SHAREHOLDER AGREEMENT dated as of November 17,
1999(this "Agreement"), among EAC III L.L.C., a
Delaware limited liability company (the "Ripplewood
Shareholder"), Xxxxxxx X. Xxxxx (the "Executive") and
WRC Media Inc. (formerly named "EAC II Inc."), a
Delaware corporation (the "Company").
In consideration of the mutual agreements herein contained, and other
good and valuable consideration the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS, USAGE AND EQUITY INVESTMENT
SECTION 1.01. DEFINED TERMS. The following terms shall have the
following meanings:
"Affiliate" means, with respect to any specified Person, any other
Person that directly or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person. For purposes of this definition, "control" (including, with correlative
meanings, the terms "controlled by" and "under common control with"), as used
with respect to any Person, means the direct or indirect possession of the power
to direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by contract or otherwise.
"Agreement" has the meaning set forth in the preamble to this
Agreement.
"Board of Directors" means the Board of Directors of the Company.
"Company" has the meaning set forth in the preamble to this Agreement.
"Company Common Stock" has the meaning set forth in Section 1.03.
"Direct Transfer" means a Transfer (without giving effect to the
second sentence of the definition of "Transfer").
"Drag-Along Notice" has the meaning set forth in Section 2.01(f).
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"Employment Agreement" means the Employment Agreement dated as of July
14, 1999 among the Company, the Ripplewood Shareholder, JLC Learning Corporation
and the Executive.
"Executive" has the meaning set forth in the preamble to this
agreement.
"Fair Market Value" means the fair market value of a Share, determined
in accordance with Section 2.01(g).
"GCL" means the General Corporation Law of the State of Delaware (8
Del. C. Section 101, ET SEQ.), as amended from time to time and any successor
statute thereto.
"Involuntary Transfer" means any Transfer by the Executive or the
Ripplewood Shareholder of any Shares, or of any beneficial ownership thereof,
upon death, appointment of a guardian, default, foreclosure, forfeit, bankruptcy
(voluntary or involuntary), court order, levy of attachment, execution or
otherwise than voluntarily by the Transferor; PROVIDED that a Transfer required
pursuant to Section 2.01(f) shall not be deemed an Involuntary Transfer.
"Management Shareholder Agreement" means the Shareholder Agreement
dated as of November ,1999 among EAC III L.L.C., the Management Shareholders and
the Company.
"Management Shareholders" has the meaning set forth in the Management
Shareholder Agreement.
"Permitted Transferee" means, (i) with respect to the Ripplewood
Shareholder, (A) Ripplewood or an Affiliate of Ripplewood, (B) a shareholder,
partner, member or employee of Ripplewood or any Affiliate of Ripplewood or (C)
an employee of the Company or a Subsidiary of the Company and (ii) with respect
to the Executive, (A) the Management Shareholders (B) the Company or (c) the
Executive's spouse or lineal descendants or any trust the beneficiaries of which
include only the Executive's spouse or lineal descendants.
"Person" means any individual, corporation, partnership, trust,
association, limited liability company, joint venture, joint-stock company or
any other entity or organization, including a government or governmental agency.
"Preferred Stock" means the 15% Senior Exchangeable Preferred Stock
Due 2011, par value $0.01 per share, of the Company.
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"Purchase Agreement" means the Redemption, Stock Purchase and
Recapitalization Agreement dated as of August 13, 1999 between PRIMEDIA Inc., a
Delaware corporation, and the Company, as amended.
"Ripplewood" means Ripplewood Partners, L.P.
"Ripplewood Shareholder" has the meaning set forth in the preamble to
this Agreement.
"Shareholders" means the Ripplewood Shareholder and the Executive.
"Shares" means the shares of Company Common Stock held by the
Shareholders or the Permitted Transferees.
"Subsidiary" means, with respect to any specified Person, another
Person, an amount of the voting securities, other voting ownership or voting
partnership interests of which is sufficient to elect at least a majority of
its board of directors or other governing body (or, if there are no such
voting interests, 50% or more of the equity interests of which) is owned
directly or indirectly by such first Person or by another Subsidiary of such
first Person.
"Tag-Along Notice" has the meaning set forth in Section 2.01(e).
"Third Party Purchaser" means, with respect to any proposed sale of
Shares by the Ripplewood Shareholder or the Executive, a Person, other than an
Affiliate of the Ripplewood Shareholder or the Executive, who offers to purchase
from the Ripplewood Shareholder or the Executive such Shares pursuant to a bona
fide written offer.
