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L&W DRAFT OF 11/16/99
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (this "AGREEMENT"), dated as of
November 17, 1999, among WRC Media Inc., a Delaware corporation (the "COMPANY"),
Weekly Reader Corporation, a Delaware corporation ("WEEKLY READER"), and JLC
Learning Corporation, a Delaware corporation ("JLC LEARNING" and, together with
the Company and Weekly Reader, the "ISSUERS"), EAC III L.L.C. (collectively, and
together with any Affiliate thereof, the "PRINCIPALS" (as further defined
herein)) and Donaldson, Lufkin & Jenrette Securities Corporation and Banc of
America Securities LLC (collectively, the "INITIAL PURCHASERS").
This Agreement is made pursuant to the Purchase Agreement (the
"PURCHASE AGREEMENT"), dated as of November 10, 1999, by and among the Issuers,
the Note Guarantors set forth therein and the Initial Purchasers. In order to
induce the Initial Purchasers to purchase the Units, the Principals and the
Issuers have agreed to provide the registration rights set forth in this
Agreement and have agreed to the tag-along and drag-along provisions set forth
in this Agreement. The execution and delivery of this Agreement is a condition
to the obligations of the Initial Purchasers set forth in Section 3 of the
Purchase Agreement. Capitalized terms used herein and not otherwise defined
shall have the meanings ascribed to them in the Purchase Agreement.
Pursuant to the Purchase Agreement, the Company has issued
205,656 shares of its common stock, par value $0.01 per share (the "COMMON
STOCK") issued as part of the Units (the "UNIT COMMON STOCK").
The parties hereby agree as follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following capitalized terms
shall have the following meanings:
ACT: The Securities Act of 1933, as amended.
AFFILIATE: As defined in Rule 144 of the Act.
BUSINESS DAY: Any day other than a Saturday, Sunday or day on
which commercial banks in the City of New York are authorized or required by
law, regulation or executive order to remain closed.
CLOSING DATE: The date hereof.
DEMAND EVENT: The earlier to occur of (a) 180 days after the
date on which an initial Public Equity Offering is consummated and (b) the date
on which any class of common stock of either the Company or Weekly Reader is
listed on a national securities exchange or authorized for quotation on the
Nasdaq National Market System, other than in connection with the Public Equity
Offering referred to in clause (a) of this definition.
DEMAND REGISTRATION: As defined in Section 6 of this Agreement.
DEMAND REQUEST: As defined in Section 6 of this Agreement.
EXCHANGE ACT: The Securities Exchange Act of 1934, as amended.
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EXCHANGE COMMON STOCK: Shares of Weekly Reader Class
A Non-Voting Common Stock issuable upon exchange of shares of Unit Common Stock.
EXCHANGE RATIO: On any Exchange Date, the Exchange Ratio is
equal to the product of (1) the total number of shares of Weekly Reader Common
Stock owned by WRC Media on any Exchange Date on a fully diluted basis times (2)
a fraction, the numerator of which is one (1) and the denominator of which is
the total number of shares of Common Stock outstanding on a fully diluted basis
on such Exchange Date.
HOLDER: A person who owns Registrable Securities or has the
right to acquire Registrable Securities, whether or not such acquisition has
actually been effected.
INITIAL PUBLIC OFFERING: An issuance or sale of common stock
pursuant to an underwritten public offering (whether on a firm commitment basis
or a best efforts basis if such best efforts are successful) thereof pursuant to
an effective registration statement filed with the SEC pursuant to the
Securities Act.
INITIATING HOLDERS: One or more Holders owning individually or
in the aggregate not less than the Requisite Securities.
PERSON: Any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization,
government or any agency or political subdivision thereof or any other entity.
PIGGY-BACK REGISTRATION. As defined in Section 7 of this
Agreement.
PRINCIPALS: EAC III L.L.C., a Delaware limited liability
corporation, or such other person as Ripplewood Partners, L.P. maintains its
equity investment in the Company through; provided that if Ripplewood Partners,
L.P. has a direct equity investment in the Company or any of its subsidiaries,
Principals shall include Ripplewood Partners, L.P.
PRO RATA PORTION. Pro Rata Portion means with reference to any
Holder at any time, a fraction, the numerator of which is the total number of
shares of common stock held by such Holder and the denominator of which is the
total number of shares of common stock held by all stockholders participating as
sellers in such transaction, adjusted, in the case of the Exchange Common Stock
for the applicable Exchange Ratio.
PROSPECTUS: The prospectus included in a Registration
Statement at the time such Registration Statement is declared effective, as
amended or supplemented by any prospectus supplement and by all other amendments
thereto, including post-effective amendments, and all material incorporated by
reference into such prospectus.
PUBLIC EQUITY OFFERING: means an underwritten offering of
common stock of either the Company or Weekly Reader pursuant to a registration
statement that has been declared effective by the SEC pursuant to the Act (other
than a registration statement on Form S-8 or otherwise relating to equity
securities issuable under any employee benefit plan of the Company or Weekly
Reader, as applicable, and other than any offering registered on Form S-4 or its
equivalent).
REGISTRABLE SECURITIES: means (1) any shares of Unit Common
Stock and Exchange Common Stock and (2) any other securities issued or issuable
with respect to the exchange of Unit Common Stock or Exchange Common Stock by
way of stock dividend or stock split or in connection with a combination of
shares, recapitalization, merger, consolidation or other reorganization or
otherwise. As to any particular Registrable Securities, securities shall cease
to be Registrable Securities when (1) a registration statement with respect to
the offering of such securities by the Holder thereof shall have been declared
effective under the Act and such securities shall have been disposed of by such
Holder pursuant to such registration statement, (2)
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such securities have been sold to the public pursuant to Rule 144(k) (or any
similar provision then in force, but not Rule 144A) promulgated under the Act,
(3) such securities shall have been otherwise transferred by the Holder thereof
and new certificates for such securities not bearing a legend restricting
further transfer shall have been delivered by the Company or Weekly Reader, as
applicable, or its transfer agent and subsequent disposition of such securities
shall not require registration or qualification under the Act or any similar
state law then in force or (4) such securities shall have ceased to be
outstanding.
REGISTRATION EXPENSES: All expenses incident to the Company's
and Weekly Reader's performance of or compliance with this Agreement, including,
without limitation, all SEC and stock exchange or National Association of
Securities Dealers, Inc. registration and filing fees and expenses, fees and
expenses of compliance with securities or blue sky laws (including, without
limitation, reasonable fees and disbursements of counsel for the underwriters in
connection with blue sky qualifications of the Registrable Securities),
preparing, printing, filing, duplicating and distributing the Registration
Statement and the related prospectus, the cost of printing stock certificates,
the cost and charges of any transfer agent, rating agency fees, printing
expenses, messenger, telephone and delivery expenses, reasonable fees and
disbursements of counsel for the Company and Weekly Reader and all independent
certified public accountants, the fees and disbursements of underwriters
customarily paid by issuers or sellers of securities (but not including any
underwriting discounts or commissions or transfer taxes, if any, attributable to
the sale of Registrable Securities by Selling Holders), and reasonable fees and
expenses of one counsel for the Holders.
REGISTRATION STATEMENT: Any registration statement of the
Company or Weekly reader, as applicable, relating to the registration for resale
of Registrable Securities that is filed pursuant to the provisions of this
Agreement and including the Prospectus included therein, all amendments and
supplements thereto (including post-effective amendments) and all exhibits and
all material incorporated by reference therein.
REORGANIZATION TRANSACTION: A reorganization at the sole
discretion of the Company completed in connection with the Initial Public
Offering of Weekly Reader pursuant to which the Company shall transfer, or cause
to be transferred, all or substantially all its assets (including all the
capital stock and debt securities of the subsidiaries of the Company (including
Weekly Reader)) to Weekly Reader in exchange for the assumption by Weekly Reader
of all or substantially all the liabilities of the Company, and the issuance to
the Company by Weekly Reader of new securities (including common and preferred
stock) of Weekly Reader.
REQUISITE SECURITIES: A number of Registrable Securities
equal to not less than 25% of the then Registrable Securities held in aggregate
by all Holders.
SEC: The Securities and Exchange Commission.
SELLING HOLDER: A Holder who is selling Registrable Securities
in accordance with the provisions of this Agreement.
SHELF REGISTRATION: As defined in Section 8.
WEEKLY READER CLASS A NON-VOTING COMMON STOCK: The class A
non-voting common stock, par value $0.01 per share, of Weekly Reader. Upon the
occurrence of an Initial Public Offering of Weekly Reader, the Weekly Reader
Class A Non-Voting Common Stock will automatically convert into Weekly Reader
Voting Common Stock.
WEEKLY READER COMMON STOCK: The common stock of Weekly Reader
of all classes.
WEEKLY READER VOTING COMMON STOCK: The voting common stock, par
value $0.01 per share, of Weekly Reader.
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SECTION 2. EXCHANGE RIGHTS
(a) (i) Subject to the provisions of this Section 2, each
Holder of the Unit Common Stock, at its option, may at any time on any Business
Day in connection with the Initial Public Offering of Weekly Reader cause Weekly
Reader to exchange all, but not less than all, outstanding shares of Unit Common
Stock owned by such Holder for a number of shares of Weekly Reader Class A
Non-Voting Common Stock determined by multiplying the number of such Holder's
shares of Unit Common Stock by the Exchange Ratio. Dividends on Unit Common
Stock exchanged for Weekly Reader Class A Non-Voting Common Stock which have
been declared but have not been paid as of the date of exchange (the "EXCHANGE
DATE") shall be deemed to have accrued on the Exchange Common Stock in
equivalent adjusted amounts.
(ii) Subject to the provisions of this Section 2, the
Company, at its option, in anticipation of the Reorganization Transaction may
distribute to the Holders of Unit Common Stock in exchange for such stock a
number of shares of Weekly Reader Class A Non-Voting Common Stock determined by
multiplying the number of such shares of Unit Common Stock by the Exchange
Ratio; PROVIDED that if the Initial Public Offering of Weekly Reader or the
Reorganization Transaction is not consummated within ten business days after
such exchange then the Exchange Common Stock will be converted back to Unit
Common Stock using the inverse of the Exchange Ratio used for the initial
exchange and the Company and the Holders shall then have the same rights to
cause the Unit of Common Stock to be exchanged for Exchange Common Stock as
prior to such exchange, and such shares of Unit Common Stock shall have been
deemed to have been outstanding as if such shares had never been exchanged for
such Exchange Common Stock for all purposes, including with respect to dividends
and other distributions payable with respect to the Company's Common Stock.
