Exhibit 10.19
AMENDED AND RESTATED SHAREHOLDERS AGREEMENT
THIS AMENDED AND RESTATED SHAREHOLDERS AGREEMENT (the "Agreement") is made
as of June 23, 2000 by and among Synapse Group, Inc., a Delaware corporation
(the "Corporation"), ▇▇▇▇▇▇▇ ▇▇▇▇ ("▇▇▇▇"); The Loeb Family Limited Partnership
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(the "Loeb Partnership"), ▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇"); The ▇▇▇ ▇. ▇▇▇▇▇▇ Irrevocable
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Credit Trust (the "▇▇▇▇▇▇ Trust"); ▇▇▇▇▇▇▇▇ ▇▇▇▇, Trustee u/The ▇▇▇▇▇▇▇ ▇▇▇▇
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Irrevocable Trust f/b/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Loeb dated December 28, 1995 (the "MRL
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Trustee"); ▇▇▇▇▇▇▇▇ ▇▇▇▇, Trustee u/The ▇▇▇▇▇▇▇ ▇▇▇▇ Irrevocable Trust f/b/o
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▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ dated December 28, 1995 (the "KEL Trustee"); ▇▇▇▇▇
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▇▇▇▇▇▇▇, as Trustee of The ▇▇▇▇▇▇▇ ▇▇▇▇ Irrevocable Trust u/a dated 3/24/99
f/b/o Marc ▇▇▇▇▇ ▇▇▇▇ (the "MDL Trustee"); ▇▇▇▇▇ ▇▇▇▇▇▇▇, as Trustee of The
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▇▇▇▇▇▇▇ ▇▇▇▇ Irrevocable Trust u/a dated 3/24/99 f/b/o ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ (the
"JPL Trustee"); ▇▇▇▇▇ ▇▇▇▇▇▇▇, as Trustee of The ▇▇▇▇▇▇▇ ▇▇▇▇ Irrevocable Trust
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u/a dated 3/24/99 f/b/o ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ (the "CRL Trustee"); ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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("▇▇▇▇▇"); ▇▇▇▇▇▇▇▇ ▇▇▇▇ ("▇▇▇▇▇▇▇▇ ▇▇▇▇"); ▇▇▇▇▇▇ ▇▇▇▇▇▇ ("▇▇▇▇▇▇"); and Andre
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▇▇▇▇▇▇▇ ("▇▇▇▇▇▇▇") (▇▇▇▇, the ▇▇▇▇ Partnership, ▇▇▇▇▇▇, the ▇▇▇▇▇▇ Trust, the
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MRL Trustee, the KEL Trustee, the MDL Trustee, the JPL Trustee, the CRL Trustee,
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ Loeb, ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ are referred to collectively as the
"Shareholders") (the Corporation and the Shareholders are referred to
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collectively herein as the "Parties.")
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WHEREAS, the Parties are parties to that Shareholder Agreement, dated as of
December 1, 1993, as amended by that Shareholder Consent, Waiver and Termination
Agreement dated as of March 5, 1998 and that Amendment to Shareholders Agreement
dated as of March 20, 2000 (as amended, the "Original Agreement").
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WHEREAS, the Parties desire to amend and restate the Original Agreement as
provided below to reflect the several amendments described above and to agree
and acknowledge that an aggregate of 6,875,000 shares of the Corporation's Class
A Common Stock and Class B Common Stock owned by ▇▇▇▇▇▇ and being sold to NSSI
Holdings Inc., an affiliate of Time Inc. (the "▇▇▇▇▇▇ Transferred Shares"),
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shall no longer be subject to the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein, the parties agree as follows:
1. Definitions. In addition to the terms defined elsewhere herein, when
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used herein the following terms shall have the meanings indicated:
(a) Affiliate shall mean, with respect to any Shareholder, (i) any
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Person who, directly or indirectly, is in control of, is controlled by or is
under common control with, the Shareholder, and (ii) any Person who is a
director or officer of the Shareholder or of any Person described in clause (i)
above.
(b) Amended and Restated Stockholders Agreement shall mean that
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Second Amended and Restated Stockholders Agreement, dated on or about the date
hereof, between the Corporation and the Stockholders named therein.
(c) Board of Directors shall mean the Board of Directors of the
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Corporation.
