SHAREHOLDER AGREEMENT dated as of November 17,
1999 this "Agreement"), among EAC III L.L.C., a
Delaware limited liability company (the "Ripplewood
Shareholder"), each individual (each a "Management
Shareholder" and, collectively with the Ripplewood
Shareholder, the "Shareholders") listed on Schedule I
attached hereto ("Schedule I") and WRC Media Inc.
(formerly named EAC II Inc.), a Delaware corporation
(the "Company").
In consideration of the mutual agreements herein contained, and other
good and valuable consideration the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS, USAGE AND EQUITY INVESTMENT
SECTION 1.01. DEFINED TERMS. The following terms shall have the
following meanings:
"Affiliate" means, with respect to any specified Person, any other
Person that directly or indirectly, through one or more intermediaries,
Controls, is Controlled by, or is under Common Control with, such specified
Person. For purposes of this definition, "Control (including, with correlative
meanings, the terms "Controlled by" and "under Common Control with"), as used
with respect to any Person, means the direct or indirect possession of the power
to direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by contract or otherwise.
"Agreement" has the meaning set forth in the preamble to this
Agreement.
"Board of Directors" means the Board of Directors of the Company.
"Change in Control" has the meaning set forth in Section 1.03.
"Company Common Stock" has the meaning set forth in Section 1.03.
"Control" has the meaning set forth in Section 1.03.
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"Direct Transfer" means a Transfer (without giving effect to the
second sentence of the definition of "Transfer").
"Drag-Along Notice" has the meaning set forth in Section 2.01(f).
"Employment Agreement" means, with respect to each Management
Shareholder, the Employment Agreement between such Management Shareholder and
the Company or that subsidiary of the Company employing such Management
Shareholder.
"Executive" has the meaning set forth in the Executive Shareholder
Agreement.
"Executive Shareholder Agreement" means the Shareholder Agreement
dated as of November [ ], 1999, among the Ripplewood Shareholder, Xxxxxx Xxxxxx
and the Company.
"Fair Market Value" means the fair market value of a Share, determined
in accordance with Section 2.01(g).
"GCL" means the General Corporation Law of the State of Delaware (8
Del. C. Section 101, ET SEQ.), as amended from time to time and any successor
statute thereto.
"Involuntary Transfer" means any Transfer by any Shareholder of any
Shares, or of any beneficial ownership thereof, upon death, appointment of a
guardian, default, foreclosure, forfeit, bankruptcy (voluntary or involuntary),
court order, levy of attachment, execution or otherwise than voluntarily by the
Transferor; PROVIDED that a Transfer required pursuant to Section 2.01(f) shall
not be deemed an Involuntary Transfer.
"Management Shareholder" has the meaning set forth in the preamble to
this Agreement.
"Permitted Transferee" means, (i) with respect to the Ripplewood
Shareholder, (A) Ripplewood or an Affiliate of Ripplewood, (B) a shareholder,
partner, member or employee of Ripplewood or any Affiliate of Ripplewood or (C)
an employee of the Company or a Subsidiary of the Company and (ii) with respect
to each Management Shareholder, (A) another Shareholder, (B) the Executive, (C)
the Company or (D) such Management Shareholder's spouse or lineal descendants or
any trust the beneficiaries of which include only such Management Shareholder's
spouse or lineal descendants.
3
"Person" means any individual, corporation, partnership, trust,
association, limited liability company, joint venture, joint-stock company or
any other entity or organization, including a government or governmental agency.
"Preferred Stock" means the 15% Senior Exchangeable Preferred Stock
Due 2011, par value $0.01 per share, of the Company.
"Purchase Agreement" means the Redemption, Stock Purchase and
Recapitalization Agreement dated as of August 13, 1999, between PRIMEDIA Inc., a
Delaware corporation, and the Company, as amended.
"Ripplewood" means Ripplewood Partners, L.P.
"Ripplewood Shareholder" has the meaning set forth in the preamble to
this Agreement.
"Shares" means the shares of Company Common Stock held by a
Shareholder or the Executive.
"Shareholders" has the meaning set forth in the preamble to this
Agreement.
"Subsidiary" means, with respect to any specified Person, another
Person, an amount of the voting securities, other voting ownership or voting
partnership interests of which is sufficient to elect at least a majority of its
board of directors or other governing body (or, if there are no such voting
interests, 50% or more of the equity interests of which) is owned directly or
indirectly by such first Person or by another Subsidiary of such first Person.
"Tag-Along Notice" has the meaning set forth in Section 2.01(e).
"Third Party Purchaser" means, with respect to any proposed sale of
Shares by a Shareholder, a Person, other than an Affiliate of such Shareholder,
who offers to purchase from such Shareholder such Shares pursuant to a bona fide
written offer.
"Transfer" means any transfer, sale, conveyance, assignment, gift,
hypothecation, pledge or other disposition, whether voluntary or by operation of
law, of a Share. Notwithstanding the foregoing, any transfer, sale, conveyance,
assignment, gift, hypothecation, pledge or other disposition, whether voluntary
or by operation of law, of any stock, partnership interest, membership interest
or any other ownership interest in any entity that is a direct or
4
indirect beneficial or record owner of any Share (including any
disposition by means of a merger, consolidation or similar transaction) or any
other transaction that has the economic effect of a Transfer of a Share
(including the designation of any beneficiary of any trust that is a direct or
indirect beneficial or record owner of any Share) shall be deemed to be a
Transfer of such Share by the Shareholder directly owning such Share.