Dividends on Unit Common Stock exchanged for Weekly Reader Class A Non-Voting
Common Stock which have been declared but have not been paid as of the Exchange
Date shall be deemed to have accrued on the Exchange Common Stock in equivalent
adjusted amounts.
(b) (i) In the event of an exchange pursuant to Section 2(a)
of the Unit Common Stock for Exchange Common Stock, notice of such exchange
specifying the Exchange Date therefor shall be given (x) if at the option of a
Holder of Unit Common Stock, to the Company and Weekly Reader, not less than 30
days nor more than 60 days prior to the Exchange Date or (y) if at the option of
the Company, to the Holders of Unit Common Stock not less than 10 nor more than
60 days prior to the Exchange Date.
(ii) Notice having been given as aforesaid, from and after
the Exchange Date (unless default shall be made by Weekly Reader issuing
Exchange Common Stock or by the Company in distributing Exchange Common Stock,
as applicable, in exchange for Unit Common Stock), all rights of the Holders as
stockholders of the Company (except the right to receive the Exchange Common
Stock) shall cease. In the case of an exchange pursuant to Section 2(a)(i), upon
surrender to Weekly Reader in accordance with said notice of the certificates
for the Unit Common Stock (properly endorsed or assigned for transfer), Weekly
Reader shall issue the Exchange Common Stock and deliver to the applicable
Holder(s) certificates therefor registered in the name of such Holder(s). In the
case of an exchange pursuant to Section 2(a)(ii), the exchange shall be deemed
to have been effected immediately after the close of business on the Exchange
Date, and the Holder(s) in whose names the Exchange Common Stock shall be
issuable upon such exchange shall be deemed to have become the Holders of record
of the Exchange Common Stock represented thereby at such time on the Exchange
Date. In connection with an exchange pursuant to Section 2(a)(ii), if the
Company causes new shares of Weekly Reader Class A Non-Voting Common Stock to be
issued to Holders of Unit Common Stock in connection with such exchange in lieu
of exchanging such shares for existing shares of Exchange Common Stock, then the
Exchange Ratio shall be adjusted so that after giving effect to such new
issuance of shares of Exchange Common Stock, the Holders of Exchange Common
Stock are in the same economic position as they would have been had no new
shares of Exchange Common Stock been issued.
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(iii) Prior to the issuance of the Exchange Common Stock by
Weekly Reader and the delivery thereof by Weekly Reader or the Company, as the
case may be, Weekly Reader and the Company shall comply with all applicable
Federal and state laws and regulations which require action to be taken by them
with respect to such issuance and delivery (it being understood that neither
Weekly Reader nor the Company shall be required to file a registration statement
covering such shares with the SEC). Holders of Unit Common Stock will be able to
exchange their Weekly Reader Class A Non-Voting Common Stock for Exchange Common
Stock only if the exchange of such securities is exempt from the registration
requirements of the Act, and such securities are qualified for sale or exempt
from qualification under the applicable securities laws of the states in which
the various Holders of securities reside.
(c) Weekly Reader will pay any and all documentary stamp or
similar issue or transfer taxes payable in respect of the issuance or
delivery of certificates evidencing the Exchange Common Stock other than
those resulting from transfers to third parties.
(d) Weekly Reader will at all times reserve and keep
available, free from preemptive rights, out of the aggregate of its
authorized but unissued Weekly Reader Common Stock or its authorized and
issued Weekly Reader Common Stock held in its treasury, for the purpose of
enabling it to satisfy any obligation to issue Exchange Common Stock upon
exchange of Unit Common Stock, the maximum number of shares of Weekly Reader
Common Stock which may then be deliverable upon the exchange of all shares of
Unit Common Stock.
SECTION 3. TAG ALONG RIGHTS.
(a) Notwithstanding anything in this Agreement to the
contrary, except in the case of (i) transactions where Drag-Along Rights are
exercised pursuant to Section 4 hereof, (ii) sales in which the Holders of
Registrable Securities have piggy-back registration rights pursuant to Section 7
hereof (which have not been limited in accordance with the terms hereof or
otherwise), (iii) transfers to Affiliates of the Principals and (iv) sales by
Principals to persons other than Affiliates of the Principals on a cumulative
basis that do not exceed 20% of the shares of common stock of the Company and
Weekly Reader held by the Principals, the Principals shall refrain from
effecting any transfer or sale of common stock of the Company and Weekly Reader
unless, prior to the consummation thereof, the Holders shall have been afforded
the opportunity to join in such sale on the basis provided for in this Section
3.
(b) Prior to consummation of the proposed transfer by the
Principals referred to in Section 2(a) above, the Principals shall give each
Holder of Registrable Securities notice (a "TAGALONG NOTICE") stating the number
of shares of common stock of the Company and Weekly Reader to be transferred and
the price and other terms on which the shares to be transferred. Any Holder of
Unit Common Stock and Exchange Common Stock may elect to participate in such
transfer (a "TAGALONG RIGHT") by giving notice to the Principals within 15 days
of receipt of the Tag-Along Notice.
(c) The number of shares of Unit Common Stock and Exchange
Common Stock that any Holder electing to participant in a transfer shall be
eligible to sell pursuant thereto shall be equal to the product obtained by
multiplying the aggregate number of shares of common stock proposed to be
purchased by the Proposed Purchaser, whether from the Principals, the Holders or
otherwise, by such Holder's Pro Rata Portion, and the number of shares of common
stock to be sold by the Principals shall be reduced by the aggregate number of
shares of common stock of the Company and Weekly Reader to be purchased from
such Holders pursuant thereto. Such purchase shall be made on the same terms and
conditions as the proposed purchaser of the common stock of the Company and
Weekly Reader (the "PROPOSED PURCHASER") shall have offered to purchase shares
of common stock of the Company and Weekly Reader to be sold by Principals (net,
in the case of any options, warrants or rights, of any amounts required to be
paid by the Holder upon exercise thereof).
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Any shares of Unit Common Stock or Exchange Common Stock purchased from the
Holders pursuant to such provisions shall be paid for at the same price per
share of common stock of the Company and Weekly Reader and upon the same terms
and conditions as such proposed transfer of common stock of the Company and
Weekly Reader by the Principals, adjusted, in the case of the Exchange Common
Stock, for the applicable Exchange Ratio. If the Securities to be purchased in
the Company Sale includes securities other than common stock, the price to be
paid for such securities shall be the same price per share or other denomination
paid received by the Principals for like securities purchased from the
Principals.
SECTION 4. DRAG-ALONG RIGHTS.
(a) If any Principal or Principals approve or authorize a sale
or exchange (the "COMPANY SALE") of more than 80% of the then outstanding
capital stock of Weekly Reader or the Company in a bona fide arm's-length
transaction to a third party that is not an Affiliate of any Principal or of the
Company or Weekly Reader (an "INDEPENDENT THIRD PARTY"), then the Principal or
Principals shall have the right, subject to all the provisions of this Section 4
(the "DRAG-ALONG RIGHT"), to require each of the Holders of Unit Common Stock
and Exchange Common Stock to sell, transfer and deliver or cause to be sold,
transferred and delivered to such Independent Third Party all Unit Common Stock
and Exchange Common Stock owned by them; PROVIDED, HOWEVER, that if the
Principals agree to sell less than all of their shares to such Independent Third
Party, each of the other Holders shall only be required to sell, transfer and
deliver to such Independent Third Party an amount of Unit Common Stock and
Exchange Common Stock equal to the product obtained by multiplying the amount by
such Holder's Pro Rata Portion.
(b) If the Principals desire to exercise Drag-Along Rights, it
shall give written notice to the Holders (the "DRAG-ALONG NOTICE") of the
Company Sale, setting forth the name and address of the transferee, the date on
which such transaction is proposed to be consummated (which shall be not less
than 30 days after the date such Drag-Along Notice is given), and the proposed
amount and form of consideration and terms and conditions of payment offered by
such transferee, including, without limitation, the material terms of any debt
or equity securities proposed to be included as part of such consideration,
identifying the issuer or issuers thereof. If such consideration includes any
non-cash consideration, such notice shall also state the fair market value of
such non-cash consideration and shall describe in reasonable detail the method
by which such value shall have been determined.
(c) The consideration to be received by the Holders of Unit
Common Stock and Exchange Common Stock shall be at the same price per share of
common stock (net, in the case of any options, warrants or rights, of any
amounts required to be paid by the Holder upon exercise thereof) and upon the
same terms and conditions as such proposed transfer of common stock of the
Company and Weekly Reader by the Principals, adjusted in the case of Exchange
Common Stock, for the applicable Exchange Ratio. Such consideration shall be of
the same type of consideration received by the Principals. If the securities to
be purchased in the Company Sale includes securities other than common stock,
the price to be paid for such securities shall be the same price per share or
other denomination paid received by the Principals for like securities purchased
from the Principals.
SECTION 5. REGISTRATION PROCEDURES.