(d) Common Stock Equivalents shall mean any security or obligation
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which is by its terms convertible into shares of Common Stock, including,
without limitation, any option, warrant or other subscription or purchase right
with respect to Common Stock.
(e) Excluded Transaction shall mean the issuance and sale by the
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Corporation of (a) the Investor Warrants and the Lender Warrants (and the
issuance of Common Stock upon the exercise of the Investor Warrants and the
Lender Warrants) and (b) shares of capital stock or any other security
convertible into capital stock of the Corporation, up to a maximum of 3,500,000
shares, which may be issued to any strategic investor pursuant to any
arrangement approved by the Board of Directors.
(f) Family Member shall mean, as to any natural Person, a parent,
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child, descendant, spouse or sibling of the Person, the spouse of any of the
foregoing, or the estate, any guardian, custodian or conservator of the Person
or any of the foregoing, or a trust of which there are and continue to be,
during the term of this Agreement, no principal beneficiaries other than the
foregoing.
(g) Insider Group shall mean Loeb, the Loeb Partnership, ▇▇▇▇▇▇, the
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▇▇▇▇▇▇ Trust, the MRL Trustee, the KEL Trustee, the MDL Trustee, the JPL
Trustee, the CRL Trustee and ▇▇▇▇▇▇▇▇ ▇▇▇▇ collectively and shall include any
Person who, after the date hereof, acquires shares as a Permitted Transferee of
any of the foregoing Persons (or of any subsequent Permitted Transferees) in
accordance with and subject to the terms of this Agreement.
(h) Investor Group shall mean ▇▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇▇ collectively
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and shall include any Person who, after the date hereof, acquires shares as a
Permitted Transferee of any of the foregoing Persons (or of any subsequent
Permitted Transferees) in accordance with and subject to the terms of this
Agreement.
(i) Investor Warrants shall mean those warrants to purchase Common
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Stock issued by the Corporation pursuant to that Stock and Warrant Purchase
Agreement dated as of January 12, 2000 between the Corporation and the
Purchasers named therein.
(j) IPO Effectiveness Date shall mean the date upon which the
Corporation closes an underwritten initial public offering of equity securities
of the Corporation pursuant to an effective registration statement filed under
the 1933 Act.
(k) Lender Warrants means those warrants to purchase Common Stock to
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be issued by the Corporation to ▇▇▇▇▇▇ pursuant to that Credit Agreement dated
as of January 12, 2000 between the Corporation and ▇▇▇▇▇▇, as assigned by ▇▇▇▇▇▇
to Arena Capital Investment Fund, L.P. pursuant to that Assignment Agreement
dated as of February 1, 2000.
(l) 1933 Act shall mean the Securities Act of 1933, as amended.
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(m) Permitted Transferee shall mean any Person to whom any Shares are
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transferred in accordance with and subject to the terms of this Agreement.
(n) Person shall mean a natural person, corporation, limited
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partnership, general partnership, joint stock company, joint venture,
association, company, trust, bank trust
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company, land trust, business trust or other organization, whether or not a
legal entity, and a government or agency or political subdivision thereof.
(o) Sell or Transfer, as to any Shares, shall mean to sell, or in any
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other way, directly or indirectly, transfer, assign, exchange, donate, make a
gift of, distribute, pledge, hypothecate, transfer voting rights with respect
to, encumber or otherwise dispose of, either voluntarily or involuntarily, or
the act of making any such sale, transfer, assignment, exchange, donation, gift,
distribution, pledge, hypothecation, encumbrance or other disposition.
(p) Shares shall mean all of the shares of capital stock of the
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Corporation currently owned by the Shareholders, shares of capital stock of the
Corporation owned by persons who become shareholders after the date of this
Agreement, any shares of capital stock acquired in exchange for Shares as a
result of mergers, recapitalizations, consolidations or otherwise, any
additional Shares issued or distributed by the Corporation by reason of stock
dividends, increases in outstanding shares, additional issuances or otherwise
and any options, warrants or rights to purchase any of the foregoing. If the
Corporation merges with or into another Person, the shares of the Investor Group
shall be converted into shares of stock or other securities of the surviving
corporation on the same basis as all other equity interests in the Corporation
except that the stock or other securities of the surviving corporation issued
and issuable to the Investor Group shall have no voting rights.
