EXHIBIT 10.3
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MASTER INVESTORS RIGHTS AGREEMENT
by and among
IX, INC.,
IX HOLDING CO., INC.,
INSIGHTEXPRESS, L.L.C.
and
THE OTHER PERSONS NAMED HEREIN
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Dated: October 18, 1999
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TABLE OF CONTENTS
Page #
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1. Definitions......................................................2
2. Restrictions on Transfer of Equity Interests....................11
2.1 Limitation on Transfer................................11
2.2 Permitted Transfers...................................12
2.3 Permitted Transfer Procedures.........................12
2.4 Transfers in Compliance with Law; Substitution of
Transferee............................................12
3. Right of First Offer and Tag-Along Rights; Drag-Along Rights....13
3.1 Proposed Voluntary Transfers..........................13
3.2 Drag-Along Rights.....................................17
4. Preemptive Rights...............................................19
4.1 Offering Notice.......................................19
4.2 Preemptive Rights; Exercise...........................19
4.3 Closing...............................................20
4.4 Sale to Subject Purchaser.............................20
4.5 Preemptive Rights with respect to Holdco Securities...20
5. After-Acquired Securities; Agreement to be Bound................21
5.1 After-Acquired Securities.............................21
5.2 Agreement to be Bound.................................21
6. Holdco Put......................................................21
6.1 Exercise..............................................21
6.2 Purchase Price........................................22
6.3 Closing...............................................23
6.4 Put Default...........................................24
6.5 NFO Right of First Refusal............................24
7. IX Call.........................................................25
7.1 Exercise..............................................25
7.2 Purchase Price........................................26
7.3 Closing...............................................26
7A. Governance Following Mergers....................................27
7A.1 General...............................................27
7A.2 Election of Directors.................................27
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7A.3 Removal and Replacement...............................27
7A.4 Termination of Sections 7A.2 and 7A.3.................28
8. Covenants.......................................................28
8.1 Merger of IX and Holdco...............................28
8.2 Merger of IX and Greenhill............................29
8.3 Grant of Registration Rights..........................30
8.4 Put of Intellectual Property..........................30
8.5 Option Plan...........................................30
8.6 General Atlantic Right to Purchase....................30
8.7 Restrictions of IX Business...........................31
8.8 Restrictions on Holdco Business.......................31
8.9 Restrictions on Greenhill Business....................31
8.10 Preemptive Rights Adjustments.........................31
8.11 Holdco Charter and Bylaws.............................31
9. Stock Certificate Legend........................................31
10. Miscellaneous...................................................32
10.1 Notices...............................................32
10.2 Successors and Assigns................................35
10.3 Amendment and Waiver..................................35
10.4 Counterparts..........................................35
10.5 Specific Performance..................................35
10.6 Headings..............................................36
10.7 GOVERNING LAW.........................................36
10.8 Severability..........................................36
10.9 Entire Agreement......................................36
10.10 Term of Agreement.....................................36
10.11 Further Assurances....................................36
EXHIBITS
A-1 Form of Transfer Agreement (previously issued shares)
A-2 Form of Transfer Agreement (newly issued shares)
B Form of IX/Holdco Merger Agreement
C Form of IX/Greenhill Merger Agreement
D Form of Registration Rights Agreement
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MASTER INVESTORS RIGHTS AGREEMENT
MASTER INVESTORS RIGHTS AGREEMENT, dated October 18, 1999 (this
"Agreement"), by and among InsightExpress, L.L.C., a Delaware limited liability
company (the "Company"), IX, Inc., a Delaware corporation ("IX"), IX Holding
Co., Inc., a Delaware corporation ("Holdco"), NFO Worldwide, Inc., a Delaware
corporation ("NFO"), General Atlantic Partners 57, L.P., a Delaware limited
partnership ("GAP LP"), GAP Coinvestment Partners II, L.P., a Delaware limited
partnership ("GAP Coinvestment" and, together with GAP LP, "General Atlantic"),
Engage Technologies, Inc., a Delaware corporation ("Engage"), and Xxxxxxxxx &
Co., LLC, a New York limited liability company ("Xxxxxxxxx LLC").
WHEREAS, NFO has organized IX as a wholly-owned subsidiary of NFO,
and IX has organized the Company as a wholly-owned subsidiary of IX; and
WHEREAS, NFO has transferred the Intellectual Property (as
hereinafter defined) to IX, and has caused IX to license the right to use the
Intellectual Property to the Company so that the Company can commence operations
as an internet based market research business; and
WHEREAS, General Atlantic and Engage have agreed with NFO to make an
equity investment in the Company; and
WHEREAS, General Atlantic and Engage have organized Holdco to hold
their equity interest in the Company; and
WHEREAS, Xxxxxxxxx LLC has agreed to accept an equity interest in
the Company in lieu of a cash payment for its advisory fee; and
WHEREAS, Xxxxxxxxx LLC intends to transfer its Company Interests,
immediately after the closing of the transactions contemplated by the Securities
Purchase Agreement, to Greenhill 1999 Equity Holdings Corporation ("Greenhill");
and
WHEREAS, pursuant to the Securities Purchase Agreement dated October
18, 1999 (the "Securities Purchase Agreement") by and between the Company and
Holdco, the Company has agreed to issue and sell to Holdco, a limited liability
company interest in the Company, representing a 92.82% membership interest in
the Company; and
WHEREAS, the parties hereto wish to restrict the transfer of the
Company Owned Interests (as hereinafter defined) and provide for, among other
things, preemptive and certain other rights and obligations under certain
conditions; and
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WHEREAS, in order to induce General Atlantic and Engage to cause
Holdco to enter into, and consummate the transactions contemplated by, the
Securities Purchase Agreement, IX and NFO have agreed to restrict the transfer
of the IX Shares (as hereinafter defined) and Greenhill has agreed to restrict
the transfer of the Greenhill Shares (as hereinafter defined) and to provide
for, among other things, first offer rights and certain other rights and
obligations under certain conditions; and
WHEREAS, in order to further induce General Atlantic and Engage to
cause Holdco to enter into, and consummate the transactions contemplated by, the
Securities Purchase Agreement, the parties hereto have agreed to give General
Atlantic the right to put the Holdco Stockholders' (as hereinafter defined)
Holdco Shares (as hereinafter defined) to the Company on the terms specified
herein; and
WHEREAS, in order to induce NFO to cause IX to cause the Company to
enter into, and consummate the transactions contemplated by, the Securities
Purchase Agreement, Holdco, General Atlantic and Engage have agreed to restrict
the transfer of the Holdco Shares (as hereinafter defined) and to provide for,
among other things, call, first offer rights, and certain other rights under
certain conditions; and
WHEREAS, in order to further induce NFO to cause IX to cause the
Company to enter into, and consummate the transactions contemplated by, the
Securities Purchase Agreement, the parties hereto have agreed to give IX the
right to call the Holdco Shares and the Greenhill Shares owned by the Holdco
Stockholders and the Greenhill Stockholders (as hereinafter defined); and
WHEREAS, the parties hereto wish to provide for (a) the merger of IX
and Holdco, (b) the merger of the surviving corporation of such merger and
Greenhill and (c) the grant of registration rights, each upon the occurrence of
certain events.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, the parties hereto agree as
follows:
1. Definitions. As used in this Agreement, the following terms shall
have the meanings set forth below:
"Acquiror" has the meaning set forth in Section 3.2(a) hereof.
"Affiliates" means any Person who is an "affiliate" as defined in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act. In
addition, the following shall be deemed to be Affiliates of GAP LP: (a) GAP LLC,
the members of GAP LLC, the limited partners of GAP Coinvestment and the limited
partners of GAP LP; (b) any Affiliate of GAP LLC, the members of GAP LLC, the
limited partners of GAP Coinvestment and the limited partners of GAP LP; and (c)
any limited liability company or partnership a majority of whose members or
partners, as the case may be, are members, or members, consultants or key
employees of GAP
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LLC. In addition, GAP LP and GAP Coinvestment shall be deemed to be Affiliates
of one another.
"Agreement" means this Agreement as the same may be amended,
supplemented or modified in accordance with the terms hereof.
"Alternate Investment Amount" means the product of (a) the
consideration paid by Holdco for the Company Owned Interests purchased by Holdco
pursuant to the Securities Purchase Agreement and (b) the Appreciation.
"Appreciation" means (a) the average closing price of NFO common
stock on the New York Stock Exchange for the thirty (30) trading days prior to
the closing of the transaction that caused the Change of Control of NFO divided
by (b) the Base Price.
"Base Price" means the product of (a) the average closing price of
NFO common stock on the New York Stock Exchange for the fifteen (15) trading
days prior to (and including the day of) the public announcement of the closing
of the transactions contemplated by the Securities Purchase Agreement and the
fifteen (15) days following such public announcement and (b) 1.25.
"Business Day" means any day other than a Saturday, Sunday or other
day on which commercial banks in the State of New York are authorized or
required by law or executive order to close.
"Call" has the meaning set forth in Section 7.1 hereof.
"Call Exercise Date" has the meaning set forth in Section 7.1
hereof.
"Call Notice" has the meaning set forth in Section 7.1 hereof.
"Call Securities" has the meaning set forth in Section 7.1 hereof.
"Change of Control of NFO" means:
(i) the sale, lease, conveyance or other disposition of all or
substantially all of the assets of NFO to any "person" or "group" (as such terms
are used in Section 13(d) and 14(d) of the Exchange Act), in one or a series of
transactions, other than any such sale or other disposition to, or to any such
group that is controlled by NFO; or
(ii) any transaction or series of transactions (as a result of
a tender offer, exchange offer, merger, consolidation or otherwise) that results
in, or that is in connection with, any "person" or "group" acquiring "beneficial
ownership" (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except
that a Person shall be deemed to have beneficial ownership of all shares that
such Person has the right to acquire, whether such right is exercisable
immediately or only after the
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passage of time) directly or indirectly, of fifty percent (50%) or more of the
aggregate voting power of all classes of NFO's common equity other than any
acquisition by, or by any such group that is controlled by, NFO.
"Change of Control Shortfall" has the meaning set forth in Section
3.2(d)(iii) hereof.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor statute.
"Commission" means the Securities and Exchange Commission or any
similar agency then having jurisdiction to enforce the Securities Act.
"Company" has the meaning set forth in the recitals hereto.
"Company Interests" means limited liability company interests of the
Company.
"Company Note" has the meaning set forth in Section 6.3(b)(ii)
hereof.
"Company Interests Equivalents" means any security or obligation
which is by its terms convertible into Company Interests, and any option,
warrant or other subscription or purchase right with respect to Company
Interests.
"Company Sale" has the meaning set forth in Section 3.2(a) hereof.
"Company Transferee" has the meaning set forth in Section 6.1
hereof.
"Company Owned Interests" means, with respect to each
Interestholder, all Company Interests whether now owned or hereafter acquired,
owned thereby; provided, however, for the purposes of any computation of the
number of Company Owned Interests pursuant to Sections 2, 3, 4 and 10.3(b), all
outstanding Company Interest Equivalents shall be deemed converted, exercised or
exchanged as applicable and the Company Interests issuable upon conversion,
exercise or exchange shall be deemed outstanding, whether or not such
conversion, exercise or exchange has actually been effected.
"Contract Date" has the meaning set forth in Section 3.1(d) hereof.
"Drag-Along Notice" has the meaning set forth in Section 3.2(b)
hereof.
