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EXHIBIT 3
SECURITIES PURCHASE AGREEMENT
Between
THE PURCHASERS NAMED HEREIN
and
THE LEARNING COMPANY, INC., as Issuer
Dated as of August 26, 1997
Series A Convertible Participating Preferred Stock
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TABLE OF CONTENTS
Page
ARTICLE I
AUTHORIZATION AND SALE OF SHARES................................ 1
Section 1.1 Authorization................................ 1
Section 1.2 Issuance and Sale of Shares.................. 1
ARTICLE II
CLOSING...................................... 2
Section 2.1 Closing Date................................. 2
Section 2.2 Further Assurances........................... 3
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY......................... 3
Section 3.1 SEC Reports.................................. 3
Section 3.2 Accountants.................................. 4
Section 3.3 Financial Statements......................... 4
Section 3.4 Absence of Certain Changes................... 4
Section 3.5 Authority.................................... 5
Section 3.6 Non-Contravention............................ 5
Section 3.7 Capitalization............................... 6
Section 3.8 Subsidiaries................................. 6
Section 3.9 Actions...................................... 7
Section 3.10 Investment Company Act....................... 7
Section 3.11 Reporting.................................... 7
Section 3.12 Registration and Qualification............... 7
Section 3.13 No Liabilities............................... 7
Section 3.14 No Defaults.................................. 8
Section 3.15 Violations of Law............................ 8
Section 3.16 Enforceability of Agreement.................. 8
Section 3.17 The Capital Stock............................ 8
Section 3.18 Properties................................... 9
Section 3.19 Intellectual Property........................ 10
Section 3.20 Taxes........................................ 10
Section 3.21 Insurance.................................... 10
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Section 3.22 Certain Payments............................. 10
Section 3.23 Delaware General Corporation Law Section 203. 10
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS........................ 11
Section 4.1 Investment................................... 11
Section 4.2 Rule 144..................................... 11
Section 4.3 Organization of Purchaser.................... 11
Section 4.4 Authority of Purchaser....................... 12
Section 4.5 Non-Contravention............................ 12
Section 4.6 Title of the Notes........................... 12
ARTICLE V
CONDITIONS TO THE OBLIGATIONS OF THE PARTIES.......................... 13
Section 5.1 General Conditions to Obligations of
the Purchasers............................... 13
Section 5.2 Registration Rights Agreement................ 13
Section 5.3 Officers' Certificates....................... 13
Section 5.4 Opinions..................................... 13
Section 5.5 Certificate of Designation................... 14
Section 5.6 Material Adverse Effect...................... 14
Section 5.7 [Intentionally Left Blank]................... 14
Section 5.8 General Conditions to the Obligations
of the Company............................... 14
Section 5.9 No Injunction................................ 14
Section 5.10 HSR Waiting Period........................... 15
Section 5.11 Shareholder Approval......................... 15
Section 5.12 Receipt of Consents.......................... 15
ARTICLE VI
COVENANTS OF THE COMPANY.................................... 15
Section 6.1 Reporting.................................... 15
Section 6.2 Payment of Expenses.......................... 15
Section 6.3 Inspection................................... 16
Section 6.4 Availability of Common Stock................. 16
Section 6.5 Transaction Fee.............................. 16
Section 6.6 Fleet Bank Consent........................... 16
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Section 6.7 Proxy Statements; Stockholder Approvals...... 16
Section 6.8 Election to Board of Directors of the
Company...................................... 17
Section 6.9 No General Solicitation...................... 19
ARTICLE VII
COVENANTS OF THE PURCHASERS.................................... 19
Section 7.1 Certain Restrictions......................... 19
ARTICLE VIII
RESTRICTIONS ON TRANSFERABILITY OF SECURITIES......................... 21
Section 8.1 Restrictive Legend........................... 21
Section 8.2 Notice of Proposed Transfers................. 22
ARTICLE IX
TERMINATION.......................................... 23
ARTICLE X
INDEMNIFICATION........................................ 23
Section 10.1 Indemnification.............................. 23
Section 10.2 Terms of Indemnification..................... 24
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ARTICLE XI
MISCELLANEOUS......................................... 25
Section 11.1 Governing Law................................ 25
Section 11.2 Survival..................................... 25
Section 11.3 Successors and Assigns....................... 25
Section 11.4 Entire Agreement; Amendment.................. 26
Section 11.5 Notices, Etc................................. 26
Section 11.6 Delays or Omissions.......................... 26
Section 11.7 Counterparts................................. 27
Section 11.8 Severability................................. 27
Section 11.9 Titles and Subtitles......................... 27
Section 11.10 No Public Announcement....................... 27
Section 11.11 Reasonable Efforts........................... 27
Section 11.12 Distributions and Adjustments................ 27
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Exhibits
Exhibit A - Certificate of Designation
Exhibit B - Registration Rights Agreement
Exhibit C - Opinion of Counsel for the Company
Exhibit D - Opinion of Hale and Dorr LLP
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SECURITIES PURCHASE AGREEMENT
This SECURITIES PURCHASE AGREEMENT (this "Agreement") is made as of
August 26, 1997 between The Learning Company, Inc., a Delaware corporation (the
"Company"), and each of the Purchasers listed on the signature pages hereto
(individually, a "Purchaser" and collectively, the "Purchasers").
The Company is simultaneously entering into securities purchase
agreements (the "Other Purchase Agreements" and, together with this Agreement,
the "Purchase Agreements") with affiliates of Thomas H. Lee Company and Bain
Capital, Inc. (together, the "Other Purchasers") dated the date hereof. The
Purchase Agreements provide, subject to the terms and conditions thereof, for
the purchase by the Purchasers and the Other Purchasers of an aggregate of
750,000 shares of Series A Convertible Participating Preferred Stock, par value
$.01 per share, of the Company having the terms set forth in the Certificate of
Designation (the "Certificate of Designation") attached hereto as Exhibit A (the
"Preferred Stock") in exchange for the surrender of the Company's 5 1/2% Senior
Convertible/Exchangeable Notes due 2000 (the "Notes") in an aggregate principal
amount of $150,000,000 then to be held by the Purchasers and the Other
Purchasers.
In consideration of the mutual covenants, agreements, representations
and warranties herein set forth, it is hereby agreed between the Company and the
Purchasers as follows:
ARTICLE I
AUTHORIZATION AND SALE OF SHARES
SECTION 1.1 AUTHORIZATION. Subject to the obtaining of any requisite
stockholder approval referred to in Section 5.11, the Company has heretofore
authorized the issuance and sale to the Purchasers pursuant to this Agreement of
an aggregate of 121,951 shares of the Preferred Stock (the "Shares") and to the
Other Purchasers pursuant to the Other Purchase Agreements of an aggregate of
628,049 shares of Preferred Stock (the "Other Shares").
SECTION 1.2 ISSUANCE AND SALE OF SHARES. Upon the terms and subject to
the conditions set forth herein, on the Closing Date (as defined below),
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(a) the Company will issue and sell to the Purchasers and, in reliance on the
representations and warranties of the Company contained herein, the Purchasers
will purchase from the Company the Shares in exchange for Notes in an aggregate
principal amount of $24,390,200 then to be held by the Purchasers delivered free
and clear of all liens, encumbrances, equities or claims and (b) the Company
will make a cash payment to the Purchasers by wire transfer of immediately
available funds in an amount equal to the interest accrued on the Notes sold to
the Company by the Purchasers from the last interest payment date on the Notes
up to and including the Closing Date (as defined below).
ARTICLE II
CLOSING
SECTION 2.1 CLOSING DATE. The closing (the "Closing") of the purchase
and sale of the Shares contemplated hereby shall take place on such date and at
such time as agreed to by the Company and the Purchasers but in no event later
than three business days following the date upon which all of the conditions set
forth in Article V and all the conditions to closing in the Note Purchase
Agreement (as defined below) are satisfied or waived (the date of the Closing is
hereinafter referred to as the "Closing Date"). The Closing shall be held at the
offices of Skadden, Arps, Slate, Meagher & Flom LLP, One Beacon Street, Boston,
Massachusetts, or at such other place as agreed to by the Company and the
Purchasers. The Closing shall occur simultaneously with the closing of the
transactions contemplated by the Other Purchase Agreements and the Securities
Purchase Agreement among Tribune Company, the Purchasers and the Other
Purchasers dated the date hereof (the "Note Purchase Agreement") and the closing
of each shall be conditioned on the closing of the others.