(q) Shareholders shall mean, collectively, ▇▇▇▇▇▇, ▇▇▇▇ and the
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members of the Investor Group and shall include any Person who, after the date
hereof, acquires Shares as a Permitted Transferee of any of the foregoing
Persons (or of any subsequent Permitted Transferee) in accordance with and
subject to the terms of this Agreement.
(r) "Subsidiaries" shall mean, as of the relevant date of
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determination, with respect to any Person, a corporation or other Person of
which fifty percent (50%) or more of the voting power of the outstanding voting
equity securities or fifty percent (50%) or more of the outstanding economic
equity interest is held, directly or indirectly, by such Person. Unless
otherwise qualified, or the context otherwise requires, all references to a
"Subsidiary" or to "Subsidiaries" in this Agreement shall refer to a Subsidiary
or Subsidiaries of the Corporation.
2. Restrictions on Transfer. (a) Each member of the Investor Group agrees
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not to Transfer Shares except as permitted under and in accordance with the
terms of this Agreement, without the prior written consent of the holders of a
majority of the Shares owned by the Insider Group, which consent may be given or
withheld in their sole discretion. No noncomplying Transfer or purported
Transfer (an "Ineffectual Transfer") pursuant to which any person shall attempt
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to acquire any right, title or interest in any Shares other than in accordance
with the provisions of this Agreement, shall be recognized by the Corporation.
An Ineffectual Transfer shall be null and void and shall not be recorded as a
transfer on the stock transfer records of the Corporation. Notwithstanding the
occurrence of any attempted Ineffectual Transfer, the purported transferor of
Shares shall continue to be entitled, so long as he shall remain the owner of
such Shares, to any and all existing rights and privileges of a Shareholder to
which he is otherwise entitled, and subject to all obligations of a Shareholder,
with respect to such Shares.
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(b) The provisions of this Section shall apply to any Permitted
Transferee (or subsequent Permitted Transferee) of any member of the Investor
Group as and to the extent it applies to the members of the Investor Group.
3. Take-Along Rights. If the members of the Insider Group intend to
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Transfer all of their Shares to an independent third party, then at the request
of the Insider Group the Investor Group shall sell to such independent third
party all of the Shares held by the Investor Group at the same price per Share
and upon the same other terms and conditions applicable to the sale by the
Insider Group. The term "price per share" set forth in the preceding sentence
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shall be deemed to include any form of payment, compensation or financial
benefit payable directly or indirectly to a Shareholder in consideration for or
in connection with a Transfer of Shares, provided, however, that payment of
reasonable compensation for services to be actually rendered after the sale
shall not be included.
4. Come-Along Rights. The Insider Group shall not Transfer any Shares
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unless the transferee also offers to purchase the same proportionate part of the
Shares held by the Investor Group as the Insider Group proposes to sell of the
Shares held by them at the same time, at the same price per share and upon the
same other terms and conditions applicable to the sale by the Insider Group. The
term "price per share" set forth in the preceding sentence shall be deemed to
include any form of payment, compensation or financial benefit payable directly
or indirectly to a Shareholder in consideration for or in connection with a
Transfer of Shares, provided, however, that payment of reasonable compensation
for services to be actually rendered after the sale shall not be included.
5. Insider Group Option to Purchase Shares Upon Death of Member of
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Investor Group. (a) Upon the death of a member of the Investor Group (the
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"Deceased Shareholder"), the Insider Group (the "Surviving Shareholder(s)"),
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individually and collectively, shall have the option to purchase all, but not
less than all, of the Shares of the Deceased Shareholder. The purchase price
shall be the Purchase Price as hereinafter defined.
(b) Each surviving Shareholder shall notify the legal representative of
the Deceased Shareholder as to whether he intends to exercise the option as soon
as possible, but in no event later than thirty (30) days after notice of the
Deceased Shareholder's death. If more than one Surviving Shareholder elects to
exercise his option, the Shares of the Deceased Shareholder shall be allocated
between or among them in proportion to the number of Shares owned by each
Surviving Shareholder exercising his option, unless they otherwise agree and
notify the Deceased Shareholder's legal representative within ten (10) days
after notification by the Deceased Shareholder's legal representative of the
number of Surviving Shareholders who exercised their options under this Section.
