OPTION AGREEMENT
THIS OPTION AGREEMENT (this "AGREEMENT") is made and entered into as
of June 9, 1999, by and among SYMPOSIUM CORPORATION, a Delaware corporation
("SYMPOSIUM"), DIRECT SALES INTERNATIONAL, L.P., a Georgia limited partnership
("SELLER"), the other parties identified on EXHIBIT A to this Agreement (each,
an "OTHER SELLER PARTY" and, together with Seller, the "SELLER PARTIES" and each
a "SELLER PARTY"), and XXXXXXX XXXXXXXX ("Xxxxxxxx"), with reference to the
following facts:
X. Xxxxxxxx is the sole shareholder of Direct Sales, Inc., the
general partner of Seller, and directly or indirectly owns limited partnership
interests representing 96% of the profits, losses and distributions of Seller.
B. On the terms and subject to the conditions set forth in this
Agreement, the Seller Parties desire to sell to Symposium, and Symposium desires
to purchase from the Seller Parties, an option to purchase the assets of the
Seller Parties.
NOW, THEREFORE, with reference to the foregoing facts, the parties
agree as follows:
1. DEFINITIONS.
All terms defined in this Agreement shall have the defined meanings when
used in this Agreement or in any agreement, note, certificate, report or other
document made or delivered pursuant to this Agreement, unless otherwise defined
or the context otherwise requires. The following terms shall have the following
meanings:
"ACTION" means any litigation, action, suit, proceeding, arbitration
or claim before any court or Governmental Authority, or investigation by any
Governmental Authority.
"AFFILIATE" shall mean, with respect to any specified Person, (i)
any other Person who, directly or indirectly, owns or controls, is under common
ownership or control with, or is owned or controlled by, such specified Person,
(ii) any other Person who is a director, officer, manager, member, partner or
trustee of the specified Person or a Person described in clause (i) of this
definition or any spouse of the specified Person or any such other Person, (iii)
any relative of the specified Person or any other Person described in clause
(ii) of this definition, or (iv) any Person of which the specified Person and/or
any one or more of the Persons specified in clause (i),(ii) or (iii) of this
definition, individually or in the aggregate, beneficially own 10% or more of
any class of voting securities or otherwise have a substantial beneficial
interest.
"ASSETS" shall mean all of the assets of the Seller Parties except
the Equity Securities of the Other Seller Parties and any assets that Symposium
determines not to acquire.
"ASSUMED LIABILITIES" shall mean the accounts payable, accrued
expenses and deferred revenues of the Seller Parties incurred in the ordinary
course of business and existing on the Closing Date.
"BUSINESS" means the marketing and sale of magazine subscriptions by
the Seller Parties, whether directly or through third parties, and all business
activities of the Seller Parties relating thereto.
"CHARTER DOCUMENTS" shall mean (i) with respect to Seller, the
Limited Partnership Agreement dated June 1, 1995 of Seller, (ii) with respect to
each Other Seller Party, the Articles or Certificate of Incorporation, By-Laws,
Articles of Organization, Operating Agreement or other organizational documents,
as applicable, of such Party, and (iii) with respect to Symposium, the
Certificate of Incorporation and By-Laws of Symposium.
"CLOSING" shall mean the closing of the purchase and sale of the
Assets, and "CLOSING DATE" shall mean the date of the Closing.
"CONSULTING AGREEMENT" shall mean the consulting agreement to be
entered into between Symposium and Xxxxxxxx.
"CONTRACT" shall mean any written or oral note, bond, debenture,
mortgage, license, agreement, commitment, contract or understanding.
"EQUITY SECURITIES" of any Person shall mean the capital stock,
partnership interests or membership interests of such Person and/or any Stock
Equivalents of such Person.
"GENERAL PARTNER" shall mean Direct Sales, Inc., a Georgia
corporation and the general partner of Seller.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any
state or other political subdivision thereof, and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"LAW" shall mean any federal, state or local statute, law, rule,
regulation, ordinance, order, code, policy or rule of common law, now or
hereafter in effect, and in each case as amended, and any judicial or
administrative interpretation thereof by a Governmental Authority or otherwise,
including, without limitation, any judicial or administrative order, consent,
decree or judgment.