"Transferee" means the transferee in a Transfer.
"Transferor" means the transferor in a Transfer.
SECTION 1.02. OTHER DEFINITION PROVISIONS. Wherever required by the
context of this Agreement, the singular shall include the plural, and vice
versa, and the masculine gender shall include the feminine and neuter genders,
and vice versa, and references to any agreement, document or instrument shall be
deemed to refer to such agreement, document or instrument as amended,
supplemented or modified from time to time. When used herein, (i) the word "or"
is not exclusive and (ii) the words "including," "includes," "included" and
"include" are deemed to be followed by the words "without limitation."
SECTION 1.03. (a) EQUITY INVESTMENT. On the Closing Date, pursuant
to each Management Shareholder's Employment Agreement, each Management
Shareholder will purchase from the Company at a price of $18.60065 per share
in cash the number of shares of common stock, par value $0.01 per share
("Company Common Stock"), of the Company set forth opposite such Management
Shareholder's name under the column entitled "Shares of Company Common Stock"
on Schedule I.
(b) VOTING AGREEMENTS. Each Management Shareholder hereby agrees with
the Ripplewood Shareholder that from and after the date hereof: (a) such
Management Shareholder shall vote all of the Shares held by such Management
Shareholder (including shares acquired after the date hereof) in the same manner
as the Shares held by the Ripplewood Shareholder are voted on all matters acted
upon at any annual or special meeting of shareholders or by written consent in
lieu of a meeting and (b) such Management Shareholder irrevocably constitutes
and appoints the Ripplewood Shareholder such Management Shareholder's proxy to
vote all of the Shares held by such Management Shareholder in the same manner as
the Shares held by the Ripplewood Shareholder are voted on all matters acted
upon at any annual or special meeting of shareholders or by written consent in
lieu of a meeting; PROVIDED that this
5
Section 1.03(b) shall be inapplicable with respect to any matters which would
both adversely affect the rights of the Shares held by such Management
Shareholder and treat such Management Shareholder differently from other holders
of shares of Company Common Stock. The voting agreements and proxies granted
pursuant to this Section 1.03(b) are coupled with an interest and shall be valid
for the term of this Agreement. Each Management Shareholder represents that such
Management Shareholder has not granted and is not a party to any proxy, voting
trust or other agreement which in each case is inconsistent with or conflicts
with the provisions of this Agreement, and such Management Shareholder shall not
grant any proxy or become a party to any voting trust or other agreement which
in each case is inconsistent with or conflicts with the provisions of this
Agreement. The provisions of this Section 1.03(b) shall terminate as to any
Shares held by a Management Shareholder upon any Transfer of such Shares after,
or upon, completion of an initial public offering of shares of Company Common
Stock and the termination of any lock up period agreed to by such Management
Shareholder with the underwriters in connection therewith.
(c) OPTIONS. Each Management Shareholder is hereby granted a
nonqualified option to purchase that number of shares of Company Common Stock
set forth opposite such Management Shareholder's name under the column entitled
"Options" on Schedule I, at an exercise price per share of $18.60065 per share.
To the extent such Management Shareholder continues employment under the
Employment Agreement of such Management Shareholder, such option shall vest 33%
on December 31, 1999, 33% on December 31, 2000 and, if the Company renews such
Management Shareholder's Employment Agreement as set forth in Section 2 of such
Employment Agreement for an additional one-year period ending on December 31,
2002, 34% on December 31, 2001; PROVIDED that such option shall terminate in its
entirety in the event that such Management Shareholder's employment by the
Company or the applicable subsidiary of the Company is terminated by the
Company or such subsidiary with Good Cause (as defined in such Management
Shareholder's Employment Agreement) (other than pursuant to clause (v) thereof).
Such option shall vest immediately in the event that such Management
Shareholder's employment under such Employment Agreement is terminated (x)
pursuant to clause (v) of the definition of Good Cause in such Employment
Agreement or (y) prior to December 31, 2001 by the Company for any reason other
than Good Cause following a Change in Control (as defined below). Such
Management Shareholder may exercise the vested portion of such option either (i)
by notifying the Company of the number of shares of Company Common Stock
6
to be purchased under such option and delivering with such notice an amount
equal to the aggregate exercise price for such number of shares in cash or (ii)
by notifying the Company that such Management Shareholder desires to make a
cashless exercise of such option with respect to a specified number of shares of
Company Common Stock, in which case such option shall be deemed exercised with
respect to such specified number of shares but such Management Shareholder shall
only be entitled to receive a number of shares of Company Common Stock equal to
the product of (A) such specified number multiplied by (B) the quotient of (1)
the aggregate Fair Market Value of such specified number of shares of Company
Common Stock (determined as of the date the Company receives such notice in
accordance with Section 2.01(g)) minus the aggregate exercise price for such
specified number of shares divided by (2) such aggregate Fair Market Value. Such
option shall not be transferable or assignable by such Management Shareholder,
otherwise than by will or the laws of descent and distribution, and no such
option shall be subject to execution, attachment or other similar process. In no
event shall any such option be exercisable on or after the tenth anniversary of
the Closing Date. In the event of changes in outstanding Company Common Stock by
reason of stock dividends, stock splits, reverse stock splits,
recapitalizations, reorganizations, mergers, consolidations, combinations or
other changes in capitalization occurring after the Closing Date, the number of
shares and exercise price under such option shall be equitably adjusted by the
Board of Directors of the Company. Any amount payable under such option shall be
subject to applicable withholding taxes. "CHANGE OF CONTROL" shall mean the
acquisition of direct or indirect Control of the Company by any Person (other
than the Ripplewood Shareholder, SGC Partners II LLC ("SGC") or any of their
Affiliates or any group (other than any group including the Ripplewood
Shareholder or SGC or any of their Affiliates).