"Transfer" means any transfer, sale, conveyance, assignment, gift,
hypothecation, pledge or other disposition, whether voluntary or by operation of
law, of a Share. Notwithstanding the foregoing, any transfer, sale, conveyance,
assignment, gift, hypothecation, pledge or other disposition, whether voluntary
or by operation of law, of any stock, partnership interest, membership interest
or any other ownership interest in any entity that is a direct or indirect
beneficial or record owner of any Share (including any disposition by means of a
merger, consolidation or similar transaction) or any other transaction that has
the economic effect of a Transfer of a Share (including the designation of any
beneficiary of any trust that is a direct or indirect beneficial or record owner
of any Share) shall be deemed to be a Transfer of such Share by the Shareholder
directly owning such Share.
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"Transferee" means the transferee in a Transfer.
"Transferor" means the transferor in a Transfer.
SECTION 1.02. OTHER DEFINITION PROVISIONS. Wherever required by the
context of this Agreement, the singular shall include the plural, and vice
versa, and the masculine gender shall include the feminine and neuter genders,
and vice versa, and references to any agreement, document or instrument shall be
deemed to refer to such agreement, document or instrument as amended,
supplemented or modified from time to time. When used herein, (i) the word "or"
is not exclusive and (ii) the words "including," "includes," "included" and
"include" are deemed to be followed by the words "without limitation."
SECTION 1.03. (a) EQUITY INVESTMENT. On the Closing Date, pursuant to
the Employment Agreement, the Executive will purchase from the Company at a
price of $18.60065 per share in cash 4,032 shares of common stock, par value
$0.01 per share ("Company Common Stock"), of the Company.
(b) VOTING AGREEMENTS. The Executive hereby agrees with the
Ripplewood Shareholder that from and after the date hereof: (a) the Executive
shall vote all of the Shares held by the Executive (including shares acquired
after the date hereof) in the same manner as the Shares held by the
Ripplewood Shareholder are voted on all matters acted upon at any annual or
special meeting of shareholders of the Company or by written consent in lieu
of a meeting and (b) the Executive irrevocably constitutes and appoints the
Ripplewood Shareholder the Executive's proxy to vote all of the Shares held
by the Executive in the same manner as the Shares held by the Ripplewood
Shareholder are voted on all matters acted upon at any annual or special
meeting of shareholders of the Company or by written consent in lieu of a
meeting; PROVIDED that this Section 1.03(b) shall be inapplicable with
respect to any matters which would both adversely affect the rights of the
Shares held by the Executive and treat the Executive differently from other
holders of shares of Company Common Stock. The voting agreements and proxies
granted pursuant to this Section 1.03(b) are coupled with an interest and
shall be valid for the term of this Agreement. The Executive represents that
the Executive has not granted and is not a party to any proxy, voting trust
or other agreement which in each case is inconsistent with or conflicts with
the provisions of this Agreement, and the Executive shall not grant any proxy
or become a party to any voting trust or
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other agreement which in each case is inconsistent with or conflicts with
the provisions of this Agreement.
ARTICLE II
TRANSFERS OF SHARES; TRANSACTIONS
BETWEEN RIPPLEWOOD SHAREHOLDER AND THE COMPANY
SECTION 2.01. TRANSFERS OF THE COMPANY SHARES.
(a) GENERALLY. (i) Neither the Ripplewood Shareholder nor the
Executive may Transfer all or any portion of its Shares (or any beneficial
ownership thereof) unless (A) such Transfer is in accordance with this Section
2.01, (B) in the case of a Direct Transfer, the Transferee executes and delivers
a counterpart of the signature page of this Agreement (or other appropriate
assumption agreement) in which the Transferee agrees to be bound by the
provisions of this Agreement to the same extent as the Transferor and providing
the address for notices of such Transferee and (C) the Transferee executes and
delivers any other agreements, documents or instruments reasonably specified by
the Board of Directors. Any Transfer made in violation of this Section 2.01(a)
shall be null and void and shall be subject to Section 2.01(d).