"LEASE AGREEMENT" shall mean the lease agreement to be entered into
between Symposium and Lessor for the Premises.
"LESSOR" shall mean P&T Properties, LLC.
"LIEN" shall mean any mortgage, deed of trust, pledge, security
interest, hypothecation, assignment, deposit arrangement, encumbrance, lien
(statutory or other), or preference, priority, or other security agreement or
preferential arrangement, charge, or encumbrance of any kind or nature
whatsoever (including, without limitation, any conditional sale or other title
retention agreement, any financing lease having substantially the same economic
effect as any of the foregoing, and the filing of any financing statement under
the Uniform Commercial Code or comparable law of any jurisdiction to evidence
any of the foregoing).
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"LONG FORM AGREEMENT" shall mean the long form purchase agreement to
be entered into by the parties to this Agreement to formally memorialize the
terms and conditions (consistent with the terms and conditions contained herein)
upon which Symposium shall purchase and the Seller Parties shall sell the
Assets, and shall contain the terms and conditions of this Agreement, such other
terms and conditions as may be contemplated by this Agreement and such other
terms and conditions as may be customary in transactions of this type.
"OPTION" shall mean the option sold by the Seller Parties to
Symposium pursuant to this Agreement.
"OPTION EXPIRATION DATE" shall mean November 30, 1999.
"PERSON" shall mean an individual or a partnership, corporation,
trust, association, limited liability Symposium, Governmental Authority or other
entity.
"PREMISES" shall mean 0000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxx,
Xxxxxxx 00000.
"STOCK EQUIVALENTS" of any Person shall mean options, warrants,
calls, rights, commitments, convertible securities and other securities pursuant
to which the holder, directly or indirectly, has the right to acquire (with or
without additional consideration) capital stock, partnership interests or
membership interests of such Person.
"SUBSIDIARY" of any Person shall mean any entity of which securities
or other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are owned
directly or indirectly by such Person.
"TAX DISTRIBUTIONS" shall mean cash distributions by the Seller to
its partners in an aggregate amount equal to their aggregate federal and state
income tax liability (taking into account the federal tax deduction for state
taxes paid) with respect to the Seller's net income for the period from January
1, 1999 to the Closing Date. The Long Form Agreement shall provide for the
adjustment of the Tax Distributions to the extent that the actual tax
liabilities of the Seller's partners were greater than or less than the amount
of Tax Distributions received.
"TRANSFER" shall mean sell, assign, transfer, pledge, grant a
security interest in, or otherwise dispose of, with or without consideration,
and "TRANSFERRED" shall have a correlative meaning.
2. OPTION.
2.1 SALE OF OPTION. The Seller Parties hereby sell to Symposium, and
Symposium hereby purchases from the Seller Parties, an option to purchase the
Assets from the Seller Parties. Symposium has concurrently herewith delivered to
the Seller Parties its check in the amount of $100 in consideration of the
Option.
2.2 OPTION EXPIRATION DATE. The Option shall terminate and expire on
the Option Expiration Date.
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2.3 EXERCISE PRICE. The exercise price for the Option (the "EXERCISE
Price") shall be: (i) $22,900,000, payable by wire transfer or certified or bank
cashier's check to the order of Seller; (ii) cash in an amount equal to the
quotient of (A) the Seller's outstanding indebtedness at the Closing for money
borrowed in the ordinary course of business under the Amended and Restated
Revolving Loan Agreement dated as of October 1, 1998 between the Seller and
SouthTrust Bank, N.A., divided by (B) 0.555; and (iii) the assumption of the
Assumed Liabilities.
2.4 EXERCISE. Symposium may exercise the Option by written notice to
the Seller at any time prior to the Option Expiration Date. The notice shall set
forth the Closing Date for the purchase and sale of the Assets, which date shall
not be less than seven days following the date of the notice. The exercise of
the Option shall be contingent upon the satisfaction or waiver of the conditions
to closing to be set forth in the Long-Form Agreement.