"Drag-Along Right" has the meaning set forth in Section 3.2(a)
hereof.
"Drag-Along Shortfall" has the meaning set forth in Section
3.2(d)(i) hereof.
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"Engage" has the meaning set forth in the recitals hereto.
"Engage Stockholders" means Engage and any Permitted Transferee
thereof to whom Holdco Shares are transferred in accordance with Section 2.2 of
this Agreement, and the term "Engage Stockholder" shall mean any such Person.
"Equity Holder" means (a) the Major Stockholders, (b) any transferee
of a Major Stockholder who has agreed to be bound by the terms and conditions of
this Agreement in accordance with Section 2.4, (c) any Person who has agreed to
be bound by the terms and conditions of this Agreement in accordance with
Section 5.2(a) and (d) the Interestholders, and the term "Equity Holder" shall
mean any such Person.
"Equity Interest Equivalents" means, as the case may be, IX Common
Stock Equivalents, Holdco Common Stock Equivalents, Greenhill Common Stock
Equivalents or Company Interest Equivalents.
"Equity Interests" means, as the case may be, IX Shares, Holdco
Shares, Greenhill Shares or Company Owned Interests.
"Equity Securities" means, as the case may be, IX Common Stock,
Holdco Common Stock, Greenhill Common Stock or Company Interests.
"Excess New Securities" has the meaning set forth in Section 4.2(a)
hereof.
"Excess Offered Securities" has the meaning set forth in Section
3.1(b)(i) hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission thereunder.
"Exempt Issuances" has the meaning set forth in Section 4.1 hereof.
"Fair Value" has the meaning set forth in Sections 3.2(d)(ii) and
6.2(b) hereof.
"First Refusal Contract Date" has the meaning set forth in Section
6.5(d) hereof.
"First Refusal Offer" has the meaning set forth in Section 6.5(a)
hereof.
"First Refusal Offer Price" has the meaning set forth in Section
6.5(a) hereof.
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"First Refusal Offering Notice" has the meaning set forth in Section
6.5(a) hereof.
"First Refusal Offeror" has the meaning set forth in Section 6.5(a)
hereof.
"First Refusal Option Period" has the meaning set forth in Section
6.5(b) hereof.
"GAP Coinvestment" has the meaning set forth in the recitals hereto.
"GAP Directors" has the meaning set forth in Section 7A.2 hereof.
"GAP LLC" means General Atlantic Partners, LLC, a Delaware limited
liability company and the general partner of GAP LP, and any successor to such
entity.
"GAP LP" has the meaning set forth in the recitals hereto.
"General Atlantic" has the meaning set forth in the recitals hereto.
"General Atlantic Stockholders" means GAP LP, GAP Coinvestment and
any Permitted Transferee thereof to whom Holdco Shares are transferred in
accordance with Section 2.2 hereof, and the term "General Atlantic Stockholder"
shall mean any such Person.
"Greenhill" has the meaning set forth in the recitals hereto.
"Greenhill Common Stock" means the Common Stock of Greenhill or any
other capital stock of Greenhill into which such stock is reclassified or
reconstituted and any other common stock of Greenhill.
"Greenhill Common Stock Equivalents" means any security or
obligation which is by its terms convertible into shares of Greenhill Common
Stock, and any option, warrant or other subscription or purchase rights with
respect to Greenhill Common Stock.
"Greenhill Interestholders" means Greenhill and any Permitted
Transferee thereof to whom Company Owned Interests are transferred in accordance
with Section 2.2 hereof, and the term "Greenhill Interestholder" shall mean any
such Person.
"Xxxxxxxxx LLC" has the meaning set forth in the recitals hereto.
"Greenhill Put" has the meaning set forth in Section 6.1(b) hereof.
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"Greenhill Put Purchase Price" has the meaning set forth in Section
6.2(a) hereof.
"Greenhill Put Securities" has the meaning set forth in Section
6.1(b) hereof.
"Greenhill Shares" means, with respect to each Greenhill
Stockholder, all shares, whether now owned or hereafter acquired, of Greenhill
Common Stock, owned thereby; provided, however, for the purposes of any
computation of the number of Greenhill Shares pursuant to Sections 2, 3, 4 and
10.3(b), all outstanding Greenhill Common Stock Equivalents shall be deemed
converted, exercised or exchanged as applicable and the shares of Greenhill
Common Stock issuable upon such conversion, exercise or exchange shall be deemed
outstanding, whether or not such conversion, exercise, or exchange has actually
been affected.
"Greenhill Stockholders" means Xxxxxxxxx LLC and any Permitted
Transferee thereof to whom Greenhill Shares are transferred in accordance with
Section 2.2 of this Agreement, and the term "Greenhill Stockholder" shall mean
any such Person.
"Holdco" has the meaning set forth in the recitals hereto.
"Holdco Common Stock" means the classes of Common Stock, par value
$.01 per share, of Holdco or any other capital stock of Holdco into which such
stock is reclassified or reconstituted and any other common stock of Holdco.
"Holdco Common Stock Equivalents" mean any security or obligation
which is by its terms convertible into shares of Holdco Common Stock, and any
option, warrant or other subscription or purchase rights with respect to Holdco
Common Stock.
"Holdco Interestholders" means Holdco and any Permitted Transferee
thereof to whom Company Owned Interests are transferred in accordance with
Section 2.2 of this Agreement, and the term "Holdco Interestholder" shall mean
any such Person.
"Holdco Put Purchase Price" has the meaning set forth in Section
6.2(a) hereof.
"Holdco Put Securities" has the meaning set forth in Section 6.1(a)
hereof.
"Holdco Shares" means, with respect to each Holdco Stockholder, all
shares, whether now owned or hereafter acquired, of Holdco Common Stock, owned
thereby; provided, however, for the purposes of any computation of the number of
Holdco Shares pursuant to Sections 2, 3, 4 and 10.3(b), all outstanding Holdco
Common Stock Equivalents shall be deemed converted, exercised or exchanged as
applicable and the shares of Holdco Common Stock issuable upon such conversion,
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exercise or exchange shall be deemed outstanding, whether or not such
conversion, exercise or exchange has actually been affected.
"Holdco Stockholders" means the General Atlantic Stockholders and
the Engage Stockholders and (a) any transferee thereof who has agreed to be
bound by the terms and conditions of this Agreement in accordance with Section
2.4 and (b) any Person who has acquired Holdco Shares and has agreed to be bound
by the terms and conditions of this Agreement in accordance with Section 5.2(a).
"Intellectual Property" means all of the intellectual property
transferred pursuant to the Instrument of Transfer dated October 18, 1999 from
NFO to IX.
"Interestholder" means the IX Interestholders, the Holdco
Interestholders, the Greenhill Interestholders and (a) any transferee thereof
who has agreed to be bound by the terms and conditions of this Agreement in
accordance with Section 2.4 and (b) any Person who has acquired Company
Interests and has agreed to be bound by the terms and conditions of this
Agreement in accordance with Section 5.2(a), and the term "Interestholder" shall
mean any such Person.
"Initial Public Offering" means the initial public offering of the
shares of Common Stock of the successor corporation to the Company pursuant to
an effective registration statement filed under the Securities Act.
"IPO Effectiveness Date" means the date upon which the successor
corporation to the Company closes the Initial Public Offering.
"Issuer" has the meaning set forth in Section 2.3 hereof.
"IX" has the meaning set forth in the recitals hereto.
"IX Common Stock" means the classes of Common Stock, par value $.01
per share, of IX or any other capital stock of IX into which such stock is
reclassified or reconstituted and any other common stock of IX.
"IX Common Stock Equivalents" means any security or obligation which
is by its terms convertible into shares of IX Common Stock, and any option,
warrant or other subscription or purchase right with respect to IX Common Stock.
"IX Interestholders" means IX and any Permitted Transferee thereof
to whom Company Owned Interests are transferred in accordance with Section 2.2
of this Agreement, and the term "IX Interestholder" shall mean any such Person.
"IX Shares" means, with respect to each IX Stockholder, all shares,
whether now owned or hereafter acquired, of IX Common Stock, owned thereby;
provided, however, for the purposes of any computation of the number of IX
Shares pursuant to Sections 2, 3, 4 and 10.3(b), all outstanding IX Common Stock
Equivalents shall be deemed converted, exercised or exchanged as applicable and
the
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shares of IX Common Stock issuable upon such conversion, exercise or exchange
shall be deemed outstanding, whether or not such conversion, exercise or
exchange has actually been effected.
"IX Stockholder" means the NFO Stockholders and (a) any transferee
thereof who has agreed to be bound by the terms and conditions of this Agreement
in accordance with Section 2.4 and (b) any Person who has acquired IX Shares and
has agreed to be bound by the terms and conditions of this Agreement in
accordance with Section 5.2(a).
"Liens" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, lien (statutory or other) or preference, priority,
right or other security interest or preferential arrangement of any kind or
nature whatsoever (excluding preferred stock and equity related preferences),
including, without limitation, those created by, arriving under or evidenced by
any conditional sale or other title retention agreement, the interest of a
lessor under a capital lease obligation, or any financing lease having
substantially the same economic effect in any of the foregoing.
"Major Stockholders" means the General Atlantic Stockholders, the
NFO Stockholders, the Engage Stockholders and the Greenhill Stockholders, and
the term "Major Stockholder" shall mean any such Person.
"Mergers" means the mergers referred to in Section 8.1 and 8.2.
"New Issuance Notice" has the meaning set forth in Section 4.1
hereof.
"New Securities" has the meaning set forth in Section 4.1 hereof.
"NFO" has the meaning set forth in the recitals hereto.
"NFO Directors" has the meaning set forth in Section 7A.2 hereof.
"NFO Stockholders" means NFO and any Permitted Transferee thereof to
whom IX Shares are transferred in accordance with Section 2.2 of this Agreement,
and the term "NFO Stockholder" shall mean any such Person.
"Offer Price" has the meaning set forth in Section 3.1(a) hereof.
"Offered Securities" has the meaning set forth in Section 3.1(a)
hereof.
"Offering Notice" has the meaning set forth in Section 3.1(a)
hereof.
"Other Stockholder" means (a) any transferee of a Major Stockholder
(other than a Permitted Transferee thereof), who has agreed to be bound by the
terms and conditions of this Agreement in accordance with Section 2.4 or to whom
Equity Interests have been transferred in accordance with Section 3.1(d) and (b)
any Person
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other than a Major Stockholder who has agreed to be bound by the terms and
conditions of this Agreement in accordance with Section 5.2(a).
"Operating Agreement" means the Amended and Restated Limited
Liability Company Operating Agreement of the Company dated as of the date
hereof, as the same may be amended or modified from time to time in accordance
with its terms.
"Option Plan" means the stock option plan of Holdco pursuant to
which options to purchase an aggregate of 7,500,000 shares of Holdco's Class B
Common Stock, par value $0.01 per share, are reserved and available for grant to
Representatives, officers, employees and consultants of the Company.
"Permitted Transferee" has the meaning set forth in Section 2.2
hereof.
"Person" means any individual, firm, corporation, partnership,
limited liability company, trust, incorporated or unincorporated association,
joint venture, joint stock company, government (or an agency or political
subdivision thereof) or any entity of any kind, and shall include any successor
(by merger or otherwise) of such entity.
"Preemptive Rightholders" has the meaning set forth in Section 4.1
hereof.