Delivery of the Shares to be purchased by the Purchasers pursuant to
this Agreement shall be made at the Closing by the Company delivering to each
Purchaser, against payment of the purchase price therefor, one certificate
representing the appropriate number of Shares (registered in the name of such
Purchaser or such other person which shall be an affiliate of such Purchaser or
a nominee of such Purchaser or such affiliate as such Purchaser may have
designated in writing to the Company at least one business day prior to the
Closing Day), unless at least two business days prior to the Closing Date such
Purchaser shall have requested that the Company deliver more than one
certificate representing the Shares, in which event the Company will deliver
to each Purchaser the number of certifi-
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cates so requested, registered in such name or names specified in such request
(subject to the foregoing limitation). Payment of the purchase price for the
Shares to be purchased hereunder shall be made by the Purchaser by delivery of
Notes in the aggregate principal amount of $24,390,200 to the Company duly
endorsed for transfer to the Company with all signatures guaranteed by stock
powers or other evidence of transfer reasonably acceptable to the Company.
SECTION 2.2 FURTHER ASSURANCES. From time to time following the
Closing, upon the request of any Purchaser, the Company shall execute and
deliver, or cause to be executed and delivered, to such Purchaser such other
instruments and take such other action as may be reasonably necessary to more
effectively vest in such Purchaser and put the Purchaser in possession of the
shares of common stock par value $.01 per share, of the Company (the "Common
Stock") issuable upon conversion of the Shares. The Company shall cooperate with
the Purchasers in obtaining as soon as practicable all necessary governmental
consents and approvals, including approvals under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act").
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
As an inducement to the Purchasers to enter into this Agreement and to
consummate the transactions contemplated hereby, the Company represents and
warrants to each of the Purchasers as follows:
SECTION 3.1 SEC REPORTS. The Company has filed all documents required
to be filed since January 1, 1995 with the Securities and Exchange Commission
(the "Commission") (the "SEC Reports"). As of their respective dates, the SEC
Reports complied in all material respects with the requirements of the
Securities Act of 1933, as amended (including the rules and regulations
promulgated thereunder, the "Securities Act"), and the Securities Exchange Act
of 1934, as amended (including the rules and regulations promulgated thereunder,
the "Exchange Act"), as the case may be, and none of the SEC Reports contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein, in order to make the statements contained
therein, in light of the circumstances under which they were made, not
misleading.
SECTION 3.2 ACCOUNTANTS. Coopers & Lybrand L.L.P., Arthur Andersen LLP,
KPMG Peat Marwick LLP, Price Waterhouse LLP and Deloitte
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& Touche LLP, who have expressed their respective opinions with respect to the
financial statements and schedules included in the SEC Reports, are independent
accountants as required by the Securities Act.
SECTION 3.3 FINANCIAL STATEMENTS. (a) The annual audited financial
statements of the Company included in the relevant Report on Form 10- K for the
period ended January 4, 1997 (the "10-K") present fairly in all material
respects the financial position of the Company, as of the respective date of
such financial statements, and the results of operations and changes in cash
flows of the Company for the respective periods covered thereby. Such statements
and related notes have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis, in each case, as certified
by one or more of the independent accountants named in Section 3.2.
(b) The unaudited interim financial statements of the Company included
in the Company's Quarterly Report on Form 10-Q for the period ended July 5, 1997
(the "Second Quarter 10-Q") present fairly in all material respects the
financial position of the Company, as of the respective dates of such financial
statements, and the results of operations and changes in cash flows of the
Company for the respective periods covered thereby. Such statements and related
notes have been prepared in accordance with generally accepted accounting
principles applied on a consistent basis except for normal year-end adjustments
and the omission of certain footnote disclosure.
SECTION 3.4 ABSENCE OF CERTAIN CHANGES. Except as disclosed in Section
3.4 of a letter dated the date hereof from and previously delivered by the
Company to the Purchasers (the "Disclosure Letter"), (a) since the date of the
latest balance sheet presented in the Second Quarter 10-Q there has been no
material adverse change in the business, properties, prospects, operations,
condition (financial or other) or results of operations of the Company and its
Subsidiaries (as defined herein) taken as a whole, whether or not arising from
transactions in the ordinary course of business, provided that a decline in the
trading price of the Common Stock shall not be deemed to be such a material
adverse change if such decline is not attributable to a material adverse change
in the business, properties, operations, prospects, condition (financial or
other) or results of operations of the Company and its Subsidiaries taken as a
whole, (b) since the date of the latest balance sheet presented in the Second
Quarter 10-Q, neither the Company nor any of its Subsidiaries has incurred or
undertaken any liabilities or obligations, direct or contingent, except for (i)
liabilities or obligations which are reflected in the Second Quarter 10-Q and
(ii) the transactions con-
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templated by this Agreement and the Other Purchase Agreements, (iii) contractual
liabilities incurred in the ordinary course of business, (iv) other liabilities
that would not have a material adverse effect on the business, properties,
prospects, operations, condition (financial or other) or results of operations
of the Company and its subsidiaries taken as a whole and (v) liabilities
incurred in connection with any acquisition of another business entity made by
the Company after the date hereof.
SECTION 3.5 AUTHORITY. The Company has all necessary corporate power
and corporate authority to enter into this Agreement, the Other Purchase
Agreements and the other agreements, documents and instruments to be executed by
the Company in furtherance of the transactions contemplated hereby and thereby,
including without limitation, the Registration Rights Agreement between the
Company and the Purchasers, a form of which is attached hereto as Exhibit B (the
"Registration Rights Agreement") (collectively, the "Transaction Documents"),
and to consummate the transactions contemplated hereby and thereby.
SECTION 3.6 NON-CONTRAVENTION. The execution, delivery, and performance
of the Transaction Documents by the Company and the consummation of the
transactions contemplated thereby by the Company do not and will not (a) result
in a breach of any of the terms and provisions of, or constitute a default (or
an event which with notice or lapse of time, or both, would constitute a
default) under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
Subsidiaries (as defined below) pursuant to any agreement, instrument,
franchise, license or permit to which the Company or any of its Subsidiaries is
a party or by which any of such corporations or their respective properties or
assets may be bound or (b) violate any judgment, decree, order, statute, rule or
regulation of any court or any public, governmental or regulatory agency or body
applicable to the Company or any of its Subsidiaries or any of their respective
properties or assets, other than such breaches, defaults or violations that are
not reasonably expected to impair the ability of the Company to consummate the
transactions contemplated by this Agreement. The execution, delivery and
performance of the Transaction Documents by the Company and the consummation of
the transactions contemplated thereby do not and will not violate or conflict
with any provision of the certificate of incorporation or by-laws of the Company
or any of its Subsidiaries, as currently in effect. Except as set forth in
Section 3.6 of the Disclosure Letter, no consent, approval, authorization,
order, registration, filing, qualification, license or permit of or with any
court or any government agency or body appli-
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cable to the Company or any of its Subsidiaries or any of their respective
properties or assets is required for the execution, delivery and performance of
the Transaction Documents or the consummation of the transactions contemplated
thereby, including the issuance, sale and delivery of the Shares to be issued,
sold and delivered by the Company hereunder.
SECTION 3.7 CAPITALIZATION. The Company had, as of July 5, 1997, an
authorized and outstanding capitalization as set forth in the Second Quarter
10-Q.
SECTION 3.8 SUBSIDIARIES. Except for the subsidiaries listed in Section
3.8 of the Disclosure Letter, the Company does not own or control, directly or
indirectly, any "significant subsidiary" within the meaning of Regulation S-X of
the Commission. The subsidiaries listed in Section 3.8 of the Disclosure Letter
are hereinafter referred to as the "Subsidiaries." Each of the Company and its
Subsidiaries has been duly organized and is validly existing as a corporation in
good standing under the laws of its jurisdiction of incorporation. Each of the
Company and its Subsidiaries is duly qualified to do business and in good
standing as a foreign corporation in each jurisdiction in which the character or
location of its properties (owned, lease or licensed) or the nature or conduct
of its business makes such qualification necessary, except for those failures to
be so qualified or in good standing which will not in the aggregate have a
material adverse effect on the Company and its Subsidiaries taken as a whole.