2.5 CLOSING DELIVERIES. At the Closing, each Seller Party shall, at
the Seller Party's expense, deliver:
(a) such bills of sale, endorsements, assignments, subleases, and
other good and sufficient instruments of conveyance, transfer and assignment,
including, without limitation, a xxxx of sale, as shall be necessary to vest in
Symposium good title in and to the Assets free and clear of any and all Liens;
and
(b) possession of the Assets.
3. REPRESENTATIONS AND WARRANTIES OF SELLER AND XXXXXXXX.
Seller and Xxxxxxxx jointly and severally represent and warrant to
Symposium as follows:
3.1 ORGANIZATION, STANDING AND POWER; CAPITALIZATION. Seller is a
limited partnership duly organized, validly existing and in good standing in the
laws in the state of Georgia and has all requisite partnership power and
partnership authority to own, lease and operate its properties and assets and to
carry on its business as now being conducted. Each Other Seller Party is a
corporation or limited liability company duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization and has all
requisite corporate or limited liability company power and authority to own,
lease and operate its properties and assets and to carry on its business as now
being conducted. Each Seller Party is duly qualified or licensed as a foreign
partnership, corporation or limited liability company and is in good standing in
each jurisdiction where the nature of its properties owned or held under lease
or the nature of the business conducted by it make such qualification necessary.
Xxxxxxxx owns the General Partner, and directly or indirectly owns 96% of the
profits, losses and distributions of Seller.
3.2 AUTHORITY; ENFORCEABILITY; EFFECT OF AGREEMENT.
(a) Each Seller Party has full power and authority to enter into,
execute and deliver this Agreement and perform its obligations hereunder.
Xxxxxxxx has the requisite capacity to enter into, execute and deliver this
Agreement and perform his obligations hereunder. This Agreement has been duly
authorized by all necessary partnership, corporate or limited liability company
action of each Seller Party, including, without limitation, the authorization
and approval by
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Xxxxxxxx. This Agreement has been duly executed and delivered by
each Seller Party and Xxxxxxxx and, assuming this Agreement is duly executed and
delivered by Symposium, constitutes a valid and legally binding obligation of
each Seller Party and Xxxxxxxx enforceable against each Seller Party and
Xxxxxxxx in accordance with its terms, subject to the effect of bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and other similar
laws relating to or affecting creditors' rights generally, or the availability
of equitable remedies.
(b) The execution and delivery by each Seller Party and Xxxxxxxx
of this Agreement do not, and compliance by each Seller Party and Xxxxxxxx with
the provisions of this Agreement will not, (A) conflict with or result in a
breach or default under the Charter Documents of any Seller Party or any of the
terms, conditions or provisions of any Contract to which any Seller Party or
Xxxxxxxx is a party or otherwise bound, or to which any property or asset of any
Seller Party or Xxxxxxxx is subject; (B) violate any Law applicable to any
Seller Party or Xxxxxxxx; or (C) result in the creation or imposition of any
Lien on any asset of any Seller Party or Xxxxxxxx.
3.3 ASSETS. Each Seller Party has good and marketable title to all of
the assets of the Seller Party included in the Assets. At the Closing, Symposium
shall receive good and marketable title to the Assets, free and clear of all
Liens other than Liens securing the Seller Parties' obligations under the
Assumed Liabilities.
In addition to the foregoing representations and warranties, Seller and
Xxxxxxxx will jointly and severally make in the Long-Form Agreement additional
representations and warranties regarding the business, assets, liabilities,
financial condition, results of operations and other matters pertaining to the
Seller Parties, and the Business as may be customary in transactions of this
type.
