EXHIBIT 10.6
SECURITIES PURCHASE AGREEMENT
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THIS SECURITIES PURCHASE AGREEMENT (this "Agreement"), dated as of
September 30, 1996 (this "Agreement"), is made by and among Xxxxxxxx Holdings,
L.L.C., a Delaware limited liability company ("Holdings"), Xxxxxxxx Investment
Corp., a Delaware corporation ("PIC"), BrightView Communications Group, Inc., a
Delaware corporation ("Manager"), Xxxxxxxx Publishing Company, a California
corporation ("PPC"), Xxxxxx Xxxxx & Partners, L.P. ("Xxxxxx Xxxxx"), and the
other Persons set forth on Schedule A hereto. The Persons identified as
Purchasers of Holdings Units on Schedule A hereto are referred to (in their
capacities as Purchasers of Holdings Units) collectively as the "Holdings
Purchasers" and each individually as a "Holdings Purchaser." The Persons
identified as Purchasers of PIC Stock (as defined herein) on Schedule A hereto
are referred to (in their capacities as Purchasers of PIC Stock) collectively as
the "PIC Purchasers" and each individually as a "PIC Purchaser." The Persons
identified as Purchasers of Manager Common Stock (as defined herein) on Schedule
A hereto are referred to (in their capacities as Purchasers of Manager Common
Stock) collectively as the "Manager Purchasers" and each individually as a
"Manager Purchaser." The Holdings Purchasers, the PIC Purchasers and the
Manager Purchasers are sometimes referred to collectively as the "Purchasers,"
and each individually as a "Purchaser." Holdings, PIC and Manager are sometimes
referred to collectively as the "Issuers" and each individually as an "Issuer."
Contemporaneously with the execution of this Agreement, pursuant to and in
accordance with the Asset Purchase Agreement, dated as of August 15, 1996 (as
amended from time to time in accordance with its terms, the "Asset Purchase
Agreement") between Manager and PPC, after assignment by Manager to Holdings and
to Xxxxxxxx Publishing Company, L.L.C., a Delaware limited liability company and
a Subsidiary of Holdings ("Operating LLC"), of certain of its rights under the
Asset Purchase Agreement to purchase publishing assets from PPC, Manager,
Holdings and Operating LLC shall purchase substantially all of the assets of
PPC. Contemporaneously with the execution of this Agreement, (i) the parties to
this Agreement will enter into a Securityholders Agreement (as amended from time
to time in accordance with its terms, the "Securityholders Agreement") and (ii)
the parties hereto (other than the PIC Purchasers) will enter into the Limited
Liability Company Agreement of Xxxxxxxx Holdings, L.L.C. (as amended from time
to time in accordance with its terms, the "Holdings LLC Agreement"). Certain
capitalized terms used herein are defined in Section 11 hereof.
The parties hereto agree as follows:
Section 1. Authorization of Issuance and Sale of Securities.
1A. Holdings will authorize the issuance and sale to the Holdings
Purchasers of an aggregate of 385,508.55 its Class A Common Units (the
"Holdings Class A Common Units"), an aggregate of 2,250 of its Class B Common
Units (the "Holdings Class B Common Units"), an aggregate of 2,250 of its Class
C Common Units (the "Holdings Class C Common Units," and collectively with the
Holdings Class A Common Units and the Holdings Class B Common Units, the
"Holdings Common Units") and an aggregate of 366,966 of its Preferred Units
(the "Holdings
Preferred Units," and collectively with the Holdings Common Units, the "Holdings
Units"), each having the rights and preferences set forth in the Holdings LLC
Agreement.
1B. PIC will authorize the issuance and sale to the PIC Purchasers of
an aggregate of 121,000 shares of its Common Stock, par value $.01 per share
("PIC Common Stock") and an aggregate of 121,000 shares of its Preferred Stock,
par value $.01 per share (the "PIC Preferred Stock," and collectively with the
PIC Common Stock, the "PIC Stock"), each having the rights and preferences set
forth in the Certificate of Incorporation of PIC (the "PIC Certificate") in the
form set forth in Exhibit A attached hereto.
1C. Manager will authorize the issuance and sale to the Manager
Purchasers of an aggregate of 2,106 shares of its Class A Common Stock, par
value $.01 per share (the "Manager Class A Common Stock") and an aggregate of
1,200 shares of its Class B Common Stock (the "Manager Class B Common Stock" and
collectively with the Manager Class A Common Stock, the "Manager Common Stock"),
each having the rights and preferences set forth in the Certificate of
Incorporation of Manager (the "Manager Certificate") in the form set forth in
Exhibit B attached hereto.
Section 2. Purchase and Sale of Securities.
2A. Purchase and Sale of Holdings Interests. Subject to the terms and
conditions set forth herein, Holdings will sell to each Holdings Purchaser, and
each Holdings Purchaser will purchase from Holdings, the number of Holdings
Class A Common Units and the number of Holdings Preferred Units set forth
opposite such Holdings Purchaser's name where it appears under the designation
of "Investor" on Schedule A hereto for the aggregate purchase price in cash (or,
in the case of PPC, in value of assets) set forth opposite such Holdings
Purchaser's name where it appears under the designation of "Investor" on
Schedule A hereto.
2B. Purchase and Sale of PIC Stock. Subject to the terms and
conditions set forth herein, PIC will sell to each PIC Purchaser and each PIC
Purchaser will purchase from PIC the number of shares of PIC Common Stock and
PIC Preferred Stock set forth opposite such PIC Purchaser's name on Schedule A
hereto for the aggregate purchase price in cash set forth opposite such PIC
Purchaser's name on Schedule A hereto.
