STOCK PURCHASE AGREEMENT
Exhibit 10.1
This Stock Purchase Agreement, dated May 9, 2011 (the “Agreement”), is entered into by
and between the persons and entities (each, a “Selling Stockholder” and collectively, the
“Selling Stockholders”) listed on the Schedule of Selling Stockholders attached hereto as
Schedule I (the “Schedule of Selling Stockholders”), and Xxxxxxxx.xxx Inc., a Delaware
corporation (the “Company”).
WHEREAS, each Selling Stockholder owns the number of shares of the Company’s common stock, par
value $0.001 per share, or options to purchase the number of shares of the Company’s common stock,
par value $0.001 per share (each Selling Stockholder’s number of shares, their “Shares”),
set forth in the column designated “Number of Shares Owned” opposite such Selling Stockholder’s
name on the Schedule of Selling Stockholders and wishes to sell a certain number of the Shares to
the Company;
WHEREAS, reference is hereby made to the Company’s registration statement on Form S-3 (File
No. 333-173953) under the Securities Act of 1933, as amended (the “Act”), including the
Preliminary Prospectus Supplement that comprises part of the Registration Statement (the
“Preliminary Prospectus”), in which the Company expressed its intention to purchase shares
of its common stock directly from the Selling Stockholders at the net per-share price (the
“Purchase Price”) to be received by the selling stockholders in the offering described in
the Preliminary Prospectus (the “Offering”), as set forth in the Underwriting Agreement to
be entered into by and among the Company, the Selling Stockholders and the underwriters named
therein relating to such offering;
WHEREAS, the Company wishes to acquire the number of Shares specified herein from the Selling
Stockholders, and each Selling Stockholder wishes to sell a number of Shares to the Company, in the
manner, for the consideration and subject to the terms and conditions set forth in this Agreement
and have placed their respective Shares under the custody of Mellon Investor Services LLC (the
“Custodian”) and have given a limited power of attorney to each of Xxxxxx Xxxxxxxxxx,
Xxxxxxx Xxxxx and Xxxxxxxxxxx Xxxxxxxxx (collectively, the “Attorneys”) to act on behalf of
the Selling Stockholder with respect to the Shares; and
WHEREAS, this Agreement and the transactions contemplated hereby were approved by the Audit
Committee of the Board of Directors of the Company;
NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants
hereinafter contained, the parties hereby agree as follows:
1. TERMS OR PURCHASE AND SALE OF THE SHARES
(a) Shares to Be Purchased. On the terms and subject to the conditions set forth in
this Agreement, at the closing each of the Selling Stockholder shall, severally and not jointly,
sell, transfer and deliver to the Company free and clear of all liens, charges or encumbrances of
any
nature whatsoever, and the Company shall purchase from such Selling Stockholder, all of the
Selling Stockholder’s right, title and interest in and to the number of Shares as is determined by
(i) dividing
Repurchase Amount (as defined in Annex A) by the Purchase Price and (ii) allocating such
aggregate amount pro rata among the Selling Stockholders, in each case rounding down to the next
whole number of shares, based on the number of Shares proposed to be sold by each such Selling
Stockholder as set forth in the column designated “Number of Shares to be Offered to the Public”
opposite such Selling Stockholder’s name on the Schedule of Selling Stockholders (each Selling
Stockholder’s Shares to be purchased pursuant to this Agreement, the “Purchased Shares”).
A certificate setting forth the Purchased Shares shall be prepared by the Company promptly after
the Purchase Price has been determined and delivered to the Selling Stockholders.
(b) Aggregate Purchase Price. The aggregate purchase price (the “Aggregate
Purchase Price”) for the Purchased Shares of each Selling Stockholder shall be calculated for
each Selling Stockholder to be the product of the Purchase Price multiplied by the number of that
Selling Stockholder’s Purchased Shares. On the Closing Date (as defined below), the Company shall
pay each Selling Stockholder’s Aggregate Purchase Price to each Selling Stockholder by wire
transfer of immediately available funds.
(c) Closing Deliveries. Upon receipt of the Aggregate Purchase Price from the
Company, an Attorney shall direct the Custodian to deliver to the Company the Shares, through
delivery of the original stock certificate, certificates representing the Purchased Shares or by
book entry transfer, accompanied by a duly executed stock power or stock powers duly transferring
said certificate or certificates to the Company.
(d) Closing Date and Place. The consummation of the purchase and sale of the
Purchased Shares (the “Closing”) shall take place at the offices of Xxxxxx, Xxxx & Xxxxxxxx
LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or at such other place as agreed upon by the
Purchaser and a majority of the Selling Stockholders, following the satisfaction of the conditions
set forth in Section 4 hereof (the “Closing Date”).