"Proportionate Percentage" has the meaning set forth in Section
4.2(a) hereof.
"Proposed Price" has the meaning set forth in Section 4.1 hereof.
"Put" has the meaning set forth in Section 6.1 hereof.
"Put Default" has the meaning set forth in Section 6.4 hereof.
"Put Exercise Date" has the meaning set forth in Section 6.1(a)
hereof.
"Put Notice" has the meaning set forth in Section 6.1(a) hereof.
"Put Purchase Price" has the meaning set forth in Section 6.2(a)
hereof.
"Put Securities" has the meaning set forth in Section 6.1(b) hereof.
"Put Trigger Event" has the meaning set forth in Section 6.1(a)
hereof.
"Right of First Refusal" has the meaning set forth in Section 6.5(a)
hereof.
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"Rightholder" has the meaning set forth in Section 3.1(a) hereof.
"Rightholder Option Period" has the meaning set forth in Section
3.1(b)(i) hereof.
"Securities Act" means, the Securities Act of 1933, as amended, and
the rules and regulations of the Commission thereunder.
"Securities Purchase Agreement" has the meaning set forth in the
recitals hereto.
"Selling Stockholder" has the meaning set forth in Section 3.1(a)
hereof.
"Stockholders' Meeting" has the meaning set forth in Section 7A.1
hereof.
"Subject Purchaser' has the meaning set forth in Section 4.1 hereof.
"Surviving Corporation" means the ultimate surviving corporation of
the Mergers.
"Surviving Corporation Stock" has the meaning set forth in
Section 3.2(a).
"Tag-Along Rightholder" has the meaning set forth in Section 3.1(e)
hereof.
"Tag-Along Shortfall" has the meaning set forth in Section
3.1(e)(iii) hereof.
"Third Party Purchaser" has the meaning set forth in Section 3.1(a)
hereof.
"Transfer" has the meaning set forth in Section 2.1 hereof.
"Written Consent" has the meaning set forth in Section 7A.1 hereof.
2. Restrictions on Transfer of Equity Interests.
2.1 Limitation on Transfer. No Equity Holder shall sell, give,
assign, hypothecate, pledge, encumber, grant a security interest in or otherwise
dispose of (whether by operation of law or otherwise) (each a "transfer") any
Equity Interest or any right, title or interest therein or thereto, except in
accordance with the provisions of this Agreement, including, without limitation,
Sections 2.2 and 2.4. Any attempt to transfer any Equity Interest or any rights
thereunder in violation of the preceding sentence shall be null and void ab
initio. Notwithstanding the two
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preceding sentences, immediately after the closing of the transactions
contemplated by the Securities Purchase Agreement, Xxxxxxxxx LLC may transfer
all, but not less than all, of its Company Owned Interests to Xxxxxxxxx.
2.2 Permitted Transfers. Notwithstanding anything to the
contrary contained in this Agreement, but subject to Sections 2.1, 2.3 and 2.4,
at any time, each of the Major Stockholders may transfer all or a portion of its
Equity Interests to any of its Affiliates (each a "Permitted Transferee"). A
Permitted Transferee of Equity Interests pursuant to this Section 2.2 may
transfer its Equity Interests pursuant to this Section 2.2 only to the Major
Stockholder that transferred such Equity Interest to such Permitted Transferee
or to a Person that is a Permitted Transferee of such transferor Major
Stockholder.
2.3 Permitted Transfer Procedures. If any Major Stockholder
wishes to transfer Equity Interests to a Permitted Transferee under Section 2.2,
such Major Stockholder shall give notice to (a) the issuer (the "Issuer") of
such Equity Interest and (b) each of the Equity Holders of its intention to make
any transfer permitted under Section 2.2 not less than ten (10) days prior to
effecting such transfer, which notice shall state the name and address of each
Permitted Transferee to whom such transfer is proposed, the relationship of such
Permitted Transferee to such Major Stockholder and the number of Equity
Interests proposed to be transferred to such Permitted Transferee.
2.4 Transfers in Compliance with Law; Substitution of
Transferee. Notwithstanding any other provision of this Agreement, no transfer
may be made pursuant to this Section 2 or Section 3.1 unless (a) the transferee
has agreed in writing to be bound by the terms and conditions of this Agreement
pursuant to an instrument substantially in the form attached hereto as Exhibit
A-1, (b) the transfer complies in all respects with the applicable provisions of
this Agreement and (c) the transfer complies in all respects with applicable
federal and state securities laws, including, without limitation, the Securities
Act. If requested by the Issuer, an opinion of counsel of such transferring
Major Stockholder shall be supplied to the Issuer at such transferring Major
Stockholder's expense, to the effect that such transfer complies with applicable
federal and state securities laws. Upon becoming a party to this Agreement, (i)
the Permitted Transferee of a Major Stockholder shall be substituted for, and
shall enjoy the same rights and be subject to the same obligations as, the
transferring Major Stockholder hereunder with respect to the Equity Interest
transferred to such Permitted Transferee, (ii) an Other Stockholder shall be
subject to the same obligations as, but none of the rights of, the transferring
Major Stockholder and (iii) the transferee of an Other Stockholder shall be
substituted for, and shall be subject to the same obligations as, the
transferring Other Stockholder hereunder with respect to the Equity Interest
transferred to such transferee.
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3. Right of First Offer and Tag-Along Rights; Drag-Along Rights.
3.1 Proposed Voluntary Transfers.
(a) Offering Notice. Subject to Section 2, if any Major
Stockholder, (a "Selling Stockholder") wishes to transfer all or any portion of
its Equity Interests to any Person (other than to a Permitted Transferee) (a
"Third Party Purchaser"), such Selling Stockholder shall offer such Equity
Interests first to the Major Stockholders (who, in each case, is not a Selling
Stockholder) (for the purpose of Section 3.1, each a "Rightholder" and
collectively, the "Rightholders") by sending written notice (an "Offering
Notice") to each Major Stockholder, which shall state (a) the number of Equity
Interests, proposed to be transferred (the "Offered Securities"); (b) the
proposed purchase price per Equity Interest, for the Offered Securities (the
"Offer Price"); and (c) the terms and conditions of such sale. Upon delivery of
the Offering Notice, such offer shall be irrevocable unless and until the rights
of first offer provided for herein shall have been waived or shall have expired.
The Selling Stockholder shall also promptly deliver a copy of the Offering
Notice to IX, Holdco, Xxxxxxxxx and the Company.
(b) Rightholder Option; Exercise.
(i) For a period of fifteen (15) days after the
giving of the Offering Notice pursuant to Section 3.1(a) (the "Rightholder
Option Period), the Rightholders shall have the right to purchase all, but
not less than all, of the Offered Securities at a purchase price equal to
the Offer Price and upon the terms and conditions set forth in the
Offering Notice. Each such Rightholder (except for the Xxxxxxxxx
Stockholders) shall have the right to purchase that percentage of the
Offered Securities determined by dividing (i) the portion of the Surviving
Corporation that would be owned by such Rightholder if the Mergers
occurred during the Rightholder Option Period by (ii) the portion of the
Surviving Corporation that would be owned by all such Rightholders
(excluding the Xxxxxxxxx Stockholders) if the Mergers occurred during the
Rightholder Option Period. If any such Rightholder does not fully
subscribe for the number or amount of Offered Securities it is entitled to
purchase, then each other Rightholder, including the Xxxxxxxxx
Stockholders (except any Rightholder who had the right to purchase
pursuant to the previous sentence but did not purchase), shall have the
right to purchase that percentage of the Offered Securities not so
subscribed for (for the purposes of this Section 3.1(b), the "Excess
Offered Securities") determined by dividing (x) the portion of the
Surviving Corporation that would be owned by such participating
Rightholder if the Mergers occurred during the Rightholder Option Period
by (y) the portion of the Surviving Corporation that would be owned by all
participating Rightholders who elected to purchase Excess Offered
Securities if the Mergers occurred during the Rightholder Option Period.
The procedure described in the preceding sentence shall be repeated until
there are no remaining Excess Offered Securities. If the Rightholders do
not purchase all of the Offered Securities pursuant to this Section
3.1(b), then
14
the Selling Stockholder may, subject to Section 3.1(e), sell the Offered
Securities to a Third Party Purchaser in accordance with Section 3.1(d).
(ii) The right of each Rightholder to purchase
the Offered Securities under subsection (i) above shall be exercisable by
delivering written notice of the exercise thereof, prior to the expiration
of the Rightholder Option Period, to the Selling Stockholder with a copy
to IX, Holdco, Xxxxxxxxx and the Company. Each such notice shall state the
number of Offered Securities that such Rightholder is willing to purchase
pursuant to this Section 3.1(b). The failure of a Rightholder to respond
within the Rightholder Option Period to the Selling Stockholder shall be
deemed to be a waiver of such Rightholder's rights under subsection (i)
above, provided that each Rightholder may waive its rights under
subsection (i) above prior to the expiration of the Rightholder Option
Period by giving written notice to the Selling Stockholder, with a copy to
IX, Holdco, Xxxxxxxxx and the Company.
(c) Closing. The closing of the purchases of Offered
Securities subscribed for by the Rightholders under Section 3.1(b) shall be held
at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx in New York, New
York, at 11:00 a.m., local time, on the 30th day after the giving of the
Offering Notice pursuant to Section 3.1(a) or at such other time and place as
the parties to the transaction may agree. At such closing, the Selling
Stockholder shall deliver certificates representing the Offered Securities, duly
endorsed for transfer and accompanied by all requisite transfer taxes, if any,
and such Offered Securities shall be free and clear of all Liens (other than
those arising hereunder and those attributable to actions by the purchaser
thereof) and the Selling Stockholder shall so represent and warrant, and shall
further represent and warrant that it is the sole beneficial and record owner of
such Offered Securities. The Rightholder purchasing Offered Securities shall
deliver at the closing payment in full in immediately available funds for the
Offered Securities purchased by it. At such closing, all of the parties to the
transaction shall execute such additional documents as are otherwise necessary
or appropriate.
(d) Sale to a Third Party Purchaser. Unless the
Rightholders elect to purchase all, but not less than all, of the Offered
Securities under Section 3.1(b), the Selling Stockholder may, subject to Section
3.1(e), sell all, but not less than all, the Offered Securities to a Third Party
Purchaser on the terms and conditions set forth in the Offering Notice;
provided, however, that (i) such sale is bona fide and made pursuant to a
contract entered into within thirty (30) days after the expiration of the
Rightholder Option Period (the "Contract Date"); (ii) such sale shall not be
consummated unless and until (x) such Third Party Purchaser shall represent in
writing to IX, Holdco, Xxxxxxxxx, the Company and each Rightholder that it is
aware of the rights of the Major Stockholders contained in this Agreement and
(y) prior to the purchase by such Third Party Purchaser of any of such Offered
Securities, such Third Party Purchaser shall become a party to this Agreement
and shall agree to be bound by the terms and conditions hereof in accordance
with Section 2.4 hereof and (iii) if such Third Party Purchaser is acquiring 50%
or more
15
of the issued and outstanding IX Common Stock within four (4) years of the date
hereof, then IX shall have transferred all right, title and interest in the
Intellectual Property to the Company. If such sale is not consummated within
sixty (60) days after the Contract Date for any reason, then the restrictions
provided for herein shall again become effective, and no transfer of such
Offered Securities may be made thereafter by the Selling Stockholder without
again offering the same to the Rightholders in accordance with this Section 3.1.