The Company owns all of the outstanding capital stock of each of its
Subsidiaries, other than the non-voting exchangeable shares of SoftKey Software
Products Inc. and qualifying shares of certain Subsidiaries organized outside
the United States, free and clear of all claims, liens, charges and encumbrances
other than as disclosed in Section 3.8 of the Disclosure Letter. Each of the
Company and its Subsidiaries has all requisite power and authority, and all
necessary consents, approvals, authorizations, orders, registrations,
qualifications, licenses and permits of and from all public, regulatory or
governmental agencies and bodies, to own, lease and operate its properties and
conduct its business as now being conducted, except where the failure to possess
such requisite power and authority would not have a material adverse effect on
the business, properties, prospects, operations, condition (financial or other)
or results of operations of the Company and its Subsidiaries taken as a whole.
SECTION 3.9 ACTIONS. Except as described in Section 3.9 of the
Disclosure Letter, there is no litigation or governmental proceeding to which
the Company or any of its Subsidiaries is a party or to which any property of
the
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Company or any of its Subsidiaries is subject or which is pending or, to the
knowledge of the Company, threatened against the Company or any of its
Subsidiaries which could reasonably be expected to have a material adverse
effect on the business, properties, prospects, operations, condition (financial
or other) or results of operations of the Company and its Subsidiaries taken as
a whole.
SECTION 3.10 INVESTMENT COMPANY ACT. Neither the Company nor any of its
Subsidiaries is (i) an "investment company" or a company "controlled" by an
investment company within the meaning of the Investment Company Act of 1940, as
amended, (ii) a "holding company" or a "subsidiary company" of a holding company
or an "affiliate" thereof within the meaning of the Public Utility Holding
Company Act of 1935, as amended, or (iii) subject to regulation under the
Federal Power Act, the Interstate Commerce Act or any federal or state statute
or regulation limiting its ability to consummate the transactions contemplated
hereby.
SECTION 3.11 REPORTING. The Company is subject to Section 13 of the
Exchange Act and is in compliance in all material respects with the provisions
of such section.
SECTION 3.12 REGISTRATION AND QUALIFICATION. Assuming the accuracy of
the representations and warranties made by each of the Purchasers and set forth
in Article IV hereof, it is not necessary in connection with the offer, sale and
delivery of the Shares to the Purchasers in the manner contemplated by this
Agreement to register the Shares or the shares of Common Stock issuable upon
conversion of the Shares, under the Securities Act.
SECTION 3.13 NO LIABILITIES. Neither the Company nor its Subsidiaries
has any liabilities or obligations (direct or indirect, contingent or absolute,
known or unknown, matured or unmatured) of any nature whatsoever, whether
arising out of contract, tort, statute or otherwise ("Liabilities"), except (i)
as reflected or reserved against in the latest balance sheet of the Company
presented in the Second Quarter 10-Q and not heretofore discharged, (ii) as set
forth in Section 3.13 of the Disclosure Letter, (iii) liabilities incurred in
the ordinary course of business since the date of the latest balance sheet
presented in the Second Quarter 10-Q, (iv) contractual liabilities incurred in
the ordinary course of business, (v) liabilities incurred in connection with any
acquisition of another business entity made by the Company after the date hereof
or (vi) other liabilities that would not have a material adverse effect on the
business, properties, pros-
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pects, operations, condition (financial or other) or results of operations of
the Company and its subsidiaries taken as a whole.
SECTION 3.14 NO DEFAULTS. Except as disclosed in Section 3.14 of the
Disclosure Letter, neither the Company nor any of its Subsidiaries is in
violation or default under any provision of its certificate of incorporation,
by-laws or other organization documents, or is in breach of or default with
respect to any provision of any agreement, judgment, decree, order, mortgage,
deed of trust, lease, franchise, license, indenture, permit or other instrument
to which it is a party or by which it or any of its properties are bound; and
there does not exist an event of default on the part of the Company or any such
Subsidiary as defined in such documents which, with notice or lapse of time or
both, would constitute a default, which such violation or default, in either
such case, would not have a material adverse effect on the business, properties,
prospects, operations, condition (financial or other) or results of operations
of the Company and its subsidiaries taken as a whole.
SECTION 3.15 VIOLATIONS OF LAW. The Company and its Subsidiaries are in
compliance, and have complied at all times during the past three years, and all
transactions pursuant to the Transaction Documents shall comply with all
applicable federal, state and local statutes, codes, ordinances, rules and
regulations of the United States and all other countries and subdivisions
thereof (the "Laws") to the extent applicable, other than violations which would
not have a material adverse effect on the business, properties, operations,
condition (financial or other) or results of operations of the Company and its
Subsidiaries taken as a whole. Neither the Company nor any of its Subsidiaries
has received notice within the past three years of any violations of any Laws,
which violations would be material to the Company and its subsidiaries taken as
a whole.
SECTION 3.16 ENFORCEABILITY OF AGREEMENT. This Agreement has been, and
the other agreements to be executed and delivered by the Company pursuant hereto
have been or will be, duly and validly authorized, executed and delivered by the
Company and this Agreement is, and such other agreements when so executed and
delivered will be, valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms.
SECTION 3.17 THE CAPITAL STOCK. (a) All of the outstanding shares of
Common Stock are duly and validly authorized and issued, fully paid and
nonassessable, have been issued in compliance with all federal and state
securities laws, and were not issued and are not now in violation of or subject
to
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any preemptive rights. All issued and outstanding shares of capital stock of
each Subsidiary have been duly authorized and validly issued and are fully paid
and nonassessable. Except as disclosed in Section 3.17 of the Disclosure Letter
as of the date hereof, neither the Company nor any Subsidiary has outstanding
any options to purchase, or any preemptive rights or other rights to subscribe
for or to purchase, any securities or obligations convertible into, or any
contracts or commitments to issue or sell, shares of its capital stock or any
such options, rights, convertible securities or obligations. There are currently
no shares of the Company's preferred stock outstanding.
(b) (i) The Shares have been duly and validly authorized by the
Company and the Shares, when issued, sold and delivered in accordance with this
Agreement, will be duly and validly issued, fully paid and nonassessable. The
shares of Common Stock issuable upon conversion of the Shares have been duly and
validly authorized by the Company and, when issued in accordance with the terms
of the Shares, will be duly and validly issued, fully paid and nonassessable.
The shares of Common Stock issuable on conversion of the Shares at the initial
conversion price have been reserved for issuance, and no further approval or
authority of the stockholders or the Board of Directors of the Company (the
"Board of Directors") under the Delaware General Corporation Law will be
required for such issuance of Common Stock following the Closing. No preemptive
rights or other rights to subscribe for or purchase securities exist with
respect to the issuance and sale of the Shares by the Company pursuant to this
Agreement or the issuance of Common Stock on conversion of the Shares.
(ii) Except as set forth in Section 3.17 of the Disclosure Letter,
no security holder of the Company has any right which has not been satisfied or
waived to require the Company to register the sale of any securities owned by
such security holder under the Securities Act.
SECTION 3.18 PROPERTIES. The Company or the applicable Subsidiary holds
its leased properties under valid and binding leases, with such exceptions as
are not materially significant in relation to the business of the Company.
Except as disclosed in Section 3.18 of the Disclosure Letter, the Company owns
or leases all such properties as are necessary to its operations as now
conducted.
SECTION 3.19 INTELLECTUAL PROPERTY. Except as disclosed in Section 3.19
of the Disclosure Letter, the Company and its Subsidiaries have sufficient
trademarks, trade names, patent rights, copyrights, licenses, approvals
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and governmental authorizations to conduct their businesses substantially as now
conducted; and the Company has no knowledge of any infringement by it or its
Subsidiaries of any trademark, trade name, patent, copyright, licenses, trade
secret or other similar rights of others, and there is no claim being made
against the Company or its Subsidiaries regarding trademark, trade name, patent,
copyright, license, trade secret or other infringement, in any such case which
could reasonably be expected to have a material adverse effect on the business,
properties, prospects, operations, condition (financial or otherwise) or results
of operations of the Company and it or its Subsidiaries taken as a whole.