4. REPRESENTATIONS AND WARRANTIES OF SYMPOSIUM.
Symposium represents and warrants to Seller as follows:
4.1 ORGANIZATION, STANDING AND CORPORATE POWER. Symposium is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware and has all requisite corporate power and corporate
authority to own, lease and operate its properties and assets and to carry on
its business as now being conducted. Symposium is duly qualified or licensed as
a foreign corporation and is in good standing in each jurisdiction where the
nature of its properties owned or held under lease or the nature of the business
conducted by it make such qualification necessary.
4.2 AUTHORITY; ENFORCEABILITY; EFFECT OF AGREEMENT.
(a) Symposium has full corporate power and corporate authority to
enter into, execute and deliver this Agreement and perform its obligations
hereunder. This Agreement has been duly authorized by all necessary corporate
action of Symposium. This Agreement has been duly executed and delivered by
Symposium and, assuming this Agreement is duly executed and delivered by
Xxxxxxxx and each Seller Party, constitutes a valid and legally binding
obligation of Symposium and is enforceable against Symposium in accordance with
its terms, subject to the effect of bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance and other similar laws relating to or
affecting creditors' rights generally, or the availability of equitable
remedies.
Page 5
(b) The execution and delivery by Symposium of this Agreement do
not, and compliance by Symposium with the provisions hereof will not, (A)
conflict with or result in a breach or default under the Charter Documents of
Symposium or any of the terms, conditions or provisions of any Contract to which
Symposium is a party or otherwise bound, or to which any asset or property of
Symposium is subject; or (B) violate any Law applicable to Symposium; or (C)
result in the creation or imposition of any Lien on any asset of Symposium.
In addition to the foregoing representations and warranties, Symposium
will make in the Long-Form Agreement additional representations and warranties
regarding the business, assets, liabilities, financial condition, results of
operations and other matters pertaining to Symposium and its business as may be
customary in transactions of this type.
5. COVENANTS PRIOR TO CLOSING.
5.1 CONDUCT OF BUSINESS. Prior to the Closing, except as contemplated
by this Agreement or with the prior written consent of Symposium, each Seller
Party agrees, and Xxxxxxxx agrees to cause each Seller Party:
(a) to conduct its operations according to its ordinary and usual
course of business;
(b) not to Transfer any Assets,
(c) except for Tax Distributions and distributions by the Other
Seller Parties to the Seller, not to declare or pay any dividend or other
distribution on its Equity Securities, and not to purchase, redeem, retire or
otherwise acquire any of its Equity Securities;
(d) to use its best efforts to preserve intact its business
organization and goodwill, keep available the services of its officers and
employees and maintain satisfactory relationships with those Persons having
business relationships with the Seller Party;
(e) to duly comply in all material respects with all Laws
applicable to the Seller Party and to the conduct of the Business;
(f) to maintain the tangible Assets in a good condition and state
of repair;
(g) not to enter into any Contract of any kind or nature with any
Affiliate of the Seller Party and not to make any payment to Xxxxxxxx, or any
Affiliate of Xxxxxxxx, except for Tax Distributions to Xxxxxxxx, payments of
salary to Xxxxxxxx at the rate in effect on January 1, 1999, and reimbursement
for expenses incurred in the ordinary course of business as is customary in
accordance with the past practices of the Seller Parties.
In addition, each Seller Party will agree, and Xxxxxxxx will agree to
cause each Seller Party to agree in the Long-Form Agreement to such other
covenants regarding the conduct of its business as may be customary in
transactions of this type.
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5.2 INSPECTION OF RECORDS. Between the date of this Agreement and the
Closing, each Seller Party shall allow the duly authorized officers, attorneys,
accountants and other representatives of Symposium access at all reasonable
times to the records and files, correspondence, audits and properties, as well
as to all information in each case relating to the business and affairs of the
Seller Party.
5.3 CONSULTING AGREEMENT. Xxxxxxxx and Symposium shall negotiate in
good faith the terms of the Consulting Agreement, which will become effective as
of the Closing. The Consulting Agreement will either be entered into on or prior
to the date the parties execute and deliver the Long-Form Agreement or the
principal terms and conditions of the Consulting Agreement shall be set forth in
the Long Form Agreement.
