EXHIBIT 4
to SCHEDULE 13D
STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT, dated November 27, 2001, by and between
SOFTBANK America Inc., a Delaware corporation (the "COMPANY") and Invemed
Catalyst Fund, L.P., a Delaware limited partnership (the "PURCHASER").
WITNESSETH THAT:
WHEREAS, the Company wishes to sell to the Purchaser and the Purchaser
wishes to purchase from the Company, shares of Key3Media Group, Inc.'s common
stock, par value $.01 per share (the "KEY3MEDIA STOCK").
NOW, THEREFORE, in consideration of the agreements and obligations
contained in this Agreement, the parties hereby agree as follows:
ARTICLE I
SALE AND PURCHASE
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1.1 PURCHASE AND SALE OF KEY3MEDIA STOCK. The Company shall sell
to the Purchaser and the Purchaser shall purchase from the Company 925,926
shares (the "KEY3MEDIA SHARES") of Key3Media Stock for an aggregate price of
$3,125,000.25 (the "PURCHASE PRICE") payable by wire transfer in federal (same
day) funds. At the closing of the transactions contemplated by Section 2.2 of
this Agreement (the "CLOSING") (a) the Company shall deliver to the Purchaser
the certificate or certificates representing the Key3Media Shares, together with
stock powers duly executed in blank or duly executed instruments of transfer and
(b) the Purchaser shall wire to an account designated by the Company pursuant to
wire instructions delivered at least two business days prior to the Closing
$3,125,000.25 in federal (same day) funds. The Purchaser acknowledges that
shares of Key3Media Stock bear a legend in substantially the following form:
"The shares represented by this certificate are "restricted securities"
as that term is defined in Rule 144 promulgated under the Securities
Act of 1933, as amended (the "SECURITIES ACT"), and may not be offered,
sold or otherwise transferred, pledged or hypothecated except in a
transaction registered under the Securities Act or in a transaction
exempt from such registration."
1.2 CLOSING. The Closing shall take place at the offices of
Xxxxxxxx & Xxxxxxxx, at 10:00 a.m., New York City time (or as soon thereafter as
practicable), on November 27, 2001, or at such other time, place and date that
the Company and the Purchaser may agree. (the "CLOSING DATE").
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
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The Company represents and warrants to the Purchaser as follows:
2.1 CORPORATE EXISTENCE AND POWER. The Company has full legal
right, power and authority to enter into this Agreement, transfer the Key3Media
Shares to the Purchaser in accordance with this Agreement and to perform its
other obligations hereunder, without the need for the consent of any other
person or entity. This Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding obligations of the Company,
enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other laws,
decisions or equitable principles now or hereafter in effect relating to or
affecting creditors' rights or debtors' obligations generally.
2.2 TITLE TO THE KEY3MEDIA STOCK. The Company is the sole record
and beneficial owner of the Key3Media Shares. The Company owns the Key3Media
Shares free and clear of any liens, restrictions, security interests,
encumbrances or claims or judgment or decree of any court or government agency.
Upon delivery to the Purchaser at the Closing of certificates representing the
Key3Media Shares in accordance herewith, the Company will acquire good and valid
title to the Key3Media Shares, free and clear of all liens, claims, security
interests, pledges, charges, equities, options, restrictions and encumbrances of
whatsoever nature.
2.3 NO VIOLATION OF LAWS OR AGREEMENTS. The execution and delivery
of this Agreement by the Company does not, and the consummation of the
transactions contemplated by this Agreement and the compliance with the terms,
conditions and provisions of this Agreement by the Company, will not, conflict
with or result in a breach of or constitute a default (or an event which might,
with the passage of time or the giving of notice or both, constitute a default)
under any of the terms, conditions or provisions of any indenture, mortgage,
loan or credit agreement or any other agreement or instrument to which the
Company is a party or by which the Company or any of the Company's assets may be
bound or affected, or any judgment or order of any court or governmental
department, commission, board, agency or instrumentality, domestic or foreign,
or any applicable law, rule or regulation, except in any such case as would not
impair the validity of the transactions contemplated hereby or expose the
Purchaser to any liability.