In connection with any Demand Registration, Piggy-Back
Registration or Shelf Registration, the Company or Weekly Reader, as applicable,
shall (provided that it will not be required to take any action pursuant to this
Section 5 that would, in the written opinion of counsel for the Company or
Weekly Reader, as applicable, violate applicable law):
(a) Use commercially reasonable best efforts to effect such
registration to permit the sale of the Registrable Securities being sold in
accordance with the intended method or methods
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of distribution thereof, and pursuant thereto the Company or Weekly Reader, as
applicable, will prepare and file with the SEC a Registration Statement relating
to the registration on any appropriate form under the Act, which form shall be
available for the sale of the Registrable Securities in accordance with the
intended method or methods of distribution thereof within the time periods and
otherwise in accordance with the provisions hereof;
(b) Promptly prior to the filing of any document that is to
be incorporated by reference into a Registration Statement or related
Prospectus, provide copies of such document to each Selling Holder in connection
with such sale, if any, and make the Company's or Weekly Reader's, as
applicable, representatives reasonably available during normal business hours
for discussion of such document and other customary due diligence matters, and
include such information in such document prior to the filing thereof as such
Selling Holders may reasonably request;
(c) Make available, at reasonable times, for inspection by a
representative of, and counsel for, Holders of at least 25% in aggregate
principal amount of Registrable securities being sold, all relevant financial
and other records and pertinent corporate documents of the Company or Weekly
Reader, as applicable, as shall be reasonably necessary to enable them to
exercise any applicable due diligence responsibilities and use its best efforts
to cause the Company's or Weekly Reader's, as applicable, officers, directors
and employees to supply all relevant information reasonably requested by any
such representatives in connection with such Registration Statement or any
post-effective amendment thereto subsequent to the filing thereof and prior to
its effectiveness;
(d) If requested by any Holders in connection with such
exchange or sale, promptly include in any Registration Statement or Prospectus,
pursuant to a supplement or post-effective amendment if necessary, such
information as such Holders may reasonably request to have included therein,
including, without limitation, information relating to the "Plan of
Distribution" of the Registrable Securities, and make all required filings of
such Prospectus supplement or post-effective amendment as soon as practicable
after the Company or Weekly Reader, as applicable, is notified of the matters to
be included in such Prospectus supplement or post-effective amendment;
(e) In connection with any Demand Registration and, to the
extent the participants other than Holders of Registrable Securities in a
Piggy-Back Registration receive any items set forth in this Section 5(e), in
connection with a Piggy-Back Registration, upon the request of the Holders of
not less than a majority of the then Registrable Securities held in aggregate by
all Holders (the "Majority Holders"), enter into such agreements (including
underwriting agreements) and make such customary representations and warranties
and take all such other actions in connection therewith in order to expedite or
facilitate the disposition of the Registrable Securities pursuant to any
applicable Registration Statement contemplated by this Agreement as may be
reasonably requested by any Holder in connection with any sale or resale
pursuant to any applicable Registration Statement. In such connection, the
Company or Weekly Reader, as applicable, shall:
(i) upon request of the Majority Holders furnish (or
in the case of paragraphs (B) and (C), use its best efforts to cause to
be furnished) to each Holder, upon the effectiveness of the
Registration Statement:
(A) a certificate, dated such date, signed on behalf of the
Company or Weekly Reader, as applicable, by (x) the President or any
Vice President and (y) a principal financial or accounting officer of
the Company or Weekly Reader, as applicable, confirming, as of the date
thereof, the matters set forth in Sections 6(kk) (as to the
Registration Statement) and 9(a) (as to the representations and
warranties contained herein) of the Purchase Agreement and such other
similar matters as such Holders may reasonably request;
(B) an opinion, dated the date of effectiveness of the
Registration Statement, as the case may be, of counsel for the Company
or Weekly Reader, as applicable, covering matters similar to those set
forth in Exhibit A to the of the Purchase Agreement; and
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(C) a customary comfort letter, dated the date of
effectiveness of the Registration Statement, as the case may be, from
the Company's or Weekly Reader's, as applicable, independent
accountants, in the customary form and covering matters of the type
customarily covered in comfort letters to underwriters in connection
with underwritten offerings, and affirming the matters set forth in the
comfort letters delivered pursuant to Section 9(g) of the Purchase
Agreement; and
(ii) deliver such other documents and certificates as
may be reasonably requested by the Selling Holders to evidence
compliance with the matters covered in clause (i) above and with any
customary conditions contained in any agreement entered into by the
Company or Weekly Reader, as applicable, pursuant to this clause (e);
(f) Use its best efforts to keep such Registration Statement
continuously effective and provide all requisite financial statements for the
period specified in Section 6 or 7 of this Agreement, as applicable. Upon the
occurrence of any event that would cause any such Registration Statement or the
Prospectus contained therein (i) to contain an untrue statement of material fact
or omit to state any material fact necessary to make the statements therein (in
the case of the Prospectus only, in the light of the circumstances under which
they were made) not misleading or (ii) not to be effective and usable for resale
of Registrable Securities during the period required by this Agreement, the
Company or Weekly Reader, as applicable, to the extent required after the
Recommencement Date, shall file promptly an appropriate amendment to such
Registration Statement curing such defect, and, if SEC review is required, use
their respective best efforts to cause such amendment to be declared effective
as soon as practicable;
(g) Prepare and file with the SEC such amendments and
post-effective amendments to the applicable Registration Statement as may be
necessary to keep such Registration Statement effective for the applicable
period set forth in Section 6 or 7 hereof, as the case may be; cause the
Prospectus to be supplemented by any required Prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 under the Act, and to comply fully
with Rules 424, 430A and 462, as applicable, under the Act in a timely manner;
and comply with the provisions of the Act with respect to the disposition of all
securities covered by such Registration Statement during the applicable period
in accordance with the intended method or methods of distribution by the sellers
thereof set forth in such Registration Statement or supplement to the
Prospectus;
(h) Advise each Holder promptly (if requested by such
Holder, in the case of clause (i) and (ii)) (i) when the Prospectus or any
Prospectus supplement or post-effective amendment has been filed, and, with
respect to any applicable Registration Statement or any post-effective amendment
thereto, when the same has become effective, (ii) of any request by the SEC for
amendments to the Registration Statement or amendments or supplements to the
Prospectus or for additional information relating thereto, (iii) of the issuance
by the SEC of any stop order suspending the effectiveness of the Registration
Statement under the Act or of the suspension by any state securities commission
of the qualification of the Registrable Securities for offering or sale in any
jurisdiction, or the initiation of any proceeding for any of the preceding
purposes, (iv) of the existence of any fact or the happening of any event that
makes any statement of a material fact made in the Registration Statement, the
Prospectus, any amendment or supplement thereto or any document incorporated by
reference therein untrue, or that requires the making of any additions to or
changes in the Registration Statement in order to make the statements therein
not misleading, or that requires the making of any additions to or changes in
the Prospectus in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. If at any time the SEC
shall issue any stop order suspending the effectiveness of the Registration
Statement, or any state securities commission or other regulatory authority
shall issue an order suspending the qualification or exemption from
qualification of the Registrable Securities under state securities or Blue Sky
laws, the shall use its best efforts to obtain the withdrawal or lifting of such
order at the earliest possible time;
(i) Subject to Section 5(f), if any fact or event
contemplated by Section 5(h)(iv) above shall exist or have occurred, prepare a
supplement or post-effective amendment to the
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Registration Statement or related Prospectus or any document incorporated
therein by reference or file any other required document so that, as thereafter
delivered to the purchasers of Registrable Securities, the Prospectus will not
contain an untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading;
(j) Furnish to each Selling Holder in connection with such
exchange or sale, if any, before filing with the SEC, copies of any Registration
Statement or any related Prospectus included therein or any amendments or
supplements to any such Registration Statement or Prospectus (including all
documents incorporated by reference after the initial filing of such
Registration Statement), which documents will be subject to the review and
comment of such Holders in connection with such sale, if any, for a period of at
least five business days, and, in connection with any Demand Registration, the
Company or Weekly Reader, as applicable, will not file any such Registration
Statement or related Prospectus or any amendment or supplement to any such
Registration Statement or Prospectus (including all such documents incorporated
by reference) to which such Selling Holders shall reasonably object within five
business days after the receipt thereof. A Selling Holder shall be deemed to
have reasonably objected to such filing if such Registration Statement,
amendment, related Prospectus or supplement, as applicable, as proposed to be
filed, contains an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading or fails
to comply with the applicable requirements of the Act;
(k) furnish to each Holder of Registrable Securities
included within the coverage of any Registration Statement, without charge, at
least one conformed copy of such Registration Statement and any post-effective
amendment thereto, including financial statements and, if any such Holder so
requests in writing, all exhibits thereto (including those, if any, incorporated
by reference);
(l) [during the Shelf Registration Period,] promptly deliver
to each Holder of Registrable Securities included within the coverage of any
Registration Statement, without charge, as many copies of the Prospectus
(including each preliminary Prospectus) included in such Registration Statement
and any amendment or supplement thereof as such Holder may reasonably request;
and the Company and Weekly Reader, as applicable, consent to the use of such
Prospectus or any amendment or supplement thereto by each of the selling Holders
of Registrable Securities in connection with the offer and sale of the
Registrable Securities covered by such Prospectus or any amendment or supplement
thereto;
(m) furnish to any other Holder who so requests, without
charge, at least one conformed copy of the Registration Statement and any
post-effective amendment thereto, including financial statements and schedules
and, if any Exchanging Dealer or any such Holder so requests in writing, all
exhibits thereto (including those, if any, incorporated by reference);
(n) Prior to any public offering of Registrable Securities,
cooperate with the Selling Holders and their counsel in connection with the
registration and qualification of the Registrable Securities under the
securities or Blue Sky laws of such jurisdictions as the Majority Holders may
request and do any and all other acts or things reasonably necessary or
advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the applicable Registration Statement; PROVIDED, HOWEVER,
that the Company or Weekly Reader, as applicable, shall not be required to
register or qualify as a foreign corporation where it is not now so qualified or
to take any action that would subject it to the service of process in suits or
to taxation in any jurisdiction where it is not now so subject;
(o) In connection with any sale of Registrable Securities
that will result in such securities no longer being Registrable Securities,
cooperate with the Selling Holders to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold and not
bearing any restrictive legends; and to register such Registrable Securities in
such denominations and such names as the Selling Holders may request in writing
at least three Business Days prior to such sale of Registrable Securities;
10
(p) Use its best efforts to cause the disposition of the
Registrable Securities covered by the Registration Statement to be registered
with or approved by such other governmental agencies or authorities as may be
necessary to enable the seller or sellers thereof to consummate the disposition
of such Registrable Securities, subject to the proviso contained in clause (n)
above;
(q) Provide a CUSIP number for all Registrable Securities
not later than the effective date of a Registration Statement covering such
Registrable Securities and provide the transfer agent with printed certificates
for the Registrable Securities that are in a form eligible for deposit with The
Depository Trust Company;
(r) Otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC, and make generally available to its
security holders with regard to any applicable Registration Statement, as soon
as practicable after the effective date of such Registration Statement, a
consolidated earnings statement meeting the requirements of Rule 158 (which need
not be audited) covering a twelve-month period beginning after the effective
date of the Registration Statement (as such term is defined in paragraph (c) of
Rule 158 under the Act);
(s) Provide promptly to each Holder, upon written request,
each document filed by the Company or Weekly reader as applicable, with the SEC
pursuant to the requirements of Section 13 or Section 15(d) of the Exchange Act
during any period of time when the Company or Weekly Reader as applicable is
required to maintain the effectiveness of a Registration Statement;
(t) Use its best efforts to cause the common stock being
registered to be quoted or listed on any exchange upon which the Company's or
Weekly Reader's, as applicable, common stock is then quoted or listed; and
(u) Use its best efforts to take all other steps reasonably
necessary to effect the registration, offering and sale of the Registrable
Securities covered by the Registration Statement.
