EXHIBIT 10.9
SUBSCRIPTION AGREEMENT
Dated as of
September 29, 1999
Among
WEIGHTWATCHERS.COM, INC.,
WEIGHT WATCHERS INTERNATIONAL, INC.,
ARTAL LUXEMBOURG S.A.,
and
H.J. HEINZ COMPANYc
SUBSCRIPTION AGREEMENT
SUBSCRIPTION AGREEMENT (this "Agreement"), dated as of September 29,
1999, among WEIGHTWATCHERS.COM, INC., a Delaware corporation (the "Company"),
WEIGHT WATCHERS INTERNATIONAL, INC. a Virginia corporation ("WWI"), ARTAL
LUXEMBOURG S.A., a Luxembourg corporation ("Artal"), and H.J. HEINZ COMPANY, a
Pennsylvania corporation ("Heinz" and, together with WWI and Artal, the
"Purchasers").
W I T N E S S E T H :
WHEREAS, the Company desires to issue and sell newly issued shares
of its common stock, par value $0.01 per share ("Common Stock"), to the
Purchasers.
WHEREAS, each Purchaser desires to subscribe for the number of
shares of Common Stock set forth opposite its name on Schedule I hereto.
NOW, THEREFORE, in order to implement the foregoing and in
consideration of the mutual representations, warranties, covenants and
agreements contained herein, the parties hereto agree as follows:
ARTICLE I
PURCHASE AND SALE
Section 1.1 Agreement to Purchase and Sell. On and subject to
the terms and conditions herein contained, the Company agrees to issue and sell
to each Purchaser, and each Purchaser agrees to purchase, on the date hereof,
the aggregate number of shares of Common Stock set forth opposite such
Purchaser's name on Schedule I hereto. The aggregate purchase price payable by
Artal and Heinz for such shares of Common Stock is set forth opposite such
Purchaser's name on Schedule I hereto. The shares of Common Stock issuable to
WWI are being issued in consideration of the grant by WWI to the Company of an
exclusive license with respect to WWI's internet and related assets.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF PURCHASERS
Section 2.1 Representations and Warranties of the Purchasers.
Each Purchaser hereby represents and warrants to the Company as follows:
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(a) Each Purchaser has been given the opportunity to obtain
information and to ask questions and receive answers about such information, the
Company and the business and prospects of the Company which such Purchaser deems
necessary to evaluate the merits and risks related to such Purchaser's
investment in the Common Stock.
(b) Each Purchaser further represents and warrants that (i) such
Purchaser's financial condition is such that such Purchaser can afford to bear
the economic risk of holding the shares of Common Stock for an indefinite period
of time and has adequate means for providing for such Purchaser's current needs
and personal contingencies, (ii) such Purchaser can afford to suffer a complete
loss of his or its investment in the shares of Common Stock, (iii) such
Purchaser has evaluated and understands the risks and terms of investing in the
Common Stock and (iv) such Purchaser's knowledge and experience in financial and
business matters are such that such Purchaser is capable of evaluating the
merits and risks of such Purchaser's purchase of the shares of Common Stock as
contemplated by this Agreement or, in the alternative, such Purchaser has
obtained such professional advice as such Purchaser determined was necessary to
enable such Purchaser to evaluate such merits and risks.
(c) Each Purchaser is an "accredited investor" as such term is
defined in Regulation D promulgated under the Securities Act of 1933, as
amended. Each Purchaser has such knowledge and experience in financial and
business matters that it is capable of evaluating the relative merits and risks
of purchasing the Common Stock.
(d) Such Purchaser is purchasing its shares of Common Stock for
investment for its own account and not with a view to, or for sale in connection
with, any distribution thereof.
(e) Such Purchaser is a corporation, duly organized, validly
existing and in good standing, under the laws of its jurisdiction of
organization.