The closing of the sale shall take place within ninety (90) days after
determination of the Purchase Price.
(c) At the closing of the transfer of the Deceased Shareholder's Shares,
the legal representative of the Deceased Shareholder shall deliver the
certificates or other documents evidencing the Deceased Shareholder's Shares to
the purchaser, duly endorsed for transfer. The purchaser(s) of the Deceased
Shareholder's Shares shall thereupon pay the Purchase Price therefor in
accordance with paragraph (d) below.
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(d) Payment of the purchase price for the Deceased Shareholder's Shares
shall be paid at the closing by certified or bank check or by wire transfer of
immediately available funds.
6. Valuation of Shares. The "Purchase Price" with respect to any Shares
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for purposes of this Agreement shall be the fair market value of the Shares as
determined by the Purchaser(s) and Seller(s) of Shares in the following manner.
If the Purchaser(s) and Seller(s) of Shares cannot agree on such fair market
value within twenty (20) days, then they shall commission the appraisal of the
Shares by a recognized, independent appraiser, whose conclusions shall be
submitted within thirty (30) days of the date on which the appraiser is hired.
The appraiser's valuation shall be based upon market conditions in the industry
in which the Corporation operates and upon criteria generally employed in
valuing corporations in such industry. The cost of such appraisal shall be borne
equally by the Purchaser(s) and Seller(s) of Shares. The Purchaser(s) and
Seller(s) of Shares must agree on an acceptable appraiser within ten (10) days
of the expiration of the aforementioned twenty (20) day period. If no agreement
on an appraiser can be reached, then the existing independent accountant of the
Corporation will select a recognized, independent appraiser.
The determination of value made in accordance with the preceding provisions
shall be binding upon the Corporation, the Shareholders, their respective
successors, assigns, heirs and legal representatives, and all persons having or
claiming an interest in the subject Shares.
7. Covenant Not to Disclose. Each Shareholder acknowledges and agrees
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that much of the information, documents, files and other papers concerning the
products, business, operations, financial affairs, or condition of the
Corporation are strictly confidential, including but not limited to, financial
statements, customer lists, training manuals, marketing methods, pricing
structures, technical data, process information and know-how (the "Confidential
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Information"). Each Shareholder covenants and agrees that he will not at any
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time divulge, make known to any person, or use, in each case for his own
personal benefit, any of the Confidential Information, whether or not made known
to such Shareholder by reason of his being a shareholder, director, officer or
employee of the Corporation, except (i) as reasonably necessary to conduct the
business of the Corporation, (ii) as required by law, regulation or legal
process or (iii) to third parties who have executed and delivered to the
Corporation a non-disclosure agreement, in form and substance satisfactory to
the Corporation.
All materials, records, and documents developed or owned by the
Corporation, whether embodied in electronic media or in written form, shall be
the sole property of the Corporation and upon the request of the Corporation,
each Shareholder shall promptly deliver to the Corporation such materials,
records and documents or copies thereof as are then maintained by him or
otherwise under his control, and shall retain no copies thereof or alternatively
the Shareholder may provide an affidavit attesting that all such materials,
records and documents, or copies thereof, have been destroyed. In the event of a
legal dispute between a Shareholder and the Corporation the Confidential
Information in the possession of the Shareholder which is relevant to such
dispute shall, in lieu of being returned or destroyed, be placed in escrow with
the Shareholder's attorney, to be held subject to the terms of this Agreement.
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The obligations of a Shareholder under this Section shall be binding on a
Shareholder even after he ceases to be a shareholder of the Corporation and
shall survive termination of this Agreement.
8. Exempt Transactions. Section 4 of this Agreement shall not apply to
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the Transfer of Shares by ▇▇▇▇▇▇ and Loeb to their respective Family Members,
between ▇▇▇▇▇▇ and ▇▇▇▇, between their respective Family Members or between such
Family Members and ▇▇▇▇▇▇ and Loeb.
9. Financial Information. The Corporation shall provide the Shareholders
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with quarterly internally prepared operating results unless the Shareholders
request such information more frequently in which case the Corporation shall
provide such information upon request but, in any event, no more frequently than
monthly. In addition, the Corporation shall notify the Shareholders of any
materially adverse development which could, in the reasonable judgment of the
Corporation's board, lead to the institution of any bankruptcy proceeding by or
against the Corporation as a debtor.
