AMENDMENT NO. 1 TO
SECURITIES PURCHASE AGREEMENT
THIS AMENDMENT NO. 1 TO SECURITIES PURCHASE AGREEMENT (the "Amendment") is
entered into as of the 16th day of August, 2001, between and among
XXXXXXXXXXX.XXX INC., a Michigan corporation (the "Company"), COOLSAVINGS, INC.,
a Delaware corporation ("Newco"), LANDMARK COMMUNICATIONS, INC., a Virginia
corporation ("LCI") and LANDMARK VENTURES VII, LLC, a Delaware limited liability
company ("LV"). (LCI and LV are each a "Landmark Party" and collectively the
"Landmark Parties").
WHEREAS, the parties have entered into a Securities Purchase Agreement
dated July 30, 2001 (the "Initial SPA") pursuant to which, subject to certain
conditions to closing, the Company has agreed to sell and LV has agreed to
purchase certain securities of the Company; and
WHEREAS, the parties desire to amend the Initial SPA on the terms set forth
below.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements herein contained, and Ten Dollars ($10.00) cash in hand paid, and
for other good and valuable consideration the receipt and sufficiency of which
are hereby acknowledged, the parties hereby agree as follows:
1. Section 5.7(b) of the Initial SPA is hereby amended to insert the
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following parenthetical after the last word in the first sentence: "(it is
hereby acknowledged that the Landmark Parties do not exercise editorial control
over their news and editorial staff and therefore the Landmark Parties shall not
be deemed in breach of this Section to the extent any statements made by such
news and editorial staff in the ordinary course of business could be deemed to
constitute "public negative disclosures")".
2. The first three lines of Section 5.8 of the Initial SPA are hereby
amended and restated in their entirety as follows: "From and after the date
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hereof through each Closing and for so long as the Landmark Parties, together
with all of their Affiliates, thereafter own at least twenty-five percent (25%)
of the outstanding Common Stock (calculated on an as-exercised and as-converted
basis), the Company shall deliver to the Landmark Parties or any subsequent
holder of the Securities:".
3. Sections 6.9 and 8.5 of the Initial SPA are hereby amended to delete
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the reference to the Exhibit B Shareholders Agreement attached to the Initial
SPA and insert a reference to "Exhibit P-1", which shall refer to the
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Shareholders Agreement attached hereto as Exhibit 1.
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4. Section 6.12 of the Initial SPA is hereby amended to insert the
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following after the last sentence of such section:
"The first sentence of Section 6 of Article III of the Bylaws of the
Company or Section 4 of Article III of the Bylaws of Newco, as
applicable, shall have been amended and restated in its entirety as
follows:
In the case of Section 6, Article III of the Company's
Bylaws: `Except as otherwise provided in the Corporation's
Articles of Incorporation or by statute, vacancies in the Board
occurring by reason of death, resignation, removal, increase in
the number of directors or otherwise (other than vacancies
related to Reserved Series B Seats (as defined in the Articles of
Incorporation)) may be filled by the affirmative vote of a
majority of the remaining directors, though less than a quorum;
provided, the foregoing notwithstanding, any vacancy on the Board
of Directors caused by the removal of a director by the
shareholders of the Corporation shall be filled only by the
shareholders.'
In the case of Section 4, Article III of Newco's Bylaws:
`Except as otherwise provided in the Certificate of Incorporation
or by statute, any vacancy among the directors occurring by
reason of death, resignation, removal, increase in the number of
directors or otherwise (other than vacancies related to Reserved
Series B Seats (as defined in the Certificate of Incorporation)),
may be filled by the affirmative vote of a majority of the
remaining directors, though less than a quorum; provided, the
foregoing notwithstanding, any vacancy on the Board of Directors
caused by the removal of a director by the stockholders of the
Corporation shall be filled only by the stockholders.'
The Bylaws of the Company or Newco, as applicable, also shall have
been amended to provide that the number of Series B Directors (as
defined in the Articles of Incorporation or Restated Charter, as
applicable) entitled to serve on any committee (including, without
limitation, any Executive, Audit or Compensation Committees)
("Committee") and the board of directors of any subsidiary of the
company shall bear the same proportion to the number of members of the
whole committee or whole subsidiary board, as applicable, as the
Reserved Series B Seats bears to the Designated Number (as defined in
the Articles of Incorporation or Restated Charter, as applicable) of
the Company's Board."
5. Section 6.19 of the Initial SPA is hereby amended to delete the
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references to the "Shareholders Agreement" and insert in their places references
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to the "Side Agreement", which is attached hereto as Exhibit 2.
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6. Except as modified by the provisions of this Amendment, all of the
terms of the Initial Securities Purchase Agreement shall remain in full force
and effect.
7. This Amendment may be executed in one or more counterparts, each of
which shall be deemed an original and all of which together shall be considered
one and the same agreement.
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SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first above written.
XXXXXXXXXXX.XXX INC.
By: /s/ Xxxxxxx Xxxx
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Print Name: Xxxxxxx Xxxx
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Title: Chief Executive Officer
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COOLSAVINGS, INC.
By: /s/ Xxxxxxx Xxxx
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Print Name: Xxxxxxx Xxxx
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Title: Chief Executive Officer
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LANDMARK COMMUNICATIONS, INC.
By: /s/ Xxx X. Xxxxxxxx. III
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Print Name: Xxx X. Xxxxxxxx. III
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Title: Executive Vice President
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LANDMARK VENTURES VII, LLC
By: /s/ Xxxxxxx X. Xxxxx
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Print Name: Xxxxxxx X. Xxxxx
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Title: Vice President, Secretary, Treasurer
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