(f) The execution, delivery and performance by such Purchaser of
this Agreement and the transactions contemplated hereby are within its corporate
powers, and have been duly authorized by all necessary action on the part of
such Purchaser. This Agreement has been duly executed and delivered by such
Purchaser. Assuming due authorization, execution and delivery by the Company and
the other Purchasers, this Agreement constitutes a valid and binding agreement
of such Purchaser, enforceable against such Purchaser in accordance with its
terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium, and other laws of general application affecting
enforcement or creditors' rights generally, (ii) as limited by laws relating to
the availability of specific performance, injunctive relief, or other equitable
remedies and (iii) with respect to provisions relating to indemnification and
contribution, as limited by considerations of public policy.
(g) The execution, delivery and performance by such Purchaser of
this Agreement require no order, license, consent, authorization or approval of,
or exemption by, or action by or in respect of, or notice to, or filing or
registration with, any governmental body, agency or official except
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such as have been obtained or except where the failure to obtain any such order,
license, consent, authorization, approval or exemption or give any such notice
or make any filing or registration would not, in the aggregate, reasonably be
expected to adversely affect the ability of such Purchaser to perform its
obligations hereunder.
(h) The execution, delivery and performance of this Agreement by
such Purchaser will not, with or without the giving of notice or lapse of time,
or both, (i) conflict with the certificate of incorporation or by-laws or
similar constitutive documents of such Purchaser or (ii) result in any breach of
any terms or provisions of, or constitute a default under, or conflict with any
material contract, agreement or instrument to which such Purchaser is a party or
by which such Purchaser is bound, except for such breaches, defaults or
conflicts which, individually or in the aggregate, would not be likely to have a
material adverse effect on the financial position, results of operations or
business of such Purchaser or (iii) violate any material provision of law,
statute, rule or regulation to which it is subject or any material order,
judgment or decree applicable to such Purchaser.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 3.1 Representations and Warranties of the Company. The
Company hereby represents and warrants to each Purchaser as follows:
(a) The Company is a corporation duly organized, validly existing
and in good standing under the laws of Delaware and has the corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. The execution and delivery by the Company of this Agreement and the
performance by it of its obligations hereunder have been duly authorized by all
necessary corporate action of the Company. This Agreement has been duly executed
and delivered by the Company and, assuming the due authorization, execution and
delivery thereof by each of the Purchasers, constitutes the valid and legally
binding obligation of the Company, enforceable against the Company in accordance
with its terms; and
(b) The execution, delivery and performance of this Agreement by the
Company will not, with or without the giving of notice or lapse of time, or
both, (i) conflict with the certificate of incorporation or by-laws or similar
constitutive documents of the Company or (ii) result in any breach of any terms
or provisions of, or constitute a default under, or conflict with any material
contract, agreement or instrument to which the Company is a party or by which
the Company is bound, except for such breaches, defaults or conflicts which,
individually or in the aggregate, would not be likely to have a material adverse
effect on the financial position, results of operations or business of the
Company or (iii) violate any material provision of law, statute, rule or
regulation to which it is subject or any material order, judgment or decree
applicable to the Company.
ARTICLE IV
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MISCELLANEOUS
Section 4.1 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such a manner as to be effective and valid
under applicable law. The parties agree that (i) the provisions of this
Agreement shall be severable in the event that any of the provisions hereof are
held by a court of competent jurisdiction to be invalid, void or otherwise
unenforceable, (ii) such invalid, void or otherwise unenforceable provisions
shall be automatically replaced by other provisions which are as similar as
possible in terms to such invalid, void or otherwise unenforceable provisions
but are valid and enforceable and (iii) the remaining provisions shall remain
enforceable to the extent permitted by law.
Section 4.2 Counterparts. This Agreement may be executed in two or
more counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together will constitute one and the
same Agreement.
Section 4.3 Notices. All notices, demands and other communications
to be given or delivered under or by reason of the provisions of this Agreement
shall be in writing or sent by facsimile and shall be deemed to have been given
(i) when personally delivered or sent by facsimile (with proof of receipt at the
number to which notices are required to be sent), (ii) one business day after
being sent by overnight courier (receipt confirmation requested) or (iii) five
business days after being mailed by certified or registered mail (return receipt
requested and postage prepaid) to the recipient. Such notices, demands and other
communications will be sent to the Company and each Purchaser at the address or
addresses indicated on the signature pages hereto, or to such other address or
to the attention of such other person as the recipient party has specified by
prior written notice under this Section 4.3 to the sending party.