SECTION 3.20 TAXES. The Company and its Subsidiaries have filed all
necessary federal, state and foreign income and franchise tax returns and have
paid all taxes shown as due thereon; and the Company has no knowledge of any tax
deficiency which has been asserted or threatened against the Company or its
Subsidiaries which could have a material adverse effect on the business,
properties, prospects, operations, condition (financial or otherwise) or results
of operations of the Company and its Subsidiaries taken as a whole.
SECTION 3.21 INSURANCE. The Company and its Subsidiaries maintain
insurance of the types and in the amounts generally deemed adequate for its
business and that of its Subsidiaries against theft, damage, destruction, acts
of vandalism and all other risks customarily insured against, all of which
insurance is in full force and effect.
SECTION 3.22 CERTAIN PAYMENTS. To the knowledge of the Company, neither
the Company nor any of its Subsidiaries has at any time (i) made any unlawful
contribution to any candidate for foreign office, or failed to disclose fully
any contribution in violation of law or (ii) made any payment to any federal or
state governmental officer or official, or other person charged with similar
public or quasi-public duties, other than payments required or permitted by the
laws of the United States or any jurisdiction thereof.
SECTION 3.23 DELAWARE GENERAL CORPORATION LAW SECTION 203. Section 203
of the Delaware General Corporation Law will not, prior to the termination of
this Agreement and the Other Purchase Agreements, apply to such Agreements or
the transactions contemplated hereby and thereby.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS
As an inducement to the Company to enter into this Agreement and to
consummate the transactions contemplated hereby, each of the Purchasers hereby
represents and warrants to the Company as follows:
SECTION 4.1 INVESTMENT. Purchaser is acquiring the Shares and the
shares of Common Stock issuable upon conversion of the Shares for investment for
its own account, and not with a view to any distribution thereof. Purchaser
understands that the Shares and the shares of Common Stock issuable upon
conversion of the Shares have not been registered under the Securities Act by
reason of specific exemptions therefrom which depend upon, among other things,
the bona fide nature of the investment intent and the accuracy of Purchaser's
representations as expressed herein.
Purchaser's financial condition and investments are such that it is in
a position to hold the Shares and the shares of Common Stock issuable upon
conversion of the Shares for an indefinite period, bear the economic risks of
the investment and to withstand the complete loss of the investment. Purchaser
has extensive knowledge and experience in financial and business matters and has
the capability to evaluate the merits and risks of any Shares and the shares of
Common Stock issuable upon conversion of the Shares. Purchaser qualifies as an
"accredited investor" as such term is defined in Section 2(15) of the Securities
Act and Regulation D promulgated thereunder.
SECTION 4.2 RULE 144. Purchaser acknowledges that the Shares and the
shares of Common Stock issuable upon conversion of the Shares must be held
indefinitely unless subsequently registered under the Securities Act or any
applicable state securities laws or unless exemptions from such registrations
are available. Purchaser is aware of the provisions of Rule 144 promulgated
under the Securities Act which permit limited resale of securities purchased in
a private placement subject to the satisfaction of certain conditions.
SECTION 4.3 ORGANIZATION OF PURCHASER. Purchaser is duly organized and
validly existing under the laws of the jurisdiction of its organization.
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SECTION 4.4 AUTHORITY OF PURCHASER. Purchaser has the power and
authority (corporate or similar) to execute and deliver this Agreement, to
consummate the transactions contemplated hereby and to comply with the terms,
conditions and provisions hereof.
The execution, delivery and performance of this Agreement by Purchaser
has been duly authorized and approved by Purchaser and does not require any
further authorization or consent of Purchaser or its beneficial owners. This
Agreement is the legal, valid and binding agreement of Purchaser, enforceable
against Purchaser in accordance with its terms.
SECTION 4.5 NON-CONTRAVENTION. The execution, delivery and performance
of this Agreement by Purchaser and the consummation of any of the transactions
contemplated hereby by Purchaser will not (a) conflict with or result in a
breach of any of the terms and provisions of, or constitute a default (or an
event which with notice or lapse of time, or both, would constitute a default)
under, or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of Purchaser pursuant to any agreement,
instrument, franchise, license or permit to which Purchaser is a party or by
which any of its properties or assets may be bound or (b) violate or conflict
with any judgment, decree, order, statute, rule or regulation of any court or
any public, governmental or regulatory agency or body applicable to Purchaser or
any of its properties or assets, other than such breaches, defaults or
violations that are not reasonably expected to impair the ability of Purchaser
to consummate the transactions contemplated by this Agreement. The execution,
delivery and performance of this Agreement by Purchaser and the consummation of
the transactions contemplated hereby by Purchaser do not and will not violate or
conflict with any provision of the organizational documents of Purchaser, as
currently in effect. Except for filings under the HSR Act, no consent, approval,
authorization, order, registration, filing, qualification, license or permit of
or with any court or any government agency or body applicable to Purchaser is
required for the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby.
SECTION 4.6 TITLE TO THE NOTES. Upon consummation of the transactions
contemplated by the Note Purchase Agreement, the Purchasers will have good and
valid title to the Notes to be surrendered to the Company hereunder, free and
clear of all liens, encumbrances, equities or claims; and, upon delivery of the
Notes to the Company, good and valid title to the Notes, free and clear of all
liens, encumbrances, equities or claims, will pass to the Company,
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assuming that the Company is acquiring the Notes in good faith and without
notice of any "adverse claims" within the meaning of Article 8 of the Uniform
Commercial Code.
ARTICLE V
CONDITIONS TO THE OBLIGATIONS OF THE PARTIES
A. OBLIGATIONS OF THE PURCHASERS
SECTION 5.1 GENERAL CONDITIONS TO OBLIGATIONS OF THE PURCHASERS. The
obligation of each of the Purchasers to consummate the transactions contemplated
herein is subject to the accuracy of the representations and warranties of the
Company herein contained, as of the date hereof and as of the Closing Date, and
to the performance in all material respects by the Company of its obligations
hereunder (including the covenants contained in Article VI of this Agreement).
SECTION 5.2 REGISTRATION RIGHTS AGREEMENT. The obligation of each of
the Purchasers to consummate the transactions contemplated herein is subject to
the Registration Rights Agreement continuing to be in full force and effect.
SECTION 5.3 OFFICERS' CERTIFICATES. The obligation of each of the
Purchasers to consummate the transactions contemplated herein is subject to
each of the Purchasers at the Closing Date receiving a certificate of the Chief
Executive Officer and Chief Financial Officer of the Company, dated the Closing
Date, to the effect that (i) as of the date hereof and as of the Closing Date,
the representations and warranties of the Company set forth in Article III
hereof are accurate and (ii) as of the Closing Date, the obligations of the
Company to be performed hereunder on or prior to the Closing Date have been
duly performed in all material respects.
SECTION 5.4 OPINIONS. The obligation of each of the Purchasers to
consummate the transactions contemplated herein is subject to each of the
Purchasers receiving at the Closing Date the opinion of Neal S. Winneg, General
Counsel for the Company, to the effect of the matters set forth in Exhibit C and
the opinion of Hale and Dorr LLP, special counsel for the Company, to the effect
of the matters set forth in Exhibit D.
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SECTION 5.5 CERTIFICATE OF DESIGNATION. The obligation of each of the
Purchasers to consummate the transactions contemplated herein is subject to the
Certificate of Designation attached hereto as Exhibit A being duly adopted by
the Company and filed with the Secretary of State of the State of Delaware.
SECTION 5.6 MATERIAL ADVERSE EFFECT. The obligation of each of the
Purchasers to consummate the transactions contemplated herein is subject to
there being since the date of the last balance sheet presented in the Second
Quarter 10-Q no fact or condition which would have, or insofar as reasonably can
be foreseen could have, a material adverse effect on the business, properties,
prospects, operations, condition (financial or other) or results of operations
of the Company and its Subsidiaries taken as a whole; provided, that a decline
in the trading price of the Common Stock shall not be deemed to be such a
material adverse effect if such decline is not attributable to a material
adverse change in the business, properties, prospects, operations, condition
(financial or other) or results of operations of the Company and its
subsidiaries taken as a whole.