(ii) Whenever a Transfer is to be consummated by any Person on a
specified date under this Section 2.01, such Transfer shall take place at 10:00
a.m. Eastern Time on such date (or, if such date is not a business day, the next
following business day) at the principal office of Ripplewood, presently located
at One Rockefeller Plaza, New York, New York, or at such other time, date and
place as the Company and the parties to such Transfer may agree. The
consideration for such Transfer shall be paid by delivery to the applicable
Transferor of a certified or bank check made payable to such Transferor or by
wire transfer of immediately available funds to a bank account designated by
such Transferor, against due execution and delivery of the agreements, documents
and instruments specified in Section 2.01(a)(i), such other agreements,
documents and instruments as the parties to such Transfer may reasonably require
including certificates or other instruments representing the Shares so
purchased, appropriately endorsed by such shareholder of the Company, free and
clear of all security interests, liens, claims, encumbrances, charges, options,
restrictions on transfer, proxies and voting and other agreements of whatever
nature other than those created hereunder.
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(iii) The provisions of this Section 2.01, other than Section
2.01(d), (e), (f), (g), (h) and (i), shall terminate upon the completion of an
initial public offering of shares of Company Common Stock by the Company and the
termination of any lockup period agreed to with underwriters in connection
therewith.
(b) TRANSFERS BY THE RIPPLEWOOD SHAREHOLDER. Subject to Section
2.01(a) and, with respect to a Transfer to any Person other than a Permitted
Transferee of the Ripplewood Shareholder, Section 2.01(e), the Ripplewood
Shareholder (and its Permitted Transferees) shall have the right to Transfer at
any time all or any portion of its Shares (including any beneficial ownership
thereof) to any Person without the prior consent of any Person.
(c) TRANSFERS BY THE EXECUTIVE. (i) Subject to Section 2.01(a), the
Executive (and his Permitted Transferees) shall have the right to Transfer at
any time all or any portion of his Shares (including any beneficial ownership
thereof) to any of his Permitted Transferees without the prior consent of any
Person.
(ii) The Executive may not Transfer all or any portion of his Shares
(including any beneficial ownership thereof) to any Person other than the
Management Shareholders or the Company except in accordance with Section 2.01(a)
and (A) pursuant to Section 2.01(c)(i), (e) or (f) or (B) with the prior written
consent of the Ripplewood Shareholder.
(d) INVOLUNTARY AND IMPERMISSIBLE TRANSFERS. If an Involuntary
Transfer or a Transfer in violation of this Agreement shall occur with respect
to the Executive and, in the case of a Transfer in violation of this Agreement,
such violation has not been cured within 30 days after notice to the applicable
Transferor or Transferee, the Company shall give notice to the Ripplewood
Shareholder, offering the Ripplewood Shareholder (or its designee) the right,
exercisable by delivery of written notice to the Transferee with respect to such
Involuntary Transfer or Transfer in violation of this Agreement, within 90 days
following the day on which such notice is given, to purchase all of the Shares
acquired by such Transferee at a purchase price equal to, in the case of an
Involuntary Transfer, 100% or, in the case of a Transfer in violation of this
Agreement, 90% of the Fair Market Value thereof, determined in accordance with
Section 2.01(g) as of the date of such Transfer (or, if lower, as of the date of
such determination). The closing date of any purchase described in this Section
2.01 shall be on the date specified by the Company that shall not be later than
the 30th day after a determination of the Fair Market
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Value of the Shares to be purchased is made. The Ripplewood Shareholder may
assign its rights under this Section 2.01(d) to any person.
(e) TAG-ALONG RIGHTS. If the Ripplewood Shareholder desires to
Transfer in excess of 5% of its Shares to a prospective Transferee (or
Transferees) other than to a Permitted Transferee of the Ripplewood Shareholder
and, after giving effect to such Transfer, the Ripplewood Shareholder shall have
Transferred in excess of 35% in the aggregate of its Shares to a Transferee (or
Transferees) other than Permitted Transferees of the Ripplewood Shareholder, the
Ripplewood Shareholder shall, as a condition to such Transfer, (i) provide a
notice to the Executive in writing (a "Tag-Along Notice") of the material terms
of the proposed Transfer at least 15 days prior to such Transfer and (ii) permit
the Executive (or cause the Executive to be permitted) to sell (either to the
prospective Transferee of the Ripplewood Shareholder's Shares or to another
financially reputable Transferee reasonably acceptable to the Executive) the
same portion of his respective Shares as that Transferred by the Ripplewood
Shareholder in the aggregate to Transferees other than Permitted Transferees of
the Ripplewood Shareholder (after giving effect to such proposed Transfer) on
the same terms and conditions, subject to the same agreements and at the same
price as the proposed sale by the Ripplewood Shareholder, which sale shall take
place on the date the Ripplewood Shareholder's Shares (or such portion) are
Transferred to such Transferee (or Transferees). The Executive shall have five
days from the date of receipt of a Tag-Along Notice to exercise his right to
sell pursuant to clause (ii) above by delivering written notice to the
Ripplewood Shareholder of his intent to exercise such right. The right of the
Executive to sell pursuant to clause (ii) above shall terminate if not exercised
within such five-day period. If the Executive elects to exercise his right to
sell pursuant to clause (ii) he shall share, on a pro rata basis, the legal,
investment banking and other expenses of the Ripplewood Shareholder incurred in
connection with such Transfer.