2C. Purchase and Sale of Manager Common Stock. Subject to the terms
and conditions set forth herein, Manager will sell to each Manager Purchaser and
each Manager Purchaser will purchase from Manager the number of shares of
Manager Class A Common Stock and the number of shares of Manager Class B Common
Stock set forth opposite such Manager Purchaser's name on Schedule A hereto for
the aggregate purchase price in cash (or, in the case of PPC, in value of
assets) set forth opposite such Manager Purchaser's name on Schedule A hereto.
2D. Purchase and Sale of Executive Securities. Subject to the terms
and conditions set forth herein, Holdings will sell to each Holdings Purchaser
designated as an "Executive" on Schedule A hereto (an "Executive"), and each
Executive will purchase from Holdings, the number of Holdings Class A Common
Units, Holdings Class B Common Units and Holdings Class C Common Units set forth
opposite such Executive's name where it appears under the designation of
"Executive" on Schedule A hereto for the aggregate purchase price in cash set
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forth opposite such Executive's name where it appears under the designation of
"Executive" on Schedule A hereto.
2E. The Closing. The closing of the sale and purchase of Holdings
Units, the PIC Stock and Manager Common Stock (the "Closing") will take place at
the offices of O'Melveny & Xxxxx, LLP, 000 Xxxxx Xxxx Xxxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx on September 30, 1996 at 9:00 A.M., or at such other place and/or
time as the parties shall mutually agree. At the Closing: (i) Holdings shall
issue and sell to each Holdings Purchaser the Holdings Units to be purchased by
such Holdings Purchaser in accordance with the Holdings LLC Agreement and
subject to the terms and conditions set forth herein, (a) such Holdings
Purchaser (other than PPC and Manager) shall pay to Holdings the purchase price
therefor by wire transfer of immediately available funds to a bank account
designated by Holdings, (b) and PPC shall contribute to Holdings assets with an
agreed value of $24,750,000, and (c) Manager shall pay to Holdings $1,237,700 by
wire transfer of immediately available funds to a bank account designated by
Holdings and shall contribute to Holdings assets with an agreed value of
$250,000, (ii) PIC will deliver to each PIC Purchaser a certificate (or
certificates) evidencing the shares of PIC Stock to be purchased by such PIC
Purchaser, registered in the name of such PIC Purchaser or such other name as
such PIC Purchaser shall designate, and, subject to the terms and conditions set
forth herein, such PIC Purchaser shall pay to PIC the purchase price therefor by
wire transfer of immediately available funds to a bank account designated by PIC
and (iii) Manager will deliver to each Manager Purchaser a certificate (or
certificates) evidencing the shares of Manager Common Stock to be purchased by
such Manager Purchaser, registered in the name of such Manager Purchaser or such
other name as such Manager Purchaser shall designate, and, subject to the terms
and conditions set forth herein, such Manager Purchaser (other than PPC) shall
pay to Manager the purchase price therefor by wire transfer of immediately
available funds to a bank account designated by Manager and PPC shall contribute
to Manager assets with an agreed value of $250,000.
Section 3. Conditions of each Purchaser's Obligation at the Closing.
The obligation of each Purchaser to purchase and pay for the Securities to be
purchased by such Purchaser at the Closing is subject to the satisfaction as of
the Closing of the following conditions:
3A. Representations and Warranties. The representations and
warranties made in this Agreement by each Issuer of Securities to be issued to
such Purchaser shall be true and correct at and as of the Closing.
3B. Sale of Securities; Consummation of each Other Transaction. Each
Issuer from which such Purchaser is to purchase Securities hereunder shall have
sold to such Purchaser such Securities and each other purchase and sale to each
other Purchaser of Securities contemplated to occur at the Closing shall have
been consummated in accordance with the terms of this Agreement.
3C. Securities Law Compliance. Each Issuer shall have made all
filings under all applicable federal and state securities laws necessary to
consummate each purchase and sale of Securities by such Issuer contemplated to
occur at the Closing in compliance with such laws.
3D. Securityholders Agreement and Limited Liability Company
Agreement. The Issuers and the Purchasers shall have entered into the
Securityholders Agreement in the form set
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forth in Exhibit C attached hereto and the Securityholders Agreement shall be in
full force and effect as of the Closing and the Holdings Purchasers and the
other members of Holdings shall have entered into the Holdings LLC Agreement.
3E. Closing Documents. Each Issuer shall have delivered to each
Purchaser purchasing Securities from such Purchaser each of the following
documents:
(i) an Officer's Certificate, dated the date of the Closing, stating
that the conditions specified in Section 1 and Sections 3A through 3C,
inclusive, with respect to such Issuer have been fully satisfied;
(ii) certified copies of the resolutions duly adopted by each Issuer,
authorizing the execution, delivery and performance of this Agreement, the
Securityholders Agreement and each of the other agreements contemplated
hereby, and the issuance and sale of the Securities to be issued by such
Issuer hereunder;
(iii) with respect to Holdings, certified copies of its Certificate of
Formation and the Holdings LLC Agreement, and with respect to each of PIC
and Manager, certified copies of its Certificate of Incorporation and
bylaws, each as in effect at the Closing; and
(iv) such other documents relating to the transactions contemplated by
this Agreement as any Purchaser or its counsel may reasonably request.
3F. Consummation of Acquisition and Financing Transactions. The
transactions contemplated by the Asset Purchase Agreement, the Credit Agreement
and the Subordinated Credit Agreement shall be consummated contemporaneously
with the consummation of the transactions contemplated by this Agreement or all
conditions to the obligations of the parties thereto shall have been either
satisfied or waived.