(e) Tag-Along Rights.
(i) If a Major Stockholder is the Selling
Stockholder transferring Offered Securities to a Third Party Purchaser
pursuant to Section 3.1(d), then each of the Major Stockholders (other
than the Selling Stockholder) (each, a "Tag-Along Rightholder") shall have
the right to sell to such Third Party Purchaser a number of Equity
Interests held by such Tag- Along Rightholder equal to the quotient of (i)
the portion of the Surviving Corporation that would be owned by such
Tag-Along Rightholder if the Mergers occurred during the Rightholder
Option Period and (ii) the total portion of the Surviving Corporation that
would be owned by all such Tag- Along Rightholders exercising their rights
pursuant to this Section 3.1(e) if the Mergers occurred during the
Rightholder Option Period plus the portion of the Surviving Corporation
that would be owned by the Selling Stockholder if the Mergers occurred
during the Rightholder Option Period. Subject to subsection (ii) below,
the Selling Stockholder and the Tag-Along Rightholder(s), together, shall
effect the sale of the Offered Securities as follows: such Tag-Along
Rightholder(s) shall sell up to the number permitted to be sold pursuant
to this Section 3.1(e)(i), and the number of Offered Securities to be sold
to such Third Party Purchaser by the Selling Stockholder shall be reduced
accordingly. The sale price of the Equity Interests sold pursuant to this
Section 3.1(e)(i) and the Offered Securities shall be calculated so that
Equity Interests that are equivalent to the same amount of Surviving
Corporation Stock assuming the Mergers occurred during the Rightholder
Option Period are sold for the same amount of consideration.
(ii) Each Selling Stockholder shall give notice
to each Tag-Along Rightholder of each proposed sale by it of Offered
Securities which gives rise to the rights of the Tag-Along Rightholders
set forth in this Section 3.1(e), at least fifteen (15) days prior to the
proposed consummation of such sale, setting forth the name of such Selling
Stockholder, the number of Offered Securities, the name and address of the
proposed Third Party Purchaser, the proposed amount and form of
consideration and terms and conditions of payment offered by such Third
Party Purchaser, the number of Equity Interests that such Tag-Along
Rightholder may sell to such Third Party Purchaser (determined in
accordance with Section 3.1(e)(i)), and a representation that such Third
Party Purchaser has been informed of the "tag- along" rights provided for
in this Section 3.1(e) and has agreed to purchase Equity Interests in
accordance with the terms hereof. The tag-along rights
16
provided by this Section 3.1(e) must be exercised by any Tag-Along
Rightholder wishing to sell its shares within ten (10) days following
receipt of the notice required by the preceding sentence, by delivery of a
written notice to the Selling Stockholder indicating such Tag-Along
Rightholder's wish to exercise its rights and specifying the number of
Equity Interests (up to the maximum number of Equity Interests owned by
such Tag-Along Rightholder required to be purchased by such Third Party
Purchaser), it wishes to sell, provided that any Tag-Along Rightholder may
waive its rights under this Section 3.1(e) prior to the expiration of such
10-day period by giving written notice to the Selling Stockholder, with a
copy to IX, Holdco, Xxxxxxxxx and the Company. The failure of a Tag-Along
Rightholder to respond within such 10- day period shall be deemed to be a
waiver of such Tag-Along Rightholder's rights under this Section 3.1(e).
If a Third Party Purchaser fails to purchase Equity Interests, from any
Tag-Along Rightholder that has properly exercised its tag-along rights
pursuant to this Section 3.1(e)(ii), then the relevant Selling Stockholder
shall not be permitted to consummate the proposed sale of the Offered
Securities, and any such attempted sale shall be null and void ab initio.
(iii) In connection with any exercise of "tag-
along" rights by the General Atlantic Stockholders and the Engage
Stockholders pursuant to this Section 3.1(e) in the event of a Company
Sale, if the General Atlantic Stockholders and Engage Stockholders in the
aggregate will not receive consideration in the Company Sale at least
equal to the consideration paid by Holdco for the Company Owned Interests
it purchased pursuant to the Securities Purchase Agreement plus six
percent (6%) simple interest per annum on such amount, calculated from the
date hereof through the closing date of the Company Sale (such shortfall,
the "Tag-Along Shortfall"), then at the closing of the Company Sale, and
as a condition to the closing of the Company Sale, (A) the Surviving
Corporation shall deliver to GAP LLC, on behalf of the General Atlantic
Stockholders, and to Engage, on behalf of the Engage Stockholders, a
certificate certified by its chief financial officer, stating whether or
not there will be a Tag-Along Shortfall and, if so, the amount of the
Tag-Along Shortfall and (B) if there is a Tag-Along Shortfall, NFO shall
pay the amount of such Tag-Along Shortfall by wire transfer of immediately
available funds to GAP LLC, on behalf of the General Atlantic
Stockholders, and to Engage, on behalf of the Engage Stockholders. In the
event that the consideration paid in the Company Sale is not cash or a
publicly-traded security, then the value of such consideration shall be
agreed upon by GAP LLC and NFO; provided, however, that if such parties
fail to agree as to such value it shall be the Fair Value thereof
determined in accordance with Section 3.2(d)(ii).
17
3.2 Drag-Along Rights.
(a) Triggering Event. Notwithstanding any
restrictions on the transfer of Equity Interests in this Agreement, if IX
approves a sale of the Company to a third party (the "Acquiror"), whether by
sale of Company Interests, merger, sale of all or substantially all of the
assets of the Company or otherwise (a "Company Sale"), thereby triggering the
Mergers, then the Surviving Corporation shall have the right, subject to the
provisions of this Section 3.2 (the "Drag-Along Right"), to require each of the
holders of capital stock of the Surviving Corporation (the "Surviving
Corporation Stock") to (i) if such Company Sale is structured as a sale of
Surviving Corporation Stock, sell, transfer and deliver to the Acquiror all
Surviving Corporation Stock owned by them or (ii) if such Company Sale is
structured as a merger, consolidation, asset sale or other transaction requiring
the consent or approval of some or all of the holders of Surviving Corporation
Stock, vote such holder's Surviving Corporation Stock in favor thereof, and
otherwise consent to and raise no objection to such transaction, and waive any
dissenters' rights, appraisal rights or similar rights which such holder may
have in connection therewith; and, in any such event, subject to the provisions
of subsection (c) below, each such holder shall agree to and shall be bound by
the terms, provisions and conditions of the Company Sale.
(b) Drag-Along Notice. If IX and/or the Surviving
Corporation desires to exercise its Drag-Along Right, it shall give written
notice to the holders of Equity Interests and/or Surviving Corporation Stock
(the "Drag-Along Notice") of the Company Sale, setting forth the name and
address of the Acquiror, the date on which such transaction is proposed to be
consummated (which shall not be less than thirty (30) days after the date such
Drag-Along Notice is given) and the proposed amount and form of consideration
and any other material terms and conditions, including without limitation, the
material terms of any debt or equity proposed to be included in such
transaction.
(c) Condition to Company Sale. The obligations of
the holders of Surviving Corporation Stock in respect of a Company Sale are
subject to the satisfaction of the following conditions: (i) upon the
consummation of the Company Sale, the same form of consideration and the same
portion of the aggregate consideration realized upon such Company Sale shall be
paid or distributed in respect of each share of Surviving Corporation Stock then
issued and outstanding and (ii) if any holder of Surviving Corporation Stock is
given an option as to the form and amount of consideration to be received, each
other such holder shall be given the same option.
(d) Minimum Price.
(i) In connection with any Company Sale
referred to in subsection (a), if the General Atlantic Stockholders and
Engage Stockholders in the aggregate will not receive consideration in the
Company Sale at least equal to the consideration paid by Holdco for the
Company
18
Owned Interests it purchased pursuant to the Securities Purchase Agreement
plus six percent (6%) simple interest per annum on such amount, calculated
from the date hereof through the closing date of the Company Sale (such
shortfall, the "Drag-Along Shortfall"), then at the closing of the Company
Sale, and as a condition to the closing of the Company Sale, (A) the
Surviving Corporation shall deliver to GAP LLC, on behalf of the General
Atlantic Stockholders, and to Engage, on behalf of the Engage
Stockholders, a certificate certified by its chief financial officer,
stating whether or not there will be a Drag-Along Shortfall and, if so,
the amount of the Drag-Along Shortfall and (B) if there is a Drag-Along
Shortfall, NFO shall pay the amount of such Drag-Along Shortfall by wire
transfer of immediately available funds to GAP LLC, on behalf of the
General Atlantic Stockholders, and to Engage, on behalf of the Engage
Stockholders. In the event that the consideration paid in the Company Sale
is not cash or a publicly-traded security, then the value of such
consideration shall be agreed upon by GAP LLC and NFO; provided, however,
that if such parties fail to agree as to such value it shall be the Fair
Value thereof determined in accordance with subsection (ii) below.
(ii) The Fair Value of the consideration paid in
the Company Sale shall be determined by a nationally recognized investment
bank selected by NFO and consented to by GAP LLC (which consent will not
be unreasonably withheld). Such investment bank shall conduct its
determination as promptly as practicable. Such determination shall be
final and binding. NFO, on the one hand, and the Holdco Stockholders (in
proportion to their ownership of Holdco Shares), on the other hand, shall
each be responsible for fifty percent (50%) of the fees and expenses of
such investment bank.
(iii) If (x) there is a Change of Control of NFO
within 180 days of the closing of the Company Sale and (y) the acquiror of
NFO is the Acquiror, then within five (5) days of such Change of Control
of NFO, NFO (or the surviving Person if NFO has been merged with another
Person) shall send a notice to GAP LLC, on behalf of the General Atlantic
Stockholders, and to Engage, on behalf of the Engage Stockholders,
informing them that the Acquiror has acquired NFO and stating the
Alternate Investment Amount. If the Alternate Investment Amount is greater
than the amount the General Atlantic Stockholders and Engage Stockholders
in the aggregate received in the Company Sale (plus, if applicable, the
Drag-Along Shortfall paid pursuant to subsection (i) above) (such amount,
the "Change of Control Shortfall"), then within five (5) Business Days of
notice by GAP LLC, on behalf of the General Atlantic Stockholders, and to
Engage, on behalf of the Engage Stockholders, to NFO (or the surviving
Person if NFO has been merged with another Person), that such Change of
Control Shortfall exists, NFO or the Acquiror shall pay the amount of such
Change of Control Shortfall by wire transfer of immediately available
funds to GAP LLC, on behalf of the General Atlantic Stockholder, and to
Engage, on behalf of the Engage Stockholders.
19
4. Preemptive Rights.
4.1 Offering Notice. Except for (a) interests in the Company
issued upon exercise, conversion or exchange of any Company Interest Equivalent
and (b) Company Interests issued in consideration of an acquisition by the
Company of another Person, approved by the Board of Representatives ((a) and (b)
being referred to together as "Exempt Issuances"), if the Company wishes to
issue any Company Interest or Company Interest Equivalent (collectively, "New
Securities") to any Person (the "Subject Purchaser"), then the Company shall
offer such New Securities first to each of the Major Stockholders (each, a
"Preemptive Rightholder" and collectively, the "Preemptive Rightholders") by
sending written notice (the "New Issuance Notice") to the Preemptive
Rightholders, which New Issuance Notice shall state (i) the number of New
Securities proposed to be issued and (ii) the proposed purchase price per
security of the New Securities (the "Proposed Price"). Upon delivery of the New
Issuance Notice, such offer shall be irrevocable unless and until the rights
provided for in Section 4.2 shall have been waived or shall have expired.