5.4 LEASE AGREEMENT. Symposium and the Lessor shall negotiate in good
faith the terms of the Lease Agreement pursuant to which Symposium will lease
the Premises from the Lessor. The Lease Agreement will either be entered into on
or prior to the date the parties execute and deliver the Long-Form Agreement or
the principal terms and conditions of the Lease Agreement shall be set forth in
the Long Form Agreement. The Lessor and the Seller agree to terminate any
existing lease for the Premises effective as of the Closing.
5.5 AUDIT AND FINANCIAL STATEMENTS. The Seller shall have its
consolidated financial statements for the year ended December 31, 1998 audited
by the Seller's independent accountants as promptly as practicable, but no later
than July 31, 1999, and shall provide a copy of such audited financial
statements to Symposium. Seller shall place no scope limitations on such audit.
As promptly as practicable, but no later than June 30, 1999, the Seller shall
provide to Symposium a consolidated and combined balance sheet and statement of
operations as of and for the quarter ended March 31, 1999. Within 30 days
following the end of each month, commencing May 1999, the Seller shall provide
to Symposium a consolidated balance sheet and consolidated statement of
operations, and a combined balance sheet and combined statement of operations,
as of the end of and for the month then ended and the year-to-date.
5.6 NOTICES. The Seller Parties shall promptly notify Symposium of:
(i) any material development concerning the Business; (ii) any material change
in the financial condition or Assets of the Seller Parties or event which any
Seller Party believes could cause a material change in the financial condition
of Assets of the Seller Parties; and (iii) any Action regarding the Seller
Parties.
5.7 TRANSFER OF EQUITY SECURITIES OF THE SELLER. Xxxxxxxx agrees not
to, and agrees to cause the General Partner not to, Transfer any Equity
Securities of the Seller until the earlier to occur of exercise of the Option
and the Option Expiration Date; PROVIDED that Xxxxxxxx may Transfer all or any
portion of his Equity Securities of the Seller to the General Partner without
Symposium's consent so long as the General Partner is wholly owned by Xxxxxxxx
and agrees in writing to be bound by Xxxxxxxx'x obligations with respect to such
Equity Securities under this Agreement and Section 6 of the Stock Purchase
Agreement dated as of the date hereof between Xxxxxxxx and Symposium.
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6. CLOSING CONDITIONS.
The Long-Form Agreement will contain customary closing conditions for each
party with respect to the purchase and sale of Assets upon exercise of the
Option.
7. INDEMNIFICATION.
The Long-Form Agreement will contain indemnification provisions acceptable
to the parties.
8. NONCOMPETITION.
The Long-Form Agreement will contain a covenant by Xxxxxxxx not to compete
acceptable to the parties.
9. MISCELLANEOUS.
9.1 NOTICES. All notices, requests, demands and other communications
(collectively, "NOTICES") given pursuant to this Agreement shall be in writing,
and shall be delivered by personal service, courier, facsimile transmission
(which must be confirmed) or by United States first class, registered or
certified mail, postage prepaid, to the following addresses:
(i) if to Symposium, to:
Symposium Corporation
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No. (000) 000-0000
Attn: Xxxxxx Xxxxxxx
with a copy to:
Troop Xxxxxxx Pasich Reddick & Xxxxx, LLP
0000 Xxxxxxx Xxxx Xxxx, 00xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxx X. Xxxxx, Esq.
(ii) if to any Seller Party or Xxxxxxxx, to:
Xxxxxxx Xxxxxxxx
0000 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Facsimile No. (000) 000-0000
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with a copy to:
Arnall Golden & Xxxxxxx, LLP
0000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Facsimile No.: (000) 000-0000
Attn: S. Xxxxxx Xxxxxxx, Esq./Xxxxxx X.
Xxxxxxx, Esq.