(d) RULE 701. To the extent permitted by applicable law, the shares of
Company Common Stock to be issued to each Management Shareholder upon exercise
of the options granted to such Management Shareholder pursuant to Section
1.03(c) shall be offered and sold to such Management Shareholder pursuant to the
exemption from the registration requirements of the Securities Act of 1933, as
amended (the "Securities Act") provided for by Rule 701 ("Rule 701") of the
Securities Act.
7
ARTICLE II
TRANSFERS OF SHARES; TRANSACTIONS
BETWEEN RIPPLEWOOD SHAREHOLDER AND THE COMPANY
SECTION 2.01. TRANSFERS OF THE COMPANY SHARES.
(a) GENERALLY. (i) No Shareholder may Transfer all or any portion of
its Shares (or any beneficial ownership thereof) unless (A) such Transfer is in
accordance with this Section 2.01, (B) in the case of a Direct Transfer, the
Transferee executes and delivers a counterpart of the signature page of this
Agreement (or other appropriate assumption agreement) in which the Transferee
agrees to be bound by the provisions of this Agreement to the same extent as the
Transferor and providing the address for notices of such Transferee and (C) the
Transferee executes and delivers any other agreements, documents or instruments
reasonably specified by the Board of Directors. Any Transfer made in violation
of this Section 2.01(a) shall be null and void and shall be subject to Section
2.01(d).
(ii) Whenever a Transfer is to be consummated by any Person on a
specified date under this Section 2.01, such Transfer shall take place at 10:00
a.m. Eastern Time on such date (or, if such date is not a business day, the next
following business day) at the principal office of Ripplewood, presently located
at One Rockefeller Plaza, New York, New York, or at such other time, date and
place as the Company and the parties to such Transfer may agree. The
consideration for such Transfer shall be paid by delivery to the applicable
Transferor of a certified or bank check made payable to such Transferor or by
wire transfer of immediately available funds to a bank account designated by
such Transferor, against due execution and delivery of the agreements, documents
and instruments specified in Section 2.01(a)(i), such other agreements,
documents and instruments as the parties to such Transfer may reasonably require
including certificates or other instruments representing the Shares so
purchased, appropriately endorsed by such Shareholder, free and clear of all
security interests, liens, claims, encumbrances, charges, options, restrictions
on transfer, proxies and voting and other agreements of whatever nature other
than those created hereunder.
(iii) The provisions of this Section 2.01, other than Section 2.01
(e), (f), (g), (h) and (i), shall terminate upon the completion of an initial
public offering of shares of Company Common Stock by the Company and the
8
termination of any lockup period agreed to by the Management Shareholders with
the underwriters in connection therewith.
(b) TRANSFERS BY THE RIPPLEWOOD SHAREHOLDER. Subject to Section
2.01(a) and, with respect to a Transfer to any Person other than a Permitted
Transferee of the Ripplewood Shareholder, Section 2.01(e), the Ripplewood
Shareholder (and its Permitted Transferees) shall have the right to Transfer at
any time all or any portion of its Shares (including any beneficial ownership
thereof) to any Person without the prior consent of any Person.
(c) TRANSFERS BY OTHER SHAREHOLDERS. (i) Subject to Section 2.01(a),
any other Shareholder (and its Permitted Transferees) shall have the right to
Transfer at any time all or any portion of its Shares (including any beneficial
ownership thereof) to any of its Permitted Transferees without the prior consent
of any Person.
(ii) No Shareholder other than the Ripplewood Shareholder (or the
Ripplewood Shareholder's Permitted Transferees) shall have the right to Transfer
all or any portion of its Shares (including any beneficial ownership thereof) to
any Person other than another Shareholder or the Company except in accordance
with Section 2.01(a) and (A) pursuant to Section 2.01(c)(i), (e) or (f) or (B)
with the prior written consent of the Ripplewood Shareholder.