The Company or Weekly Reader, as applicable, may require each
Selling Holder as to which any registration is being effected to furnish to the
Company or Weekly Reader, as applicable, such information regarding the
distribution of such Registrable Securities as is required by law to be
disclosed in the applicable Registration Statement, and the Company or Weekly
Reader, as applicable, may exclude from such registration the Registrable
Securities of any Selling Holder who unreasonably fails to furnish such
information promptly after receiving such request.
If any such Registration Statement refers to any Holder by
name or otherwise as the holder or any securities of the Company or Weekly
Reader, as applicable, then such Holder shall have the right to require (i) the
insertion therein of language, in form and substance reasonably satisfactory to
such Holder, to the effect that the holding by such Holder of such securities is
not to be construed as a recommendation by such Holder of the investment quality
of the Company's or Weekly Reader's, as applicable, securities covered thereby
and that such holding does not imply that such Holder will assist in meeting any
future financial requirements of the Company or Weekly Reader, as applicable, or
(ii) in the event that such reference to such Holder by name or otherwise is not
required by the Act or any similar Federal statute then in force, the deletion
of the reference to such Holder in any amendment or supplement to the
Registration Statement filed or prepared subsequent to the time that such
reference ceases to be required.
Each Holder agrees by acquisition of a Registrable Security
that, upon receipt of the notice referred to in Section 5(h)(iii) or any notice
from the Company or Weekly Reader, as applicable, of the existence of any fact
of the kind described in Section 5(h)(iv) hereof (in each case, a "SUSPENSION
NOTICE"), such Holder will forthwith discontinue disposition of Registrable
Securities pursuant to the applicable Registration Statement until (i) such
Holder has received copies of the supplemented or amended Prospectus
contemplated by Section 5(i) hereof, or (ii) such Holder is advised in writing
by the Company or Weekly Reader, as applicable, that the use of the Prospectus
may be resumed, and has received copies of any additional or supplemental
filings that are incorporated by reference in the Prospectus (in each case, the
"RECOMMENCEMENT DATE"). Each
11
Holder receiving a Suspension Notice hereby agrees that it will either (i)
destroy any Prospectuses, other than permanent file copies, then in such
Holder's possession which have been replaced by the Company or Weekly Reader, as
applicable, with more recently dated Prospectuses or (ii) deliver to the Company
or Weekly Reader, as applicable, (at the Company's or Weekly Reader's, as
applicable, expense) all copies, other than permanent file copies, then in such
Holder's possession of the Prospectus covering such Registrable Securities that
was current at the time of receipt of the Suspension Notice. The time period
regarding the effectiveness of such Registration Statement set forth in Section
6 or 7 hereof, as applicable, shall be extended by a number of days equal to the
number of days in the period from and including the date of delivery of the
Suspension Notice to the date of delivery of the Recommencement Date.
Notwithstanding any of the foregoing provisions of this
Section 5 and subject to Section 7 hereof, in the case of any Piggy-Back
Registration, the Company or Weekly Reader, as applicable, shall be deemed to
have complied with the requirements of this Section 5 in respect of the Holders
of Registrable Securities if (i) the Company or Weekly Reader, as applicable,
follows the same registration procedures with respect to the Registrable
Securities subject to such Piggy-Back Registration as the Company or Weekly
Reader, as applicable, follows with respect to the other securities included in
such registration (including any securities offered by the Company or Weekly
Reader, as applicable) and (ii) only if there are participants in the Piggy-Back
Registration other than the Company or the Holders of the Registrable
Securities, the Company or Weekly Reader, as applicable, provides the Holders of
such Registrable Securities with the same rights with respect such registration
procedures as are provided to the other participants in such Piggy-Back
Registration.
SECTION 6. DEMAND REGISTRATION.
(a) After the occurrence of a Demand Event, one or more
Initiating Holders owning individually or in the aggregate not less than the
Requisite Securities may request in writing that the Company, if the Demand
Event is in connection with its Initial Public Offering or listing, or Weekly
Reader, if the Demand Event is in connection with its Initial Public Offering or
listing, effect the registration under the Act of all or part of the Registrable
Securities of the Company or Weekly Reader, as the case may be, held by such
Initiating Holders and shall specify the number of Registrable Securities
proposed to be sold and the intended method of disposition thereof (the "DEMAND
REQUEST"). Only the first Demand Event will give rise to any obligation for
either Weekly Reader or the Company to effect a Demand Registration and such
obligation shall solely be the obligation of the entity for which the Initial
Public Offering or listing has occurred. The Company or Weekly Reader, as
applicable, shall give prompt written notice of the Demand Request to all other
Holders of Registrable Securities. Within 120 days of receipt of the Demand
Request the Company or Weekly Reader, as applicable, will, subject to the terms
of this Agreement, file a Registration Statement and use its best efforts to
effect the registration under the Act:
(i) the Registrable Securities which the Company or
Weekly Reader, as applicable, has been so requested to register by such
Initiating Holders for disposition in accordance with the intended
method of disposition stated in such request;
(ii) all other Registrable Securities, the Holders of
which shall have made a written request to the Company or Weekly
Reader, as applicable, for registration thereof within 20 days after
the giving of such written notice by the Company or Weekly Reader, as
applicable, (which request shall specify the number of Registrable
Securities proposed to be sold and the intended method of disposition
of such Registrable Securities); and
(iii) all shares of securities that the Company or
Weekly Reader, as applicable, or any other stockholder may elect to
register in connection with the offering of Registrable Securities
pursuant to this Section 6,
all to the extent requisite to permit the disposition (in accordance with the
intended methods thereof as aforesaid) of the Registrable Securities and the
additional securities so to be registered.
12
(b) Registration under this Section 6 (the "DEMAND
REGISTRATION") shall be on such appropriate registration form of the SEC (i) as
shall be selected by the Company or Weekly Reader, as applicable, and (ii) as
shall permit the disposition of such Registrable Securities in accordance with
the intended method or methods of disposition specified in their request for
such registration.
(c) The Company or Weekly Reader, as applicable, will pay
all Registration Expenses in connection with any registration requested pursuant
to this Section 6. The Selling Holders shall pay the underwriting discounts,
commissions, and transfer taxes, if any, in connection with the Registration
Statement requested under this Section 6, which costs shall be allocated PRO
RATA among all Selling Holders on whose behalf Registrable Securities of the
Company or Weekly Reader, as applicable, are included in such registration on
the basis of the respective amounts of the Registrable Securities then being
registered on their behalf.
(d) The Holders shall be entitled to request one (1)
registration pursuant to this Section 6. A Registration Statement requested
pursuant to this Section 6 shall not be deemed to have been effected (i) unless
a Registration Statement with respect thereto has been declared effective by the
SEC and (ii) the Company or Weekly Reader, as applicable, has complied in a
timely manner and in all material respects with all of its obligations under
this Agreement; PROVIDED, (i) if, after such Registration Statement has become
effective, such Registration Statement is or becomes subject to any stop order,
injunction or other order or requirement of the SEC or other governmental or
administrative agency or court that prevents, restrains or otherwise limits the
sale of Registrable Securities under such Registration Statement for any reason,
other than by reason of some act or omission by any Holder participating in such
registration, and does not become effective within a reasonable period of time
thereafter, such period not to exceed 60 days from the date of such stop order,
injunction, or other governmental order or requirement or (ii) the Registration
Statement does not remain effective under the Act until at least the earlier of
(A) an aggregate of 180 days after the effective date thereof or (B) the
consummation of the distribution by the Selling Holders of all of the
Registrable Securities covered thereby. For purposes of calculation the 180-day
period referred to in the preceding sentence, any period of time during which
such Registration Statement was not in effect shall be excluded. The Holders
shall be permitted to withdraw all or any part of the Registrable Securities
from a Demand Registration at any time prior to the effective date of such
Demand Registration.
(e) If a requested registration pursuant to this Section 6
involves an underwritten offering, and the managing underwriter or underwriters
shall advise the Company or Weekly Reader, as applicable, in writing (with a
copy to each Holder requesting registration) that, in such managing
underwriter's or underwriters' opinion, the number of securities requested to be
included in such registration (including securities of the Company or Weekly
Reader, as applicable, which are not Registrable Securities) is such as to
adversely affect the success of such offering, including the price at which such
securities can be sold, then the Company or Weekly Reader, as applicable, will
include in such registration, to the extent of the number which the Company or
Weekly Reader, as applicable, is so advised can be sold in such offering, (i)
first, Registrable Securities requested to be included in such registration by
the Holders, PRO RATA among such holders requesting such registration on the
basis of the number of such securities requested to be included by such Holders
and (ii) second, securities held by other Persons, including the Company or
Weekly Reader, as applicable. If more than 10% of the securities of the Holders
have been excluded from a Registration Statement pursuant to the provisions of
this Section 6(e), then such registration shall not count toward determining
whether the Company has satisfied its obligation to effect one Demand
Registration pursuant to this Section 6 with respect to such securities.
(f) If the Company or Weekly Reader, as applicable,
receives a Demand Request during a "lock-up" or "black out" period (the "LOCK UP
PERIOD") imposed on the Company or Weekly Reader, as applicable, pursuant to or
in connection with any underwriting or purchase agreement relating to a Rule
144A offering or a registered public offering of common stock of the Company or
Weekly Reader, as applicable, or securities convertible into or exchangeable for
common stock of the Company or Weekly Reader, as applicable, the Company or
Weekly Reader, as
13
applicable, shall not be required to notify holders of Registrable Securities
pursuant to Section 6(a) hereof or file a Registration Statement prior to the
end of the Lock Up Period.; PROVIDED, that such Lock Up Period shall not exceed
90 days or, in the case of an Initial Public Offering, 180 days. The Company or
Weekly Reader, as applicable, shall use all commercially reasonable best efforts
to cause the Registration Statement to become effective no later than the later
of (i) 180 days after receipt of the Demand Request or (ii) 60 days after the
end of the Lock Up Period The Company or Weekly Reader, as applicable, shall
notify the Holders of Registrable Securities within 10 days of the imposition of
any Lock Up Period on the Company or Weekly Reader.
SECTION 7. PIGGY-BACK REGISTRATION.