Any Notice, other than a Notice sent by registered or certified mail, shall be
effective when received; a Notice sent by registered or certified mail, postage
prepaid return receipt requested, shall be effective on the earlier of when
received or the third day following deposit in the United States mails. Any
party may from time to time change its address for further Notices hereunder by
giving notice to the other parties in the manner prescribed in this Section.
9.2 ENTIRE AGREEMENT. This Agreement contains the sole and entire
agreement and understanding of the parties with respect to the entire subject
matter of this Agreement, and any and all prior discussions, negotiations,
commitments and understandings, whether oral or otherwise, related to the
subject matter of this Agreement are hereby merged herein. Nothing in this
Agreement, express or implied, is intended to confer upon any person other than
the parties hereto any rights or remedies under or by way of this Agreement.
9.3 ASSIGNMENT. No party may assign its rights or obligations under
this Agreement, and any attempted or purported assignment or any delegation of
any party's duties or obligations arising under this Agreement to any third
party or entity shall be deemed to be null and void, and shall constitute a
material breach by such party of its duties and obligations under this
Agreement; PROVIDED that Symposium may assign its rights to any Subsidiary of
Symposium. This Agreement shall inure to the benefit of and be binding upon any
successors of each party by way of merger or consolidation.
9.4 WAIVER AND AMENDMENT. No provision of this Agreement may be waived
unless in writing signed by all the parties to this Agreement, and waiver of any
one provision of this Agreement shall not be deemed to be a waiver of any other
provision. This Agreement may be amended only by a written agreement executed by
all of the parties to this Agreement.
9.5 GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of New York without giving effect to the principles
of conflicts of law thereof.
9.6 SEVERABILITY. Whenever possible each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement shall be or become
prohibited or invalid under applicable law, such provision shall be ineffective
to the extent of such prohibition or invalidity without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
9.7 CAPTIONS. The various captions of this Agreement are for reference
only and shall not be considered or referred to in resolving questions of
interpretation of this Agreement.
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9.8 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all of which
together shall constitute one and the same instrument.
9.9 COSTS AND ATTORNEYS' FEES. If any Action is instituted to remedy,
prevent or obtain relief from a default in the performance by any party to this
Agreement of its obligations under this Agreement, the prevailing party shall
recover its reasonable attorneys' fees incurred in each and every such Action,
including, without limitation, any and all appeals or petitions therefrom.
9.10 RIGHTS CUMULATIVE. No right granted to the parties under this
Agreement on default or breach is intended to be in full or complete
satisfaction of any Damages arising out of such default or breach, and each and
every right under this Agreement, or under any other document or instrument
delivered hereunder, or allowed by law or equity, shall be cumulative and may be
exercised from time to time.
9.11 JUDICIAL INTERPRETATION. Should any provision of this Agreement
require judicial interpretation, it is agreed that a court interpreting or
construing the same shall not apply a presumption that the terms hereof shall be
more strictly construed against any Person by reason of the rule of construction
that a document is to be construed more strictly against the Person who itself
or through its agent prepared the same, it being agreed that all parties have
participated in the preparation of this Agreement.
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IN WITNESS WHEREOF, this Option Agreement has been made and entered into
as of the date and year first above written.
SYMPOSIUM CORPORATION,
a Delaware corporation
By:
-----------------------------------
Name:
Title:
DIRECT SALES INTERNATIONAL, L.P.
a Georgia limited partnership
By: Direct Sales, Inc., its general
partner
By:
-----------------------------
Name:
Title:
NATIONAL READERS SERVICE, INC.,
a New Jersey corporation
By:
-----------------------------------
Name:
Title:
DSI COMMUNICATIONS, LLC
a Georgia limited liability company
By: /s/ XXXXXXX XXXXXXXX
-----------------------------------
Name:
Title:
XXXXXXX XXXXXXXX
/s/ XXXXXXX XXXXXXXX
--------------------------------------
Xxxxxxx Xxxxxxxx
EXHIBIT A
TO
OPTION AGREEMENT
DATED AS OF JUNE 9, 1999
OTHER SELLER PARTIES
National Readers Service, Inc.
DSI Communications, LLC