SECTION 5.7 REGISTRATION RIGHTS AGREEMENT. [Intentionally Left Blank].
B. OBLIGATIONS OF THE COMPANY
SECTION 5.8 GENERAL CONDITIONS TO THE OBLIGATIONS OF THE COMPANY. The
obligation of the Company to sell the Shares to each of the Purchasers shall be
subject to the accuracy of the representations and warranties of each of the
Purchasers herein contained except to the extent any inaccuracies do not
materially impair the ability of the Purchasers to consummate the transaction
contemplated by the Agreement, as of the date hereof and as of the Closing
Date, and to the performance in all material respects by each of the Purchasers
of its obligations hereunder.
C. OBLIGATIONS OF EACH OF THE COMPANY AND THE PURCHASERS
SECTION 5.9 NO INJUNCTION. The obligations of each of the Company and
the Purchasers to consummate the transactions contemplated herein are subject to
the condition that no temporary restraining order, preliminary or permanent
injunction or other order issued by any court of competent jurisdiction
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prohibiting or preventing consummation of the transactions contemplated herein
shall be in effect.
SECTION 5.10 HSR WAITING PERIOD. The obligations of each of the Company
and the Purchasers to consummate the transactions contemplated herein are
subject to the condition of the expiration or early termination of the
application waiting periods under the HSR.
SECTION 5.11 SHAREHOLDER APPROVAL. The obligations of each of the
Company and the Purchasers to consummate the transactions contemplated herein
are subject to the approval of the issuance of the Shares, the Other Shares and
the shares of Common Stock issuable upon conversion of the Shares and the Other
Shares by the Company's stockholders in accordance with the requirements of the
New York Stock Exchange ("NYSE").
SECTION 5.12 RECEIPT OF CONSENTS. The obligation of each of the Company
and the Purchasers to consummate the transactions contemplated by this Agreement
are subject to the receipt by the Company of all governmental or third-party
consents shown in Section 5.12 of the Disclosure Letter the transactions.
ARTICLE VI
COVENANTS OF THE COMPANY
As an inducement to the Purchasers to enter into this Agreement and to
consummate the transactions contemplated hereby, the Company hereby covenants
with each of the Purchasers as follows:
SECTION 6.1 REPORTING. The Company will, so long as the Shares or the
shares of Common Stock issuable upon conversion thereof are outstanding and are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act, file reports and other information with the Commission under
Section 13 or 15 (d) of the Exchange Act.
SECTION 6.2 PAYMENT OF EXPENSES. Whether or not the transactions
contemplated in this Agreement are consummated or this Agreement is terminated,
the Company hereby agrees to pay (i) all costs and expenses incident to the
performance of the obligations of the Company hereunder, includ-
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ing those in connection with (a) the issuance, transfer and delivery of the
Shares or the shares of Common Stock issuable upon conversion thereof to each of
the Purchasers, including any transfer or similar taxes payable therein, (b) the
qualification of Shares or the shares of Common Stock issuable upon conversion
thereof under state or foreign securities or Blue Sky laws, (c) the cost of
printing the Shares or the shares of Common Stock issuable upon conversion
thereof and (d) the cost and charges of any transfer agent, registrar, trustee
or fiscal paying agent and to promptly pay (ii) all documented out-of-pocket
costs and expenses, including attorneys', accountants' and consultants' fees,
incurred by each of the Purchasers in connection with the negotiation and
consummation of this Agreement, the Note Purchase Agreement, the Registration
Rights Agreement and the transactions contemplated thereby up to $800,000 in the
aggregate for all Purchasers and Other Purchasers under this Section 6.2 and
Section 6.2 of the Other Purchase Agreements.
SECTION 6.3 INSPECTION. Prior to and following the Closing, the Company
will permit each of the Purchasers and their representatives to visit and
inspect any of the Company's properties, to examine its books and records and to
make copies and to take extracts therefrom, and to discuss its business affairs
and finances with its officers and key employees, all at such reasonable times
as the Purchasers may request.
SECTION 6.4 AVAILABILITY OF COMMON STOCK. The Company shall at all
times reserve and keep available out of its authorized but unissued Common
Stock, for the purpose of effecting the conversion of the Shares, the full
number of shares of Common Stock then issuable upon the conversion of the
Shares. The Company will, from time to time, in accordance with the laws of the
State of Delaware, increase the authorized amount of Common Stock if at any time
the number of shares of Common Stock remaining unissued and available for
issuance shall be insufficient to permit conversion of the Shares.
SECTION 6.5 TRANSACTION FEE. Upon the execution of this Agreement, the
Company shall pay the Purchasers an aggregate fee equal to $100,000. On the
Closing Date, the Company shall pay the Purchasers an additional aggregate fee
equal to $200,000.
SECTION 6.6 FLEET BANK CONSENT. The Company will use its best efforts
to obtain the consent of Fleet Bank of Massachusetts, N.A. referred to in
Section 5.12 of the Disclosure Letter, within 10 days after the date hereof.
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SECTION 6.7 PROXY STATEMENTS; STOCKHOLDER APPROVALS. The Company acting
through the Board of Directors, shall, in accordance with applicable law and its
Certificate of Incorporation and By-Laws:
(a) promptly and duly call, give notice of, convene and hold as soon
as practicable following the clearance of the proxy statement to be issued in
connection with the transactions contemplated herein (the "Proxy Statement")
with the SEC, but in no event later than the Closing Date, a meeting of its
stockholders for the purpose of voting to approve the issuance of the Shares and
the shares of Common Stock issuable upon conversion thereof and shall use its
best efforts, except to the extent the Board of Directors determines in good
faith, after consultation with outside counsel, that contrary action is required
by the Board of Directors' fiduciary duties under applicable law, to obtain
stockholder approval;
(b) except to the extent the Board of Directors determines in good
faith, after consultation with outside counsel, that contrary action is required
by the Board of Directors' fiduciary duties under applicable law, recommend
approval of the issuance of the Shares and the shares of Common Stock issuable
upon conversion thereof, and include in the Proxy Statement such recommendation,
and take all lawful action to solicit such approvals; and
(c) as promptly as practicable following the signing of this
Agreement, prepare and file with the SEC a preliminary Proxy Statement and
respond to any comments of the SEC with respect to the preliminary Proxy
Statement and cause the definitive Proxy Statement to be mailed to its
stockholders.
SECTION 6.8 ELECTION TO BOARD OF DIRECTORS OF THE COMPANY.