4.2 Preemptive Rights; Exercise.
(a) For a period of fifteen (15) days after the giving
of the New Issuance Notice pursuant to Section 4.1, each of the Preemptive
Rightholders shall have the right to purchase its Proportionate Percentage (as
hereinafter defined) of the New Securities at a purchase price equal to the
Proposed Price and upon the terms and conditions set forth in the New Issuance
Notice. Each such Preemptive Rightholder shall have the right to purchase that
percentage of the New Securities equal to portion of the Surviving Corporation
that would be owned by such Preemptive Rightholder exercising its rights under
this Section 4.2 if the Mergers occurred on the date of the New Issuance Notice
(the "Proportionate Percentage"). If any Preemptive Rightholder does not fully
subscribe for the number or amount of New Securities that it is entitled to
purchase pursuant to the preceding sentence, then each Preemptive Rightholder
which elected to purchase New Securities shall have the right to purchase that
percentage of the remaining New Securities not so subscribed for (the "Excess
New Securities") determined by dividing (x) the portion of the Surviving
Corporation that would be owned by such fully participating Preemptive
Rightholder if the Mergers occurred on the date of the New Issuance Notices by
(y) the total portion of the Surviving Corporation that would be owned by all
fully participating Preemptive Rightholders who elected to purchase Excess New
Securities if the Mergers occurred on the date of the New Issuance Notice.
(b) The right of each Preemptive Rightholder to
purchase the New Securities under subsection (a) above shall be exercisable by
delivering written notice of the exercise thereof, prior to the expiration of
the 15-day period referred to in subsection (a) above, to the Company, which
notice shall state the amount of New Securities that such Preemptive Rightholder
elects to purchase pursuant to Section 4.2(a). The failure of a Preemptive
Rightholder to respond within such 15-day period shall be deemed to be a waiver
of such Preemptive Rightholder's rights under Section 4.2(a), provided that each
Preemptive Rightholder may waive its
20
rights under Section 4.2(a) prior to the expiration of such 15-day period by
giving written notice to the Company.
4.3 Closing. The closing of the purchase of New Securities
subscribed for by the Preemptive Rightholders under Section 4.2 shall be held at
the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx in New York, New York at
11:00 a.m., local time, on (a) the fortieth (40th) day after the giving of the
New Issuance Notice pursuant to Section 4.1, if the Preemptive Rightholders
elect to purchase all of the New Securities under Section 4.2, (b) the date of
the closing of the sale to the Subject Purchaser made pursuant to Section 4.4 if
the Preemptive Rightholders elect to purchase some, but not all, of the New
Securities under Section 4.2 or (c) at such other time and place as the parties
to the transaction may agree. At such closing, the Company shall deliver
certificates, if the are to be certificated, representing the New Securities,
and such New Securities shall be issued free and clear of all Liens and the
Company shall so represent and warrant, and further represent and warrant that
such New Securities shall be, upon issuance thereof to the Preemptive
Rightholders and after payment therefor, duly authorized, validly issued, fully
paid and non-assessable. Each Preemptive Rightholder purchasing the New
Securities shall deliver at the closing payment in full in immediately available
funds for the New Securities purchased by it. At such closing, all of the
parties to the transaction shall execute such additional documents as are
otherwise necessary or appropriate.
4.4 Sale to Subject Purchaser. The Company may sell to the
Subject Purchaser all of the New Securities not purchased by the Preemptive
Rightholders pursuant to Section 4.2 on terms and conditions that are no more
favorable to the Subject Purchaser than those set forth in the New Issuance
Notice; provided, however, that such sale is bona fide and made pursuant to a
contract entered into within ninety (90) days following the earlier to occur of
(i) the waiver by the Preemptive Rightholders of their option to purchase New
Securities pursuant to Section 4.2 and (ii) the expiration of the 15-day period
referred to in Section 4.2. If such sale is not consummated within such ninety
(90) day period for any reason, then the restrictions provided for herein shall
again become effective, and no issuance and sale of New Securities may be made
thereafter by the Company without again offering the same in accordance with
this Section 4. The closing of any issuance and purchase pursuant to this
Section 4.4 shall be held at a time and place as the parties to the transaction
may agree.
4.5 Preemptive Rights with respect to Holdco Securities.
Except for the issuance of Holdco Shares pursuant to the exercise of options
under the Option Plan, if Holdco wishes to issue any securities to any Person,
then each Holdco Stockholder shall have the right to purchase its pro-rata
portion of such proposed issuance so that such Holdco Stockholder can maintain
its percentage ownership interest in Holdco.
21
5. After-Acquired Securities; Agreement to be Bound.
5.1 After-Acquired Securities. All of the provisions of this
Agreement shall apply to all of the Equity Interests and Equity Interest
Equivalents now owned or which may be issued or transferred hereafter to an
Equity Holder in consequence of any additional issuance, purchase, exchange or
reclassification of any of such Equity Interests or Equity Interest Equivalents,
company reorganization, or any other form of recapitalization, consolidation,
merger, unit split or distribution, or which are acquired by an Equity Holder in
any other manner.
5.2 Agreement to be Bound. None of IX, Holdco, Xxxxxxxxx or
the Company, as the case may be, shall issue any Equity Interests or any Equity
Interest Equivalents to any Person not a party to this Agreement, other than to
Representatives, officers, employees or consultants of the Company pursuant to
the Option Plan, unless either (a) such Person has agreed in writing to be bound
by the terms and conditions of this Agreement pursuant to an instrument
substantially in the form attached hereto as Exhibit A-2 or (b) such Person has
entered into an agreement with IX, Holdco, Xxxxxxxxx or the Company, as the case
may be, restricting the transfer of its Equity Interests in form and substance
reasonably satisfactory to NFO and General Atlantic. Upon becoming a party to
this Agreement, such Person shall be deemed to be, and shall be subject to the
same obligations as, an Other Stockholder hereunder. Any issuance of Equity
Interests or any Equity Interest Equivalents by IX, Holdco, Xxxxxxxxx or the
Company, as the case may be, in violation of this Section 5.2 shall be null and
void ab initio.
6. Holdco Put.
6.1 Exercise.
(a) By Holdco Stockholders. Notwithstanding
anything to the contrary contained in this Agreement if, on or before the fourth
anniversary of the Closing Date, the Company (or its successor in interest)
shall not have consummated an Initial Public Offering or closed a Company Sale
(the "Put Trigger Event"), then following the fourth anniversary of the Closing
Date, a majority in interest of the Holdco Stockholders shall have the right and
option (the "Put") to require the Company to purchase all, but not less than
all, of the Holdco Shares held by all of the Holdco Stockholders (the " Holdco
Put Securities"). If the Put right is exercised, Holdco, on behalf of the Holdco
Stockholders, shall deliver promptly to the Company, with a copy to the other
Equity Holders, notice (the "Put Notice") of (a) the exercise by Holdco of the
Put and (b) the number of Holdco Put Securities held by the Holdco Stockholders
(the date on which Holdco gives the Put Notice being hereinafter referred to as
the "Put Exercise Date"). Notwithstanding the foregoing, upon the consent of
Holdco, in its sole discretion, the Company may assign to another Person (the
"Company Transferee") the Company's obligation to purchase the Holdco Put
Securities pursuant to this Section 6, but the Company shall not be relieved of
its obligations hereunder.
22
(b) Xxxxxxxxx Tag-Along. If the Put is exercised, a
majority in interest of the Xxxxxxxxx Stockholders shall have the right and
option (the "Xxxxxxxxx Put") to require the Company to purchase all, but not
less than all, of the Xxxxxxxxx Shares held by all of the Xxxxxxxxx Stockholders
(the "Xxxxxxxxx Put Securities" and, together with the Holdco Put Securities,
the "Put Securities") on the same terms and conditions (but not necessarily the
same price (see 6.2 below)) as the Holdco Put Securities. If the Xxxxxxxxx Put
is exercised, Xxxxxxxxx, on behalf of the Xxxxxxxxx Stockholders, shall deliver
to the Company, with a copy to the other Equity Holders within seven (7) days of
the Put Exercise Date, notice of the exercise by Xxxxxxxxx of the Xxxxxxxxx Put
and the number of Xxxxxxxxx Put Securities held by the Xxxxxxxxx Stockholders.
6.2 Purchase Price.
(a) If Holdco exercises the Put, the Company or the
Company Transferee, as the case may be, shall purchase, and the Holdco
Stockholders shall sell, all of the Holdco Put Securities held by the Holdco
Stockholders at a purchase price equal to the greater of (i) the consideration
paid by Holdco for the Company Owned Interests it purchased pursuant to the
Securities Purchase Agreement plus six percent (6%) simple interest per annum on
such amount, calculated from the date hereof through the date preceding the
closing date referred to below and (ii) the Fair Value of the Holdco Put
Securities (assuming the consummation of the Mergers and the existence of only
one class of Surviving Corporation Stock) as determined in accordance with the
procedures set forth in Section 6.2(b) (the "Holdco Put Purchase Price"). If
Xxxxxxxxx exercises the Xxxxxxxxx Put, the Company or the Company Transferee, as
the case may be, shall purchase, and the Xxxxxxxxx Stockholders shall sell, all
of the Xxxxxxxxx Put Securities held by the Xxxxxxxxx Stockholders at a purchase
price equal to the Fair Value of the Xxxxxxxxx Put Securities (assuming the
consummation of the Mergers and the existence of only one class of Surviving
Corporation Stock) as determined in accordance with the procedures set forth in
Section 6.2(b) (the "Xxxxxxxxx Put Purchase Price" and, together with the
"Holdco Put Purchase Price, the "Put Purchase Price").
(b) The Fair Value shall be agreed upon by the
Company and Holdco (and by Xxxxxxxxx, whose agreement shall not be unreasonably
withheld, if the Company and Holdco agree that Fair Value is less than the
amount set forth in Section 6.2(a)(i)); provided, however, that if such parties
fail to agree, the Fair Value shall be determined by a panel of three
independent appraisers, which shall be nationally recognized investment banking
firms or nationally recognized experts experienced in the valuation of entities
engaged in the business conducted by the Company. Within five (5) days after the
date the applicable parties determine that they cannot agree as to the purchase
price, the Company and Holdco shall each designate one such appraiser that is
willing and able to conduct such determination. If either fails to make such
designation within such period, then the other party that has made the
designation shall have the right to make the designation on its behalf. The two
appraisers designated shall, within a period of five (5) days after the
designation of the second appraiser, designate a mutually acceptable third
appraiser.
23
The three appraisers shall conduct their determination as promptly as
practicable, and the Fair Value shall be the average of the determination of the
two appraisers that are closer to each other than to the determination of the
third appraiser, which third determination shall be discarded; provided,
however, that if the determination of two appraisers are equally close to the
determination of the third appraiser, then the Fair Value shall be the average
of the determination of all three appraisers. Such determination shall be final
and binding. The Company and Holdco shall each be responsible for fifty percent
(50%) of the fees and expenses of the appraisers, unless Xxxxxxxxx'x
disagreement requires the use of appraisers to determine fair value, in which
case Xxxxxxxxx shall pay Holdco's share of the fees and expenses.