(d) INVOLUNTARY AND IMPERMISSIBLE TRANSFERS. If an Involuntary
Transfer or a Transfer in violation of this Agreement shall occur with respect
to any Shareholder other than the Ripplewood Shareholder and, in the case of a
Transfer in violation of this Agreement, such violation has not been cured
within 30 days after notice to the applicable Transferor or Transferee, the
Company shall give notice to the Ripplewood Shareholder, offering the Ripplewood
Shareholder (or its designee) the right, exercisable by delivery of written
notice to the Transferee with respect to such Involuntary Transfer or Transfer
in violation of this Agreement, within 90 days following the day on which such
notice is given, to purchase all of the Shares acquired by such Transferee at a
purchase price equal to, in the case of an Involuntary Transfer, 100% or, in the
case of a Transfer in violation of this Agreement, 90% of the Fair Market Value
thereof, determined in accordance with Section 2.01(g) as of the date of such
Transfer (or, if lower, as of the date of such determination). The closing date
of any purchase described in this Section 2.01 shall be on the date specified by
the Company that shall not be later than the 30th day after a determination of
the Fair Market Value of the Shares
9
to be purchased is made. The Ripplewood Shareholder may assign its rights
under this Section 2.01(d) to any person.
(e) TAG-ALONG RIGHTS. If the Ripplewood Shareholder desires to
Transfer in excess of 5% of its Shares to a prospective Transferee (or
Transferees) other than to a Permitted Transferee of the Ripplewood Shareholder
and, after giving effect to such Transfer, the Ripplewood Shareholder shall have
Transferred in excess of 35% in the aggregate of its Shares to a Transferee (or
Transferees) other than Permitted Transferees of the Ripplewood Shareholder, the
Ripplewood Shareholder shall, as a condition to such Transfer, (i) provide a
notice to all other Shareholders in writing (a "Tag-Along Notice") of the
material terms of the proposed Transfer at least 15 days prior to such Transfer
and (ii) permit all other Shareholders (or cause all other Shareholders to be
permitted) to sell (either to the prospective Transferee of the Ripplewood
Shareholder's Shares or to another financially reputable Transferee reasonably
acceptable to such other Shareholders) the same portion of their respective
Shares as that Transferred by the Ripplewood Shareholder in the aggregate to
Transferees other than Permitted Transferees of the Ripplewood Shareholder
(after giving effect to such proposed Transfer) on the same terms and
conditions, subject to the same agreements and at the same price as the proposed
sale by the Ripplewood Shareholder, which sale shall take place on the date the
Ripplewood Shareholder's Shares (or such portion) are Transferred to such
Transferee (or Transferees). Each other Shareholder shall have five days from
the date of receipt of a Tag-Along Notice to exercise its right to sell pursuant
to clause (ii) above by delivering written notice to the Ripplewood Shareholder
of its intent to exercise such right. The right of the other Shareholders
to sell pursuant to clause (ii) above shall terminate if not exercised within
such five-day period. Each other Shareholder electing to exercise its right to
sell pursuant to clause (ii) shall share, on a pro rata basis, the legal,
investment banking and other expenses of the Ripplewood Shareholder incurred in
connection with such Transfer.
(f) DRAG-ALONG RIGHTS. If at any time the Ripplewood Shareholder
desires to Transfer all (or any portion in excess of 35%) of its Shares to any
Third Party Purchaser (or Purchasers), the Ripplewood Shareholder shall have the
right to require that all other Shareholders Transfer the same portion of their
respective Shares to such Third Party Purchaser (or Purchasers) on the same
terms and conditions, subject to the same agreements and at the same price as
the sale by the Ripplewood Shareholder. The Ripplewood Shareholder shall provide
a notice to all other
10
Shareholders in writing (a "Drag-Along Notice") of such sale at least 10 days
prior to such Transfer, and the Drag-Along Notice shall identify such Third
Party Purchaser (or Purchasers), all material terms of the sale and the date of
closing. Upon the closing of any sale by the Ripplewood Shareholder of all (or
such portion) of its Shares as described in a Drag- Along Notice, such Third
Party Purchaser (or Purchasers) shall pay to each other Shareholder the
consideration payable to such Shareholder in connection with such sale of all
(or such portion) of its Shares to such Purchaser (or Purchasers), net of such
Shareholders' proportionate share of the legal, investment banking and other
expenses of the Ripplewood Shareholder incurred in connection with such sale,
and the Shares (or such portion) of all such other Shareholders shall be deemed
Transferred to such Third Party Purchaser (or Purchasers).
(g) FAIR MARKET VALUE. (i) If a determination of the Fair Market Value
of any shares of Company Common Stock is required by this Agreement when there
is no public trading market for the shares of Company Common Stock, such "Fair
Market Value" shall be such amount as is determined in good faith by the Board
of Directors as of the date such Fair Market Value is required to be determined
hereunder. In making a determination of such Fair Market Value, the Board of
Directors shall give due consideration to such factors as it deems appropriate,
including, without limitation, the earnings and certain other financial and
operating information of the Company and its subsidiaries in recent periods, its
potential value and that of its subsidiaries as a whole, its future prospects
and that of its subsidiaries and the industries in which they compete, its
history and management and that of its subsidiaries, the general condition of
the securities markets and the fair market value of securities of privately
owned companies (with transfer restrictions) engaged in businesses similar to
those of the Company and its subsidiaries, if any. The Fair Market Value, as
determined by the Board of Directors in good faith, shall be binding and
conclusive upon all parties hereto.