2.4 NO LITIGATION. There are no actions, suits, investigations, or
proceedings pending or, to the best of the Company's knowledge, threatened
against or affecting the Key3Media Shares or the Company's rights thereto, at
law or in equity, by or before any
court or governmental department, agency or instrumentality. To the Company's
knowledge, there are presently no outstanding judgments, decrees or orders of
any court or any governmental or administrative agency against or affecting the
Key3Media Shares or the Company's rights thereto.
2.5 NO BROKER. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission from the Purchaser in
connection with the purchase of Key3Media Shares by the Purchaser provided for
in this Agreement based upon arrangements made by or on behalf of the Company.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
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The Purchaser hereby represent and warrants to the Company that:
3.1 AUTHORITY. The Purchaser has all requisite partnership power
and authority to execute, deliver and perform its obligations under this
Agreement.
3.2 ACQUISITION OF KEY3MEDIA STOCK FOR INVESTMENT. The Purchaser
has such knowledge and experience in financial and business matters that it is
capable of evaluating the merits and risks of its purchase of the Key3Media
Shares hereunder. The Purchaser is an "accredited investor" within the meaning
of Rule 501 promulgated under the Securities Act. The Purchaser is acquiring the
Key3Media Shares for investment and not with a view toward resale in connection
with any distribution thereof in violation of any federal or state securities or
"blue sky" laws, or with the present intention of distributing or selling such
Key3Media Shares in violation of any federal or state securities or "blue sky"
law. The Purchaser understands and agrees that the Key3Media Shares may not be
sold, transferred, offered for sale, pledged, hypothecated or otherwise disposed
of without registration under the Securities Act or pursuant to an exemption
there from; PROVIDED, THAT, if the Purchaser relies on an exemption from the
Securities Act other than the exemptions provided by Rule 144 and Rule 144A, the
Purchaser shall deliver a customary opinion of counsel reasonably satisfactory
to the Key3Media Group, Inc., to the effect that such transfer is in compliance
with the Securities Act.
3.5 NO BROKER. No broker, finder or investment banker is entitled
to any brokerage, finder's or other fee or commission from the Company in
connection with the purchase of Key3Media Shares by the Purchaser provided for
in this Agreement based upon arrangements made by or on behalf of the Purchaser.
ARTICLE IV
TERMINATION OF AGREEMENT
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4.1 TERMINATION. This Agreement may be terminated prior to the
Closing as follows:
(a) at any time on or prior to the Closing Date, by
mutual written consent of the Company and the Purchaser;
(b) at the election of the Company or the Purchaser, by
written notice to the other parties hereto after 5:00 p.m., New York time, on
December 31, 2001 if the Closing shall not have occurred, unless such date is
extended by the mutual written consent of the Company and the Purchaser;
PROVIDED, HOWEVER, that the right to terminate this Agreement under this Section
4.1 shall not be available to any party whose breach of any representation,
warranty, covenant or agreement under this Agreement has been the proximate
cause of the failure of the Closing to occur on or before such date;
(c) at the election of the Company, if there has been a
material breach of any representation, warranty, covenant or agreement on the
part of any of the Purchaser contained in this Agreement, which breach has not
been cured within fifteen (15) Business Days of notice to the Purchaser of such
breach; or
(d) at the election of the Purchaser, if there has been a
material breach of any representation, warranty, covenant or agreement on the
part of the Company contained in this Agreement, which breach has not been cured
within fifteen (15) Business Days notice to the Company of such breach.
If this Agreement so terminates, it shall become null and void and have
no further force or effect, except as provided in Section 4.2.