3G. Legal Opinion. Each Purchaser shall have received from Xxxxxxxx
& Xxxxx, in its capacity as special counsel to the Issuers, an opinion
substantially in the form set forth in Exhibit A hereto.
3H. Proceedings. All proceedings taken or required to be taken by
the Issuers in connection with the transactions contemplated hereby to be
consummated at or prior to the Closing and all documents incident thereto shall
be satisfactory in form and substance to such Purchaser and its counsel.
3I. Waiver. Any condition specified in this Section 3 may be waived
as to any Purchaser if consented to by such Purchaser; provided that no such
waiver shall be effective against any such Purchaser unless it is set forth in a
writing executed by such Purchaser.
Section 4. Conditions to the Obligations of Holdings and Manager to
Issue Securities to PPC. The obligation of each of Holdings and Manager to issue
Securities to PPC pursuant to this Agreement is subject to the consummation of
the closing of the transactions contemplated by the Asset Purchase Agreement.
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Section 5. Representations and Warranties of Holdings. Holdings
hereby represents and warrants to each Holdings Purchaser that as of the Closing
and immediately thereafter:
5A. Organization, etc. Holdings is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Holdings has the power and authority to carry on its business as now
conducted and presently proposed to be con ducted and to carry out the
transactions contemplated by this Agreement.
5B. Capitalization and Related Matters. The issued and outstanding
Equity Securities of Holdings shall consist of (a) 366,966 Holdings Preferred
Units, (b) 385,508.55 Holdings Class A Common Units, (c) 2,250 Holdings Class B
Common Units, (d) 2,250 Holdings Class C Common Units and (e) the obligation of
Holdings to issue warrants to purchase Holdings Class B Common Units and
Holdings Preferred Units on the terms and subject to the conditions set forth in
the letter dated September 30, 1996 to First Union Corp. and CIBC Inc. from
Holdings and the Manager attached as Exhibit D hereto. Except as contemplated
by the Holdings LLC Agreement or the Securityholders Agreement, Holdings shall
not be subject to any obligation (contingent or otherwise) to repurchase or
otherwise acquire or retire any of its Equity Securities. There are no statutory
or contractual preemptive rights or rights of refusal with respect to the
issuance of Holdings Units hereunder. Holdings has not violated any applicable
federal or state securities laws in connection with the offer, sale or issuance
of any of its Equity Securities, and the offer, sale and issuance of Holdings
Units hereunder do not require registration under the Securities Act or any
applicable state securities laws. To the best of Holdings's knowledge, there
are no agreements between the holders of Holdings's Equity Securities with
respect to the voting or transfer of Holdings's Equity Securities or with
respect to any other aspect of Holdings's affairs, except for the Holdings LLC
Agreement and the Securityholders Agreement.
5C. Subsidiaries; Investments. As of the date hereof, Holdings
neither owns nor holds the right to acquire any Equity Securities or any other
security or interest in any other Person other than Operating LLC.
5D. Authorization; No Breach. The execution, delivery and
performance by Holdings of this Agreement, the Holdings LLC Agreement, the
Securityholders Agreement and all other agreements and instruments contemplated
hereby to which Holdings is a party (collectively, the "Holdings Transaction
Documents"), have been duly authorized by Holdings. Each of the Holdings
Transaction Documents constitutes a valid and binding obligation of Holdings,
enforceable in accordance with its terms, subject to the effects of (i)
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other laws now or hereafter in effect relating to creditors' rights generally
and (ii) general principles of equity. The execution and delivery by Holdings
of Holdings Transaction Documents, the offering, sale and issuance of Holdings
Units and the fulfillment of and compliance with the respective terms hereof and
thereof by Holdings, do not and shall not (i) conflict with or result in a
breach of the terms, conditions or provisions of, (ii) constitute a default
under, (iii) result in the creation of any lien, security interest, charge or
encumbrance upon Holdings's Equity Securities or assets pursuant to, (iv) give
any third party the right to modify, terminate or accelerate any obligation
under, (v) result in a violation of, or (vi) require any authorization,
consent, approval, exemption or other action by or notice or declaration to, or
filing with, any court or administrative or governmental body or agency pursuant
to the Holdings LLC Agreement,
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or any law, statute, rule or regulation to which Holdings is subject, or any
agreement, instrument, order, judgment or decree to which Holdings is subject.
Section 6. Representations and Warranties of PIC. PIC hereby
represents and warrants to each PIC Purchaser that as of the Closing and
immediately thereafter:
6A. Organization, etc. PIC is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. PIC has
the corporate power and authority to carry on its business as now conducted and
presently proposed to be conducted and to carry out the transactions
contemplated by this Agreement.
6B. Capital Stock and Related Matters. The authorized capital stock
of PIC shall consist of (a) 200,000 shares of PIC Preferred Stock, of which
121,000 shares shall be issued and outstanding and (b) 200,000 shares of PIC
Common Stock, of which 121,000 shares shall be issued and outstanding. Except
as contemplated by the Securityholders Agreement, PIC shall not be subject to
any obligation (contingent or otherwise) to repurchase or otherwise acquire or
retire any of its Equity Securities. All of the outstanding shares of PIC Stock
shall be authorized, validly issued and nonassessable. There are no statutory
or contractual preemptive rights or rights of refusal with respect to the
issuance of the PIC Stock hereunder. PIC has not violated any applicable
federal or state securities laws in connection with the offer, sale or issuance
of any of its Equity Securities, and the offer, sale and issuance of the PIC
Stock hereunder do not require registration under the Securities Act or any
applicable state securities laws. To the best of PIC's knowledge, there are no
agreements between PIC's stockholders with respect to the voting or transfer of
the PIC Stock or with respect to any other aspect of PIC's affairs, except for
the PIC Certificate and the Securityholders Agreement.