(ii) If a determination of the Fair Market Value of any shares of
Company Common Stock is required by this Agreement when there is a public
trading market for shares of Company Common Stock, such "Fair Market Value"
shall mean the average daily closing sales price of the shares of Company Common
Stock for the ten consecutive trading days preceding the date the Fair Market
Value of the shares of Company Common Stock is required to be determined
hereunder. The closing price for each day shall be the last reported sales price
regular way or, in case no such reported sale takes place on such day, the
average of the reported closing bid
11
and asked prices regular way, in either case on the principal national
securities exchange on which the shares of Company Common Stock are listed and
admitted to trading, or, if not listed and admitted to trading on any such
exchange, on the NASDAQ National Market System, or, if not quoted on the
National Market System, the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the Board of Directors for that purpose.
(h) COMPANY OPTION UPON TERMINATION. In the event that any Management
Shareholder's employment by the Company or the applicable subsidiary of the
Company is terminated for any reason, including the nonrenewal of such
Management Shareholder's Employment Agreement, the Company or its designees
shall have an option to purchase (the "Company Option") all or any portion of
(i) the Shares then held by such Management Shareholder (including any of such
Shares acquired upon exercise of the nonqualified option granted to such
Management Shareholder pursuant to Section 1.03(c)) at a purchase price equal to
the Fair Market Value of such Shares, as determined in accordance with Section
2.01(g) as of the date of such termination, and (ii) the nonqualified option
granted to such Management Shareholder pursuant to Section 1.03(c) at a purchase
price equal to the product of (A) the number of shares of Company Common Stock
with respect to which such option has vested and the Company has elected to
exercise the Company Option and (B) the greater of (1) the difference between
the Fair Market Value of a share of Company Common Stock (determined in
accordance with Section 2.01(g) as of the date of such termination) and
$18.60065 and (2) $0. The Company must exercise its rights arising under the
Company Option, if at all, within 90 days of such date of termination; PROVIDED
that, if such rights arise as a result of the death of a Management Shareholder,
such rights must be exercised by the Company, if at all, within 9 months of such
termination. If the Company elects to exercise the Company Option, the Company
shall within 90 days (9 months in the case of the death of a Management
Shareholder) of such date of termination give notice in writing to such
Management Shareholder of its election to exercise the Company Option, which
notice shall set forth the portion, if any, of the Shares and such nonqualified
option that the Company elects to purchase. The purchase of the Shares and such
nonqualified option shall take place on the date specified by the Company (not
later than the later of the twentieth business day following the receipt by such
Management Shareholder of the required notice from the Company and the
satisfaction of any legal requirements to the purchase of the Shares and such
nonqualified option).
12
(i) MANAGEMENT SHAREHOLDER OPTION UPON TERMINATION. In the event that
(i) any Management Shareholder suffers from financial hardship, determined in
good faith by the Board of Directors or (ii) any Management Shareholder's
employment by the Company or the applicable subsidiary of the Company is
terminated (A) by the Company or such subsidiary other than with Good Cause (as
defined in such Management Shareholder's Employment Agreement) (other than
pursuant to clause (v) thereof) or (B) because of a notice of nonrenewal given
by the Company or such subsidiary, such Management Shareholder or, in the case
of termination of employment by death, such Management Shareholder's estate
shall have the right to require the Company to purchase all or any portion of
such Management Shareholder's Shares (other than, in the case of the foregoing
clause (i), any of such Shares acquired upon exercise of the nonqualified-option
granted to such Management Shareholder pursuant to Section 1.03(c) the exercise
date of which was within six months of the date that such Management Shareholder
makes a claim of financial hardship to the Company) at a purchase price equal to
the Fair Market Value of such Shares, determined as of the date of such
determination of financial hardship or termination in accordance with Section
2.01(g); PROVIDED that, if the Board of Directors determines in good faith that
the Company has insufficient cash flow, and cannot obtain third party financing
on terms reasonably acceptable to the Board of Directors, to purchase such
Management Shareholder's Shares for cash, the Company may purchase such
Management Shareholder's Shares in exchange for junior subordinated notes of the
Company which (1) bear interest at a variable rate per annum equal to The Chase
Manhattan Bank's prime lending rate per annum, payable quarterly in arrears, (2)
provide for the repayment in full of principal on the earlier of the fifth
anniversary of the issuance of such notes and the date on which the Board of
Directors determines in good faith that the Company has sufficient cash flow, or
can obtain third party financing on terms reasonably acceptable to the Board of
Directors, to repay in full such principal and (3) are otherwise on terms
reasonably acceptable to such Management Shareholder; PROVIDED FURTHER that, to
the extent that the Board of Directors reasonably determines that such purchase,
if made, would (x) cause the Company to be or remain in default under any
agreements with lenders, despite commercially reasonable efforts by the Company
to obtain consents or amendments necessary to permit such purchase, or (y)
conflict with the terms (including with respect to priority of payment) of the
Preferred Stock, the Company shall be relieved of its obligations to make such
purchase under this Section 2.01(i) while and to the extent such conditions
continue to exist. Such Management Shareholder or, if applicable, such
Management Shareholder's
13
estate shall have 90 days from the date of such termination during which to give
notice in writing to the Company of its election to exercise or not to exercise
such right (unless such right arises as a result of the death of such Management
Shareholder, in which case such right must be exercised, if at all, within 9
months of such termination), which notice must set forth the portion, if any, of
the Shares that such Management Shareholder or, if applicable, such Management
Shareholder's estate elects to sell. If no such notice has been given within
such 90 days (or, if applicable, nine months), such Management Shareholder or,
if applicable, such Management Shareholder's estate shall be deemed to not have
exercised such option. Such Management Shareholder may withdraw his election to
exercise such right for any reason up until the time that such Management
Shareholder tenders to the Company, pursuant to this Section, any Shares held by
such Management Shareholder. The purchase of such Shares shall take place on or
prior to the 90th day, as determined by the Board of Directors, following the
receipt by the Company of such notice. Subject to any restriction in this
Agreement or any other agreement to which the Company or any of its Affiliates
are party, the Company may designate any other Person to fulfill its obligation
under this Section 2.01(i).
