Inc.
By:
-------------------------
Name:
Title:
Greenfield Holdings, LLC
-------------------------
Name:
Title:
Page 28
SCHEDULE I
Investor
Greenfield Holdings, LLC
Page 29
SCHEDULE II
Retained Shareholder
Xxxxxx Xxxxxxxxxx