6C. Subsidiaries; Investments. Except as contemplated in this
Agreement, PIC neither owns nor holds the right to acquire any Equity Securities
or any other security or interest in any other Person.
6D. Authorization; No Breach. The execution, delivery and
performance by PIC of this Agreement, the Securityholders Agreement and all
other agreements and instruments contemplated hereby to which PIC is a party
(collectively, the "PIC Transaction Documents"), have been duly authorized by
PIC. Each of the PIC Transaction Documents constitutes a valid and binding
obligation of PIC, enforceable in accordance with its terms, subject to the
effects of (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance or other laws now or hereafter in effect relating to creditors'
rights generally and (ii) general principles of equity. The execution and
delivery by PIC of the PIC Transaction Documents, the offering, sale and
issuance of the PIC Stock and the fulfillment of and compliance with the
respective terms hereof and thereof by PIC, do not and shall not (i) conflict
with or result in a breach of the terms, conditions or provisions of, (ii)
constitute a default under, (iii) result in the creation of any lien, security
interest, charge or encumbrance upon PIC's Equity Securities or assets pursuant
to, (iv) give any third party the right to modify, terminate or accelerate any
obligation under, (v) result in a violation of, or (vi) require any
authorization, consent, approval, exemption or other action by or notice or
declaration to, or filing with, any court or administrative or governmental body
or agency pursuant to the PIC Certificate, or any law, statute, rule or
regulation to which PIC is subject, or any agreement, instrument, order,
judgment or decree to which PIC is subject.
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Section 7. Representations and Warranties of Manager. Manager hereby
represents and warrants to each Manager Purchaser that as of the Closing and
immediately thereafter:
7A. Organization, etc. Manager is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
Manager has the corporate power and authority to carry on its business as now
conducted and presently proposed to be conducted and to carry out the
transactions contemplated by this Agreement.
7B. Capital Stock and Related Matters. The authorized capital stock
of Manager shall consist of (a) 10,000 shares of Manager Class A Common Stock,
of which 2,106 shares shall be issued and outstanding, (b) 10,000 shares of
Manager Class B Common Stock, of which 1,200 shares shall be issued and
outstanding and (c) the obligations of the Manager to issue warrants to purchase
Manager Common Stock on the terms and subject to the conditions set forth in the
letter dated September 30, 1996 to First Union Corp. and CIBC Inc. from Holdings
and the Manager attached as Exhibit D hereto. Manager shall not be subject to
any obligation (contingent or otherwise) to repurchase or otherwise acquire or
retire any of its Equity Securities. All of the outstanding Equity Securities of
Manager shall be authorized, validly issued and nonassessable. There are no
statutory or contractual preemptive rights or rights of refusal with respect to
the issuance of the Manager Common Stock hereunder. Manager has not violated
any applicable federal or state securities laws in connection with the offer,
sale or issuance of any of its Equity Securities, and the offer, sale and
issuance of the Manager Common Stock hereunder do not require registration under
the Securities Act or any applicable state securities laws. To the best of
Manager's knowledge, there are no agreements between Manager's stockholders with
respect to the voting or transfer of the Manager Common Stock or with respect to
any other aspect of Manager's affairs, except for the Manager Certificate and
the Securityholders Agreement.
7C. Subsidiaries; Investments. Except as contemplated in this
Agreement, Manager neither owns nor holds the right to acquire any Equity
Securities or any other security or interest in any other Person.
7D. Authorization; No Breach. The execution, delivery and
performance by Manager of this Agreement and the Securityholders Agreement and
all other agreements and instruments contemplated hereby to which Manager is a
party (collectively, the "Manager Transaction Documents"), have been duly
authorized by Manager. Each of the Manager Transaction Documents constitutes a
valid and binding obligation of Manager, enforceable in accordance with its
terms, subject to the effects of (i) bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other laws now or hereafter in effect
relating to creditors' rights generally and (ii) general principles of equity.
The execution and delivery by Manager of the Manager Transaction Documents, the
offering, sale and issuance of the Manager Common Stock and the fulfillment of
and compliance with the respective terms hereof and thereof by Manager, do not
and shall not (i) conflict with or result in a breach of the terms, conditions
or provisions of, (ii) constitute a default under, (iii) result in the creation
of any lien, security interest, charge or encumbrance upon Manager's Equity
Securities or assets pursuant to, (iv) give any third party the right to modify,
terminate or accelerate any obligation under, (v) result in a violation of, or
(vi) require any authorization, consent, approval, exemption or other action by
or notice or declaration to, or filing with, any court or administrative or
governmental body or agency pursuant to the Manager Certificate, or any law,
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statute, rule or regulation to which Manager is subject, or any agreement,
instrument, order, judgment or decree to which Manager is subject.
Section 8. Purchasers' Investment Representations and Warranties.
Each Purchaser hereby represents and warrants to each Issuer from which such
Purchaser is purchasing Securities hereunder that:
8A. Investment Intent. Such Purchaser is acquiring the Restricted
Securities purchased hereunder for its own account with the present intention of
holding such securities for investment purposes and it has no intention of
selling such securities in a public distribution in violation of the federal
securities laws or any applicable state securities laws; provided that nothing
contained herein will prevent such Purchaser and the subsequent holders of
Restricted Securities from transferring such securities in compliance with the
provisions of Section 9 hereof, the Holdings LLC Agreement and the
Securityholders Agreement.