ARTICLE III
STOCK REGISTRATION; LEGEND; CAPITAL STOCK
SECTION 3.01. STOCK REGISTRATION. (a) Each Management Shareholder
hereby represents and warrants to the Ripplewood Shareholder and the Company
that:
(i) Such Management Shareholder has had access to all information that
such Management Shareholder deemed necessary to adequately evaluate whether
to purchase any shares of Company Common Stock;
(ii) Such Management Shareholder understands that the Company Common
Stock has not been registered under the Securities Act of 1933, as amended
(the "Securities Act"), and shares of Company Common Stock will be offered
and sold to such Management Shareholder (including upon exercise of stock
options) in reliance upon an exemption from the registration requirements
of the Securities Act afforded by Rule 701; and
(iii) any shares of Company Common Stock acquired by such Management
Shareholder shall be acquired only for such Management Shareholder's own
account, for
14
investment purposes only and not with a view to its resale, distribution or
other disposition.
(b) Each Management Shareholder agrees that such Management
Shareholder will not offer, sell, transfer, pledge, hypothecate or otherwise
dispose of any Shares except:
(i) pursuant to an exemption from registration under the Securities
Act, as confirmed in a satisfactory opinion of legal counsel delivered to
the Company, and in accordance with any applicable laws of any state of the
United States governing the offer and sale of securities; or
(ii) pursuant to an effective registration statement under the
Securities Act (it being understood that the Company, the Ripplewood
Shareholder and their Affiliates are under no obligation to effect such
registration) and in accordance with any applicable state laws.
(c) In the event that the Company files a registration statement on
Form S-8 of the Securities and Exchange Commission, the Company shall, to the
extent permitted by applicable law, include in such registration statement
shares of Company Common Stock issuable upon exercise of the then unexercised
options that were granted to each Management Shareholder pursuant to Section
1.03(c) of this Agreement.
SECTION 3.02. LEGEND. Each Shareholder agrees that any and all
certificates representing such Shareholder's Shares will have inscribed
conspicuously on the front or back of such certificates the following legend:
"THE SHARES OF COMMON STOCK, PAR VALUE $.01 PER SHARE, OF WRC MEDIA INC.
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO ONE OR MORE AGREEMENTS AMONG
SHAREHOLDERS OR AGREEMENTS BETWEEN SHAREHOLDERS AND WRC MEDIA INC. AND MAY NOT
BE SOLD OR OTHERWISE TRANSFERRED EXCEPT IN ACCORDANCE THEREWITH. COPIES OF SUCH
AGREEMENT OR AGREEMENTS MAY BE OBTAINED FROM THE SECRETARY OF WRC MEDIA INC. AT
THE PRINCIPAL EXECUTIVE OFFICES OF RIPPLEWOOD HOLDINGS L.L.C. THESE SHARES HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE REOFFERED OR RESOLD, DIRECTLY OR INDIRECTLY,
EXCEPT IN ACCORDANCE WITH THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR
PURSUANT TO AN EXEMPTION THEREFROM AND IN ACCORDANCE WITH ANY APPLICABLE
SECURITIES LAWS OF ANY STATE OF THE UNITED STATES."
15
SECTION 3.03. CAPITAL STOCK; PRICE. The Company hereby represents and
warrants to each Management Shareholder that: Immediately after giving effect to
the transactions specified in Section 1.03(a), the authorized capital stock of
the Company will consist of 20,000,000 shares of Company Common Stock, of which
6,855,853 shares will be issued and outstanding (including 4,848,635 shares
owned by the Ripplewood Shareholder) and 20,000,000 shares of Preferred Stock,
of which 3,000,000 shares will be issued and outstanding. Immediately after
giving effect to the transactions specified in Section 1.03(a), except for the
shares specified in the preceding sentence and shares reserved for issuance
pursuant to options granted to the Management Shareholders and to the Executive,
there will be no shares of capital stock or other equity securities of the
Company issued, reserved for issuance or outstanding. The purchase price per
share for the shares of Company Common Stock being acquired by the Management
Shareholders pursuant to Section 1.03(a) is the same as the purchase price per
share being paid by the Ripplewood Shareholder and other Persons who are
acquiring shares of Company Common Stock simultaneously with the Management
Shareholders.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.01. ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding among the parties relating to the subject matter contained herein
and merges all prior discussions among them. This Agreement is not intended to
confer upon any Person other than the parties hereto any rights or remedies
hereunder.
SECTION 4.02. AMENDMENTS. This Agreement may not be amended except by
an instrument in writing signed by the Ripplewood Shareholder and Management
Shareholders holding a majority of the Shares held by all Management
Shareholders.