(a) If the Company or Weekly Reader, as applicable,
proposes to file a Registration Statement under the Act with respect to an
offering by the Company or Weekly Reader, as applicable, for its own account or
for the account of any of the holders of any class of common stock of the
Company or Weekly Reader, as applicable, (other than (i) a Registration
Statement on Form S-4 or S-8 (or any substitute form that may be adopted by the
SEC), (ii) a Registration Statement filed in connection with an exchange offer
or offering of securities solely to the Company's or Weekly Reader's, as
applicable, existing security holders or (iii) a Registration Statement
concerning common stock offered to employees of the Company or Weekly Reader, as
applicable, or its subsidiaries), then the Company or Weekly Reader, as
applicable, shall give written notice of such proposed filing to the Holders as
soon as practicable (but in no event fewer than 10 days before the anticipated
filing date), and such notice shall offer such Holders the opportunity to
register such number of Registrable Securities as each such Holder may request
in writing within 20 days after receipt of such written notice from the Company
or Weekly Reader, as applicable, (which request shall specify the shares of
common stock of the Company or Weekly Reader, as applicable, intended to be
disposed of by such Selling Holder) (a "PIGGY-BACK REGISTRATION"). Upon the
written request of any such Holder made within 20 days after the receipt of any
such notice (which request shall specify the number of Registrable Securities
intended to be disposed of by such Holder and the intended method of disposition
thereof), the Company or Weekly Reader, as applicable, will, subject to the
terms of this Agreement, effect the registration under the Act of all
Registrable Securities which the Company or Weekly Reader, as applicable, has
been so requested to register by the Holders thereof, to the extent requisite to
permit the disposition (in accordance with the intended methods thereof as
aforesaid) of the Registrable Securities so to be registered, by inclusion of
such Registrable Securities in the registration statement that covers the
securities which the Company or Weekly Reader, as applicable, proposes to
register, PROVIDED that, if at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, the Company
or Weekly Reader, as applicable, shall determine for any reason either not to
register or to delay registration of such securities, the Company or Weekly
Reader, as applicable, may, at its election, give written notice of such
determination to each Holder and, thereupon, (i) in the case of a determination
not to register shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from its obligation to
pay the Registration Expenses in connection therewith), without prejudice,
however, to the rights of any holder or holders of Registrable Securities
entitled to do so to request that such registration be effected as a
registration under Section 6, and (ii) in the case of a determination to delay
registering, shall be permitted to delay registering any Registrable Securities,
for the same period as the delay in registering such other securities. No
registration effected under this Section 7 shall relieve the Company or Weekly
Reader, as applicable, of its obligation to effect any registration upon request
under Section 6, nor shall any such registration hereunder be deemed to have
been effected pursuant to Section 6. The Company or Weekly Reader, as
applicable, shall use its best efforts to keep such Piggy-Back Registration
continuously effective under the Act until the earlier of (A) an aggregate of
90 days after the effective date thereof or (B) the consummation of the
distribution by the Holders of all of the Registrable Securities covered
thereby.
(b) The Company or Weekly Reader, as applicable, shall use
its reasonable efforts to cause the managing underwriter or underwriters of such
proposed offering to permit the Registrable Securities requested to be included
in a Piggy-Back Registration to be included in the same terms and conditions as
any similar securities of the Company or Weekly Reader, as applicable,
14
or any other security holder included therein and to permit the sale or other
disposition of such Registrable Securities in accordance with the intended
method of distribution thereof. The Selling Holders shall enter into reasonable
and customary underwriting agreements in connection with any such underwritten
registration. Any Selling Holder shall have the right to withdraw its request
for inclusion of its Registrable Securities in any Registration Statement
pursuant to these provisions by giving written notice to the Company or Weekly
Reader, as applicable, of its request to withdraw prior to the effective date of
such registration statement. The Company or Weekly Reader, as applicable, may
withdraw a Piggy-Back Registration at any time prior to the time it becomes
effective or the Company or Weekly Reader, as applicable, may elect to delay the
registration; PROVIDED, HOWEVER, that the Company or Weekly Reader, as
applicable, shall give prompt written notice thereof to participating Holders.
(c) The Company or Weekly Reader, as applicable, will pay
all Registration Expenses in connection with registration of Registrable
Securities requested pursuant to this Section 7 and the Selling Holders shall
pay the underwriting discounts, commissions, and transfer taxes, if any,
relating to the sale of such Selling Holders' Registrable Securities pursuant to
this Section 7, such costs being allocated PRO RATA among all Selling Holders on
whose behalf Registrable Securities of the Company or Weekly Reader, as
applicable, are included in such registration on the basis of the respective
amounts of Registrable Securities then being registered on their behalf.
(d) PRIORITY IN PIGGY-BACK REGISTRATIONS. If a
registration pursuant to this Section 6 involves an underwritten offering of the
securities so being registered, whether or not for sale for the account of the
Company, the Company will, if requested by any Holder and subject to the
provisions of this Section 6, use its reasonable efforts to arrange for such
underwriters to include all the Registrable Securities to be offered and sold by
such Holder among the securities to be distributed by such underwriters.
Notwithstanding anything to the contrary, if the managing underwriter of such
underwritten offering shall, in writing, inform the Holders requesting such
registration and the holders of any of the Company's other securities which
shall have exercised registration rights in respect of such underwritten
offering of its belief that the number of securities requested to be included in
such registration (including securities of the Company that are not Registrable
Securities) is such as to adversely affect the success of such offering,
including the price at which such securities can be sold in (or during the time
of) such offering, then the Company will be required to include in such
registration statement only the amount of securities that it is so advised
should be included in such registration. In such event, (x) in cases initially
involving the registration for sale of securities for the Company's own account,
securities shall be registered in such offering in the following order of
priority: (i) first, the securities that the Company proposes to register, and
(ii) second, the securities that have been requested to be included in such
registration by Holders and by Persons entitled to exercise "piggy-back"
registration rights pursuant to contractual commitments of the Company (PRO RATA
on the amount of securities sought to be registered by such Holders and Persons)
and (y) in cases not initially involving the registration for sale of securities
for the Company's own account, securities shall be registered in such offering
as follows: (i) first, the securities of any person whose exercise of a "demand"
registration right pursuant to a contractual commitment of the Company is the
basis for the registration (provided that if such person is a Holder, there
shall be no priority as among Holders and Registrable Securities sought to be
included by Holders shall be included PRO RATA based on the amount of securities
sought to be registered by such persons), (ii) second, the securities that have
been requested to be included in such registration by Holders and other persons
entitled to exercise "piggy-back" registration rights pursuant to contractual
commitments (PRO RATA based on the amount of securities sought to be registered
by such Holders and persons) and (iii) third, the securities which the Company
proposes to register.
SECTION 8. SHELF REGISTRATION
(a) SHELF REGISTRATION. If a Demand Event occurs with
respect to an Initial Public Offering of Weekly Reader that does not include or
occur after a Reorganization Transaction, then the Company shall:
15
(x) use its reasonable best efforts to cause to be filed, on
or prior to 45 days after the earlier of the date of such Initial Public
Offering (the "SHELF REGISTRATION FILING DEADLINE"), a shelf registration
statement pursuant to Rule 415 under the Act (the "SHELF REGISTRATION"),
relating to all Registrable Securities issued by the Company, and
(y) use its reasonable best efforts to cause such Shelf
Registration Statement to become effective on or prior to 90 days after the
Filing Deadline (such 90th day the "SHELF REGISTRATION EFFECTIVENESS TARGET
DATE").
To the extent necessary to ensure that the Shelf Registration
is available for sale of Registrable Securities by the Holders thereof entitled
to the benefit of this Section 8, the Company shall use its reasonable best
efforts to keep any Shelf Registration required by this Section 8 continuously
effective, supplemented, amended and current as required by and subject to the
provisions of and in conformity with the requirements of this Agreement, the Act
and the policies, rules and regulations of the Commission as announced from time
to time, for a period ending on the earlier of: (i) two years from the date of
such Initial Public Offering or such shorter period as will terminate when all
Transfer Restricted Securities covered by such Shelf Registration Statement have
been sold pursuant thereto and (ii) the date on which the Senior Subordinated
Notes become eligible for resale without volume restrictions pursuant to Rule
144 under the Act.
SECTION 9. ADJUSTMENT OF NUMBER OF SHARES OF EXCHANGE COMMON
STOCK ISSUABLE AND EXCHANGE RATIO.
The number of shares of Exchange Common Stock issuable upon
exchange of Unit Common Stock and the Exchange Ratio are subject to adjustment
from time to time upon the occurrence of the events enumerated in this Section
9. For purposes of this Section 9, "COMMON STOCK" means shares now or hereafter
authorized of any class of common stock of the Company or Weekly Reader, as
applicable, and any other stock of the Company or Weekly Reader, as applicable,
however designated, that has the right (subject to any prior rights of any class
or series of preferred stock) to participate in any distribution of the assets
or earnings of the Company or Weekly Reader, as applicable, without limit as to
per share amount.
(a) Adjustment for Change in Capital Stock.
If Weekly Reader, as applicable, (i) pays a dividend or makes
a distribution on its common stock in shares of its Common Stock, (ii)
subdivides or splits its outstanding shares of common stock into a greater
number of shares, (iii) combines its outstanding shares of common stock into a
smaller number of shares, (iv) makes a distribution on its common stock in
shares of its capital stock other than common stock or (v) issues by
reclassification of its common stock any shares of its capital stock, then the
number of shares of Exchange Common Stock issuable upon exchange of Unit Common
Stock, and the Exchange Ratio in effect, immediately prior to such action shall
be proportionately adjusted so that the holder of any Unit Common Stock
thereafter shall be entitled to the aggregate number and kind of shares of
capital stock of Weekly Reader which he would have been entitled to immediately
following such action as he would have been entitled to immediately prior to
such action, PROVIDED, HOWEVER, that no adjustment shall be made for the
issuance, on the date of this Agreement, of management options in effect on the
date of this Agreement.
The adjustment shall become effective immediately after the
record date in the case of a dividend or distribution and immediately after the
effective date in the case of a subdivision, combination or reclassification.
If, after an adjustment, a Holder of Unit Common Stock may receive shares of two
or more classes of capital stock of Weekly Reader, Weekly Reader, as applicable,
shall determine, in good faith, the allocation between the classes of capital
stock. After such allocation, the Exchange Ratio and the number of shares
Exchange Common Stock, as applicable, shall thereafter be subject to adjustment
on terms comparable to those applicable to common stock in this Section 9. Such
adjustment shall be made successively whenever any event listed above shall
occur.