8B. Access to Information. Such Purchaser (i) has carefully reviewed
the materials furnished to it in connection with the transaction contemplated
hereby (including, without limitation, the Offering Memorandum prepared by
Xxxxxxx, Sachs of May, 1996), (ii) has been granted the opportunity to ask
questions of, and receive answers from, representatives of each Issuer from
which it is purchasing Securities hereunder concerning the terms and conditions
of the purchase of such Securities and to obtain any additional information that
it deems necessary to verify the accuracy of the information contained in such
materials and (iii) possesses knowledge and experience in financial and business
matters such that it is capable of evaluating the risks of the investment in
such Securities.
8C. Accredited Investor. Such Purchaser is an "accredited investor"
as defined in Rule 501(a) under the Securities Act.
Section 9. Restrictions on Transfers.
9A. Restrictions. Restricted Securities of an Issuer are only
transferable (i) pursuant to public offerings registered under the Securities
Act, (ii) pursuant to Rule 144 or Rule 144A if such rules are available and
(iii) subject to the conditions specified in Section 9B below, any other legally
available means of transfer pursuant to the Securities Act.
9B. Procedure for Transfer. In connection with the transfer of any
Restricted Securities of an Issuer (other than a transfer referred to in clauses
(i) or (ii) of Section 9A above), the holder thereof will deliver written notice
to such Issuer describing in reasonable detail the transfer or proposed
transfer, together with an opinion of Xxxxxxxx & Xxxxx or other counsel which
(to such Issuer's reasonable satisfaction) is knowledgeable in securities law
matters to the effect that such transfer of Restricted Securities may be
effected without registration of such Restricted Securities under the Securities
Act. In addition, if the holder of such Restricted Securities delivers to such
Issuer an opinion of such counsel that no subsequent transfer of such Restricted
Securities will require registration under the Securities Act, such Issuer will,
with respect to those Restricted Securities which are represented by
certificates, promptly upon such contemplated transfer deliver new certificates
for such Restricted Securities which do not bear the Securities Act Legend set
forth in Section 9C below. If such Issuer is not required to deliver new
certificates for such Restricted
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Securities not bearing such legend, the holder thereof will not transfer the
same until the prospective transferee has confirmed to such Issuer in writing
its agreement to be bound by the agreements related to transfer of Restricted
Securities contained in this Agreement.
9C. Securities Act Legend. Each certificate representing Restricted
Securities of an Issuer will be imprinted with a legend in substantially the
following form (the "Securities Act Legend"):
"The securities represented by this certificate were originally issued on
September 30, 1996 and have not been registered under the Securities Act of
1933, as amended. The transfer of the securities represented by this
certificate is subject to the conditions specified in the Securities
Purchase Agreement, dated as of September 30, 1996, as amended and modified
from time to time, by and among the issuer (the "Company") and certain
investors, and the Company reserves the right to refuse the transfer of
such securities until such conditions have been fulfilled with respect to
such transfer. A copy of such conditions shall be furnished by the Company
to the holder hereof upon written request and without charge."
Whenever any of the certificated Restricted Securities of an Issuer cease to be
Restricted Securities, the holder thereof will be entitled to receive from such
Issuer, without expense, upon surrender to the Issuer of the certificate
representing such securities, a new certificate representing such securities of
like tenor but not bearing a legend of the character set forth above.
Section 10. Financial Statements. Manager shall deliver to each
Purchaser:
(a) As soon as available and in any event within thirty (30) days
after the end of each month ending after the Closing, (i) unaudited consolidated
balance sheets of Holdings and Manager and their Subsidiaries as of the end of
such month and unaudited consolidated statements of income and cash flows for
Holdings and Manager and their Subsidiaries for the month then ended and for
that portion of the fiscal year then ended, in each case setting forth
comparative consolidated figures as of the end of and for the corresponding
period in the preceding fiscal year, all in reasonable detail and prepared in
accordance with generally accepted accounting principles (subject to the absence
of notes required by generally accepted accounting principles and subject to
normal year-end adjustments) applied on a basis consistent with that of the
preceding month or containing disclosure of the effect on the financial
condition or results of operations of any change in the application of
accounting principles and practices during such month and (ii) any financial
reports of a type which Manager regularly prepares and delivers to directors of
the Board in connection with regularly scheduled Board meetings, which reports
have theretofore been prepared but not delivered to such Purchaser;
(b) As soon as available and in any event within forty-five (45)
days after the end of each of the first three fiscal quarters of each fiscal
year, beginning with the fiscal quarter ended September 30, 1996, (i) unaudited
consolidated balance sheets of Holdings and Manager and their Subsidiaries as of
the end of such fiscal quarter and unaudited consolidated statements of income
and cash flows for Holdings and Manager and their Subsidiaries for the fiscal
quarter then ended and for that portion of the fiscal year then ended, in each
case setting forth comparative consolidated figures as of the end of and for the
corresponding period in the preceding fiscal year, all in
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reasonable detail and prepared in accordance with generally accepted accounting
principles (subject to the absence of notes required by generally accepted
accounting principles and subject to normal year-end adjustments) applied on a
basis consistent with that of the preceding quarter or containing disclosure of
the effect on the financial condition or results of operations of any change in
the application of accounting principles and practices during such quarter and
(ii) if applicable, Manager's quarterly report on Form 10-Q for such quarterly
period; and
(c) As soon as available and in any event within 100 days after
the end of each fiscal year, beginning with the fiscal year ending December 31,
1996, (i) an audited consolidated balance sheet of Holdings and Manager and
their Subsidiaries as of the end of such fiscal year and audited consolidated
statements of income and cash flows for Holdings and Manager and their
Subsidiaries for the fiscal year then ended, in each case setting forth
comparative figures as of the end of and for the preceding fiscal year, all in
reasonable detail, together with a report thereon by a certified public
accounting firm of recognized national standing that is not qualified as to
scope of audit and to the effect that (A) such financial statements present
fairly the consolidated financial condition and results of operations of
Holdings and Manager and their Subsidiaries as of the dates and for the periods
indicated in accordance with generally accepted accounting principles applied on
a basis consistent with that of the preceding year or containing disclosure of
the effect on the financial position or results of operations of any change in
the application of accounting principles and practices during such year and (B)
the examination by such accountants in connection with such financial statements
has been made in accordance with generally accepted auditing standards and (ii)
if applicable, Manager's annual report on Form 10-K for such year; and
(d) As soon as available and in any event within sixty (60) days
after the end of each fiscal quarter of each fiscal year, beginning with the
fiscal quarter ended September 30, 1996, unaudited statements of profit and loss
(listing revenues, contribution profit and circulation figures) for each of the
top twenty publications (ranked by revenues) of Holdings and Manager and their
Subsidiaries for such fiscal quarter.