(f) DRAG-ALONG RIGHTS. If at any time the Ripplewood Shareholder
desires to Transfer all (or any portion in excess of 35%) of its Shares to any
Third Party Purchaser (or Purchasers), the Ripplewood Shareholder shall have the
right to require that the Executive Transfer the same portion of his respective
Shares to such Third Party Purchaser (or Purchasers) on the same terms and
conditions, subject to the same agreements and at the same price as the sale by
the Ripplewood Shareholder. The Ripplewood Shareholder shall provide a notice to
the Executive in
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writing (a "Drag-Along Notice") of such sale at least 10 days prior to such
Transfer, and the Drag- Along Notice shall identify such Third Party Purchaser
(or Purchasers), all material terms of the sale and the date of closing. Upon
the closing of any sale by the Ripplewood Shareholder of all (or such portion)
of its Shares as described in a Drag-Along Notice, such Third Party Purchaser
(or Purchasers) shall pay to the Executive the consideration payable to the
Executive in connection with such sale of all (or such portion) of his Shares to
such Purchaser (or Purchasers), net of the Executive's proportionate share of
the legal, investment banking and other expenses of the Ripplewood Shareholder
incurred in connection with such sale, and the Shares (or such portion) of the
Executive shall be deemed Transferred to such Third Party Purchaser (or
Purchasers).
(g) FAIR MARKET VALUE. (i) If a determination of the Fair Market Value
of any shares of Company Common Stock is required by this Agreement when there
is no public trading market for the shares of Company Common Stock, such "Fair
Market Value" shall be such amount as is determined in good faith by the Board
of Directors as of the date such Fair Market Value is required to be determined
hereunder. In making a determination of such Fair Market Value, the Board of
Directors shall give due consideration to such factors as it deems appropriate,
including, without limitation, the earnings and certain other financial and
operating information of the Company and its subsidiaries in recent periods, its
potential value and that of its subsidiaries as a whole, its future prospects
and that of its subsidiaries and the industries in which they compete, its
history and management and that of its subsidiaries, the general condition of
the securities markets and the fair market value of securities of privately
owned companies (with transfer restrictions) engaged in businesses similar to
those of the Company and its subsidiaries, if any. The Fair Market Value, as
determined by the Board of Directors in good faith, shall be binding and
conclusive upon all parties hereto.
(ii) If a determination of the Fair Market Value of any shares of
Company Common Stock is required by this Agreement when there is a public
trading market for shares of Company Common Stock, such "Fair Market Value"
shall mean the average daily closing sales price of the shares of Company Common
Stock for the ten consecutive trading days preceding the date the Fair Market
Value of the shares of Company Common Stock is required to be determined
hereunder. The closing price for each day shall be the last reported sales price
regular way or, in case no such reported sale takes place on such day, the
average of the reported closing bid and asked prices regular way, in either case
on the principal
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national securities exchange on which the shares of Company Common Stock are
listed and admitted to trading, or, if not listed and admitted to trading on any
such exchange, on the NASDAQ National Market System, or, if not quoted on the
National Market System, the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the Board of Directors for that purpose.