Simultaneously with the Closing, the Company shall (a) take all actions
necessary to ensure that one representative of each of the following Purchaser
groups is appointed to the Board of Directors promptly after the consummation of
the transactions contemplated herein: (i) Thomas H. Lee Equity Fund III, L.P.,
Thomas H. Lee Foreign Fund III, L.P., Thomas H. Lee Company and affiliates
(collectively, the "Lee Purchaser Group"); (ii) Bain Capital Fund V, L.P., Bain
Capital Fund V-B, L.P., BCIP Associates, L.P., BCIP Trust Associates, L.P. and
affiliates (collectively, the "Bain Purchaser Group"); and (iii) Centre Capital
Investors II, L.P., Centre Capital Tax-Exempt Investors II, L.P., Centre Capital
Offshore Investors II, L.P., State Board of Administration of Florida, Centre
Parallel Management Partners, L.P., Centre Partners Coinvestment, L.P. and
affiliates (collectively, the "Centre Purchaser Group"); (b) use best efforts to
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cause each of the directors appointed in accordance with subsection (a) hereof
and the representative of the Thomas H. Lee Company currently serving on the
Board of Directors (and any successor nominees thereof) (collectively, the
"Purchasers' Representatives") to be renominated and reelected when their
initial and any subsequent term expires, (c) use best efforts to cause the
election of two nominees from the four Purchasers' Representatives to each of
the executive, compensation and audit committees of the Board of Directors, in
each case except to the extent the Board of Directors determines in good faith,
after consultation with outside counsel, that contrary action is required by the
Board of Directors' fiduciary duties under applicable law; provided, however
that if (i) the Lee Purchaser Group, in the aggregate, holds less than 40% or
20% of the Shares initially owned by the Lee Purchaser Group (or if any of such
Shares have been converted and after making appropriate adjustment for any stock
dividend, split-up, recapitalization, rights, merger or other change in the
corporate or capital structure of the Company (a "Restructuring"), shares of
Common Stock and shares of Common Stock issuable upon conversion of the Shares
representing less than 40% or 20% of the Common Stock originally issuable upon
conversion of the Shares), the Lee Purchaser Group shall only be entitled to
nominate one or no such nominees to the Board of Directors, respectively; (ii)
the Bain Purchaser Group holds less than 40% of the Shares initially owned by
the Bain Purchaser Group (or if any of such Shares have been converted and after
making appropriate adjustment for any Restructuring, shares of Common Stock and
shares of Common Stock issuable upon conversion of the Shares representing less
than 40% of the Common Stock originally issuable upon conversion of the Shares),
the Bain Purchaser Group shall not be entitled to nominate any nominees to the
Board of Directors; and (iii) the Centre Purchaser Group holds less than 40% of
the Shares initially owned by the Centre Purchaser Group (or if any of such
Shares have been converted and after making appropriate adjustment for any
Restructuring, shares of Common Stock and shares of Common Stock issuable upon
conversion of the Shares representing less than 40% of the Common Stock
originally issuable upon conversion of the Shares), the Centre Purchaser Group
shall not be entitled to nominate any nominees to the Board of Directors; and
provided, further that (i) if at any time there are only two Purchasers'
Representatives serving on the Board of Directors, the Company will use its best
efforts to cause the election of only one of such Purchasers' Representatives to
each of the executive, compensation and audit committee and (ii) if at any time
there is only one Purchasers' Representative serving on the Board of Directors,
the Company is not obligated to use its best efforts to cause the election of
such Purchasers' Representative to any of the committees. Each of the Purchasers
and the Other Purchasers will designate the representatives who will sit on the
executive,
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compensation and audit committees of the Board of Directors based on a vote of a
majority in interest of the Purchasers and the Other Purchasers.
SECTION 6.9 NO GENERAL SOLICITATION. None of the Company, its
affiliates (as defined in Rule 501(b) of the Securities Act) or any person
acting on their behalf will solicit any offer to buy or offer or sell the Shares
by means of any form or general solicitation or general advertising (as those
terms are used in Regulation D under the Securities Act) or in any manner
involving a public offering within the meaning of Section 4(2) of the Securities
Act that would require the registration of the Shares under the Securities Act.
ARTICLE VII
COVENANTS OF THE PURCHASERS
SECTION 7.1 CERTAIN RESTRICTIONS.
(a) Each of the Purchasers covenants with the Company that, without
the consent of the Company, for a period commencing, on the date hereof and
continuing through the fifth anniversary of the date hereof none of the
Purchasers, singly or as part of a group, directly or indirectly, through one or
more intermediaries or otherwise, will:
(i) purchase or acquire, or offer, propose or agree to purchase or
acquire, directly or indirectly, any of the Common Stock (other than by
conversion of any of the Shares), any option, warrant or other right to
acquire, directly or indirectly, any Common Stock or any securities which
are convertible into or exchangeable or exercisable for Common Stock (other
than the exercise of options under the Stock Option Agreement dated the
date hereof); provided, however, that notwithstanding anything to the
contrary contained herein, the foregoing restriction shall not be deemed to
be violated or applicable if a Purchaser is not otherwise in breach of this
Agreement and (A) the amount of the outstanding Common Stock beneficially
owned, in the aggregate, by such Purchaser is increased as a result of any
stock dividend, stock split, split-up, recapitalization, merger or other
change in the corporate or capital structure of the Company or any other
action taken solely by the Company or (B) the Company breaches its
obligations under Section 6.8 hereof; and provided, further, that at any
time when the percentage of the outstanding
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Common Stock owned by a Purchaser on a fully diluted basis is less than
the percentage of the outstanding Common Stock owned by such Purchaser
on a fully diluted basis on the Closing Date (the "Maximum Amount")
such Purchaser may purchase additional shares of Common Stock up to the
Maximum Amount;
(ii) solicit, or encourage any other person to solicit, "proxies"
or become a "participant" or otherwise engage in any "solicitation" (as
such terms are defined or used in Regulation 14A under the Exchange
Act) in opposition to a recommendation of a majority of the directors
of the Company with respect to any matter; seek to advise or influence
any person (within the meaning of Section 13(d)(3) of the Exchange Act)
with respect to the voting of any securities of the Company; or execute
any written consent in lieu of a meeting of holders of securities of
the Company or any class thereof;
(iii) initiate, propose or otherwise solicit stockholders for the
approval of one or more stockholder proposals with respect to the
Company, as described in Rule 14a-8 under the Exchange Act;
(iv) except as results from the Purchase Agreements or from
arrangements among the Purchasers and the Other Purchasers, directly or
indirectly participate in or encourage the formation of any "group"
(within the meaning of Section 13(d)(3) of the Exchange Act) owning or
seeking to acquire beneficial ownership of securities of the Company or
affect control of the Company;
(v) except as results from the Purchase Agreements or from
arrangements among the Purchasers and the Other Purchasers, otherwise
act, directly or indirectly, alone or in concert with others, to seek
to control or influence in any manner the management, business,
operations, board of directors, policies or affairs of the Company, or
propose or seek to effect any form of business combination transaction
with the Company or any affiliate thereof or any restructuring,
recapitalization or other similar transaction with respect to the
Company; or
(vi) (a) encourage any person, firm, corporation, group or other
entity to engage in any of the actions covered by clauses (i) through
(v) of this Section 7.1 or make any public arrangement (or make other
communication with or to the Company or otherwise which, in the opinion
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of counsel to the Company, would require public announcement) with
respect to any matter set forth in clause (i) through (v) of this
Section 7.1; provided, however, that actions taken by any
representative of the Purchaser on the Board of Directors of the
Company, acting in his or her capacity as such a director, shall not
violate this Section 7.1.
(b) No Purchaser shall, without the Company's consent, sell,
transfer, effect a short sale of, grant any option for the purchase of,
or loan any Shares or Common Stock for a period of 18 months from the
date of issuance of the Shares except to an affiliate or the Other
Purchasers or an affiliate thereof; provided that this restriction on
each Purchaser's ability to sell or transfer any Shares will cease to
apply upon a conversion of the Shares pursuant to Section 8.10.1 of the
Certificate of Designation; provided further, that each Purchaser may
sell its Shares or Common Stock in any tender offer or exchange offer
made for any Company securities.
ARTICLE VIII
RESTRICTIONS ON TRANSFERABILITY OF SECURITIES
SECTION 8.1 RESTRICTIVE LEGEND. Each certificate representing (a)
the Shares, (b) shares of the Common Stock issuable upon conversion of any
Shares, and (c) any other securities issued in respect of the Shares or Common
Stock issued upon conversion of any Shares upon any stock split, stock dividend,
recapitalization, merger, consolidation or similar event (each of the foregoing
securities in (a) through (c) being referred to herein as "Restricted
Securities"), shall (unless otherwise permitted by the provisions of Section 8.2
below) be stamped or otherwise imprinted with a legend substantially in the
following form (in addition to the legend required under any applicable state
securities laws):
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR
INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933 OR ANY APPLICABLE STATE SECURITIES LAWS. SUCH SHARES MAY NOT BE
SOLD OR TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATIONS OR EXEMPTIONS
THEREFROM UNDER SAID ACT OR LAWS. COPIES OF THE AGREEMENT COVERING THE
PURCHASE OF THESE SHARES AND THEIR TRANSFER MAY BE OB-
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TAINED AT NO COST BY WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF
THIS CERTIFICATE TO THE SECRETARY OF THE COMPANY.
The Company will promptly, upon request, remove any such legend when no longer
required by the terms of this Agreement or by applicable law.
