AMENDED AND RESTATED
STOCK PURCHASE AGREEMENT
THIS Amended and Restated Stock Purchase Agreement (the "AGREEMENT"),
is made as of June __, 1999 by and among Xxxxxx'x, Inc. (formerly known as The
Reference Press, Inc.), a Delaware corporation (the "COMPANY") and Warner Books
Multimedia Corp., a Delaware corporation ("INVESTOR").
R E C I T A L S:
WHEREAS, the Investor holds shares of the Company's common stock,
$0.01 par value per share (the "COMMON STOCK") pursuant to a Stock Purchase
Agreement dated February 15, 1994, by and between the Company and Warner Books,
Inc. (the "ORIGINAL AGREEMENT") and in connection therewith, executed and
entered into a Distribution Agreement dated as of March 11, 1994 (the
"DISTRIBUTION AGREEMENT");
WHEREAS, Warner Books, Inc. transferred the shares of the Company's
common stock and assigned the original Agreement to Investor effective June 1,
1999;
WHEREAS, the Investor and the Company desire to amend and restate the
Original Agreement and to accept the rights created pursuant hereto in lieu of
the rights granted to them under the Original Agreement; and
WHEREAS, in order to induce and facilitate the Company's completion of
its proposed initial public offering of its Common Stock;
A G R E E M E N T:
NOW, THEREFORE, in consideration of the foregoing premises and other
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. FINANCIAL STATEMENTS. For so long as the Investor is a
stockholder of the Company and until such time as the Company shall have a class
of securities registered under the Securities Exchange Act of 1934, the Company
shall deliver to Investor:
(a) as soon as practicable, but in any event within 90 days
after the end of each fiscal year of the Company, the consolidated balance sheet
and statements of income and cash flow for such fiscal year, prepared in
accordance with generally accepted accounting principles, consistently applied;
and audited by a nationally recognized firm of independent certified public
accountants;
(b) within 45 days of the end of each quarter, (i) the
consolidated balance sheets of the Company and its subsidiaries and statements
of income and cash flow for such quarter certified by the Company's Chief
Financial Officer as presenting fairly the consolidated
financial position and results of operations of the Company and its consolidated
subsidiaries in accordance with generally accepted accounting principles,
consistently applied (with the exception of supporting footnotes) and (ii)
comparisons of such statements to budget for and as of the end of such quarter
in reasonable detail; and
(c) such other information relating to the financial condition,
business prospects or corporate affairs of the Company as Investor may from time
to time reasonably request to comply with applicable Securities and Exchange
Commission and other governmental filing requirements and such other information
as Investor may reasonably request, including, but not limited to, any reports
or information furnished to the Company's lenders or reports or other filings
made to or filed with governmental authorities and internally generated periodic
financial reports; provided, however, that the Company shall not be obligated
under this Section 1(c) to provide information which it deems in good faith to
be a trade secret or similar confidential information.
2. BOARD REPRESENTATION. Prior to a firm commitment, underwritten
public offering of the Company's Common Stock (a "QUALIFIED OFFERING"), the
Investor shall be entitled to designate a board member, reasonably satisfactory
to the Company, to the Company's Board of Directors and the Company agrees not
to maintain a Board of Directors that exceeds ten directors. Subsequent to a
Qualified Offering, the Company shall have no further obligation pursuant to
this Section 2 and Investor's designee shall serve until the next annual meeting
of the Company's stockholders.
3. STANDSTILL AGREEMENT. For a period of three years subsequent to
June 11, 1999, unless otherwise approved by a majority of the disinterested
members of the Company's Board of Directors, Investor and its Affiliates shall
not, directly or indirectly, acquire beneficial ownership of or voting control
over any shares of Common Stock if the effect of such acquisition would be to
increase the aggregate number of shares of Common Stock then beneficially owned,
directly or indirectly, or over which there is voting control by Investor and
its Affiliates to greater than forty-nine percent (49%) of shares of Common
Stock outstanding. For purposes of this Agreement, "Affiliate" of Investor
shall mean any person directly or indirectly controlling, controlled by, or
under common control with Investor, including officers and directors. For
purposes of this Section 3, "voting control" shall mean the power to vote or to
direct the voting, whether directly or indirectly, through an Affiliate,
contractual right, verbal understanding, or otherwise. For purposes of this
Section 3, "beneficial ownership" shall have the same meaning as in Rule
13d-3(d)(1) promulgated under the Securities Exchange Act of 1934.