2. REPRESENTATIONS AND WARRANTIES OF SELLING STOCKHOLDERS
Each Selling Stockholder hereby represents and warrants, severally and not jointly, to the
Company as follows:
(a) Power and Authority. The Selling Stockholder has full corporate power and
authority and has taken all action necessary to enter into this Agreement and to carry out and
consummate the transactions contemplated hereby, and this Agreement has been duly executed and
delivered by or on behalf of the Selling Stockholder.
(b) Title. Upon payment for the Shares to be sold by such Selling Stockholder
pursuant to this Agreement, delivery of such Shares, (A) the Company shall be a “protected
purchaser” of such Shares within the meaning of Section 8-303 of the New York Uniform Commercial
Code (the “UCC”), (B) under Section 8-501 of the UCC, the Company will acquire a valid
security entitlement in respect of such Shares and (C) no action based on any “adverse claim”,
within the meaning of
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Section 8-102 of the UCC, to such Shares may be asserted against the Company
with respect to such security entitlement; for purposes of this representation, such Selling
Stockholder may assume that when such payment, delivery and crediting occur, such Shares will have
been registered in the name
of Company, retired or treated as treasury shares, in each case on the Company’s share
registry in accordance with its certificate of incorporation, bylaws and applicable law.
3.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Selling Stockholders as follows:
(a) Power and Authority. The Company has full corporate power and authority and has
taken all action necessary to enter into this Agreement and to carry out and consummate the
transactions contemplated hereby, and this Agreement has been duly executed and delivered by the
Company.
4. CONDITIONS TO CLOSING
The obligations of the parties hereunder are subject to the fulfillment, at or before the
Closing, of the following conditions:
(a) The closing of the offering described in the Preliminary Prospectus shall have occurred.
(b) The Company shall have sufficient funds available to consummate the transactions
contemplated hereby.
5. MISCELLANEOUS
(a) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
(b) Paragraph and Section Headings. The headings of the sections and subsections of
this Agreement are inserted for convenience only and shall not be deemed to constitute a part
thereof.
(c) Entire Agreement; Amendment and Waiver. This Agreement constitutes the entire
understanding of the parties hereto and supersedes all prior understandings among such parties.
This Agreement may be amended, and the observance of any term of this Agreement may be waived, with
(and only with) the written consent of each of the parties hereto, except that Annex A of this
Agreement may be revised by agreement of the Company and an Attorney to reflect the Shares to be
sold to the Company pursuant to this Agreement.
(d) Execution. This Agreement may be executed in any number of counterparts, each of
which shall be an original, but all of which together shall constitute one instrument. This
Agreement may be executed by facsimile signature, which for all purposes hereunder shall have the
same force and effect as an original.
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IN WITNESS WHEREOF, the Company and the Selling Stockholders have each executed this Agreement
as of the date first above written.
| XXXXXXXX.XXX INC. |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Xxxxxxx X. Xxxxx | ||||
| General Counsel and Secretary | ||||
| The Selling Stockholders named in Schedule I hereto, acting severally |
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| By: | /s/ Xxxxxxx X. Xxxxx | |||
| Attorney-in-Fact of each of | ||||
| the Selling Stockholders | ||||
ANNEX A
Definition of Repurchase Amount
The Repurchase Amount shall be $25 million so long as the price to the public of Shares sold in the
Offering does not exceed $42.00. The Repurchase Amount shall be $50 million if the price to the
public of the Shares sold in the Offering is $42.00 or more.
In the event that the Repurchase Amount is $50 million, the Repurchase Amount shall be calculated
as if the amount set forth in the column designated “Number of Shares to be Offered to the Public”
opposite Xxxxxxx Xxxxxxxx’x name on Schedule I is 125,959.354453.
SCHEDULE I
Schedule of Selling Stockholders
| Name of | Number of Shares | Number of Shares | ||||||
| Selling Stockholder | Owned | Offered to the Public | ||||||
Spectrum Equity Investors
V, L.P. |
13,340,964 | 2,907,687 | ||||||
Spectrum V Investment
Managers’ Fund, L.P. |
62,999 | 13,731 | ||||||
Spectrum Equity Investors III,
L.P. |
4,760,575 | 1,037,576 | ||||||
SEI III Entrepreneurs’ Fund,
L.P. |
333,987 | 72,793 | ||||||
Spectrum III Investment
Managers’ Fund, L.P. |
79,997 | 17,435 | ||||||
Xxxxx X. Xxxxxxxxx |
9,260 | 2,018 | ||||||
Xxxxxxx X. Xxxxxxxx |
4,625 | 1,008 | ||||||
Xxxxx X. Xxxxxxxxx |
1,156 | 252 | ||||||
Xxxxxxx Xxxxxxxx |
2,589,704 | 260,000 | ||||||