Section 4.4 Governing Law. This Agreement shall be governed by, and
construed and interpreted in accordance with, the law of the State of New York.
Section 4.5 Further Assurances. Each party hereto shall do and
perform or cause to be done and performed all such further acts and things and
shall execute and deliver all such other agreements, certificates, instruments,
and documents as any other party hereto reasonably may request in order to carry
out the provisions of this Agreement and the consummation of the transactions
contemplated hereby.
Section 4.6 Jurisdiction; Venue; Process. (a) The parties to this
Agreement agree that jurisdiction and venue in any action brought by any party
hereto pursuant to this Agreement shall properly lie and shall be brought in any
federal or state court located in the State of New York. By execution and
delivery of this Agreement, each party hereto irrevocably submits to the
jurisdiction of such courts for itself and in respect of its property with
respect to such action. The parties hereto irrevocably agree that venue would be
proper in such court, and hereby irrevocably waive any objection that such court
is an improper or inconvenient forum for the resolution of such action.
(b) Artal hereby irrevocably and unconditionally designates and
directs Mr. David Van Zandt, with offices on the date hereof at Northwestern
University School of Law, 357 East Chicago Avenue, Chicago, Illinois 60611, as
its agent to receive service of any and all process and documents on its behalf
in any legal action or proceeding related to this Agreement and agrees that
service upon such agent shall constitute valid and effective service upon Artal
and that failure of such agent to give any notice of such service to Artal shall
not affect or impair in any way the validity of such service or of any judgment
rendered in any action or proceeding based thereon.
Section 4.7 MUTUAL WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR PROCEEDING BROUGHT TO ENFORCE
OR DEFEND ANY RIGHTS OR REMEDIES UNDER THIS AGREEMENT OR ANY DOCUMENTS RELATED
HERETO.
* * * *
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date first above written.
WEIGHTWATCHERS.COM, INC.
By:_______________________________________
Name:
Title:
Address for Notices: With copies to:
WeightWatchers.com, Inc. Simpson Thacher & Bartlett
175 Crossways Park West 425 Lexington Avenue
Woodbury, NY 11797 New York, New York 10017
Facsimile No.: 516-390-1795 Facsimile No.: 212-455-2502
Attn: Chief Executive Officer Attn: Robert E. Spatt, Esq.
WEIGHT WATCHERS INTERNATIONAL, INC.
By:_______________________________________
Name:
Title:
Address for Notices: With copies to:
Weight Watchers International, Inc. Simpson Thacher & Bartlett
175 Crossways Park West 425 Lexington Avenue
Woodbury, NY 11797 New York, New York 10017
Facsimile No.: 516-390-1795 Facsimile No.: 212-455-2502
Attn: Chief Executive Officer Attn: Robert E. Spatt, Esq.
H.J. HEINZ COMPANY
By:_______________________________________
Name:
Title:
Address for Notices: With copies to:
H.J. Heinz Company H.J. Heinz Company
600 Grant Street 600 Grant Street
Pittsburgh, Pennsylvania 15219 Pittsburgh, Pennsylvania 15219
Facsimile No.: 412-456-6015 Facsimile No.: 412-456-6102
Attn: Treasurer Attn: Senior Vice President and General
Counsel
ARTAL LUXEMBOURG S.A.
By:_______________________________________
Name:
Title:
Address for Notices: With copies to:
Artal Luxembourg S.A. David Van Zandt
105, Grand-Rue Northwestern University School
L-1661 Luxembourg of Law
Luxembourg 357 East Chicago Avenue
Facsimile No.: 352-22-42-59-22 Chicago, Illinois 60611
Attn: Managing Director Facsimile No.: 1-733-388-0291
and
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Facsimile No.: 1-212-455-2502
Attn: Robert E. Spatt, Esq.
SCHEDULE I
Number of Shares Aggregate
Purchaser of Common Stock Purchase Price
- --------- --------------- ---------------
Weight Watchers International, Inc. 47,124 Payment in-kind
Artal Luxembourg S.A. 179,424 $94,000.
H.J. Heinz Company 11,452 $ 6,000.