Section 11. Definitions.
"Asset Purchase Agreement" means the Asset Purchase Agreement, dated
as of August 15, 1996, between Manager and Xxxxxxxx Publishing Corporation, a
California corporation.
"Commission" shall mean the Securities and Exchange Commission and any
successor thereto.
"Credit Agreement" means the Credit Agreement, dated as of September
30, 1996, among Operating LLC, First Union National Bank of North Carolina, as
Administrative Agent (as defined in such Agreement) and Syndication Agent (as
defined in such Agreement) CIBC, Inc., as Documentation Agent (as defined in
such Agreement) and certain banks and other financial institutions, as amended,
modified, supplemented, waived or restated, and including any agreement pursuant
to which indebtedness thereunder is refinanced, as in effect from time to time.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute, and all rules and
regulations from time to time promulgated thereunder.
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"Equity Securities" means, with respect to a Person, any capital stock
(if such Person is a corporation), partnership interests (if such Person is a
partnership), limited liability company interests (if such Person is a limited
liability company) and any other interest in, or securities of, such Person with
profit participation features and any rights, warrants, options or other
securities convertible into or exercisable or exchangeable for any such
interests or securities.
"Initial Public Offering" means, with respect to any Person, the sale
of common equity securities of such Person (or any successor entity of such
Person) in an underwritten public offering registered under the Securities Act.
"Officer's Certificate" means a certificate signed by the Company's
president or its chief financial officer, stating that (i) the officer signing
such certificate has made or has caused to be made such investigations as are
necessary in order to permit him to verify the accuracy of the information set
forth in such certificate and (ii) to the best of such officer's knowledge, such
certificate does not misstate any material fact and does not omit to state any
fact necessary to make the certificate not misleading.
"Person" means any individual, general partnership, limited
partnership, corporation, association, cooperative, joint stock company, trust,
limited liability company, business trust, joint venture, unincorporated
organization and governmental entity (or any department, agency or political
subdivision thereof).
"Restricted Securities" means the Securities issued hereunder and any
securities issued with respect to such Securities by way of any stock dividend
or stock split, or in connection with a combination of shares, recapitalization,
merger, consolidation or other reorganization. As to any particular Restricted
Securities of an Issuer, such securities will cease to be Restricted Securities
when (a) they have been effectively registered under the Securities Act and
disposed of in accordance with the registration statement covering them, (b)
they have become eligible for sale pursuant to Rule 144 or Rule 144A or (c) an
opinion of Xxxxxxxx & Xxxxx or other counsel which (to such Issuer's reasonable
satisfaction) is knowledgeable in securities law matters to the effect that the
transfer of such Restricted Securities may be effected without registration of
such Restricted Securities under the Securities Act and that no subsequent
transfer of such Restricted Securities will require registration under the
Securities Act has been delivered to such Issuer.
"Rule 144" means Rule 144 promulgated by the Securities and Exchange
Commission under the Securities Act as such rule may be amended from time to
time, or any similar rule then in force.
"Rule 144A" means Rule 144A promulgated by the Securities and Exchange
Commission under the Securities Act as such rule may be amended from time to
time, or any similar rule then in force.
"Securities" means, collectively, Holdings Units, the PIC Stock and
the Manager Common Stock issued pursuant to this Agreement.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar federal law then in force.
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"Securities and Exchange Commission" includes any governmental body or
agency succeeding to the functions thereof.
"Securityholders Agreement" means the Securityholders Agreement, dated
as of the date hereof, by and among the Issuers, the Purchasers and certain
other Persons.
"Subordinated Credit Agreement" means the Senior Subordinated Credit
Agreement, dated as of September 30, 1996, among Operating LLC, First Union
Corporation, as Agent (as such term is defined in such Agreement), the
Guarantors named therein and the lenders named therein as amended, modified,
supplemented, waived or restated, and including any agreement pursuant to which
indebtedness thereunder is refinanced, as in effect from time to time.