10. Rights on Future Issuance of Shares. The Corporation hereby grants to
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each Shareholder the right to maintain its equity interest in the Corporation as
follows:
(a) Offering Notice. Except for (a) capital stock or any other
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security convertible into capital stock of the Corporation which may be issued
to employees, consultants or directors of the Corporation pursuant to any stock
option plan or other employee benefit arrangement approved by the Board of
Directors, (b) a subdivision of the outstanding shares of Common Stock into a
larger number of shares of Common Stock, (c) capital stock or any other security
convertible into capital stock of the Corporation issued in consideration of the
acquisition by the Corporation or any of its Subsidiaries of another Person, (d)
capital stock or any other securities convertible into or exchangeable for
capital stock of the Corporation issued upon or in connection with the exercise,
conversion or exchange of any Common Stock Equivalent, or (e) any issuance or
sale in connection with an Excluded Transaction, if the Corporation wishes to
issue any shares of capital stock or any other security convertible into or
exchangeable for capital stock of the Corporation (collectively, "New
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Securities") to any Person (the "Subject Purchaser") prior to the IPO
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Effectiveness Date, then the Corporation shall offer such New Securities to the
Shareholders by sending written notice (the "New Issuance Notice") to the
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Shareholders, which New Issuance Notice shall state (a) the number of New
Securities proposed to be issued and (b) the proposed purchase price per share
of the New Securities that the Corporation is willing to accept (the "Proposed
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Price"). Upon delivery of the New Issuance Notice, such offer shall be
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irrevocable unless and until the rights provided for in Section 10(b) below
shall have been waived or shall have expired.
(b) Exercise of Rights. For a period of thirty (30) days after the
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giving of the New Issuance Notice, the Shareholders (each, for the purpose of
Section 10, a "Rightholder") shall have the right to purchase its Proportionate
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Percentage (as hereinafter defined) of the New Securities at a purchase price
equal to the Proposed Price and upon the terms and conditions set forth in the
New Issuance Notice. Each of the Rightholders shall have the right to purchase
that percentage of the New Securities determined by dividing (i) the total
number of Shares then owned by such Rightholder exercising its rights under this
Section 10(b) by (ii) the total number
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of Shares then owned by all of the Rightholders exercising their rights under
this Section 10(b) (the "Proportionate Percentage"). If any Rightholder does not
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fully subscribe for the number or amount of New Securities that it or he is
entitled to purchase pursuant to the preceding sentence, then each Shareholder
who elected to purchase New Securities shall have the right to purchase that
percentage of the remaining New Securities not so subscribed for (the "Excess
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New Securities") determined by dividing (x) the total number of Shares then
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owned by such fully participating Rightholder by (y) the total number of Shares
then owned by all fully participating Rightholders who elected to purchase
Excess New Securities. The procedure described in the preceding sentence shall
be repeated until there are no remaining Excess New Securities or until no
Rightholder wishes to purchase any additional Excess New Securities. The right
of each Rightholder to purchase the New Securities under this Section 10(b)
shall be exercisable by delivering written notice of the exercise thereof, prior
to the expiration of the 30-day period referred to herein, to the Corporation,
which notice shall state the amount of New Securities that such Rightholder
elects to purchase pursuant to this Section 10(b). The failure of a Rightholder
to respond within such 30-day period shall be deemed to be a waiver of such
Rightholder's rights under this Section 10(b), provided that each Rightholder
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may waive its rights under this Section 10(b) prior to the expiration of such
30-day period by giving written notice to the Corporation.
(c) Closing. The closing of the purchase of New Securities subscribed
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for by the Rightholders under Section 10(b) shall be held at the executive
offices of the Corporation at 10:00 a.m., local time, on the 45th day after the
giving of the New Issuance Notice pursuant to Section 10(a), or at such other
time and place as the parties to the transaction may agree. At such closing, the
Corporation shall deliver certificates representing the New Securities purchased
by the participating Rightholders, duly registered in the names of such
Rightholders, and such New Securities shall be issued free and clear of any
liens, claims, options, charges, encumbrances or rights and the Corporation
shall so represent and warrant, and further represent and warrant that such New
Securities shall be, upon issuance thereof to the Rightholders and after payment
therefor, duly authorized, validly issued, fully paid and nonassessable. The
Rightholders purchasing the New Securities shall deliver at the closing payment
of the purchase price in full in immediately available funds for the New
Securities purchased by him or it. At such closing, all of the parties to the
transaction shall execute such additional documents as are otherwise necessary
or appropriate.