6.3 Closing.
(a) Delivery of Put Securities. The closing of the Put
exercised by the Holdco Stockholders and the Xxxxxxxxx Put exercised by the
Xxxxxxxxx Stockholders pursuant to this Section 6 shall be held at the offices
of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx in New York, New York at 11:00 a.m.,
local time, on the date mutually agreed upon by the Company or the Company
Transferee, as the case may be, and Holdco, provided that in no event shall such
closing occur more than forty-five (45) days after the Put Exercise Date. At
such closing the Holdco Stockholders and the Xxxxxxxxx Stockholders shall
deliver certificates representing the Put Securities, duly endorsed for transfer
and accompanied by all requisite transfer taxes, if any, and such Put Securities
shall be free and clear of all Liens and each of the Holdco Stockholders and the
Xxxxxxxxx Stockholders shall so represent and warrant as to itself, and shall
further represent and warrant that (i) the Company Owned Interests held by such
Holdco Interestholder or such Xxxxxxxxx Interestholder are free and clear of all
Liens, (ii) each of Holdco and Xxxxxxxxx, respectively, has no debts or
liabilities, except for liabilities Holdco may have pursuant to the Option Plan
and (iii) such Holdco Stockholder or Xxxxxxxxx Stockholder is the sole
beneficial and record owner of the Put Securities owned by it. At such closing,
all of the parties to the transaction shall execute such additional documents as
are otherwise necessary or appropriate.
(b) Payment of Put Purchase Price. If the Company
assigns its obligations under this Section 6 to the Company Transferee, then the
Company Transferee shall deliver to the Holdco Stockholders and the Xxxxxxxxx
Stockholders at the closing payment in full in immediately available funds for
all of the Put Securities or shall make other arrangements for payment
satisfactory to Holdco, which arrangements shall be guaranteed by the Company.
If the Company does not assign its obligations under this Section 6 to the
Company Transferee, then the Put Purchase Price for the Put Securities being
purchased shall be paid in full by the Company at the closing as follows:
(i) the Company shall pay twenty-five percent
(25%) of the Put Purchase Price at the closing by wire transfer of
immediately available funds to an account or accounts specified in writing
by the Holdco Stockholders and the Xxxxxxxxx Stockholders; and
24
(ii) the Company shall make and issue to the
Holdco Stockholders and the Xxxxxxxxx Stockholders, at the closing, one or
more promissory notes, which shall contain reasonable terms and covenants
(the "Company Notes") in favor of such Stockholder in the aggregate
principal amount of seventy-five percent (75%) of the respective Put
Purchase Prices, bearing interest from and after the Put Exercise Date at
the rate of six percent (6%) simple interest per annum. Principal shall be
repaid on the Company Note in equal installments of twenty-five percent
(25%) of the Put Purchase Price on each of the first, second and third
anniversaries of the Put Exercise Date. Interest on the Company Note shall
be due and payable on the principal repayment dates.
(c) Subordination. In no event shall any payment on
a Company Note issued in favor of any Xxxxxxxxx Stockholder be made unless all
amounts due under Company Notes issued in favor of all of the Holdco
Stockholders up to including such day of payment have been paid in full.
6.4 Put Default. If (a) the Company or the Company Transferee,
as the case may be, fails to consummate the closing of the Put within the time
periods set forth in Section 6.3 or (b) the Company fails to cure any failure to
make payments due under the Company Notes within five (5) Business Days of
notice from a Holdco Stockholder of such failure (a "Put Default") General
Atlantic shall have the right (pursuant to an irrevocable proxy which IX, on
behalf of itself and the other IX Interestholders, hereby grants to General
Atlantic in the event of a Put Default and until such Put Default is cured
(provided that if subsequent Put Defaults occur this irrevocable proxy shall
again take effect)) to vote the Company Interests held by the IX Interestholders
in favor of expanding the Board of Representatives of the Company from five (5)
members to seven (7) members and designating four (4) of such members pursuant
to Section 5.2(b) of the Operating Agreement.
6.5 NFO Right of First Refusal.
(a) Offering Notice. Any time after a Put Default,
notwithstanding any other provision of this Agreement to the contrary, if
General Atlantic receives a bona fide offer from a third party (other than a
Permitted Transferee) (the "First Refusal Offeror") to acquire control of the
Company through a Company Sale (a "First Refusal Offer") and General Atlantic
desires to accept the Third Party Offer, then General Atlantic shall make an
offer to NFO to permit NFO to acquire the Company on the same terms and
conditions as the Third Party Offeror (the "Right of First Refusal"), by sending
written notice (a "First Refusal Offering Notice") to NFO, which shall state (i)
the proposed sale price (the "First Refusal Offer Price") and (ii) the terms and
conditions of such sale. Upon delivery of the First Refusal Offering Notice,
such offer shall be irrevocable unless and until the Right of First Refusal
provided for herein shall have been waived or shall have expired. General
Atlantic shall promptly deliver a copy of the First Refusal Offering Notice to
each of the other Equity Holders.
25
(b) First Refusal Exercise. For a period of forty-five
(45) days after the giving of the First Refusal Offering Notice pursuant to
Section 6.5(a) (the "First Refusal Option Period"), NFO shall have the right but
not the obligation to acquire the Company at a purchase price equal to the First
Refusal Offer Price and upon the terms and conditions set forth in the First
Refusal Offering Notice. The Right of First Refusal shall be exercisable by
delivering written notice of the exercise thereof, prior to the expiration of
the 45-day period referred to above, to General Atlantic and the Company, with a
copy to each of the other Equity Holders. The failure of NFO to respond within
such 45-day period shall be deemed to be a waiver of its Right of First Refusal,
provided that NFO may waive its rights under this Section 6.5(b) prior to the
expiration of such 45-day period by giving written notice to General Atlantic or
the Company, with a copy to each of the other Equity Holders.
(c) Closing. The closing of the Company Sale pursuant to
the Right of First Refusal shall be held at the offices of Xxxx, Weiss, Rifkind,
Xxxxxxx & Xxxxxxxx in New York, New York at 11:00 a.m., local time, on the
thirtieth (30th) day after the expiration of the First Refusal Option Period or
at such other time and place as the parties to the transaction may agree. NFO
shall deliver at the closing payment in full in immediately available funds for
the Company Sale. At such closing, all of the parties to the transaction shall
execute such additional documents as are otherwise necessary or appropriate.
(d) Sale to a First Refusal Offeror. Unless NFO
exercises its Right of First Refusal, General Atlantic, on behalf of the
Company, if applicable, may enter into a definitive agreement with the First
Refusal Offeror to consummate the Company Sale on the terms and conditions set
forth in the First Refusal Offering Notice, which shall be binding on all of the
Equity Holders; provided, however, that such sale is bona fide and made pursuant
to a contract entered into within sixty (60) days after the earlier to occur of
(i) the waiver by NFO and (ii) the expiration of the First Refusal Option Period
(the "First Refusal Contract Date"). Such sale may take the form that General
Atlantic believes most effective under the circumstances, and IX and the Company
agree to cooperate with General Atlantic to effectuate such sale, including
making information available, making presentations and executing such documents
as may be necessary to effectuate such sale transaction. If such sale is not
consummated within seventy-five (75) days after the First Refusal Contract Date
for any reason, then the restrictions provided for herein shall again become
effective, and no Company Sale may be made thereafter without again offering the
same to NFO in accordance with this Section 6.5.
7. IX Call.
7.1 Exercise. Notwithstanding anything to the contrary
contained in this Agreement, at any time following the third (3rd) anniversary
of the Closing Date, IX shall have the right and option (the "Call") to require
all of the Holdco Stockholders and the Xxxxxxxxx Stockholders to sell all, but
not less than all, of the Equity Interests (other than Company Interests) held
by the Holdco
26
Stockholders and the Xxxxxxxxx Stockholders (the "Call Securities"). If the Call
right is exercised, IX shall deliver promptly to the Company, the Holdco
Stockholders and the Xxxxxxxxx Stockholders, with a copy to the other Equity
Holders, notice (the "Call Notice") of the exercise by the IX Interestholders of
the Call (the date on which IX gives the Call Notice being hereinafter referred
to as the "Call Exercise Date").
7.2 Purchase Price. If IX exercises the Call, IX shall
purchase, and the Holdco Stockholders and the Xxxxxxxxx Stockholders shall sell,
all of the Call Securities at a purchase price equal to the greater of (a) the
amount set forth in Section 6.2(a), (b) the Fair Value of the Call Securities
(assuming the consummation of the Mergers and the existence of only one class of
Surviving Corporation Stock) as determined in accordance with the procedures set
forth in Section 6.2(b) and (c) the Alternate Investment Amount, except that in
determining such Alternate Investment Amount the clause "the closing of the
transaction that caused the Change of Control of NFO" in the definition of
"Appreciation" shall be replaced by the clause "the Call Exercise Date;"
provided, however that the purchase price paid to the Xxxxxxxxx Stockholders
shall be the amount set forth in clause (b) above.
7.3 Closing.
(a) Delivery of Call Securities. The closing of the Call
exercised by IX shall be held at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx &
Xxxxxxxx in New York, New York at 11:00 a.m., local time, on the date mutually
agreed upon by IX and Holdco, provided that in no event shall such closing occur
more than forty-five (45) days after the Call Exercise Date. At such closing the
Holdco Stockholders and Xxxxxxxxx Stockholders shall deliver to IX certificates
representing the Call Securities, duly endorsed for transfer and accompanied by
all requisite transfer taxes, if any, and such Call Securities shall be free and
clear of all Liens and each of the Holdco Stockholders and the Xxxxxxxxx
Stockholders shall so represent and warrant as to itself, and shall further
represent and warrant that (i) the Call Securities held by such Holdco
Stockholder or such Xxxxxxxxx Stockholder are free and clear of all Liens, (ii)
each of Holdco and Xxxxxxxxx, respectively, has no debts or liabilities, except
for liabilities Holdco may have pursuant to the Option Plan and (iii) such
Holdco Stockholder or such Xxxxxxxxx Stockholders is the sole beneficial and
record owner of the Call Securities owned by it. At such closing, all of the
parties to the transaction shall execute such additional documents as are
otherwise necessary or appropriate.
(b) Payment of Call Purchase Price. IX shall deliver to
the Holdco Stockholders and the Xxxxxxxxx Stockholders, at the closing payment
in full in immediately available funds for all of the Call Securities or shall
make other arrangements for payment satisfactory to Holdco; provided, however,
that in the event the consideration to be paid to the Holdco Stockholders has
been determined pursuant to clause (c) of Section 7.2, IX shall be entitled, in
its sole discretion, to pay the portion of such consideration equal to the
difference between (x) the amount determined pursuant to clause (c) of such
Section 7.2 and (y) an amount equal to the
27
greater of the amounts determined pursuant to clauses (a) and (b) of Section
7.2, in newly issued shares of NFO Common Stock.
Section 7A. Governance Following Mergers.