"Subsidiary" means, with respect to any Person, any corporation,
limited liability company, partnership, association or other business entity of
which (i) if a corporation, a majority of the total voting power of shares of
stock entitled (without regard to the occurrence of any contingency) to vote in
the election of directors, managers or trustees thereof is at the time owned or
controlled, directly or indirectly, by that Person or one or more of the other
Subsidiaries of that Person or a combination thereof, or (ii) if a limited
liability company, partnership, association or other business entity, a majority
of the partnership or other similar ownership interest thereof is at the time
owned or controlled, directly or indirectly, by any Person or one or more
Subsidiaries of that Person or a combination thereof. For purposes hereof, a
Person or Persons shall be deemed to have a majority ownership interest in a
limited liability company, partnership, association or other business entity if
such Person or Persons shall be allocated a majority of limited liability
company, partnership, association or other business entity gains or losses or
shall be or control any managing director or general partner of such limited
liability company, partnership, association or other business entity.
Section 12. Escrow Arrangement. In order to facilitate the
consummation of the transaction contemplated by this Agreement, prior to the
Closing, each Purchaser other than PPC, Manager and PIC (collectively, the
"Escrow Purchasers") has delivered funds in an amount equal to the purchase
price to be paid by such Purchaser hereunder to an account designated by Manager
(the "Escrow Account") pursuant to the terms of an escrow arrangement set forth
on a letter signed by such Escrow Purchaser and Manager. Each party to this
Agreement acknowledges and agrees that Manager is acting solely as an agent of
each such Escrow Purchaser with respect to such funds and that the funds
delivered into the Escrow Account are not an investment in Manager, PIC or
Holdings until the transactions contemplated by this Agreement have been
consummated.
Section 13. Miscellaneous.
13A. Amendments and Waivers. Except as otherwise provided herein, (i)
no modification, amendment or waiver of any provision hereof shall be effective
unless such modification, amendment or waiver is approved in writing by Xxxxxx
Xxxxx, (ii) no modification, amendment or waiver of any provision hereof shall
be effective against an Issuer unless such modification, amendment or waiver is
approved in writing by such Issuer, (iii) no modification, amendment or waiver
of any provision hereof which has a material adverse effect on any Purchaser's
rights hereunder or which alters the amount of securities to be purchased by
such Purchaser or the consideration to be paid therefor by such Purchaser shall
be effective against such Purchaser unless
-12-
such modification, amendment or waiver is approved in writing by such Purchaser
and (iv) no amendment, modification or waiver of any provision of this
Agreement which materially adversely affects the relative rights of a holder of
Restricted Securities, if such effect would be borne disproportionately by such
holder relative to other holders of Restricted Securities of the same class,
shall be effective against such holder unless such modification, amendment or
waiver is approved in writing by such holder. The failure of any party to
enforce any provision 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.
13B. Survival of Representations and Warranties. All representations
and warranties contained herein or made in writing by any party in connection
herewith will survive the execution and delivery of this Agreement, regardless
of any investigation made by any Purchaser or any Issuer or on behalf of any
such party.
13C. Successors and Assigns.
(i) Except as otherwise expressly provided herein, all covenants
and agreements contained in this Agreement by or on behalf of any of the parties
hereto will bind and inure to the benefit of the respective successors and
assigns of such parties whether so expressed or not.
(ii) If a sale, transfer, assignment or other disposition of any
Securities is made in accordance with the provisions of this Agreement and the
Securityholders Agreement to any Person and such Securities remain Restricted
Securities immediately after such disposition, such Person shall, at or prior to
the time such Securities are acquired, execute a counterpart of this Agreement
with such modifications thereto as may be necessary to reflect such acquisition,
and such other documents as are necessary to confirm such Person's agreement to
become a party to, and to be bound by, all covenants, terms and conditions of
this Agreement and the Securityholders Agreement, each as theretofore amended.
13D. Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable under any applicable law or rule in any jurisdiction,
such provision will be ineffective only to the extent of such invalidity,
illegality or unenforceability in such jurisdiction, without invalidating the
remainder of this Agreement in such jurisdiction or any provision hereof in any
other jurisdiction.
13E. Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together will constitute
one and the same Agreement.
13F. Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement.
13G. Governing Law. The law of the State of Delaware shall govern
all issues and questions concerning the relative rights and obligations of each
Issuer and the holders of the Securities issued by such Issuer hereunder. All
other issues and questions concerning the construction, validity, enforcement
and interpretation of this Agreement and the exhibits and schedules hereto
-13-
shall be governed by, and construed in accordance with, the laws of the State of
Illinois, without giving effect to any choice of law or conflict of law rules or
provisions (whether of the State of Illinois or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State
of Illinois.
13H. Notices. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent by confirmed telecopy if received during normal business
hours on a business day and otherwise on the first business day thereafter, one
business day after being sent to the recipient by reputable overnight courier
service (charges prepaid for overnight delivery) or five days after being mailed
to the recipient by certified or registered mail, return receipt requested and
postage prepaid. Such notices, demands and other communications shall be sent
to each party at the address indicated for such party below or on Schedule of
Notice Addresses or to such other address or to the attention of such other
person as the recipient party has specified by prior written notice to the
sending party.
If to Holdings, PIC or Manager:
c/o Xxxxxx Xxxxx & Partners, L.P.
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Avy X. Xxxxx
Xxxxxx X. Xxxxxxxxxx
and to:
Xxxxxxxx & Xxxxx
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxxxx, Esq.