(d) Sale to Subject Purchaser. Unless all of the New Securities are
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purchased pursuant to Section 10(a), the Corporation may sell to the Subject
Purchaser all of the New Securities not purchased by the Rightholders pursuant
to Section 10(a) on terms and conditions that are no more favorable to the
Subject Purchaser than those set forth in the New Issuance Notice; provided,
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however, that such sale is bona fide and made pursuant to a contract entered
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into within 90 days of the earlier to occur of (i) the waiver by the
Rightholders of their option to purchase the New Securities pursuant to Section
10(a) and (ii) the expiration of the 30-day period referred to in Section 10(a).
If such sale is not consummated within such 90-day period for any reason, then
the restrictions provided for herein shall again become effective, and no
issuance and sale of New Securities may be made thereafter by the Corporation
without again offering the same to the Rightholders in accordance with this
Section 10. The closing of any issue and sale to the Subject Purchaser pursuant
to this Section 10(d) shall be held at the time and place as the parties to the
transaction may agree.
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(e) Shareholders Having Multiple Rights. In the event that any
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Shareholder is also a party to the Amended and Restated Stockholders Agreement,
such Shareholder shall have no rights under this Section 10 and shall be
governed exclusively by the terms of Section 4 of the Amended and Restated
Stockholders Agreement.
11. Endorsement of Stock Certificates. Each certificate for Shares issued
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by the Corporation shall bear an endorsement on its front or back substantially
as follows:
"The securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the "Act"),
or any state securities law and the Shares may not be sold or offered
for sale in the absence of an effective registration statement under
the Act and any applicable state securities laws or an available
exemption from the registration requirements of the Act and any
applicable state securities laws. In addition, the securities are
issued, accepted and held subject to and transferable only in
accordance with the provisions of the Amended and Restated
Shareholders Agreement, dated as of June 23, 2000, by and among the
Corporation and the Shareholders named therein, a copy of which
Agreement is on file in the office of the Corporation."
12. Failure to Deliver Certificates. In the event that a Shareholder is
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required by the provisions of this Agreement to sell his Shares to the
Corporation or to another party and such Shareholder fails to deliver the
certificates representing such Shares, duly endorsed for transfer, upon tender
by the Corporation or such other party of the purchase price therefor, the
Corporation shall have the right to transfer such Shares on the stock transfer
records of the Corporation and to treat such Shares as if the stock certificates
had been delivered by the Shareholder. In such event, the Shareholder shall be
deemed to have no ownership interest in, or any rights with respect to, such
Shares as of the date the Corporation transfers such Shares on its stock
transfer records.
13. Termination. This Agreement shall terminate upon the occurrence of any
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of the following:
(a) the agreement of the Shareholders holding at least ninety-seven
percent (97%) of the outstanding Shares;
(b) the date that the Corporation closes an underwritten initial
public offering of its equity securities pursuant to an effective registration
statement filed under the 1933 Act; or
(c) the bankruptcy, receivership or dissolution of the Corporation.
Nothing contained in this Section shall affect or impair any rights or
obligations arising prior to or at the time of termination of this Agreement.
14. Miscellaneous.
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(a) Successor Shareholders Must Sign. Under no circumstances may any
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Shares be sold, transferred or otherwise disposed of to any person who, if he is
not already a Shareholder, has not executed and delivered to the Shareholders
and the Corporation a written
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agreement to be bound by the terms of this Agreement and any transferee or
recipient of Shares shall be subject to the same restrictions under this
Agreement as were applicable to the original transferor of Shares.