(h) RIPPLEWOOD OPTION UPON TERMINATION. In the event that the
Executive's employment by the Company is terminated for any reason, the
Ripplewood Shareholder shall have an option to purchase all or any portion of
the Shares then held by the Executive at a purchase price equal to the Fair
Market Value of such Shares, determined in accordance with Section 2.01(g) as of
the date of such termination. The Ripplewood Shareholder shall within 90 days of
such date of termination give notice in writing to the Executive of its election
to exercise or not to exercise such option, which notice shall set forth the
portion, if any, of the Shares that the Ripplewood Shareholder elects to
purchase. The purchase of the Shares shall take place at the principal office of
Ripplewood, presently located at One Rockefeller Plaza, New York, New York, on
the date specified by the Ripplewood Shareholder (not later than the later of
the twentieth business day following the receipt by the Executive of the
required notice from the Ripplewood Shareholder and the satisfaction of any
legal requirements to the purchase of the Shares). The consideration for the
purchase of the Shares shall be paid by delivery to the Executive of a certified
or bank check made payable to the Executive or by wire transfer of immediately
available funds to a bank account designated by the Executive, against delivery
of certificates or other instruments representing the Shares so purchased,
appropriately endorsed by the Executive, free and clear of all security
interests, liens, claims, encumbrances, charges, options, restrictions on
transfer, proxies and voting and other agreements of whatever nature. The
Ripplewood Shareholder may assign its rights under this Section 2.01(h) to any
Person.
(i) EXECUTIVE OPTION UPON TERMINATION. In the event that the
Executive's employment by the Company is terminated for any reason other than
(i) for "Good Cause" (as defined in the Employment Agreement, or (ii) by the
Company as a result of the death or total disability of the Executive (total
disability meaning the failure of the Executive to perform her normal required
services under the Employment Agreement for a period of three consecutive months
during the term of the Employment Agreement by reason of the Executive's mental
or physical disability as determined by an independent
10
physician reasonably satisfactory to the Executive and the Company) the
Executive shall have an option to sell to the Ripplewood Shareholder all or
any portion of the Shares then held by the Executive at a purchase price
equal to the Fair Market Value of such Shares, determined in accordance with
Section 2.01(g) as of the date of such termination; PROVIDED, that to the
extent that the Board of Directors of the Company reasonably determines that
such purchase, if made, would (x) cause the Company to be or remain in
default under any agreements with lenders or financing sources, despite
commercially reasonable efforts by the Company to obtain consents or
amendments necessary to permit such purchase, or (y) conflict with the terms
(including with respect to priority of payment) of the 15% Senior
Exchangeable Preferred Stock due 2011, par value $0.01 per share, of the
Company, the Company shall be relieved of its obligations to make such
purchase under this Section 2.01(i) while and to the extent such conditions
continue to exist. The Executive shall within 90 days of such date of
termination give notice in writing to the Ripplewood Shareholder of its
election to exercise or not to exercise such option, which notice shall set
forth the portion, if any, of the Shares that the Executive elects to sell.
The sale of the Shares shall take place at the principal office of
Ripplewood, presently located at One Rockefeller Plaza, New York, New York,
on the date specified by the Executive (not later than the later of the
twentieth business day following the receipt by the Ripplewood Shareholder of
the required notice from the Executive and the satisfaction of any legal
requirements to the sale of the Shares). The consideration for the sale of
the Shares shall be paid by delivery to the Executive of a certified or bank
check made payable to the Executive or by wire transfer of immediately
available funds to a bank account designated by the Executive, against
delivery of certificates or other instruments representing the Shares so
purchased, appropriately endorsed by the Executive, free and clear of all
security interests, liens, claims, encumbrances, charges, options,
restrictions on transfer, proxies and voting and other agreements of whatever
nature.
ARTICLE III
STOCK REGISTRATION; LEGEND; CAPITAL STOCK
SECTION 3.01. STOCK REGISTRATION. (a) The Executive hereby represents
and warrants to the Ripplewood Shareholder and the Company that:
(i) The Executive has had access to all information that the Executive
deemed necessary to adequately
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evaluate whether to purchase any shares of Company Common Stock;
(ii) The Executive understands that the Company Common Stock has not
been registered under the Securities Act of 1933, as amended (the
"Securities Act") and shares of Company Common Stock will be sold to the
Executive in reliance upon an exemption from the registration
requirements of the Securities Act afforded by Rule 701; and
(iii) any shares of Company Common Stock acquired by the Executive
shall be acquired only for the Executive's own account, for investment
purposes only and not with a view to its resale, distribution or other
disposition.