7A.1 General. From and after the occurrence of the Mergers,
each Stockholder of the Surviving Corporation that is a party hereto shall vote
its shares of Surviving Corporation Stock, at any regular or special meeting of
stockholders of the Surviving Corporation (each a "Stockholders' Meeting"), or
in any written consent executed in lieu of such a meeting of stockholders (a
"Written Consent"), and shall take all other actions necessary to give effect to
the agreements contained in this Section 7A and to ensure that the certificate
of incorporation and by-laws of the Surviving Corporation do not at any time
conflict in any respect with the provisions of this Section 7A. In addition,
each such Stockholder shall vote its shares of Surviving Corporation Stock at
any Stockholders' Meeting, or act by Written Consent with respect to such
shares, upon any matter submitted for action by the Surviving Corporation's
stockholders, or with respect to which such Stockholder may vote or act by
Written Consent, in conformity with the specific terms and provisions of this
Agreement and the certificate of incorporation and by-laws.
7A.2 Election of Directors. Each Stockholder shall vote its
shares of Surviving Corporation Stock at any Stockholders' Meeting, or act by
Written Consent with respect to such shares, and take all other actions
necessary to ensure that the number of directors constituting the entire Board
of Directors of the Surviving Corporation shall initially be five (5). Each
Stockholder shall vote its shares of Surviving Corporation Stock at any
Stockholders' Meeting called for the purpose of filling the positions on the
Board of Directors, or in any Written Consent executed for such purpose, and
take all other actions necessary to ensure the election to the Board of
Directors of three individuals, who shall be designated by NFO (the "NFO
Directors") and two individuals, who shall be designated by General Atlantic
(the "GAP Directors").
7A.3 Removal and Replacement.
(i) NFO shall be entitled at any time and for any reason
(or for no reason) to designate any or all of the NFO Directors for
removal. If, at any time, a vacancy is created on the Board of Directors
by reason of the death, removal or resignation of any NFO Director, NFO
shall, as soon as practicable after the date such vacancy first occurs and
in any event prior to the transaction of any other business by the
stockholders or the Board of Directors, designate a nominee to be elected
to fill such vacancy until the next annual meeting of stockholders of the
company.
(b) General Atlantic shall be entitled at any time and
for any reason (or for no reason) to designate either or both of the GAP
Directors for removal. If, at any time, a vacancy is created on the Board
of Directors by reason of the death, removal or resignation of either GAP
28
Director, General Atlantic shall, as soon as practicable after the date
such vacancy first occurs and in any event prior to the transaction of any
other business by the stockholders or the Board of Directors, designate a
nominee to be elected to fill such vacancy until the next annual meeting
of stockholders of the Company.
7A.4 Termination of Sections 7A.2 and 7A.3.
(a) Notwithstanding anything herein to the contrary,
from and after the date that NFO beneficially owns an aggregate number of
shares of Surviving Corporation Stock that, constitute less than ten
percent (10%) of the total outstanding capital stock, NFO shall be
entitled to designate two directors for election or removal pursuant to
Section 7A.2 or 7A.3, respectively; from and after the date that such
beneficial ownership of NFO shall collectively constitute less than seven
percent (7%) of the total outstanding shares of Surviving Corporation
Stock, NFO shall be entitled to designate one director for election or
removal pursuant to Section 7A.2 or 7A.3, respectively; and from and after
the date such beneficial ownership of NFO shall constitute less than three
percent (3%) of the total outstanding shares of Surviving Corporation
Stock, NFO shall no longer be entitled to designate any directors for
election or removal pursuant to Section 7A.2 or 7A.3, respectively.
(b) Notwithstanding anything herein to the contrary,
from and after the date that General Atlantic shall beneficially own an
aggregate number of Shares of Surviving Corporation Stock that, in the
aggregate, constitute less than seven percent (7%) of the total
outstanding capital stock, General Atlantic shall be entitled to designate
one director for election or removal pursuant to Section 7A.2 or 7A.3,
respectively; and from and after the date that such collective beneficial
ownership of General Atlantic shall constitute less than three percent
(3%) of the total outstanding shares of Surviving Corporation Stock,
General Atlantic shall no longer be entitled to designate any directors
for election or removal pursuant to Section 7A.2 or 7A.3, respectively.
8. Covenants of the Parties.
8.1 Merger of IX and Holdco. Each of IX and Holdco hereby
covenant and agree to, and each of the Major Stockholders (except the Xxxxxxxxx
Stockholders) hereby covenant and agree to cause IX and Holdco to, enter into a
Merger Agreement, substantially in the form of Exhibit B attached hereto, with
such changes thereto as IX and Holdco may mutually agree upon, and to consummate
a merger in which Holdco shall merge with and into IX with IX as the surviving
corporation, (a) immediately prior to the closing of a Company Sale, (b)
immediately prior to the closing of an Initial Public Offering and (c)
immediately after (i) the Company admits in writing its inability to pay its
debts generally, (ii) the Company makes a general assignment for the benefit of
creditors, (iii) any proceeding is
29
instituted by or against and (provided that if such proceeding is involuntary,
that it continues undismissed for 60 days, or an order or decree approving or
ordering any such involuntary proceeding is entered) the Company seeking to
adjudicate it as bankrupt or insolvent, or seeking dissolution, liquidation,
winding up, reorganization, arrangement, adjustment, protection, relief or
composition of it or its debts under any law relating to bankruptcy, insolvency
or reorganization or relief of debtors, or seeking the entry of an order for
relief or the appointment of a receiver, trustee, custodian or other similar
relief for either of them or for any substantial part of either of their
property or (iv) the Company takes any action preliminary to or to authorize or
effect any of the actions set forth above in subsections (i) and (ii) of this
clause (c). The parties hereto hereby covenant and agree to take any necessary
action so that the equity ownership of the surviving corporation of the merger
pursuant to this Section 8.1 is as follows (assuming such merger occurred on the
date hereof): (w) NFO Stockholders shall own 50.79% of the fully-diluted equity,
(x) General Atlantic Stockholders shall own 21.90% of the fully-diluted equity,
(y) Engage Stockholders shall own 1.91% of the fully-diluted equity and (z)
shares reserved for issuance, exercisable or exercised pursuant to the Option
Plan (as it may have been converted or reconstituted in such merger) shall in
the aggregate equal 25.4% of the fully-diluted equity, and to make any
adjustment, as may be necessary to reflect changes in the capitalization and
equity ownership of the constituent corporations after the date hereof and prior
to the consummation of such merger. The parties hereto hereby covenant and agree
to use best efforts to cause the merger pursuant to this Section 8.1 to be
treated as a tax-free reorganization. By way of example, based on the
capitalization of IX (15,000,000 shares of Class A Common Stock issued to NFO
and outstanding) and Holdco (7,032,000 shares of Class A Common Stock issued to
the Holdco Stockholders and outstanding and 7,500,000 shares of Class B Common
Stock reserved for issuance upon exercise of stock options) on the date hereof,
the foregoing merger would result in the following capitalization of the
surviving corporation of the merger: (A) 15,000,000 shares of Class A Common
Stock held by NFO; (B) 7,032,000 shares of Class B Common Stock held by the
Holdco Stockholders; and (C) 7,500,000 shares of Class E Common Stock reserved
for issuance upon exercise of stock options.
8.2 Merger of IX and Xxxxxxxxx. Each of IX and Xxxxxxxxx
hereby covenant and agree to, and each of the Major Stockholders hereby covenant
and agree to cause the surviving corporation of the merger contemplated in
Section 8.1 and the Company to, enter into a Merger Agreement, substantially in
the form of Exhibit C attached hereto, with such changes thereto as IX and
Xxxxxxxxx may mutually agree upon, and to consummate a merger in which Xxxxxxxxx
shall merge with and into IX with IX as the surviving corporation, immediately
after the consummation of the merger referred to in Section 8.1, if the merger
referred to in Section 8.1 occurs pursuant to Section 8.1(a) or (b). The parties
hereto hereby covenant and agree to take any necessary action so that the equity
ownership of the Surviving Corporation is as follows (assuming such merger
occurred on the date hereof): (v) NFO Stockholders shall own 50.00% of the
fully-diluted equity, (w)
30
General Atlantic Stockholders shall own 21.56% of the fully-diluted equity, (x)
Engage Stockholders shall own 1.88% of the fully-diluted equity, (y) Xxxxxxxxx
Interestholders shall own 1.56% of the fully-diluted equity and (z) shares
reserved for issuance, exercisable or exercised pursuant to the Option Plan (as
it may have been converted or reconstituted in such merger) shall in the
aggregate equal 25.00% of the fully-diluted equity, and to make any adjustment
as may be necessary to reflect changes in the capitalization and equity
ownership of the constituent entities after the date hereof and prior to the
consummation of such merger. The parties hereto hereby covenant and agree to use
best efforts to cause the merger pursuant to this Section 8.2 to be treated as a
tax-free reorganization. By way of example, assuming the capitalization of the
surviving corporation of the merger described in Section 8.1 is as described in
the last sentence of Section 8.1, the merger described in this Section 8.2 would
result in the following capitalization of the surviving corporation of the
merger: (A) 15,000,000 shares of Class A Common Stock held by NFO; (B) 468,000
shares of Class A Common Stock held by Xxxxxxxxx; (C) 7,032,000 shares of Class
B Common Stock held by the Holdco Stockholders; and (D) 7,500,000 shares of
Class E Common Stock reserved for issuance upon exercise of stock options.
8.3 Grant of Registration Rights. Immediately after the
closing of the merger referred to in Section 8.2, each of IX and the Major
Stockholders shall enter into a Registration Rights Agreement, substantially in
the form of Exhibit D attached hereto, with such changes thereto as IX and each
of the Major Stockholders may all agree upon.
8.4 Put of Intellectual Property. The parties hereto hereby
acknowledge IX's right to put the Intellectual Property to the Company pursuant
to Section 9 of the License Agreement dated the date hereof between IX and the
Company. The parties hereto hereby covenant and agree to take any necessary
action to amend the Operating Agreement to reflect any changes in the parties'
Company Owned Interests as a result of the put of the Intellectual Property.
8.5 Option Plan. Holdco hereby covenants and agrees to grant
options under the Option Plan to the Persons and in the amounts recommended by
the Board of Representatives of the Company and shall not otherwise grant
options under the Option Plan. Holdco hereby further covenants and agrees that
if any option under the Option Plan is exercised it will promptly contribute any
amount paid by the optionholder to Holdco to exercise the option to the Company.
8.6 General Atlantic Right to Purchase. IX, Holdco and the
Company hereby covenant and agree that GAP LLC, or its designee, shall have the
right to purchase the number of shares of Surviving Corporation Stock from the
underwriters in the Surviving Corporation's Initial Public Offering equal to the
number of shares of common stock of the Surviving Corporation that a holder of a
two percent (2%) Company Interest on the date hereof would hold following the
31
Mergers. Such number will be subject to dilution proportionally if any
additional Company Interests are issued after the date hereof.
8.7 Restrictions of IX Business. Until such time as the
Mergers are consummated, IX hereby covenants and agrees not to, and each IX
Stockholder hereby covenants and agrees to cause IX not to, (a) conduct any
business other than owning and licensing the Intellectual Property and holding
an equity interest in the Company and (b) incur any debts or other liabilities.
8.8 Restrictions on Holdco Business. Holdco hereby covenants
and agrees not to, and each Holdco Stockholder hereby covenants and agrees to
cause Holdco not to, (a) conduct any business other than activities relating to
the Option Plan and holding an equity interest in the Company and (b) except as
may arise as a result of the Option Plan, incur any debts or other liabilities.
8.9 Restrictions on Greenhill Business. Greenhill hereby
covenants and agrees not to, and each Greenhill Stockholder hereby covenants and
agrees to cause Greenhill not to, (a) conduct any business other than holding an
equity interest in the Company and (b) incur any debts or other liabilities.