(b) Entire Agreement. This Agreement amends and restates in its
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entirety the Original Agreement and after the date hereof, the Original
Agreement shall have no further force and effect. This Agreement constitutes the
entire understanding among the parties with respect to the subject matter hereof
and supersedes all existing agreements among them concerning such subject
matter. Each Shareholder severally and not jointly represents and warrants to
the Corporation that he, she or it has the power and authority to amend and
restate the Original Agreement as provided herein and no other Persons as
Transferees of such Shareholder are parties to the Original Agreement other than
the Shareholders. Each Shareholder severally and not jointly agrees to
indemnify, defend and hold harmless the Corporation to the fullest extent
permitted by law from and against any and all losses and any and all actions,
proceedings, claims, complaints, disputes, arbitrations or investigations or
written threats thereof (including any claim by a third party), damages,
expenses (including reasonable fees, disbursements and other charges of counsel
incurred by the Corporation resulting from, arising out of or relating to the
breach by such Shareholder of his, her or its representation and warranty in the
preceding sentence. No modification, discharge or waiver, in whole or in part,
of any of the provisions of this Agreement shall be valid unless in writing and
signed by the Corporation and Shareholders holding a majority of the Shares.
(c) Headings. The section headings in this Agreement are for
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convenience of reference and do not constitute part of the agreement.
(d) By-laws and Certificate of Incorporation. The By-laws and
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Certificate of Incorporation of the Corporation shall be, and shall be deemed to
be, modified so as to conform to the provisions of this Agreement, and in the
event of any conflict this Agreement shall control.
(e) Validity. If any provision of this Agreement is found to be
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invalid or unenforceable, such provision shall be, and shall be deemed to be
modified so as to cure the invalidity or unenforceability, and all other
provisions of this Agreement shall be enforceable notwithstanding such
invalidity or unenforceability.
(f) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of New York.
(g) Legally Available Funds. The Corporation's repurchase of any
-----------------------
Shares under this Agreement shall be subject to funds being legally available
for such purpose. The parties hereto agree to cause the Corporation to take any
legally permissible action necessary to effectuate any repurchase of Shares
hereunder, including without limitation the reallocation of its stated capital
and surplus accounts.
(h) Enforcement. In the event that any party hereto commits a breach
-----------
of that party's obligations hereunder, any non-breaching party damaged thereby
shall be entitled to recover from the party in breach the costs and expenses
incurred, including reasonable attorneys' fees and disbursements, in connection
with enforcing the provisions hereof. Each party
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acknowledges that irreparable injury would result to the other parties hereto if
the Corporation or any Shareholder, or his or its transferees or legal
representatives, fails to comply with any of the restrictions herein imposed
upon the transfer or encumbrance of Shares, or with any other covenants, and
obligations which are material; and that in the event of any failure to comply
with the terms hereof, the parties hereto will not have an adequate remedy at
law. Therefore, each party hereto consents to the issuance of an injunction or
the enforcement of other equitable remedies at the instance of the Corporation
or any Shareholder to compel performance of the restrictions, covenants, and
obligations contained herein. The rights and remedies set forth in this
subsection shall be in addition to, and not in lieu of, any other rights and
remedies available at law or in equity.
(i) Consistent Actions. No Shareholder or other person elected as a
------------------
director of the Corporation pursuant to the provisions hereof, shall take or
fail to take any action that would be inconsistent or in conflict with the
stated rights and obligations contained in this Agreement.
(j) Notices. Any notice, request, instruction, or other communication
-------
to be given hereunder by any party to another shall be in writing given by hand
delivery, telecopier, certified or registered mail (return receipt requested) or
by overnight express service, addressed to the respective Party or Parties at
the addresses in the records of the Corporation or to such other address or
addresses as any party may designate to the others by like notice as set forth
above. Any notice given hereunder shall be deemed given and received on the date
of hand delivery or transmission by telecopier, or three (3) days after deposit
with the United States Postal Service, or one (1) day after delivery to an
overnight express service for next day delivery, as the case may be.
(k) Successors and Assigns. This Agreement is binding upon and shall
----------------------
inure to the benefit of the parties hereto, and their respective heirs, legal
representatives, successors and assigns and shall also be binding on all persons
who have or claim an interest in any Shares; provided, however, no party may
Transfer this Agreement or any rights hereunder without the prior written
consent of the other party or parties, or unless specifically permitted herein.
No third party is intended to receive any benefit from this Agreement.