(b) The Executive agrees that the Executive will not offer, sell,
transfer, pledge, hypothecate or otherwise dispose of any Shares except:
(i) pursuant to an exemption from registration under the Securities
Act, as confirmed in a satisfactory opinion of legal counsel delivered
to the Company, and in accordance with any applicable laws of any state
of the United States governing the offer and sale of securities; or
(ii) pursuant to an effective registration statement under the
Securities Act (it being understood that the Company, the Ripplewood
Shareholder and their Affiliates are under no obligation to effect such
registration) and in accordance with any applicable state laws.
(c) In the event that the Company files a registration statement on
Form S-8 of the Securities and Exchange Commission, the Company shall, to the
extent permitted by applicable law, include in such registration statement the
shares of Company Common Stock issuable upon exercise of the then unexercised
options that were granted to the Executive pursuant to Section 9 of the
Employment Agreement.
SECTION 3.02. LEGEND. The Executive agrees that any and all
certificates representing the Executive's Shares will have inscribed
conspicuously on the front or back of such certificates the following legend:
"THE SHARES OF COMMON STOCK, PAR VALUE $0.01 PER SHARE, OF WRC MEDIA INC.
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO ONE OR MORE AGREEMENTS AMONG
SHAREHOLDERS OR AGREEMENTS BETWEEN
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SHAREHOLDERS AND WRC MEDIA INC. AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED
EXCEPT IN ACCORDANCE THEREWITH. COPIES OF SUCH AGREEMENT OR AGREEMENTS MAY BE
OBTAINED FROM THE SECRETARY OF WRC MEDIA INC. AT THE PRINCIPAL EXECUTIVE OFFICES
OF RIPPLEWOOD HOLDINGS L.L.C. THESE SHARES HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
REOFFERED OR RESOLD, DIRECTLY OR INDIRECTLY, EXCEPT IN ACCORDANCE WITH THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR PURSUANT TO AN EXEMPTION
THEREFROM AND IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF
THE UNITED STATES."
SECTION 3.03. CAPITAL STOCK; PRICE. The Company hereby represents and
warrants to the Executive that: the authorized capital stock of the Company will
consist of 20,000,000 shares of Company Common Stock, of which 6,855,853 shares
will be issued and outstanding, and 20,000,000 shares of Preferred Stock, of
which 3,000,000 shares will be issued and outstanding. Immediately after giving
effect to the transactions referenced in Section 1.03(a) and except for the
shares reserved for issuance pursuant to options granted to Xxxxxx Xxxxxx and to
the Management Shareholders, there will be no shares of capital stock or other
equity securities of the Company issued, reserved for issuance or outstanding.
The purchase price per share for the shares of Company Common Stock being
acquired by the Executive pursuant to the Employment Agreement is the same as
the purchase price per share being paid by the Ripplewood Shareholder and other
Persons who are acquiring shares of Company Common Stock simultaneously with the
Executive.
ARTICLE IV
MISCELLANEOUS PROVISIONS
SECTION 4.01. ENTIRE AGREEMENT. This Agreement sets forth the entire
understanding among the parties relating to the subject matter contained herein
and merges all prior discussions among them. This Agreement is not intended to
confer upon any Person other than the parties hereto any rights or remedies
hereunder.
SECTION 4.02. AMENDMENTS. This Agreement may not be amended except by
an instrument in writing signed by the Ripplewood Shareholder and the Executive.
SECTION 4.03. NOTICES. All notices and other communications required
or permitted by this Agreement shall
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be made in writing and any such notice or communication shall be deemed
delivered when delivered in person, transmitted by telex or telecopier,
confirmation of transmission received, or one business day after it has been
sent by a nationally recognized overnight courier, at the address or addresses
for notices to the recipient designated on Schedule I attached hereto.
Communications by telex or telecopier also shall be sent concurrently by first
class mail or overnight courier, but shall in any event be effective as stated
above. The Ripplewood Shareholder, the Executive or the Company may from time to
time change its address for notices under this Section 4.03 by giving at least
five days' notice of such changed address to the other parties hereto.
SECTION 4.04. INTERPRETATION. When a reference is made in this
Agreement to a Section, such reference shall be to a Section of this Agreement
unless otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 4.05. SEVERABILITY. If any one or more of the provisions
contained in this Agreement or in any document executed in connection herewith
shall be invalid, illegal or unenforceable in any respect under any applicable
law, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired; PROVIDED,
HOWEVER, that in such case the parties hereto shall endeavor to amend or modify
this Agreement to achieve to the extent reasonably practicable the purpose of
the invalid provision.