SECTION 4.03. NOTICES. All notices and other communications required
or permitted by this Agreement shall be made in writing and any such notice or
communication shall be deemed delivered when delivered in person, transmitted by
telex or telecopier, confirmation of transmission received, or one business day
after it has been sent by a nationally recognized overnight courier, at the
address or addresses for notices to the recipient designated on Schedule II
attached hereto. Communications by telex or telecopier also shall be sent
concurrently by first class mail or overnight courier, but shall in any event be
effective as stated above. Any Shareholder or the Company may from time to time
change its
16
address for notices under this Section 4.03 by giving at least five days' notice
of such changed address to the other Shareholders.
SECTION 4.04. INTERPRETATION. When a reference is made in this
Agreement to a Section, such reference shall be to a Section of this Agreement
unless otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 4.05. SEVERABILITY. If any one or more of the provisions
contained in this Agreement or in any document executed in connection herewith
shall be invalid, illegal or unenforceable in any respect under any applicable
law, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired; PROVIDED,
HOWEVER, that in such case the parties hereto shall endeavor to amend or modify
this Agreement to achieve to the extent reasonably practicable the purpose of
the invalid provision.
SECTION 4.06. GOVERNING LAW. This Agreement and all actions
contemplated hereby shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York (without regard to conflict
of laws principles), except to the extent that the provisions of the GCL may be
mandatorily applicable.
SECTION 4.07. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement.
This Agreement shall become effective against the Ripplewood Shareholder when
one or more counterparts have been signed by the Ripplewood Shareholder and
delivered to each other Shareholder. This Agreement shall become effective
against any other Shareholder when one or more counterparts have been executed
by such Shareholder and delivered to the Ripplewood Shareholder. Each party need
not sign the same counterpart.
SECTION 4.08. ASSIGNMENT. Except pursuant to Section 2.01(a),(d),(h)
and (i) neither this Agreement nor any of the rights, interests or obligations
under this Agreement shall be assigned, in whole or in part, by the Ripplewood
Shareholder without the prior written consent of the Ripplewood Shareholder and
Management Shareholders holding a majority of the Shares held by all Management
Shareholders or by any other Shareholder without the prior written consent of
the Ripplewood Shareholder, and any purported assignment without such consent
shall be void. Subject to the preceding sentences, this Agreement will be
17
binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns.
SECTION 4.09. SPECIFIC PERFORMANCE. The parties hereby declare that
irreparable damage would occur as a result of the failure of any party hereto
to perform any of its obligations under this Agreement in accordance with the
specific terms hereof. Therefore, all parties hereto shall have the right to
specific performance of the obligations of the other parties under this
Agreement and if any party hereto shall institute any action or proceeding to
enforce the provisions hereof, any Person against whom such action or
proceeding is brought hereby waives the claim or defense therein that such
party has or have an adequate remedy at law exists. The right to specific
performance shall be in addition to any other remedy to which a party hereto
may be entitled at law or in equity.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
EAC III L.L.C.,
by RIPPLEWOOD PARTNERS, L.P.,
its Member,
by RIPPLEWOOD HOLDINGS L.L.C.,
its General Partner,
by /s/ Xxxxxx Xxxxx
------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
------------------------
Xx XxXxxx
------------------------
Xxxxxx Xxxxxxx
------------------------
Xxxxxxxx Xxxxxxxxx
------------------------
Xxxxx Xxxxxx
17
binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns.
SECTION 4.09. SPECIFIC PERFORMANCE. The parties hereby declare that
irreparable damage would occur as a result of the failure of any party hereto to
perform any of its obligations under this Agreement in accordance with the
specific terms hereof. Therefore, all parties hereto shall have the right to
specific performance of the obligations of the other parties under this
Agreement and if any party hereto shall institute any action or proceeding to
enforce the provisions hereof, any Person against whom such action or proceeding
is brought hereby waives the claim or defense therein that such party has or
have an adequate remedy at law exists. The right to specific performance shall
be in addition to any other remedy to which a party hereto may be entitled at
law or in equity.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
EAC III L.L.C.,
by RIPPLEWOOD PARTNERS, L.P.,
its Member,
by RIPPLEWOOD HOLDINGS L.L.C.,
its General Partner,
by
------------------------
Name:
Title:
/s/ Xx XxXxxx
------------------------
Xx XxXxxx
------------------------
Xxxxxx Xxxxxxx
------------------------
Xxxxxxxx Xxxxxxxxx
------------------------
Xxxxx Xxxxxx
17
binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns.
SECTION 4.09. SPECIFIC PERFORMANCE. The parties hereby declare that
irreparable damage would occur as a result of the failure of any party hereto to
perform any of its obligations under this Agreement in accordance with the
specific terms hereof. Therefore, all parties hereto shall have the right to
specific performance of the obligations of the other parties under this
Agreement and if any party hereto shall institute any action or proceeding to
enforce the provisions hereof, any Person against whom such action or proceeding
is brought hereby waives the claim or defense therein that such party has or
have an adequate remedy at law exists. The right to specific performance shall
be in addition to any other remedy to which a party hereto may be entitled at
law or in equity.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
EAC III L.L.C.,
by RIPPLEWOOD PARTNERS, L.P.,
its Member,
by RIPPLEWOOD HOLDINGS L.L.C.,
its General Partner,
by
------------------------
Name:
Title:
------------------------
Xx XxXxxx
/s/ Xxxxxx Xxxxxxx
------------------------
Xxxxxx Xxxxxxx
------------------------
Xxxxxxxx Xxxxxxxxx
------------------------
Xxxxx Xxxxxx
17
binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns.