(l) Waivers. No waiver by a party, or by anyone claiming by, through
-------
or under such party, of any right or of the breach of any representation,
warranty, covenant, agreement, condition or duty, shall ever be held or
construed as a waiver of the same or any other right or waiver of any other
breach of the same or of any representation, warranty, covenant, agreement,
condition, or duty. In the event of a breach by a party of any representation,
warranty, covenant, agreement, condition or duty, the failure by any other party
to take action on account of such breach or to enforce any rights resulting
therefrom shall not be deemed a waiver, but such breach shall be a continuing
breach until the same has been cured. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a continuing waiver unless
otherwise expressly provided therein.
(m) Securities Law Compliance. No sale or Transfer of Shares by any
-------------------------
Shareholder shall be made except pursuant to effective registration under the
1933 Act and any applicable state securities laws, or an exemption from such
registration, and prior to any such
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sale or Transfer the Shareholder proposing to Sell or Transfer Shares shall give
the Corporation (A) notice describing the manner and circumstances of the
proposed Transfer (copies of which the Corporation shall furnish to any
Shareholder upon request) and (B) if reasonably requested by the Corporation, a
written opinion of legal counsel, who shall be reasonably satisfactory to the
Corporation and its counsel, such opinion to be in form and substance reasonably
satisfactory to the Corporation and its counsel, to the effect that the proposed
Transfer may be effected without registration under the 1933 Act and any
applicable state securities law.
(n) Pronouns. Any masculine personal pronoun shall be considered to
--------
mean the corresponding feminine or neuter personal pronoun, and vice versa, as
the context requires.
(o) Counterparts. This Agreement may be executed in two or more
------------
counterparts, each of which shall be deemed to be an original, but all of which
taken together shall constitute one and the same instrument. This Agreement
shall become effective and binding upon each proposed party hereto upon the
execution and delivery of a counterpart hereof by such party.
(p) Waivers and Acknowledgment. Each Shareholder hereby waives any
--------------------------
and all rights arising under, or that may arise under or pursuant to, the terms
of this Agreement with respect to: (i) the purchase by any Shareholder of Shares
prior to the date hereof; (ii) the sale by the Corporation to ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
of an aggregate of 62,500 shares of Class B Common Stock pursuant to the terms
of that Stock Purchase Agreement dated May 17, 2000 between the Corporation and
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇; (iii) the sale by the Corporation to Time Inc., or any of its
affiliates, including NSSI Holdings Inc. ("Time"), of 3,125,000 shares of Series
----
C Preferred Stock pursuant to that Stock Purchase Agreement, dated May 17, 2000,
between the Corporation and Time; and (iv) the sale by ▇▇▇▇▇▇ to Time of the
▇▇▇▇▇▇ Transferred Shares pursuant to that Securities Purchase Agreement, dated
May 17, 2000, between ▇▇▇▇▇▇ and Time. Each of the Shareholders agrees and
acknowledges that Time shall not be a party to this Agreement and that the
▇▇▇▇▇▇ Transferred Shares and such shares of Series C Preferred Stock being
purchased by Time shall not be considered to be Shares hereunder.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the Parties have executed this Amended and Restated
Shareholders Agreement as of the date first above written.
the "Company"
SYNAPSE GROUP, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------
▇▇▇▇▇▇▇ ▇▇▇▇, President
the "Shareholders"
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇
THE LOEB FAMILY LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇, General Partner
/s/ ▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇ ▇▇▇▇▇▇
THE ▇▇▇ ▇. ▇▇▇▇▇▇ IRREVOCABLE
CREDIT TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ III
------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇ III, Trustee
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇, Trustee
------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇, Trustee
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇, Trustee
-------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇, Trustee u/The ▇▇▇▇▇▇▇ ▇▇▇▇
Irrevocable Trust f/b/o ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ dated
December 28, 1995
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/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇, Trustee
-------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇, Trustee u/The ▇▇▇▇▇▇▇ ▇▇▇▇
Irrevocable Trust f/b/o ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
dated December 28, 1995
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, as Trustee of The ▇▇▇▇▇▇▇ ▇▇▇▇
Irrevocable Trust u/a dated 3/24/99 f/b/o Marc
▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, as Trustee of The ▇▇▇▇▇▇▇ ▇▇▇▇
Irrevocable Trust u/a dated 3/24/99 f/b/o ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇, as Trustee of The ▇▇▇▇▇▇▇ ▇▇▇▇
Irrevocable Trust u/a dated 3/24/99 f/b/o ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
-------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇
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