SECTION 8.2 NOTICE OF PROPOSED TRANSFERS. Prior to any proposed
transfer of any Restricted Securities, unless there is in effect a registration
statement under the Securities Act covering the proposed transfer, the Purchaser
proposing such a transfer shall give written notice to the Company of its
intention to effect such transfer. Each such notice shall describe the manner
and circumstances of the proposed transfer in sufficient detail, and shall be
accompanied by either (a) a written opinion of legal counsel (who shall be
reasonably satisfactory to the Company) addressed to the Company to the effect
that the proposed transfer of the Restricted Securities may be effected without
registration under the Securities Act or (b) a "no action" letter from the
Commission to the effect that the transfer of such securities without
registration will not result in a recommendation by the staff of the Commission
that action be taken with respect thereto, whereupon, in each case, such
Purchaser shall be entitled to transfer such Restricted Securities in accordance
with the terms of the notice delivered by such Purchaser to the Company. Unless
there is in effect a registration statement under the Securities Act covering
the proposed transfer, each certificate evidencing the Restricted Securities
transferred as herein provided shall bear the appropriate restrictive legend set
forth in Section 8.1 above except that such certificate shall not bear such
restrictive legend if, (i) in the opinion of counsel for such Purchaser, such
legend is not required in order to establish compliance with any provisions of
the Securities Act, (ii) a period of at least one year has elapsed since the
later of the date the Restricted Securities were acquired from the Company or
from an affiliate of the Company, and such Purchaser represents to the Company
that it is not an affiliate of the Company and has not been an affiliate during
the preceding three months and shall not become an affiliate of the Company
without resubmitting the Restricted Securities for reimposition of the legend,
or (iii) the restricted Securities have been sold pursuant to Rule 144(k) and
the certificate is accompanied by a representation by such Purchaser that it is
not an affiliate of the Company, has not been an affiliate during the
three-month period prior to the sale and has held the Restricted Securities for
more than two years.
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ARTICLE IX
TERMINATION
Notwithstanding anything contained herein to the contrary, this
Agreement may be terminated at any time prior to the Closing Date:
(a) by the mutual written consent of the Purchasers and the
Company;
(b) by any Purchaser or the Company if the Closing has not
occurred on or before six months from the date hereof and this Agreement has not
previously been terminated; provided, however, that the right to terminate the
Agreement under this Section 9(b) shall not be available to any party whose
failure to fulfill any obligation under this Agreement has been the cause of, or
resulted in, the failure of the Closing to occur on or before such date; or
(c) by any Purchaser or the Company if any of the Other Purchase
Agreements or the Note Purchase Agreement are terminated; or
(d) by any Purchaser 10 days after the Company's shareholders, at
a duly held meeting at which such shareholders vote on the issuance of the
Preferred Stock to the Purchasers or the Other Purchasers, fail to approve such
issuance.
In the event that this Agreement shall be terminated pursuant to
this Article IX, all further obligations of the parties under this Agreement
other than the obligations set forth in Article X and Sections 6.2, 6.5 and
11.10 shall be terminated without further liability of any party to any other
party, provided that nothing herein shall relieve any party from liability for
its willful breach of this Agreement.
ARTICLE X
INDEMNIFICATION
SECTION 10.1 INDEMNIFICATION. The Company hereby agrees to
indemnify, defend and hold harmless each Purchaser from and against all de-
mands, claims, actions or causes of action, assessments, losses, damages,
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liabilities, costs and expenses (collectively, "Claims"), including without
limitation, interest, penalties and attorneys' fees and expenses, asserted
against, resulting to, or imposed upon or incurred by such Purchaser directly or
indirectly, in connection with the transactions contemplated hereby.
SECTION 10.2 TERMS OF INDEMNIFICATION. The obligations and
liabilities of the Company with respect to Claims by third parties will be
subject to the following terms and conditions:
(a) a Purchaser will give the Company prompt notice of any Claims
asserted against, resulting to, imposed upon or incurred by a Purchaser,
directly or indirectly, and the Company will undertake the defense thereof by
representatives of their own choosing which are reasonably satisfactory to such
Purchaser; provided that the failure of any Purchaser to give notice as provided
in this Section 10.2 shall not relieve the Company of its obligations under this
Article X, except to the extent that such failure has materially and adversely
affected the rights of the Company;
(b) if within a reasonable time after notice of any Claim, the
Company fails to defend, such Purchaser will have the right to undertake the
defense, compromise or settlement of such Claims on behalf of and for the
account and at the risk of the Company, subject to the right of the Company to
assume the defense of such Claim at any time prior to settlement, compromise or
final determination thereof;
(c) if there is a reasonable probability that a Claim may
materially and adversely affect a Purchaser other than as a result of money
damages or other money payments, such Purchaser will have the right at its own
expense to defend (provided that the indemnifying party shall continue to
control the defense and the indemnified party shall have the right to
participate in such defense), or co-defend, such Claim;
(d) the Company on one hand and the Purchasers on the other
will not, without the prior written consent of the other, settle or compromise
any Claim or consent to entry of any judgment relating to any such Claim;
(e) with respect to any Claims asserted against a Purchaser, such
Purchaser will have the right to employ one counsel of its choice in each
applicable jurisdiction (if more than one jurisdiction is involved) to represent
such Purchaser if, in such Purchaser's reasonable judgment, a conflict of
interest
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between such Purchaser and the indemnifying party exists in respect of such
Claims, and in that event the fees and expenses of such separate counsel shall
be paid by such indemnifying party;
(f) the Company will provide each Purchaser reasonable access to
all records and documents of the Company relating to any Claim; and
(g) any Claim, in so far as it is related to any of the
representations and warranties of the Company contained in this Agreement, must
be made within one year of the Closing Date.
ARTICLE XI
MISCELLANEOUS
SECTION 11.1 GOVERNING LAW. This Agreement shall be governed by
and construed in accordance with the laws of the Commonwealth of Massachusetts,
without regard to the conflict of laws rules thereof.
SECTION 11.2 SURVIVAL. All representations and warranties,
covenants and agreements of the Company and any Purchaser contained in this
Agreement shall remain operative and in full force and effect regardless of any
investigation made by or on behalf of any Purchaser or any controlling person
thereof or by or on behalf of the Company, any of its officers and directors or
any controlling person thereof, and such representations and warranties shall
survive for a period of one year from the Closing Date hereof.
SECTION 11.3 SUCCESSORS AND ASSIGNS. Except as otherwise provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors and permitted assigns of the parties hereto. No assignment
of this Agreement may be made by either party at any time, whether or not by
operation of law, without the other party's prior written consent, except that
each Purchaser may assign any of its rights hereunder to an affiliate of such
Purchaser or to the Other Purchasers or any of their affiliates without the
Company's consent provided that such affiliate expressly assumes in writing all
of the purchaser's obligations hereunder, and provided that such assignment
shall not relieve the assigning Purchaser of its obligations hereunder.
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SECTION 11.4 ENTIRE AGREEMENT; AMENDMENT. This Agreement and the
Transaction Documents constitute the full and entire understanding and agreement
between the parties with regard to the subjects hereof and thereof provided that
the Confidentiality Agreement between the Purchasers and the Company dated April
18, 1997 shall remain in effect. Except as expressly provided herein, neither
this Agreement nor any term hereof may be amended, waived, discharged or
terminated other than by a written instrument signed by the party against whom
enforcement of any such amendment, waiver, discharge or termination is sought.
SECTION 11.5 NOTICES, ETC. 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 courier guaranteeing overnight delivery, addressed (a) if to the
Purchasers to Centre Partners Management LLC at 30 Rockefeller Plaza, Suite
5050, New York, New York 10020, Attention: Paul J. Zepf, or at such other
addresses as shall have been furnished to the Company with a copy to Louis A.
Goodman of Skadden, Arps, Slate, Meagher & Flom LLP at One Beacon Street,
Boston, Massachusetts 02108 and (b) if to the Company, at One Athenaeum Street,
Cambridge, Massachusetts 02142, Attention: Mr. Neal S. Winneg, or at such other
address as the Company shall have furnished to the Purchaser in writing with a
copy to Mark G. Borden at Hale and Dorr LLP, 60 State Street, Boston,
Massachusetts 02109. 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 is acknowledged, if telecopied; and
on the next business day, if timely delivered to a courier guaranteeing
overnight delivery.