SECTION 4.09. SPECIFIC PERFORMANCE. The parties hereby declare that
irreparable damage would occur as a result of the failure of any party hereto to
perform any of its obligations under this Agreement in accordance with the
specific terms hereof. Therefore, all parties hereto shall have the right to
specific performance of the obligations of the other parties under this
Agreement and if any party hereto shall institute any action or proceeding to
enforce the provisions hereof, any Person against whom such action or proceeding
is brought hereby waives the claim or defense therein that such party has or
have an adequate remedy at law exists. The right to specific performance shall
be in addition to any other remedy to which a party hereto may be entitled at
law or in equity.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
EAC III L.L.C.,
by RIPPLEWOOD PARTNERS, L.P.,
its Member,
by RIPPLEWOOD HOLDINGS L.L.C.,
its General Partner,
by
------------------------
Name:
Title:
------------------------
Xx XxXxxx
------------------------
Xxxxxx Xxxxxxx
/s/ Xxxxx Xxxxxxxxx
------------------------
Xxxxx Xxxxxxxxx
------------------------
Xxxxx Xxxxxx
17
binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns.
SECTION 4.09. SPECIFIC PERFORMANCE. The parties hereby declare that
irreparable damage would occur as a result of the failure of any party hereto to
perform any of its obligations under this Agreement in accordance with the
specific terms hereof. Therefore, all parties hereto shall have the right to
specific performance of the obligations of the other parties under this
Agreement and if any party hereto shall institute any action or proceeding to
enforce the provisions hereof, any Person against whom such action or proceeding
is brought hereby waives the claim or defense therein that such party has or
have an adequate remedy at law exists. The right to specific performance shall
be in addition to any other remedy to which a party hereto may be entitled at
law or in equity.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
EAC III L.L.C.,
by RIPPLEWOOD PARTNERS, L.P.,
its Member,
by RIPPLEWOOD HOLDINGS L.L.C.,
its General Partner,
by
------------------------
Name:
Title:
------------------------
Xx XxXxxx
------------------------
Xxxxxx Xxxxxxx
------------------------
Xxxxx Xxxxxxxxx
/s/ Xxxxx Xxxxxx
------------------------
Xxxxx Xxxxxx
18
/s/ Xxxxxxx Xxxxxxx
------------------------
Xxxxxxx Xxxxxxx
WRC MEDIA INC.,
by
-----------------------
Name:
Title:
18
------------------------
Xxxxxxx Xxxxxxx
WRC MEDIA INC.,
by /s/ Xxxxxxx Xxxxxx
-----------------------
Name: Xxxxxxx Xxxxxx
Title: Secretary
SCHEDULE I
Shareholder Shares Options
--------------- ------ -------
Xxxxx Xxxxxx 8,064 5,376
Xxxxx Xxxxxxxxx 12,096 8,064
Xx XxXxxx 11,559 7,706
Xxxxxx Xxxxxxx 10,752 7,168
Xxxxxxx Xxxxxxx(1) 2,688 1,792
----------------
(1) In the event that Xxxxxxx completes the purchase of Shares pursuant
to the terms of his Employment Agreement, the number of Shares listed opposite
his name on this Schedule I shall be increased to 5,376 and the number of
Options listed opposite his name on this Schedule I shall be increased to 3,584.
SCHEDULE II
Shareholder Address
------------- -------
EAC III L.L.C. c/o Ripplewood Holdings L.L.C.
Xxx Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxxx
Xx. Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
WRC Media Inc. c/o Ripplewood Holdings L.L.C.
Xxx Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxxx
Xx. Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
Xx. Xx XxXxxx 00 Xxxxxxxxxx Xxxx
Xxxxxxxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
with a copy to:
Rubin, Baum, Xxxxx, Constant &
Xxxxxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
Mr. Xxxxxx Xxxxxxx 00 Xxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Fax: (000) 000-0000
with a copy to:
Rubin, Baum, Xxxxx, Constant &
Xxxxxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
Xx. Xxxxx Xxxxxxxxx 0000 Xxxx Xxxx
Xxxxxxxxxx, XX 00000
Fax: (000) 000-0000
with a copy to:
Rubin, Baum, Xxxxx, Constant &
Xxxxxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
Mr. Xxxxx Xxxxxx 000 Xxxxxx Xxxxxx Xxxxx
Xxx Xxxxxx, XX 00000
Fax: (000) 000-0000
with a copy to:
Rubin, Baum, Xxxxx, Constant &
Xxxxxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
Xx. Xxxxxxx Xxxxxxx 000 Xxxx 00xx Xxxxxx #0X
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
with a copy to:
Rubin, Baum, Xxxxx, Constant &
Xxxxxxxx
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxxxxx X. Xxxxxxxx
Fax: (000) 000-0000