8.10 Preemptive Rights Adjustments. The parties hereto hereby
covenant and agree to adjust in an equitable manner the merger conversion ratios
of the Mergers to reflect the issuance of any additional Company Interests (and
the exercise of any preemptive rights with respect thereto pursuant to Section
4, if any).
8.11 Holdco Charter and Bylaws. The General Atlantic
Stockholders hereby covenant and agree not to amend or supplement the
certificate of incorporation or bylaws of Holdco in a manner inconsistent with
the terms of this Agreement.
9. Stock Certificate Legend. A copy of this Agreement shall be filed
with the Secretary of each of IX, Holdco and the Company and kept with the
records of each of IX, Holdco and the Company. Each certificate representing
Equity Interests now held or hereafter acquired by any Equity Holder shall, for
as long as this Agreement is effective, bear legends substantially in the
following forms:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR THE
SECURITIES LAWS OF ANY STATE. THE SECURITIES MAY NOT BE TRANS FERRED
EXCEPT PURSUANT TO AN EFFECTIVE REGIS TRATION STATEMENT UNDER SUCH ACT AND
APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN APPLICABLE
32
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH LAWS.
THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE, ENCUMBRANCE OR OTHER
DISPOSITION (EACH A "TRANSFER") AND VOTING OF ANY OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE RESTRICTED BY THE TERMS OF THE MASTER
INVESTORS RIGHTS AGREEMENT, DATED OCTOBER 18, 1999, AMONG THE COMPANY AND
THE OTHER PARTIES NAMED THEREIN, A COPY OF WHICH MAY BE INSPECTED AT THE
COMPANY'S PRINCIPAL OFFICE. THE COMPANY WILL NOT REGISTER THE TRANSFER OF
SUCH SECURITIES ON THE BOOKS OF THE COMPANY UNLESS AND UNTIL THE TRANSFER
HAS BEEN MADE IN COMPLIANCE WITH THE TERMS OF THE MASTER INVESTORS RIGHTS
AGREEMENT. THE COMPANY WILL MAIL A COPY OF SUCH AGREEMENT TO THE RECORD
HOLDER OF THIS CERTIFICATE, WITHOUT CHARGE, WITHIN FIVE DAYS AFTER RECEIPT
OF A WRITTEN REQUEST THEREFOR.
10. Miscellaneous.
10.1 Notices. All notices, demands or other communications
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first class mail, return receipt requested, telecopier,
courier service, overnight mail or personal delivery:
(i) if to IX:
c/o NFO Worldwide, Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: President
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
(ii) If to Holdco:
33
c/o General Atlantic Services Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
(iii) if to the Company:
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: President
with a copy to:
NFO Worldwide, Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: President
and a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
(iv) if to General Atlantic:
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xx. Xxxxx X. Xxxxxxx
34
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxxxx Xxxxxx, Esq.
(v) if to NFO
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
(vi) if to Engage
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: General Counsel
(vii) if to Greenhill
c/o Greenhill & Co., LLC
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxx
(viii)if to any other Equity Holder, at its address as it
appears on the record books of IX, Holdco or the
Company.
Any party may by notice given in accordance with this Section 10 designate
another address or Person for receipt of notices hereunder. All such notices,
demands and other communications shall be deemed to have been duly given when
delivered by hand, if personally delivered; when delivered by courier or
overnight mail, if
35
delivered by commercial courier service or overnight mail; five (5) Business
Days after being deposited in the mail, postage prepaid, if mailed; and when
receipt is mechanically acknowledged, if telecopied.
10.2 Successors and Assigns. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors and
assigns. This Agreement is not assignable except in connection with a transfer
of Equity Interests in accordance with this Agreement.
10.3 Amendment and Waiver.
(a) Except as specifically set forth in this Agreement,
no failure or delay on the part of any party hereto in exercising any right,
power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right, power or remedy preclude any other
or further exercise thereof or the exercise of any other right, power or remedy.
The remedies provided for herein are cumulative and are not exclusive of any
remedies that may be available to the parties hereto at law, in equity or
otherwise.
(b) Any amendment, supplement or modification of or to
any provision of this Agreement or the Exhibits attached hereto, any waiver of
any provision of this Agreement, and any consent to any departure by any party
from the terms of any provision of this Agreement or the Exhibits attached
hereto, shall be effective only if it is made or given in writing and signed by
(i) IX, (ii) Holdco, (iii) the Company, (iv) General Atlantic Stockholders
holding a majority of the beneficial ownership interest in the Company held by
General Atlantic Stockholders (v) NFO Stockholders holding a majority of the
beneficial ownership interest in the Company held by NFO Stockholders and (vi)
if the proposed amendment, supplement, modification or waiver would materially
adversely effect the other Equity Holders, such other Equity Holders. Any such
amendment, supplement, modification, waiver or consent shall be binding upon the
IX, Holdco, the Company and all of the Equity Interests.
10.4 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, and all of which
taken together shall constitute one and the same instrument.
10.5 Specific Performance. The parties hereto intend that each
of the parties have the right to seek damages or specific performance in the
event that any other party hereto fails to perform such party's obligations
hereunder. Therefore, if any party shall institute any action or proceeding to
enforce the provisions hereof, any party against whom such action or proceeding
is brought hereby waives any claim or defense therein that the plaintiff party
has an adequate remedy at law.
36
10.6 Headings. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
10.7 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD
TO THE PRINCIPLES OF CONFLICTS OF LAW OF ANY JURISDICTION.
10.8 Severability. If any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired, unless the
provisions held invalid, illegal or unenforceable shall substantially impair the
benefits of the remaining provisions hereof.
10.9 Entire Agreement. This Agreement, together with the
exhibits hereto, is intended by the parties as a final expression of their
agreement and intended to be a complete and exclusive statement of the agreement
and understanding of the parties hereto in respect of the subject matter
contained herein and therein. There are no restrictions, promises, warranties or
undertakings, other than those set forth or referred to herein or therein. This
Agreement, together with the exhibits hereto, supersede all prior agreements and
understandings among the parties with respect to such subject matter.
10.10 Term of Agreement. This Agreement shall become effective
upon the execution hereof and shall terminate upon the earlier of (a) the IPO
Effectiveness Date or (b) the twentieth anniversary of the date hereof.
10.11 Further Assurances. Each of the parties shall, and shall
cause their respective Affiliates to, execute such instruments and take such
action as may be reasonably required or desirable to carry out the provisions
hereof and the transactions contemplated hereby.
[Remainder of Page Intentionally Left Blank]
37
IN WITNESS WHEREOF, the undersigned have executed, or have caused to
be executed, this Master Investors Rights Agreement on the date first written
above.
IX, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Financial Officer
IX HOLDING CO., INC.
By: /s/ Xxxxx Xxxxxxx
---------------------
Name: Xxxxx Xxxxxxx
Title: President and Secretary
INSIGHTEXPRESS, L.L.C.
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
GENERAL ATLANTIC PARTNERS 57, L.P.
By: GENERAL ATLANTIC PARTNERS, LLC,
its General Partner
By: /s/ Xxxxx Xxxxxxx
---------------------
Name: Xxxxx Xxxxxxx
Title: A Managing Member
38
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ Xxxxx Xxxxxxx
---------------------
Name: Xxxxx Xxxxxxx
Title: A General Partner
NFO WORLDWIDE, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------
Name: Xxxxxxx X. Xxxxx
Title: President, Australasia & Middle East & CFO
ENGAGE TECHNOLOGIES, INC.
By: /s/ Xxxxxxx Xxxxx
---------------------
Name: Xxxxxxx Xxxxx
Title: VP & General Counsel
XXXXXXXXX & CO., LLC
By: /s/ Xxxxx X. Xxx
--------------------
Name: Xxxxx X. Xxx
Title: Managing Director
39
Exhibit A-1 1/
ACKNOWLEDGMENT AND AGREEMENT
The undersigned wishes to receive from __________ ("Transferor")
certain shares or certain options, warrants or other rights to purchase _____
[shares, par value $[ __] per share, of Common Stock (the "Shares")] [Owned
Interests (the Owned Interests")] of a [ ], a [ ] ("Company");
The [Shares] [Owned Interests] are subject to the Master Investors
Rights Agreement, dated October __, 1999 (the "Agreement"), among the Company
and the other parties listed on the signature pages thereto;
The undersigned has been given a copy of the Agreement and afforded
ample opportunity to read, and to have counsel review, it, and the undersigned
is thoroughly familiar with its terms;
Pursuant to terms of the Agreement, the Transferor is prohibited
from transferring such [Shares] [Owned Interests] and the Company is prohibited
from registering the transfer of the [Shares] [Owned Interests] unless and until
a transfer is made in accordance with the terms and conditions of the Agreement
and the recipient of such [Shares] [Owned Interests] acknowledges the terms and
conditions of the Agreement and agrees to be bound thereby; and
The undersigned wishes to receive such [Shares] [Owned Interests]
and have the Company register the transfer of such [Shares] [Owned Interests].
In consideration of the mutual promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and to induce the Transferor to transfer such [Shares]
[Owned Interests] to the undersigned and the Company to register such transfer,
the undersigned does hereby acknowledge and agree that (i) it has been given a
copy of the Agreement and afforded ample opportunity to read, and to have
counsel review, it, and the undersigned is thoroughly familiar with its terms,
(ii) the [Shares] [Owned Interests] are subject to the terms and conditions set
forth in the Agreement, and (iii) the undersigned does hereby agree fully to be
bound thereby as [a "Major Stockholder"] [an "IX Interestholder] [a "Holdco
Interestholder] [a "Greenhill Interestholder"] [an "Other Equity Holder"] (as
therein defined).
This ________ day of ________, [19__] [20__].
------------------------------------
-------------------------
1/ For transfers of previously issued stock.
40
Exhibit A-2 1/
ACKNOWLEDGMENT AND AGREEMENT
The undersigned wishes to receive from IX, LLC, a Delaware limited
liability company (the "Company"), _______ [Owned Interests] or certain newly
issued options, warrants or other rights to purchase _______ [Owned Interests]
(the "Owned Interests") of the Company;
The Owned Interests are subject to the Master Investors Rights
Agreement, dated October __, 1999 (the "Agreement"), among the Company and the
other parties listed on the signature pages thereto;
The undersigned has been given a copy of the Agreement and afforded
ample opportunity to read, and to have counsel review, it, and the undersigned
is thoroughly familiar with its terms;
Pursuant to terms of the Agreement, the Company is prohibited from
issuing the Owned Interests unless and until a transfer is made in accordance
with the terms and conditions of the Agreement and the recipient of such Owned
Interests acknowledges the terms and conditions of the Agreement and agrees to
be bound thereby; and
The undersigned wishes to receive such Owned Interests.
In consideration of the mutual promises contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, and to induce the Company to issue such Owned Interests,
the undersigned does hereby acknowledge and agree that (i) he[/she] has been
given a copy of the Agreement and afforded ample opportunity to read, and to
have counsel review, it, and the undersigned is thoroughly familiar with its
terms, (ii) the Owned Interests are subject to terms and conditions set forth in
the Agreement, and (iii) the undersigned does hereby agree fully to be bound
thereby as an "Other Equity Holder" (as therein defined).
This ________ day of ________, [19__] [20__].
------------------------------------
-------------------------
1/ For newly issued stock.