4.2 SURVIVAL. Notwithstanding Section 4.1, if this Agreement is
terminated and the transactions contemplated hereby are not consummated as
described above, this Agreement shall become void and of no further force and
effect, except for the provisions of this Section 4.2; PROVIDED, HOWEVER, that
(a) none of the parties hereto shall have any liability in respect of a
termination of this Agreement pursuant to Section 4.1(a) or Section 4.1(b) and
(b) nothing shall relieve any of the parties from liability for actual damages
resulting from a termination of this Agreement pursuant to Section 4.1(c) or
4.1(d); and provided, further, that none of the parties hereto shall have any
liability for speculative, indirect, unforeseeable or consequential damages or
lost profits resulting from any legal action relating to any termination of this
Agreement.
ARTICLE V
MISCELLANEOUS
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5.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All of the
representations, warranties and indemnities made herein shall survive the
execution and delivery of this Agreement.
5.2 AMENDMENTS AND WAIVERS. The provisions of this Agreement may
not be amended, modified, supplemented or terminated, and waivers or consents to
departures from the provisions hereof may not be given, without the written
consent of the Company and the Purchaser.
5.3 NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, telecopier, any
courier guaranteeing overnight delivery or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to the applicable
party at the address set forth below or such other address as may hereafter be
designated in writing by such party to the other parties in accordance with the
provisions of this Section:
If to the Company, to:
SOFTBANK America Inc.
00 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxx Xxxxxx, XX 00000
Telecopy:
Attention: Xxxxx Xxxxxx
With a copy to:
Xxxxxxxx and Xxxxxxxx
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy: 000-000-0000
Attention: Xxxxxx X. XxXxxxxxx, Esq.
If to the Purchaser, to:
Invemed Catalyst Fund, L.P.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telecopy: 000-000-0000
Attention: Xxxxxxx Present
With a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
1285 Avenue of the Americas
Xxx Xxxx, Xxx Xxxx 00000-0000
Telecopy: 000-000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; when receipt is
acknowledged, if telecopied; on the next business day, if timely delivered to a
courier guaranteeing overnight delivery; and five days after being deposited in
the mail, if sent first class or certified mail, return receipt requested,
postage prepaid.
5.4 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns of each party; provided however that neither the Company,
on the one hand, nor the Purchaser on behalf of the Purchaser, on the other
hand, shall assign or delegate any of the rights or obligations created under
this Agreement without the prior written consent of the other party; provided
further that, the Purchaser may assign any of their rights under this Agreement,
but not any of their obligations hereunder, to any Affiliate of the Purchaser
without the Company's consent.
5.5 NO THIRD PARTY BENEFICIARIES. This Agreement shall be binding
upon and inure solely to the benefit of the parties hereto and their permitted
assigns, and nothing herein, express or implied, is intended to or shall confer
upon any other Person any legal or equitable right, benefit or remedy of any
nature whatsoever or by reason of this Agreement.
5.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which, when so executed and delivered, shall be deemed to
be an original, but all of which counterparts, taken together, shall constitute
one and the same instrument.
5.7 DESCRIPTIVE HEADINGS, ETC. The headings in this Agreement are
for convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein. Unless the context of this Agreement
otherwise requires: (1) words of any gender shall be deemed to include each
other gender; (2) words using the singular or plural number shall also include
the plural or singular number, respectively; (3) the words "hereof", "herein"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Section and paragraph references are to the Sections and
paragraphs of this Agreement unless otherwise specified; (4) the word
"including" and words of similar import when used in this Agreement shall mean
"including, without limitation," unless otherwise specified; (5) "or" is not
exclusive; and (6) provisions apply to successive events and transactions.
5.8 SEVERABILITY. In the event that any one or more of the
provisions, paragraphs, words, clauses, phrases or sentences contained herein,
or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the other remaining provisions,
paragraphs, words, clauses, phrases or sentences hereof shall not be in any way
impaired, it being intended that all rights, powers and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
5.9 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York (without giving
effect to the conflict of law principles thereof).
