Exhibit 10.7
SYNAPSE GROUP, INC.
(FORMERLY, NEWSUB SERVICES, INC.)
OPTION SHAREHOLDERS AGREEMENT
AGREEMENT made as of this [ ] of [ ] by and among SYNAPSE GROUP,
INC. (FORMERLY, NEWSUB SERVICES, INC.), a Delaware corporation (the
"Corporation") and the person whose name is set forth below (hereinafter
referred to as "Shareholder").
WHEREAS, Shareholder is an employee or consultant of the Corporation being
granted options to purchase shares of Class B non-voting Common Stock of the
Corporation pursuant to the Corporation's 1999 Stock Option Plan, as the same
may be amended (the "Plan"); and
WHEREAS, as a condition of being granted such options, Shareholder is
willing to enter into an agreement imposing certain restrictions on the transfer
of Shareholder's shares;
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
-----------
used herein the following terms shall have the meanings indicated:
(a) Permitted Transferee shall mean any Person to whom any Shares are
--------------------
transferred in accordance with and subject to the terms of this Agreement.
(b) Person shall mean a natural person, corporation, limited
------
partnership, general partnership, limited liability company, limited liability
partnership, joint stock company, joint venture, association, company, trust,
bank trust company, land trust, business trust or other organization, whether or
not a legal entity, and a government or agency or political subdivision thereof.
(c) Securities Act shall mean the Securities Act of 1933, as amended.
--------------
(d) Sell or Transfer, as to any Shares, shall mean to sell, or in any
---- --------
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.
(e) Shares shall mean all of the shares of capital stock of the
------
Corporation currently owned by Shareholder, shares of capital stock of the
Corporation or rights to acquire shares of capital stock of the Corporation
issued pursuant to the Plan or any such rights, 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; provided,
however that the term "Shares" shall not include any shares of capital stock of
the Corporation registered under the Securities Act.
(f) Shareholder shall mean Shareholder and shall include any Person
-----------
who, after the date hereof, acquires Shares as a Permitted Transferee of
Shareholder (or of any subsequent Permitted Transferee) in accordance with and
subject to the terms of this Agreement.
2. Restrictions on Transfer.
------------------------
(a) Shareholder agrees not to Transfer, Encumber, or contract to
Transfer or Encumber, any of his shares, or any right, title or interest therein
or thereto, except as permitted under and in accordance with the terms of this
Agreement. No non-complying Transfer or Encumbrance or purported Transfer or
Encumbrance (an "Ineffectual Transfer") pursuant to which any Person shall
attempt 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, shall not be
recorded as a transfer on the stock transfer records of the Corporation and
shall not give rise to any option with respect to such Shares under this
Agreement. 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.
-2-
(b) The provisions of this Section shall apply to any Permitted
Transferee (or subsequent Permitted Transferee) of Shareholder.
3. Corporation Right of First Refusal Upon Sale to Third Party.
-----------------------------------------------------------
(a) If Shareholder (referred to in this section as the "Selling
Shareholder") receives a bona fide offer to purchase all or any part of his
Shares and wishes to accept the offer, the Selling Shareholder shall give notice
in writing to the Corporation. The notice shall describe all of the terms of
the offer, including the number of Shares sought, the purchase price, the
payment terms, the identity of the offeror and any other relevant terms. The
Corporation shall have the option to purchase all, but not less than all, of the
Shares offered by the Selling Shareholder, or to designate a third party, to
purchase such Shares for (i) the purchase price and on the payment terms
described in the notice of the offer or (ii) at Fair Market Value per share (as
defined in the Plan) in cash.
(b) The Corporation shall notify the Selling Shareholder as to whether
it intends to exercise the option as soon as possible, but in no event later
than thirty (30) days after receipt of the Selling Shareholder's notice of offer
(the "Option Period"). The closing of the sale shall take place within one
hundred and twenty (120) days after exercise of the option under this Section.
If the Corporation does not notify the Selling Shareholder within the
Option Period, then the Selling Shareholder shall be free to sell his Shares,
but such sale shall be subject to the following conditions: (i) the Shares must
be sold to the person identified as the offeror in the notice of offer; (ii) the
closing of the sale must take place within sixty (60) days after the expiration
of the Option Period; (iii) the terms of the sale must be the same as those
described in the notice of offer (or terms less favorable to the offeror); and
(iv) the offeror must agree in writing to be bound by all of the terms of this
Agreement and such writing must be delivered to the Corporation on or before the
closing date.
4. Change in Control. In the event the Board of Directors of the
-----------------
Corporation has approved a "Change in Control" transaction (as defined below),
the Corporation shall have the option, exercisable immediately prior to the
consummation of such Change in Control, to purchase the Shares of Shareholder at
the Fair Market Value per share as defined in the Plan.