SECTION 11.6 DELAYS OR OMISSIONS. Except as expressly provided
herein, no delay or omission to exercise any right, power or remedy accruing to
the Company or any of the Purchasers upon any breach or default of any party
under this Agreement, shall impair any such right, power or remedy of the
Company or any of the Purchasers nor shall it be construed to be a waiver of any
such breach or default, or an acquiescence therein, or of or in any similar
breach or default thereafter occurring; nor shall any waiver of any single
breach or default be deemed a waiver of any other breach or default theretofore
or thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of the Company or any of the Purchasers of any breach or
default under this Agreement, or any waiver on the part of any such party of any
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provisions or conditions of this Agreement, must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement or by law or otherwise afforded to the
Company or any of the Purchasers, shall be cumulative and not alternative.
SECTION 11.7 COUNTERPARTS. This Agreement may be executed in any
number of counterparts, each of which may be executed by only one of the parties
hereto, each of which shall be enforceable against the party actually executing
such counterpart, and all of which together shall constitute one instrument.
SECTION 11.8 SEVERABILITY. In the event that any provision of this
Agreement becomes or is declared by a court of competent jurisdiction to be
illegal, unenforceable or void, this Agreement shall continue in full force and
effect without said provisions; provided that no such severability shall be
effective if it materially changes the economic benefit of this Agreement to any
party.
SECTION 11.9 TITLES AND SUBTITLES. The titles and subtitles used
in this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
SECTION 11.10 NO PUBLIC ANNOUNCEMENT. Neither the Company nor any
of the Purchasers shall make any press release or other public announcement
concerning the transactions contemplated by this Agreement except as and to the
extent that any such party shall be obligated to make any such disclosure by law
or by the NYSE and then only after consultation with the other regarding the
basis of such obligation and the content of such press release or other public
announcement or as the parties shall mutually agree.
SECTION 11.11 REASONABLE EFFORTS. The Company and the Purchasers
shall use all reasonable efforts to consummate the transactions contemplated by
this Agreement, the Other Purchase Agreements and the Note Purchase Agreement.
SECTION 11.12 DISTRIBUTIONS AND ADJUSTMENTS. If from July 5, 1997
through the Closing Date the Company shall have taken any action which would
entitle the holders of Preferred Stock to a distribution or adjustment in
accordance with the Certificate of Designation if the Preferred Stock were then
outstanding, then the consideration to be received by the Purchasers
hereunder shall be appropriately adjusted.
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IN WITNESS WHEREOF, each of the undersigned has caused the
foregoing Agreement to be executed under seal by one of its duly authorized
officers as of the date first above written.
THE LEARNING COMPANY, INC
By /s/ R. Scott Murray
-----------------------------
Name: R. Scott Murray
Title: Executive Vice President and
Chief Financial Officer
35
CENTRE CAPITAL INVESTORS II, L.P.
CENTRE CAPITAL TAX-EXEMPT INVESTORS II, L.P.
CENTRE CAPITAL OFFSHORE INVESTORS II, L.P.
By: Centre Partners II, L.P.,
as General Partner
By: Centre Partners Management LLC,
as Attorney-in-fact
By /s/ Jonathan H. Kagan
-----------------------------------------
Name: Jonathan H. Kagan
Title: Managing Director
STATE BOARD OF ADMINISTRATION OF FLORIDA
By: Centre Parallel Management Partners, L.P.,
as Manager
By: Centre Partners Management LLC,
as Attorney-in-fact
By /s/ Jonathan H. Kagan
-----------------------------------------
Name: Jonathan H. Kagan
Title: Managing Director
CENTRE PARALLEL MANAGEMENT PARTNERS, L.P.
CENTRE PARTNERS COINVESTMENT, L.P.
By: Centre Partners II LLC,
as General Partner
By /s/ Jonathan H. Kagan
----------------------------------------
Name: Jonathan H. Kagan
Title: Managing Director
36
EXHIBIT A
[See Exhibit A to Exhibit 1
to this Current Report on Form 8-K]
37
EXHIBIT B
[See Exhibit B to Exhibit 1
to this Current Report on Form 8-K]
38
EXHIBIT C
Form of Opinion of Neal S. Winneg
1. Each of the Company and its Subsidiaries has been duly incorporated
and is existing as a corporation in good standing under the laws of its
jurisdiction of incorporation and is duly qualified to do business as a foreign
corporation and is in good standing in all other jurisdictions where the
ownership or leasing of properties or the conduct of its business requires such
qualification, except for jurisdictions in which the failure to so qualify would
not have a material adverse effect on the Company and its Subsidiaries, taken as
a whole. Each of the Company and its Subsidiaries has all requisite corporate
power and corporate authority to own, lease and license its respective
properties and conduct its business as presently conducted, except where the
failure to possess such corporate power and authority would not have a material
adverse effect on the Company and its Subsidiaries, taken as a whole.
2. The authorized, issued and outstanding capital stock of the Company
as of July 5, 1997 is as set forth in the Second Quarter 10-Q; all outstanding
shares of the Common Stock have been duly authorized and validly issued, and are
fully paid and nonassessable, and to the knowledge of such counsel, no holder of
currently outstanding shares of the Common Stock has any pre-emptive or other
similar rights to subscribe for or purchase any shares of Common Stock of the
Company (or any shares of capital stock exchangeable into or convertible for
Common Stock).
3. There is no litigation or governmental or other action, suit,
proceeding or investigation before any court or before or by any public,
regulatory or governmental, agency or body pending or, to the best of such
counsel's knowledge, threatened against, or involving the properties or business
of, the Company or any of its Subsidiaries, which is material to the Company and
its Subsidiaries taken as a whole which has not been disclosed in the Disclosure
Letter.
In rendering such opinion, such counsel may rely as to matters of fact,
to the extent such counsel deems proper, on certificates of responsible officers
of the Company and certificates or other written statements of officers of
departments of various jurisdictions having custody of documents respecting the
corporate existence or good standing of the Company and its Subsidiaries,
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provided that copies of any such statements or certificates shall be delivered
to Purchaser's counsel. The opinion of such counsel for the Company shall state
that the opinion of any such other counsel is in form satisfactory to such
counsel and, in his opinion, the Purchasers and the Purchasers' counsel are
justified in relying thereon.
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EXHIBIT D
Form of Opinion of Hale and Dorr LLP
1. The Company has the corporate power and authority to execute,
deliver and perform its obligations under the Purchase Agreements and the
Registration Rights Agreement (the "Agreements"). The Agreements have been duly
authorized by all necessary corporate action on the part of the Company and have
been duly executed and delivered by the Company.
2. The Agreements constitute valid and binding obligations of the
Company and are enforceable against the Company in accordance with their
respective terms, except that such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting creditors' rights generally and by the general principles of equity
(regardless of whether enforcement is sought in a proceeding in equity or at
law).
3. No governmental approval which has not been obtained is required
for the execution and delivery of the Agreements by the Company or the
consummation by the Company of the transactions contemplated thereby.
4. The Preferred Stock has been duly authorized and, when issued and
delivered to and paid for by the Purchasers pursuant to the Purchase Agreements,
will be validly issued, fully paid and non-assessable. The Common Stock issuable
upon conversion of the Preferred Stock has been duly authorized and, when issued
in accordance with the terms of the Certificate of Designation, will be validly
issued, fully paid and non-assessable. The Common Stock issuable upon conversion
of the Preferred Stock at the initial conversion price has been duly reserved
for issuance.
5. The execution, delivery and performance of the Agreements and the
consummation of the transactions contemplated thereby by the Company do not and
will not (i) conflict with or result in a breach of any of the terms and
provisions of, or constitute a default (or an event which with notice or lapse
of time, or both, would constitute a default) under, or result in the creation
or imposition of any lien, charge or encumbrance upon any property or assets of
the Company pursuant to, any agreement, instrument, franchise, license or permit
appears as an exhibit to the 10-K or (ii) violate or conflict with (x) any
provision of the certificate of incorporation or by-laws of the Company, or (y)
to such
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counsel's knowledge, any judgment, decree, order, statute, rule or regulation of
any court or any public, governmental or regulatory agency or body in the United
States having jurisdiction over the Company or any of its properties or assets.
In rendering such opinion, such counsel may rely as to matters of fact,
to the extent such counsel deems proper, on certificates of responsible officers
of the Company.
D-2