4. REGISTRATION; LISTING ON SECURITIES EXCHANGES. If at any time
the Company proposes or determines to register any Common Stock held by a
stockholder of the Company (other than pursuant to registration on Form S-8 or
any successor form) in an underwritten offering to the public for cash, the
Company will (a) promptly give written notice thereof to the Investor and (b)
include in such registration (and any related qualification under blue sky laws
or
other state securities laws), and in the underwriting involved therein, all the
Common Stock specified by the Investor in a written request, received by the
Company within thirty (30) days after the mailing of such written notice by the
Company; provided, that if the managing underwriters advise the Company in
writing that in their opinion marketing factors require a limitation in the
number of securities to be included, the Company will include in such
registration (i) first, any Common Stock offered by the Company, and (ii)
second, if all the Company's Common Stock is included in the registration, the
number of shares of Common Stock requested to be included that, in the opinion
of such underwriters, can be sold, PRO RATA among the respective stockholders of
the Company on the basis of the amount of Common Stock owned by each such
stockholder. The Company shall not grant any registration rights inconsistent
with the rights granted to Investor herein. The price at which the Investor's
Common Stock being registered in such offering are offered to the public shall
be equal to the price at which the Company's Common Stock is offered to the
public in such registration. No securities excluded from the underwriting by
reason of the underwriter's marketing limitation shall be included in such
registration. The Investor shall be required to pay underwriter discounts and
commissions, pay expenses of the offering, provide indemnification to the
Company and the underwriters, provide a lockup agreement, and comply with such
other terms and conditions, in each case, only to the extent required of the
other stockholders selling Common Stock pursuant to such offering.
5. TERMINATION OF DISTRIBUTION AGREEMENT. The Distribution
Agreement is terminated effective as of December 31, 1998. The Company and
Investor release and discharge one another from and against any and all claims,
demands, actions and accounts which either party has, has had or may have,
arising from the Distribution Agreement. Notwithstanding the prior two
sentences and in accordance with terms of the Distribution Agreement, Paragraphs
10, 11 and 12 of the Distribution Agreement will survive termination of the
Distribution Agreement.
6. MISCELLANEOUS.
6.1 SEVERABILITY. The invalidity or unenforceability of any
particular provisions under this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provision were omitted.
6.2 SUCCESSORS AND ASSIGNS. Investor may assign this Agreement
only to an Affiliate in conjunction with the assignment of Common Stock held
by Investor. Except as otherwise provided herein, the terms and conditions
of this Agreement shall inure to the benefit of and be binding upon the
respective successors and assigns of the parties. Nothing in this Agreement,
express or implied, is intended to confer upon any party other than the
parties hereto or their respective successors and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement.
6.3 GOVERNING LAW. This Agreement shall be governed by and
construed under the laws of the State of New York as applied to agreements
among New York residents entered into and to be performed entirely within New
York. The parties hereto agree to the exclusive jurisdiction of the Federal
Court for the Southern District of New York or the
applicable state court in New York City.
6.4 AMENDMENTS. Any term of this Agreement may be amended only
with the written consent of the Company and Investor.
6.5 ENTIRE AGREEMENT. This Agreement is intended to be the
sole agreement of the parties as it relates to this subject matter and does
hereby supersede previous agreement, including, but not limited to, the
Original Agreement, and all other agreements of the parties relating to the
subject matter hereof.
6.6 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which when so executed and delivered shall be an original,
but all of such counterparts shall together constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
XXXXXX'X, INC
By:
--------------------------------
Xxxxxxx X. Spain
Chairman of the Board, Chief
Executive Officer and President
0000 Xx Xxxxxx Xxxxx, #000
Xxxxxx, Xxxxx00000
WARNER BOOKS MULTIMEDIA CORP.
By:
--------------------------------
Name:
----------------------------
Title:
---------------------------
Time & Life Building
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