(b) Adjustment for Rights Issue.
16
If Weekly Reader distributes any rights, options (other than
pursuant to any common stock related employee benefit plan or agreement of
Weekly Reader approved by its Board of Directors) or warrants to all holders of
its common stock entitling them for a period expiring within 45 days after the
record date mentioned below to purchase shares of common stock at a price per
share less than the Fair Value per share on that record date (other than
pursuant to any common stockrelated employee compensation plan or agreement of
Weekly Reader approved by its Board of Directors), the Exchange Ratio shall be
adjusted in accordance with the formula:
O + N
-------------------------
E' = E x M
O + N x P
-----------
M
where:
E' = the adjusted Exchange Ratio.
E = the current Exchange Ratio.
O = the number of shares of common stock of Weekly
Reader outstanding on the record date.
N = the number of additional shares of common stock of
Weekly Reader issued pursuant to such rights, options
or warrants.
P = the aggregate price per share of the additional
shares.
M = the Fair Value per share of common stock of Weekly
Reader on the record date.
The adjustment shall be made successively whenever any such
rights, options or warrants are issued and shall become effective immediately
after the record date for the determination of stockholders entitled to receive
the rights, options or warrants. If at the end of the period during which such
rights, options or warrants are exercisable, not all rights, options or warrants
shall have been exercised, the Exchange Ratio shall be immediately readjusted to
what it would have been if "N" in the above formula had been the number of
shares actually issued.
(c) Adjustment for Other Distributions.
If the Weekly Reader distributes to all holders of its common
stock any of its assets (excluding ordinary cash dividends) or debt securities,
preferred stock or any rights or warrants to purchase any such securities or
other securities of Weekly Reader (excluding securities issued in transactions
referred to in Section 9(a)(i) above) of Weekly Reader], the Exchange Ratio
shall be adjusted in accordance with the formula:
M
E' = E x ----------------
M - F
where:
E' = the adjusted Exchange Ratio.
E = the current Exchange Ratio.
17
M = the Fair Value per share of common stock of Weekly
Reader on the record date mentioned below.
F = the fair market value on the record date of the
debt securities, preferred stock, assets, securities,
rights or warrants to be distributed in respect of
one share of common stock of Weekly Reader as
determined in good faith by the Board of Directors of
Weekly Reader.
The adjustment shall be made successively whenever any such
distribution is made and shall become effective immediately after the record
date for the determination of stockholders entitled to receive the distribution.
This Section 9(c) does not apply to cash dividends or cash
distributions paid out of consolidated current or retained earnings as shown on
the books of Weekly Reader prepared in accordance with generally accepted
accounting principles. Also, this Section 9(c) does not apply to rights, options
or warrants referred to in Section 9(b) hereof.
(d) Adjustment for Common Stock Issue.
If Weekly Reader issues shares of common stock (other than
pursuant to any common stock-related employee benefit plan or agreement of
Weekly Reader approved by its Board of Directors) for a consideration per share
less than the Fair Value per share on the date Weekly Reader fixes the offering
price of such additional shares, the Exchange Ratio shall be adjusted in
accordance with the formula:
A
-------------------
E' = E x P
-----
+ M
where:
E' = the adjusted Exchange Ratio.
E = the then current Exchange Ratio.
O = the number of shares of Common Stock of
Weekly Reader outstanding immediately prior
to the issuance of such additional shares.
P = the aggregate consideration received for
the issuance of such additional shares.
M = the Fair Value per share on the date of
issuance of such additional shares.
A = the number of shares of common stock of
Weekly Reader outstanding immediately after
the issuance of such additional shares.
The adjustment shall be made successively whenever any such
issuance is made, and shall become effective immediately after such issuance.
This subsection (d) does not apply to:
18
(1) any of the transactions described in
subsections (a), (b) and (c) of this Section 9,
(2) the exercise of warrants, or the
conversion or exchange of other securities
convertible or exchangeable for common stock the
issuance of which caused an adjustment to be made
under Section 9(e),
(3) common stock issued to Weekly Reader's
employees (or employees of its subsidiaries) under
bona fide employee benefit plans adopted by its Board
of Directors and approved by the holders of common
stock of Weekly Reader when required by law, if such
common stock would otherwise be covered by this
subsection (d) (but only to the extent that the
aggregate number of shares excluded hereby and issued
after the date of this Agreement shall not exceed 5%
of the common stock outstanding at the time of the
adoption of each such plan, exclusive of
anti-dilution adjustments thereunder),
(4) common stock of Weekly Reader issued to
shareholders of any person which merges into Weekly
Reader, as applicable, or with a subsidiary of the
Company or Weekly Reader in proportion to their stock
holdings of such person immediately prior to such
merger, upon such merger, provided that if such
person is an Affiliate of Weekly Reader the Board of
Directors of Weekly Reader shall have obtained a
fairness opinion from a nationally recognized
investment banking, appraisal or valuation firm,
which is not an Affiliate of Weekly Reader stating
that the consideration received in such merger is
fair to Weekly Reader from a financial point of view,
or
(5) the issuance of shares of common stock
of Weekly Reader pursuant to rights, options or
warrants which were originally issued in a
Non-Affiliate Sale (as defined below) together with
one or more other securities as part of a unit at a
price per unit.
(e) Adjustment for Convertible Securities Issue.
If Weekly Reader issues any securities convertible into or
exchangeable for common stock (other than pursuant to any common stock-related
employee benefit plan or agreement of Weekly Reader approved by the Board of
Directors of Weekly Reader) and other than securities issued in transactions
described in subsections (a), (b) and (c) of this Section 8) for a consideration
per share of common stock initially deliverable upon conversion or exchange of
such securities less than the Fair Value per share on the date of issuance of
such securities, the Exchange Ratio shall be adjusted in accordance with this
formula:
O + D
----------------
E' = E x P
-----
O + M
where:
E' = the adjusted Exchange Ratio.
E = the then current Exchange Ratio.
O = the number of shares of common stock of Weekly
Reader outstanding immediately prior to the issuance
of such securities.
19
P = the aggregate consideration received for the issuance
of such securities.
M = the Fair Value per share of common stock of Weekly
Reader on the date of issuance of such securities.
D = the maximum number of shares of common stock of
Weekly Reader deliverable upon conversion or in
exchange for such securities at the initial
conversion or exchange rate.
The adjustment shall be made successively whenever any such
issuance is made, and shall become effective immediately after
such issuance.
If all of the common stock deliverable upon conversion or
exchange of such securities have not been issued when such securities are no
longer outstanding, then the Exchange Ratio shall promptly be readjusted to the
Exchange Ratio which would then be in effect had the adjustment upon the
issuance of such securities been made on the basis of the actual number of
shares of common stock issued upon conversion or exchange of such securities.
This subsection (e) does not apply to convertible securities
issued to shareholders of any person which merges into Weekly Reader with a
subsidiary of Weekly Reader in proportion to their stock holdings of such person
immediately prior to such merger, upon such merger, provided that if such person
is an Affiliate Weekly Reader the Board of Directors of Weekly Reader shall have
obtained a fairness opinion from a nationally recognized investment banking,
appraisal or valuation firm, which is not an Affiliate of Weekly Reader stating
that the consideration received in such merger is fair to the Company from a
financial point of view.
(f) Consideration Received.
For purposes of any computation respecting consideration
received pursuant to subsections (d), and (e) of this Section 9, the following
shall apply:
(1) in the case of the issuance of shares of
common stock for cash, the consideration shall be
the amount of such cash, provided that in no case
shall any deduction be made for any commissions,
discounts or other expenses incurred by Weekly
Reader for any underwriting of the issue or
otherwise in connection therewith;
(2) in the case of the issuance of shares of
common stock for a consideration in whole or in part
other than cash, the consideration other than cash
shall be deemed to be the fair market value thereof
as determined in good faith by the Board of Directors
of Weekly Reader (irrespective of the accounting
treatment thereof), whose determination shall be
conclusive, and described in a Board resolution which
shall be delivered to the Holders;
(3) in the case of the issuance of securities
convertible into or exchangeable for shares, the
aggregate consideration received therefor shall be
deemed to be the consideration received by Weekly
Reader for the issuance of such securities plus the
additional minimum consideration, if any, to be
received by Weekly Reader upon the conversion or
exchange thereof (the consideration in each case to
be determined in the same manner as provided in
clauses (1) and (2) of this subsection); and
(4) in the case of the issuance of shares of
common stock pursuant to rights, options or warrants
which rights, options or warrants were originally
issued together with one or more other securities as
part
20
of a unit at a price per unit, the consideration
shall be deemed to be the fair value of such rights,
options or warrants at the time of issuance thereof
as determined in good faith by the Board of Directors
of Weekly Reader whose determination shall be
conclusive and described in a Board resolution which
shall be delivered to the Holders plus the additional
minimum consideration, if any, to be received by
Weekly upon the exercise, conversion or exchange
thereof (as determined in the same manner as provided
in clauses (1) and (2) of this subsection).
(g) Fair Value.
In Sections 9 (b), (c), (d) and (e) hereof, the "FAIR VALUE"
per security at any date of determination shall be (1) in connection with a sale
by Weekly Reader to a party that is not an Affiliate of Weekly Reader in an
arm's-length transaction (a "NON-AFFILIATE SALE"), the price per security at
which such security is sold and (2) in connection with any sale by Weekly Reader
to an Affiliate of Weekly Reader (a) the last price per security at which such
security was sold in a Non-Affiliate Sale within the three-month period
preceding such date of determination or (b) if clause (a) is not applicable, the
fair market value of such security determined in good faith by (i) a majority of
the Board of Directors of Weekly Readers, including a majority of the
Disinterested Directors, and approved in a Board resolution delivered to the
Holders or (ii) a nationally recognized investment banking, appraisal or
valuation firm, which is not an Affiliate of Weekly Reader taking into account,
among all other factors deemed relevant by the Board of Directors of Weekly
Reader or such investment banking, appraisal or valuation firm, the trading
price and volume of such security on any national securities exchange or
automated quotation system on which such security is traded. Notwithstanding the
foregoing, any sale to Donaldson, Lufkin & Jenrette Securities Corporation or
Banc of America Securities LLC (or any successors thereto) pursuant to an
underwritten public offering registered under the Act shall be deemed to be and
treated as a Non-Affiliate Sale.