-3-
A "Change in Control" shall be deemed to have occurred if any one of the
following events shall have occurred:
(a) any Person is or becomes the "Beneficial Owner" (as defined in Rule
l3d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")), directly or indirectly, of securities of the
Corporation (not including in the securities Beneficially Owned by
such Person any securities acquired directly from the Corporation)
representing 50% or more of the Corporation's then outstanding voting
securities, excluding any Person who becomes such a Beneficial Owner
in connection with a transaction described in clause (i) of paragraph
(c) below; or
(b) the following individuals cease for any reason to constitute a
majority of the number of directors than serving: individuals who, on
the Effective Date, constitute the Board of Directors and any new
director (other than a director whose initial assumption of office is
in connection with an actual or threatened election contest, including
but not limited to a consent solicitation, relating to the election of
directors of the Corporation) whose appointment or election by the
Board of Directors or nomination for election by the Corporation's
stockholders was approved or recommended by a vote of at least two-
thirds (2/3) of the directors then still in office who either were
directors on the Effective Date (as defined in the Plan) or whose
appointment, election or nomination for election was previously so
approved or recommended; or
(c) there is consummated a merger or consolidation of the Corporation with
any other corporation other than (i) a merger or consolidation which
would result in the voting securities of the Corporation outstanding
immediately prior to such merger or consolidation continuing to
represent (either by remaining outstanding or by being converted into
voting securities of the surviving entity or any parent thereof) at
least 75% of the combined voting power of the voting securities of the
Corporation or such surviving entity or any parent thereof outstanding
immediately after such merger or consolidation, or (ii) a merger or
consolidation effected to implement a recapitalization of the
Corporation (or similar transaction) in which no Person is or becomes
the Beneficial Owner, directly or indirectly, of securities of the
Corporation (not including in the securities Beneficially Owned by
such Person any securities acquired directly from the Company)
representing 50% or more of the combined voting power of the
Corporation's then outstanding securities; or
(d) the stockholders of the Corporation approve a plan of complete
liquidation or dissolution of the Corporation or there is consummated
an agreement for the sale or disposition by the Corporation of all or
substantially all of the Corporation's assets, other than a sale or
disposition by the Corporation of all or substantially all of the
Corporation's assets to an entity, at least 75% of the combined voting
power of the voting securities of which are owned by Persons in
substantially the same proportions as their ownership of the
Corporation immediately prior to such sale.
-4-
For purposes of this Section 4 only, (i) "Person" shall have the meaning
set forth in Section 3(a)(9) of the Exchange Act, as modified and used in
Sections 13(d) and 14(d) thereof, except that such term shall not include (1)
the Corporation, (2) a trustee or other fiduciary holding securities under an
employee benefit plan of the Corporation, (3) an underwriter temporarily holding
securities pursuant to an offering of such securities, (4) a corporation owned,
directly or indirectly, by the stockholders of the Corporation in substantially
the same proportions as their ownership of stock or (5) Xxx Xxxxxx or Xxxxxxx
Xxxx or any of their Family Members or Family Members of such Family Members;
(ii) "Family Member" shall mean, as to any natural Person, a parent, 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 Plan, no principal beneficiaries other than the foregoing.
5. Termination of Employment. In the event that the employment of an
-------------------------
employee Shareholder with the Corporation shall terminate for any reason, the
Corporation shall have the right to purchase the Shares of such Shareholder at
the Fair Market Value per share as defined in the Plan.
6. Conflict of Interest/Non-Compete. Shareholder agrees that, so long as
--------------------------------
he is employed by the Corporation or is acting as a consultant to the
Corporation and for one year after termination of such employment or consulting
arrangement, Shareholder will not be an officer, director, consultant, employee,
owner, partner, principal, associate, joint venturer or security holder of, or
otherwise render services to or have an ownership or capital interest in, any
organization or enterprise which conducts a credit card marketing business or
other business in the United States of America competitive with that carried on
from time to time by the Corporation during the period set forth above, except
that Shareholder may hold a passive investment of stock of less than five
percent (5%) of outstanding shares in a corporation whose shares are publicly
traded.
7. Covenant Not to Disclose. Shareholder acknowledges and agrees 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
-5-
(the "Confidential Information"). Shareholder covenants and agrees that
Shareholder will not at any time divulge, make known to any person, or use, any
of the Confidential Information, whether or not made known to them by reason of
being a shareholder, director, officer, employee or consultant 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,
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.
8. Ineffectual Transfers and Encumbrances. No noncomplying transfer or
--------------------------------------
encumbrance or purported transfer or encumbrance (an "Ineffectual Transfer")
pursuant to which any Person shall attempt 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, shall not be recorded as a transfer on the stock
transfer records of the Corporation and shall not give rise to any right or
option with respect to such Shares under this Agreement. 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.