SECTION 4.06. GOVERNING LAW. This Agreement and all actions
contemplated hereby shall be governed by, and construed and enforced in
accordance with, the laws of the State of New York (without regard to conflict
of laws principles), except to the extent that the provisions of the GCL may be
mandatorily applicable.
SECTION 4.07. COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same agreement.
This Agreement shall become effective against the Ripplewood Shareholder when
one or more counterparts have been signed by the Ripplewood Shareholder and
delivered to the Executive. This Agreement shall become effective against the
Executive when one or more counterparts have been executed by the Executive and
delivered to the Ripplewood Shareholder. Each party need not sign the same
counterpart.
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SECTION 4.08. ASSIGNMENT. Except pursuant to Section 2.01(a) and (d),
neither this Agreement nor any of the rights, interests or obligations under
this Agreement shall be assigned, in whole or in part, by the Ripplewood
Shareholder without the prior written consent of the Executive or by the
Executive without the prior written consent of the Ripplewood Shareholder, and
any purported assignment without such consent shall be void. Subject to the
preceding sentences, this Agreement will be binding upon, inure to the benefit
of, and be enforceable by, the parties and their respective successors and
assigns.
SECTION 4.09. SPECIFIC PERFORMANCE. The parties hereby declare that
irreparable damage would occur as a result of the failure of any party hereto to
perform any of its obligations under this Agreement in accordance with the
specific terms hereof. Therefore, all parties hereto shall have the right to
specific performance of the obligations of the other parties under this
Agreement and if any party hereto shall institute any action or proceeding to
enforce the provisions hereof, any Person against whom such action or proceeding
is brought hereby waives the claim or defense therein that such party has or
have an adequate remedy at law exists. The right to specific performance shall
be in addition to any other remedy to which a party hereto may be entitled at
law or in equity.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
EAC III L.L.C.,
by RIPPLEWOOD PARTNERS, L.P.,
its Member,
by RIPPLEWOOD HOLDINGS L.L.C.,
its General Partner,
by /s/ Xxxxxx Xxxxx
--------------------------
Name: Xxxxxx Xxxxx
Title: Treasurer
by
--------------------------
Xxxxxxx X. Xxxxx
14
Executive or by the Executive without the prior written consent of the
Ripplewood Shareholder, and any purported assignment without such consent shall
be void. Subject to the preceding sentences, this Agreement will be binding
upon, inure to the benefit of, and be enforceable by, the parties and their
respective successors and assigns.
SECTION 4.09. SPECIFIC PERFORMANCE. The parties hereby declare that
irreparable damage would occur as a result of the failure of any party hereto to
perform any of its obligations under this Agreement in accordance with the
specific terms hereof. Therefore, all parties hereto shall have the right to
specific performance of the obligations of the other parties under this
Agreement and if any party hereto shall institute any action or proceeding to
enforce the provisions hereof, any Person against whom such action or proceeding
is brought hereby waives the claim or defense therein that such party has or
have an adequate remedy at law exists. The right to specific performance shall
be in addition to any other remedy to which a party hereto may be entitled at
law or in equity.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
EAC III L.L.C.,
by RIPPLEWOOD PARTNERS, L.P.,
its Member,
by RIPPLEWOOD HOLDINGS L.L.C.,
its General Partner,
by /s/ President, JLC Learning
--------------------------
Name:
Title:
by /s/ Xxxxxxx X. Xxxxx
--------------------------
Xxxxxxx X. Xxxxx
15
WRC MEDIA INC.,
by /s/ Xxxxxxx Xxxxxx
--------------------------
Name: Xxxxxxx Xxxxxx
Title: Secretary
SCHEDULE I
SHAREHOLDER ADDRESS
EAC III L.L.C. c/o Ripplewood Holdings L.L.C.
Xxx Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxxx
Xx. Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
WRC Media Inc. c/o Ripplewood Holdings L.L.C.
Xxx Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxxxx X. Xxxxxxx
Xx. Xxxxxxx X. Xxxxxx
Fax: (000) 000-0000
with a copy to:
Cravath, Swaine & Xxxxx
Worldwide Plaza
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
Xxxxxxx X. Xxxxx 000 Xxxxxxxxxx Xxxxx
Xxxxxx, Xx 00000
Fax: 000-000-0000