For purposes of this Section 9(g), "DISINTERESTED DIRECTOR"
means, in connection with any issuance of securities that gives rise to a
determination of the Fair Value thereof, each member of the Board of Directors
of Weekly Reader who is not an officer, employee, director or other Affiliate of
the party to whom the Company or Weekly Reader is proposing to issue the
securities giving rise to such determination.
(h) When De Minimis Adjustment May Be Deferred.
All calculations under this Section 8 shall be made to the
nearest 1/100th of a share, as the case may be, it being understood that no such
rounding shall be made under subsection (n). Any adjustments that are not made
shall be carried forward and taken into account in any subsequent adjustment.
(i) When No Adjustment Required.
No adjustment need be made for a transaction referred to
Section 9(a), (b), (c), (d), (e) or (f) hereof, if Holders are to participate
(without being required to exercise their shares) in the transaction on a basis
and with notice that the Board of Directors of Weekly Reader determines to be
fair and appropriate in light of the basis and notice on which holders of common
stock participate in the transaction. No adjustment need be made for (i) rights
to purchase common stock pursuant to a plan of Weekly Reader for reinvestment of
dividends or interest or (ii) a change in the par value or no par value of the
common stock.
(j) Notice of Adjustment.
Whenever the Exchange Ratio is adjusted, the Company shall
provide the notices required by Section 11 hereof.
21
(k) Notice of Certain Transactions.
If (i) Weekly Reader takes any action that would require an
adjustment in the Exchange Ratio pursuant to Section 8(a), (b), (c), (d), (e) or
(f) hereof and if Weekly Reader does not arrange for Holders to participate
pursuant to Section 9(i) hereof, (ii) Weekly Reader takes any action that would
require issuance of new shares of Exchange Common Stock pursuant to Section 9(l)
hereof or (iii) there is a liquidation or dissolution of Weekly Reader then
Weekly Reader shall mail to Holders a notice stating the proposed record date
for a dividend or distribution or the proposed effective date of a subdivision,
combination, reclassification, consolidation, merger, transfer, lease,
liquidation or dissolution. Weekly Reader shall mail the notice at least 15 days
before such date. Failure to mail the notice or any defect in it shall not
affect the validity of the transaction.
(l) Reorganization of Weekly Reader.
Immediately after the date hereof, if Weekly Reader
consolidates or merges with or into, or transfers or leases all or substantially
all its assets to, any person, upon consummation of such transaction shares of
Unit Common Stock shall automatically become exchangeable for the kind and
amount of securities, cash or other assets which the Holder would have owned
immediately after the consolidation, merger, transfer or lease. Concurrently
with the consummation of such transaction, the corporation formed by or
surviving any such consolidation or merger if other than Weekly or the person to
which such sale or conveyance shall have been made, which shall be subject to
adjustments that are nearly equivalent as may be practical to the adjustments
provided for in this Section 9(l). The successor company shall mail to Holders a
notice describing the provisions governing the new shares. If this Section 9(l)
applies, Sections 9(a), (b), (c), (d), (e) and (f) hereof do not apply.
(m) Determination of Weekly Reader Final.
Any determination that Weekly Reader or its Board of Directors
must make pursuant to Section 9(a), (c), (d), (e), (f), (g), (h) or (i) hereof
is conclusive.
SECTION 10. LIMITATIONS, CONDITIONS AND QUALIFICATIONS TO
OBLIGATIONS UNDER REGISTRATION COVENANTS.
The obligations of the Company or Weekly Reader, as
applicable, described in Sections 6, 7 and 8 of this Agreement are subject to
each of the following limitations, conditions and qualifications:
(a) Subject to the next sentence of this paragraph, the
Company or Weekly Reader, as applicable, shall be entitled to postpone, for a
reasonable period of time, the filing of effectiveness of, or suspend the rights
of any Holder to make sales pursuant to, any Registration Statement otherwise
required to be prepared, filed and made and kept effective by it under the
registration covenants described in Section 6 or Section 8 hereof; PROVIDED,
HOWEVER, that the duration of such postponement or suspension may not exceed 60
days in any twelve-month period. Such postponement or suspension may only be
effected if (i) an event or circumstance occurs and is continuing as a result of
which such Registration Statement, any related Prospectus or any document
incorporated therein by reference as then amended or supplemented or proposed to
be filed would, in the good faith judgment of the Company or Weekly Reader, as
applicable, contain an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading and (ii)(A) the Company
or Weekly Reader, as applicable, determines in its good faith judgment that the
disclosure of the event at that time would have a material adverse effect on the
business, operations or prospects of the Company or Weekly Reader, as
applicable, or (B) the disclosure otherwise relates to a material business
transaction or development that has not yet been publicly disclosed. If the
Company or Weekly Reader, as applicable, shall so postpone the filing or
effectiveness of, or suspend the rights of any Holders to make sales pursuant
to, a
22
Registration Statement it shall, as promptly as possible, notify any Selling
Holders of such determination, and the Selling Holders shall (x) have the right,
in the case of a postponement of the filing or effectiveness of a Registration
Statement, upon the affirmation vote of the Selling Holders of not less than a
majority of the Registrable Securities to be included in such Registration
Statement, to withdraw the request for registration by giving written notice to
the Company or Weekly Reader, as applicable, within 10 days after receipt of
such notice, or (y) in the case of a suspension of the right to make sales,
receive an extension of the registration period equal to the number of days of
the suspension. Any Demand Registration as to which the withdrawal election
referred to in the preceding sentence has been effected shall not be counted for
purposes of the Demand Registraion referred to in Section 6 hereof. The time
period regarding the effectiveness of any Registration Statement pursuant to
Section 6, 7 or 8 hereof, as applicable, shall be extended by a number of days
equal to the number of days in the suspension period described in this Section
10(a).
(b) The Company or Weekly Reader, as applicable, shall no
be required by this Agreement to include securities in a Registration Statement
relating to a Piggy-back Registration above if (i) in the written opinion of
outside counsel to the Company or Weekly Reader, as applicable, addressed to the
Holders seeking registration and delivered to them, the Holders of such
securities seeking registration would be free to sell all such securities within
the succeeding three-month period, without registration, under Rule 144 under
the Act, which opinion may be based in part upon the representation by the
Holders of such securities seeking registration, which registration shall not be
unreasonably withheld, that each such Holder is not an affiliate of the Company
or Weekly Reader, as applicable, within the meaning of the Act, and (ii) all
requirements under the Act for effecting such sales are satisfied at such time.
(c) The Company's or Weekly Reader's, as applicable,
obligations shall be subject to the obligations of the Selling Holders to
furnish all information and materials and not to take any and all actions as may
be required under Federal and state securities laws and regulations to permit
the Company or Weekly Reader, as applicable, to comply with all applicable
requirements of the SEC and to obtain any acceleration of the effective date of
such Registration Statement.
(d) The Company or Weekly Reader, as applicable, shall not
be obligated to cause any special audit to be undertaken in connection with any
registration pursuant to this Agreement unless such audit is requested by the
underwriters with respect to such registration.
(e) Each Holder of Registrable Securities agrees, if an to
the extent reasonably requested by the managing underwriter or underwriters in a
Public Equity Offering, not to effect any public sale or distribution of
Registrable Securities, including a sale pursuant to Rule 144 (except as part of
such Public Equity Offering), during the 90-day period beginning on the closing
date of any such Public Equity Offering (which period shall be 180 days in the
case of the Company's or Weekly Reader's, as applicable, Initial Public
Offering), to the extent timely notified in writing by the Company or Weekly
Reader, as applicable, or such managing underwriter or underwriters. In the
event that the Company or Weekly Reader, as applicable, is not otherwise in
compliance with the provisions of this Agreement at the time the Holders receive
any notice pursuant to this Section 10(e), the Holders shall not be required to
comply with this Section 10(e). In addition, the provisions of this Section
10(e) shall not apply to any Holder of Registrable Securities if such Holder is
prevented by applicable statute or regulation from entering into any such
agreement; PROVIDED, that any such Holder shall undertake not to effect any
public sale or distribution of any Registrable Securities commencing on the
closing date of any such Public Equity Offering unless it has provided 45 days'
prior written notice of such sale or distribution to the managing underwriter or
underwriters.
SECTION 11. REGISTRATION EXPENSES.
The Company or Weekly Reader, as applicable, shall pay all
Registration Expenses.
23
SECTION 12. INDEMNIFICATION.
(a) The Company and Weekly Reader agree, jointly and
severally, to indemnify and hold harmless each Holder, its directors, officers,
employees, representatives and agents and each Person, if any, who controls such
Holder (within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act), from and against any and all losses, claims, damages,
liabilities, judgments, (including without limitation, any legal or other
expenses incurred in connection with investigating or defending any matter,
including any action that could give rise to any such losses, claims, damages,
liabilities or judgments) caused by any untrue statement or alleged untrue
statement of a material fact contained in any Registration Statement,
preliminary prospectus or Prospectus (or any amendment or supplement thereto)
provided by the Company or Weekly Reader to any Holder or any prospective
purchaser of Registrable Securities, or caused by any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, except insofar as such losses, claims,
damages, liabilities or judgments are caused by an untrue statement or omission
or alleged untrue statement or omission that is based upon information relating
to any of the Holders furnished in writing to the Company or Weekly Reader by
any of the Holders; provided that, the indemnity agreement contained in this
Section 8(a) shall not inure to the benefit of any Holder from whom the person
asserting any such loss, claim, damage, liability or action received Registrable
Securities if the final Prospectus (as then amended or supplemented) was not
sent or given to such person, if required by law so to have been delivered, at
or prior to the written confirmation of the sale of such Registrable Securities
to such person and if the final Prospectus (as amended or supplemented) would
have corrected any such untrue statement of a material fact contained in and
each omission or alleged omission of a material fact from the related
preliminary Prospectus giving rise to such losses, claims, damages, liabilities
or actions unless such failure is the result of non-compliance by the Company or
Weekly Reader, as applicable, with 5(k), (l) or (m).
(b) Each Holder of Registrable Securities agrees,
severally and not jointly, to indemnify and hold harmless the Company and Weekly
Reader, and its directors, officers, employees, representatives and agents and
each person, if any, who controls (within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act) the Company or Weekly Reader to the same
extent as the foregoing indemnity from the Company and Weekly Reader set forth
in section (a) above, but only with reference to information relating to such
Holder furnished in writing to the Company by such Holder expressly for use in
any Registration Statement. In no event shall any Holder, its directors,
officers or any Person who controls such Holder be liable or responsible for any
amount in excess of the amount by which the total amount received by such Holder
with respect to its sale of Registrable Securities pursuant to a Registration
Statement exceeds (i) the amount paid by such Holder for such Registrable
Securities and (ii) the amount of any damages that such Holder, its directors,
officers or any Person who controls such Holder has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.