9. Endorsement of Stock Certificates. Each certificate for Shares issued
---------------------------------
by the Corporation shall bear an endorsement on its front or back substantially
as follows:
"The shares of capital stock of Synapse Group, Inc. (formerly, NewSub
Services, Inc.) (the "Corporation") represented by this certificate
(the "Shares") 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 Shares are issued, accepted and held subject to and
transferable only in accordance with the provisions of an
-6-
Option Shareholders Agreement with the Corporation, a copy of which
Option Shareholders Agreement is on file in the office of the
Corporation."
10. Failure to Deliver Certificates. In the event that Shareholder is
-------------------------------
required by the provisions of this Agreement to sell his Shares to the
Corporation, and Shareholder fails to deliver the certificates representing such
Shares, duly endorsed for transfer, upon tender by the Corporation 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 Shareholder. In such event,
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.
11. Termination of Agreement. In the event that the Corporation shall
------------------------
sell securities in a public offering pursuant to an effective registration
statement under the Securities Act (a "Public Offering"), this Agreement shall
terminate and be of no further force and effect upon expiration of the Holdback
Period. "Holdback Period" shall mean the period of time after the date the
Corporation commences the Public Offering during which the Corporation requires
that the Shareholder may not exercise or sell or distribute publicly, including
a sale pursuant to Rule 144 under the Securities Act, any Shares, which period
of time shall be equal to 180 days or such shorter period of time as the
Corporation may agree in writing. Notwithstanding the foregoing, Sections 6 and
7 shall survive the termination of this Agreement by reason of the foregoing.
12. Miscellaneous.
-------------
(a) Successor Shareholders Must Sign. Under no circumstances may any
--------------------------------
Shares be sold, transferred or otherwise disposed of to any Person who has not
executed and delivered to the Corporation a written 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.
-7-
(b) Entire Agreement. This Agreement, the Plan and the option
----------------
agreement constitute the entire understanding among the parties and 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 parties.
(c) Headings. The section headings in this Agreement are for
--------
convenience of reference and do not constitute part of the agreement.
(d) Validity. If any provision of this Agreement is found to be
--------
invalid or unenforceable, such provision shall be, and shall be deemed and
modified so as to cure the invalidity or unenforceability, and all other
provisions of this Agreement shall be enforceable notwithstanding such
invalidity or unenforceability.
(e) Governing Law. This Agreement shall be governed by and construed
-------------
in accordance with the laws of the State of Connecticut.
(f) 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 acknowledges that irreparable
injury would result to the other party hereto if the Corporation or 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 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.
(g) Consent to Jurisdiction, Service of Process and Notices. The
-------------------------------------------------------
parties hereto, acting for themselves and for their respective successors and
assigns, without regard to domicile, citizenship or residence, hereby expressly
and irrevocably consent to and subject themselves to the jurisdiction of the
courts of the State of Connecticut and/or the United States District Court for
the District of Connecticut, in respect of any matter
-8-
arising under or in connection with this Agreement; and service of process,
notices and demands of such courts and any other notices or other communications
required or permitted under this Agreement may be made upon any of them by
personal service at any place where they may be found, or by telefax (with
confirming receipt), or by delivery of such process, notices, demands and
communications by express mail courier (postage prepaid), or United States
registered or certified mail (return receipt requested), addressed to the
respective party or parties at the address or addresses set forth on the
signature page hereof. No change in such addresses shall be effective insofar as
service of process, notices, demands and communications are concerned, unless
such change of address shall have been given to the other party hereto as
provided in this Section. Any notice given hereunder shall be deemed given and
received on the date of personal service or transmission by telefax, or one (1)
business day after delivery to an express mail courier for next day delivery, or
three (3) business days after deposit with the United States Postal Service, as
the case may be.
(h) 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, Shareholder may
not assign, transfer, pledge, encumber or otherwise dispose of this Agreement or
any rights hereunder without the prior written consent of the Corporation, or
unless specifically permitted herein. No third party is intended to receive any
benefit from this Agreement.
(i) Survival. Notwithstanding anything in this Agreement, the
--------
obligations of Shareholder under Sections 6 and 7 shall be binding on
Shareholder even after he ceases to be a shareholder of the Corporation.
(j) 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
-9-
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.
(k) Rules of Construction.
---------------------
(i) Unless the context of this Agreement otherwise requires,
(a) words of any gender include each other gender; and (b) words using the
singular or plural number also include the plural or singular number,
respectively.
(ii) In the event any ambiguity or question of intent or
interpretation arises under this Agreement, this Agreement shall be construed as
if drafted jointly by the parties and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement.
(iii) The headings in this Agreement are for convenience of
reference only and shall not alter or affect the meaning hereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
SYNAPSE GROUP, INC.
(FORMERLY, NEWSUB SERVICES, INC.)
____________________________________ By: ________________________________
Shareholder Its President
Name: Address: Four High Ridge Park
Address: Xxxxxxxx, XX 00000-0000
-10-