5.10 REMEDIES; SPECIFIC PERFORMANCE. The parties hereto acknowledge
that money damages would not be an adequate remedy at law if any party fails to
perform in any material respect any of its obligations hereunder, and
accordingly agree that each party, in addition to any other remedy to which it
may be entitled at law or in equity, shall be entitled to seek to compel
specific performance of the obligations of any other party under this Agreement,
without the posting of any bond, in accordance with the terms and conditions of
this Agreement in any court of the United States or any State thereof having
jurisdiction, and if any action should be brought in equity to enforce any of
the provisions of this Agreement, none of the parties hereto shall raise the
defense that there is an adequate remedy at law. Except as otherwise provided by
law, a delay or omission by a party hereto in exercising any right or remedy
accruing upon any such breach shall not impair the right or remedy or constitute
a waiver of or acquiescence in any such breach. No remedy shall be exclusive of
any other remedy. All available remedies shall be cumulative.
5.11 ENTIRE AGREEMENT. This Agreement 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. There are no restrictions,
promises, representations, warranties, covenants or undertakings relating to
such subject matter, other than those set forth or referred to herein. This
Agreement supersede all prior agreements and understandings between the parties
with respect to such subject matter.
5.12 CONSENT TO JURISDICTION; WAIVER OF JURY. Each party to this
Agreement hereby irrevocably and unconditionally agrees that any legal action,
suit or proceeding arising out of or relating to this Agreement or any
agreements or transactions contemplated hereby may be brought in any federal
court of the Southern District of New York or any state court located in New
York County, State of New York, and hereby irrevocably and unconditionally
expressly submits to the personal jurisdiction and venue of such courts for the
purposes thereof and hereby irrevocably and unconditionally waives any claim (by
way of motion, as a defense or otherwise) of improper venue, that it is not
subject personally to the jurisdiction of such court, that such courts are an
inconvenient forum or that this Agreement or the subject matter may not be
enforced in or by such court. Each party hereby irrevocably and unconditionally
consents to the service of process of any of the aforementioned courts in any
such action, suit or proceeding by the mailing of copies thereof by registered
or certified mail, postage prepaid, to the address set forth or provided for in
Section 5.3 of this Agreement, such service to become effective 10 days after
such mailing. Nothing herein contained shall be deemed to affect the right of
any party to serve process in any manner permitted by law or commence legal
proceedings or otherwise proceed against any other party in any other
jurisdiction to enforce judgments obtained in any action, suit or proceeding
brought pursuant to this Section. Each of the parties hereby irrevocably waives
trial by jury in any action, suit or proceeding, whether at law or equity,
brought by any of them in connection with this Agreement or the transactions
contemplated hereby.
5.13 FURTHER ASSURANCES. Each party hereto shall do and perform or
cause to be done and performed all such further acts and things and shall
execute and deliver all such other agreements, certificates, instruments and
documents as any other party hereto reasonably may request in order to carry out
the intent and accomplish the purposes of this Agreement and the consummation of
the transactions contemplated hereby.
5.14 NO INCONSISTENT AGREEMENTS. The Company will not hereafter
enter into any agreement which is inconsistent with the rights granted to the
Purchaser in this Agreement.
5.15 CONSTRUCTION. The parties acknowledge that each of them has
had the benefit of legal counsel of its own choice and has been afforded an
opportunity to review this Agreement with its, his or her legal counsel and that
this Agreement shall be construed as if jointly drafted by the Company and the
Purchaser.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.]
IN WITNESS WHEREOF, the parties have executed this Stock Purchase
Agreement as of the date first above written.
SOFTBANK America Inc.
By: /s/ Xxxxxxx X. Xxxxxx XX
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Name: Xxxxxxx X. Xxxxxx XX
Title: Vice President
INVEMED CATALYST FUND, L.P.
By: Invemed Catalyst GenPar, LLC,
its general partner
By: Gladwyne Catalyst GenPar, LLC,
its managing member
By: /s/ Xxxxxxx Present
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Name: Xxxxxxx Present
Title: Member