(c) In case any action shall be commenced involving any
person in respect of which indemnity may be sought pursuant to Section 12(a) or
12(b) (the "INDEMNIFIED PARTY"), the indemnified party shall promptly notify the
person against whom such indemnity may be sought (the "INDEMNIFYING PERSON") in
writing and the indemnifying party shall assume the defense of such action,
including the employment of counsel reasonably satisfactory to the indemnified
party and the payment of all fees and expenses of such counsel, as incurred
(except that in the case of any action in respect of which indemnity may be
sought pursuant to both Sections 12(a) and 12(b), a Holder shall not be required
to assume the defense of such action pursuant to this Section 12(c), but may
employ separate counsel and participate in the defense thereof, but the fees and
expenses of such counsel, except as provided below, shall be at the expense of
the Holder). Any indemnified party shall have the right to employ separate
counsel in any such action and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of the indemnified party
unless (i) the employment of such counsel shall have been specifically
authorized in writing by the indemnifying party, (ii) the indemnifying party
shall have failed to
24
assume the defense of such action or employ counsel reasonably satisfactory to
the indemnified party or (iii) the named parties to any such action (including
any impleaded parties) include both the indemnified party and the indemnifying
party, and the indemnified party shall have been advised by such counsel that
there may be one or more legal defenses available to it which are different from
or additional to those available to the indemnifying party (in which case the
indemnifying party shall not have the right to assume the defense of such action
on behalf of the indemnified party). In any such case, the indemnifying party
shall not, in connection with any one action or separate but substantially
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the fees and expenses of
more than one separate firm of attorneys (in addition to any local counsel) for
all indemnified parties and all such fees and expenses shall be reimburse as
they are incurred. Such firm shall be designated in writing by a majority of the
Holders, in the case of the parties indemnified pursuant to Section 12(a), and
by the Company, in the case of parties indemnified pursuant to Section 12(b). No
indemnifying party shall be liable for any settlement of any such action
effected without its written consent, but if settled with its written consent,
which consent will not unreasonably be withheld, the indemnifying party shall
indemnify and hold harmless the indemnified party from and against any and all
losses, claims, damages, liabilities and judgments by reason of any settlement
of any action effected with its written consent. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any
settlement or compromise of, or consent to the entry of judgment with respect
to, any pending or threatened action in respect of which the indemnified party
is or could have been a party and indemnity or contribution may be or could have
been sought hereunder by the indemnified party, unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability on claims that are or could have been the subject
matter of such action and (ii) does not include a statement as to or an
admission of fault, culpability or a failure to act, by or on behalf of the
indemnified party.
(d) To the extent that the indemnification provided for in
this Section 11 is unavailable to an indemnified party in respect of any losses,
claims, damages, liabilities or judgments referred to therein, then each
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or judgments (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company and
Weekly Reader, on the one hand, and the Holders, on the other hand, from their
sale of Registrable Securities or (ii) if the allocation provided by clause
12(d)(i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause
12(d)(i) above but also the relative fault of the Company and Weekly Reader, on
the one hand, and of the Holder, on the other hand, in connection with the
statements or omissions which resulted in such losses, claims, damages,
liabilities or judgments, as well as any other relevant equitable
considerations. The relative fault of the Company and Weekly Reader, on the one
hand, and of the Holder, on the other hand, shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company and Weekly Reader, on the one hand, or by
the Holder, on the other hand, and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and judgments referred to above shall be deemed to
include, subject to the limitations set forth in the second paragraph of Section
12(a), any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Company and Weekly Reader and each Holder agree that it
would not be just and equitable if contribution pursuant to this Section 12(d)
were determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or judgments referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other
25
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any matter, including any action that could have
given rise to such losses, claims, damages, liabilities or judgments.
Notwithstanding the provisions of this Section 8, no Holder, its directors, its
officers or any Person, if any, who controls such Holder shall be required to
contribute, in the aggregate, any amount in excess of the amount by which the
total received by such Holder with respect to the sale of Registrable Securities
pursuant to a Registration Statement exceeds (i) the amount paid by such Holder
for such Registrable Securities plus (ii) the amount of any damages which such
Holder has otherwise been required to pay by reason of such untrue or alleged
untrue statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Holders' obligations to contribute pursuant to this
Section 12(c) are several in proportion to the respective principal amount of
Registrable Securities held by each Holder hereunder and not joint.
SECTION 13. RULE 144A AND RULE 144.
The Company and Weekly Reader agree with each Holder, for so
long as any Registrable Securities remain outstanding and during any period in
which the Company or Weekly Reader, as applicable, (i) is not subject to Section
13 or 15(d) of the Exchange Act, to make available, upon request of any Holder,
to such Holder or beneficial owner of Registrable Securities in connection with
any sale thereof and any prospective purchaser of such Registrable Securities
designated by such Holder or beneficial owner, the information required by Rule
144A(d)(4) under the Act in order to permit resales of such Registrable
Securities pursuant to Rule 144A, and (ii) is subject to Section 13 or 15(d) of
the Exchange Act, to make all filings required thereby in a timely manner in
order to permit resales of such Registrable Securities pursuant to Rule 144.
SECTION 14. MISCELLANEOUS.
(a) REMEDIES. The Company and Weekly Reader acknowledge
and agree that any failure by either the Company or Weekly Reader to comply with
its obligations under Sections 6, 7 and 8 hereof may result in material
irreparable injury to the Holders for which there is no adequate remedy at law,
that it will not be possible to measure damages for such injuries precisely and
that, in the event of any such failure, the any Holder may obtain such relief as
may be required to specifically enforce the Company's obligations under Sections
6, 7 and 8 hereof. The Company further agrees to waive the defense in any action
for specific performance as contemplated by the Section 14(a) that a remedy at
law would be adequate.
(b) NO INCONSISTENT AGREEMENTS. Neither the Company nor
Weekly Reader will on or after the date of this Agreement enter into or amend
any agreement with respect to its securities that conflicts with the rights
granted to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. Except as disclosed in the Offering
Memorandum, neither the Company, Weekly Reader have previously entered into any
agreement granting any registration rights of its securities to any Person, and
the rights granted to the Holders hereunder do not in any way conflict with and
are not inconsistent with the rights granted to the holders of the Company's or
Weekly Reader's securities under any other agreement in effect on the date
hereof.
(c) AMENDMENTS AND WAIVERS. The provisions of this
Agreement may not be amended, modified or supplemented, and waivers or consents
to departures from the provisions hereof may not be given unless the Company and
Weekly Reader have obtained the written consent of Holders of a majority of the
outstanding Registrable Securities (excluding Registrable Securities held by the
Company, Weekly Reader or any of their Affiliates). Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to the rights of Holders of Registrable Securities whose
securities are being sold pursuant to a Registration Statement and that does not
affect directly or indirectly the rights of other Holders whose Registrable
Securities are not being sold pursuant to a Registration Statement may be given
by the Holders of at least a majority of the Registrable Securities being sold.
26
(d) THIRD PARTY BENEFICIARY. The Holders shall be third
party beneficiaries to the agreements made hereunder between the Company and
Weekly Reader, on the one hand, and the Initial Purchasers, on the other hand,
and shall have the right to enforce such agreements directly to the extent they
may deem such enforcement necessary or advisable to protect its rights or the
rights of Holders hereunder.
(e) NOTICES. All notices and other communications provided
for or permitted hereunder shall be made in writing by hand-delivery,
first-class mail (registered or certified, return receipt requested), telex,
telecopier, or air courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on
the records of the Registrar under the Indenture, with a copy to the
Registrar under the Indenture; and
(ii) if to the Company or Weekly Reader:
WRC Media Inc.
Weekly Reader Corporation
1 Rockefeller Plaza, 32nd floor
New York, New York 10020
Attention: Chief Executive Officer
With a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, New York 10019
Attention: D. Collier Kirkham, Esq.
All such notices and communications shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; five
Business Days after being deposited in the mail, postage prepaid, if mailed;
when answered back, if telexed; when receipt acknowledged, if telecopied; and on
the next Business Day, if timely delivered to an air courier guaranteeing
overnight delivery.
Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Warrant
Agent at the address specified in the Warrant Agreement.
(f) SUCCESSORS AND ASSIGNS. This Agreement shall inure to
the benefit of and be binding upon the successors and assigns of each of the
parties, including without limitation and without the need for an express
assignment, subsequent Holders; PROVIDED, that nothing herein shall be deemed to
permit any assignment, transfer or other disposition of Registrable Securities
in violation of the terms hereof or of the Purchase Agreement. If any transferee
of any Holder shall acquire Registrable Securities in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held subject
to all of the terms of this Agreement, and by taking and holding such
Registrable Securities such Person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this Agreement,
including the restrictions on resale set forth in this Agreement and, if
applicable, the Purchase Agreement, and such Person shall be entitled to receive
the benefits hereof.
(g) COUNTERPARTS. This Agreement may be executed in any
number of counterparts and by the parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.
27
(h) HEADINGS. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO THE CONFLICT OF LAW RULES THEREOF.
(j) SEVERABILITY. In the event that any one or more of the
provisions contained herein, or the application thereof in any circumstance, is
held invalid, illegal or unenforceable, the validity, legality and
enforceability of any such provision in every other respect and of the remaining
provisions contained herein shall not be affected or impaired thereby.
(k) 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, warranties or undertakings, other than those set forth or referred to
herein with respect to the registration rights granted with respect to the
Registrable Securities. This Agreement supersedes all prior agreements and
understandings between the parties with respect to such subject matter.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have executed this Agreement
as of the date first written above.
WRC MEDIA, INC.
By:
---------------------------------
Name:
Title:
WEEKLY READER CORPORATION.
By:
---------------------------------
Name:
Title:
JLC LEARNING CORPORATION
By:
---------------------------------
Name:
Title:
EAC III L.L.C.
By:
---------------------------------
Name:
Title:
DONALDSON, LUFKIN & JENRETTE
SECURITIES CORPORATION
BANC OF AMERICA SECURITIES LLC
By: Donaldson, Lufkin & Jenrette
Securities Corporation
By:
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Name: D. Kete Cockrell, II
Title: Vice President