13I. Understanding Among the Purchasers. The determination of each
Purchaser to purchase Securities pursuant to this Agreement has been made by
such Purchaser independent of any other Purchaser and independent of any
statements or opinions as to the advisability of such purchase or as to the
properties, business, prospects or condition (financial or otherwise) of the
Company and its Subsidiaries which may have been made or given by any other
Purchaser or by any agent or employee of any other Purchaser. In addition, it
is acknowledged by each of the other Purchasers that neither Xxxxxx Xxxxx nor
any of its affiliates has acted as an agent of such Purchaser in connection with
making its investment hereunder and that neither Xxxxxx Xxxxx nor any of its
affiliates shall be acting as an agent of such Purchaser in connection with
monitoring its investment hereunder.
* * * * *
-14-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
the day and year first above written.
BRIGHTVIEW COMMUNICATIONS GROUP, INC., in its
capacity as an Issuer of Securities and as a
Purchaser
By: _________________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
XXXXXXXX INVESTMENT CORP., in its capacity as an
Issuer of Securities and as a Purchaser
By: ________________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
XXXXXXXX HOLDINGS, L.L.C.
By: BrightView Communications Group, Inc.
Its: Managing Member
By: _________________________________
Name: Xxxxxx X. Xxxxxxxxxx
Title: Vice President
XXXXXX XXXXX & PARTNERS, L.P.
By: Xxxxxx Xxxxx & Partners, L.L.C.
Its: General Partner
By: ________________________________
Its: Managing Director
XXXXXXXX PUBLISHING COMPANY
By: ___________________________________
Name: Xxxxxx X. Xxxxxxxx
Title: Chairman of the Board
CHASE EQUITY ASSOCIATES, L.P.
By: Chase Capital Partners
Its: General Partner
By: ___________________________________
Name: Xxxxx Xxxxxxxx
Title: General Partner
BANK AMERICA INVESTMENT CORPORATION
By: ____________________________________
Name:
Title:
CIVC PARTNERS II
By: ___________________________________
Name:
Title: A General Partner
CIBC WG ARGOSY MERCHANT FUND 2, L.L.C.
By: ___________________________________
Name:
Title:
ALLSTATE INSURANCE COMPANY
By: ___________________________________
Name:
Title:
FUI, INC.
By: ___________________________________
Name:
Title:
NORWEST EQUITY CAPITAL, L.L.C.
By: Itasca NEC, L.L.C.
Its: Managing Member
By: ___________________________________
Name:
Title:
NASSAU CAPITAL PARTNERS II, L.P.
By: Nassua Capital, L.L.C.
Its: General Partner
By: ___________________________________
Name:
Title:
NAS PARTNERS I, L.L.C.
By: ___________________________________
Name:
Title:
________________________________________
Xxxxx X. Xxxxxxx, Xx.
________________________________________
Xxxxxxxx X. Xxxxx
________________________________________
Xxxxxx Xxxx
________________________________________
Xxxxxx X. Xxxxxxx
________________________________________
Xxxxx Xxxx
________________________________________
Xxxxxxx Xxxxxxx
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_______________________________________
X. Xxxxxx Xxxxxxxxxx
-19-
EXHIBIT A
---------
EXHIBIT B
---------
SCHEDULE OF NOTICE ADDRESSES
----------------------------
PAGE 1 OF 2
SECURITYHOLDER NOTICE ADDRESS
Xxxxxx Xxxxx & Partners, L.P. 000 X. Xxxxxx Xx., Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Avy X. Xxxxx and Xxxxxx X. Xxxxxxxxxx
Xxxxxxxx Publishing Company 0000 Xxxxxxxx Xxxx.
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxx
Chase Equity Associates, L.P. 000 Xxxxxxx Xxx., 00xx Xxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxxxx
Bank America Investment Corporation c/o Continental Illinois Venture
000 X. XxXxxxx Xx.
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
CIVC Partners II Continental Illinois Venture
000 X. XxXxxxx Xx.
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx
Allstate Insurance Company 0000 Xxxxxxx Xx., Xxxxx X0X
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxx
FUI, Inc. First Union Capital Partners
Investment Bank Division
One First Union Center
000 X. Xxxxxxx Xx., 0xx Xxx.
Xxxxxxxxx, XX 00000-0000
Attn: Xxxxx X. Xxxxxx
CIBC WG Agosy Merchant Fund 2, L.L.C. 000 Xxxxxxxxx Xxx., 0xx Floor
Securities Corp. Xxx Xxxx, XX 00000
Attn: Xxx X. Xxxxx
Norwest Equity Capital, L.L.C. 2800 Xxxxx Xxxxxxx Tower
000 X. Xxxxx Xx.
Xxxxxxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxxx
Nassau Capital Partners II, L.P. 00 Xxxxxxxx Xx.
Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
NAS Partners I, L.L.C. 00 Xxxxxxxx Xx.
Xxxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx, Xx. The Xxxxxxx Group
000 Xxxxxx Xx., 0xx Xxxxx
Xxxxxxxx, XX 00000
Xxxxxxxx X. Xxxxx TransWestern Publishing
0000 Xxxxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
SCHEDULE OF NOTICE ADDRESSES
----------------------------
PAGE 2 OF 2 CONT'D.
SECURITYHOLDER NOTICE ADDRESS
Xxxxxx X. Xxxxxxx 000 Xxxxxxx Xxxx Xxxx
Xxx. 00X
Xxx Xxxx, XX 00000
Xxxxxx Xxxx 000 Xxxxx Xxx.
Xxxxxxxxxxxxx, XX 00000
Xxxxxxx Xxxxxxx 0000 Xxxxx Xxxxx
Xxxx Xxxxx, XX 00000
Xxxxx Xxxx 0 Xxxxxxxxxxx Xxxx
Xxxxxx Xxx, XX 00000
