EXHIBIT 10.20
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT (this "Agreement"), dated as of May 9, 2001,
among WRC Media Inc., a Delaware corporation (the "Issuer"), Weekly Reader
Corporation, a Delaware corporation ("Weekly Reader"), and each stockholder
listed on Schedule I hereto (each, a "Stockholder" and collectively, the
"Stockholders").
This Agreement is being entered into in connection with (i) the
Agreement and Plan of Merger to be dated on or about the date hereof (the
"Merger Agreement") by and among the Issuer, CU Acquisition, Inc., a Florida
corporation and ChildU, Inc., a Florida corporation, and (ii) the Exchange
Agreement to be dated on or about the date hereof (the "Exchange Agreement")
among the Issuer and the Stockholders party thereto. The execution and delivery
of this Agreement by a Stockholder is a condition to the obligations of the
Issuer to issue shares of its common stock, par value $0.01 per share (the
"Common Stock"), to such Stockholder pursuant to the Merger Agreement and/or the
Exchange Agreement (the "Issuer Common Stock"). Capitalized terms used herein
and not otherwise defined shall have the meanings ascribed to them in the Merger
Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS.
As used in this Agreement, the following capitalized terms shall have
the following meanings:
Act: The Securities Act of 1933, as amended.
Affiliate: As defined in Rule 144 of the Act.
Business Day: Any day other than a Saturday, Sunday or day on which
banking institutions in the City of New York or at a place of payment are
authorized by law, regulation or executive order to remain closed.
Closing Date: The date hereof.
Escrow Agent: As defined in the Escrow Agreement.
Escrowed Funds: As defined in the Escrow Agreement.
Escrowed Shares: As defined in the Escrow Agreement.
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Exchange Common Stock: Shares of Weekly Reader Class A Non-Voting
Common Stock issuable upon exchange of shares of Common Stock.
Exchange Ratio: On any Exchange Date, the Exchange Ratio is equal to
the product of (1) the total number of shares of Weekly Reader Common Stock
owned by the Issuer on any Exchange Date on a fully diluted basis times (2) a
fraction, the numerator of which is one (1) and the denominator of which is the
total number of shares of Common Stock outstanding on a fully diluted basis on
such Exchange Date.
Holder: A person who owns Subject Securities or has the right to
acquire Subject Securities, whether or not such acquisition has actually been
effected.
Initial Public Offering: An issuance or sale of common stock pursuant
to an underwritten public offering (whether on a firm commitment basis or a best
efforts basis if such best efforts are successful) thereof pursuant to an
effective registration statement filed with the SEC pursuant to the Act (other
than a registration statement on Form S-8 or otherwise relating to equity
securities issuable under any employee benefit plan of the Issuer or Weekly
Reader, as applicable, and other than any offering registered on Form S-4 or its
equivalent).
Issuable Share: at any time,
a. a Share; and
b. a Right and (without duplication) all Shares issuable upon exercise
of such Right, in each case at such time.
For purposes of this definition of "Issuable Share", a Right to acquire one
Share shall constitute one Issuable Share, and a Person shall be deemed to own
an Issuable Share if such Person has a Right to acquire such share whether or
not such Right is exercisable at such time.
Person: Any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated organization, government
or any agency or political subdivision thereof or any other entity.
Principals: EAC III L.L.C., a Delaware limited liability corporation,
or such other person as Ripplewood Partners, L.P. maintains its equity
investment in the Issuer through; provided that if Ripplewood Partners, L.P. has
a direct equity investment in the Issuer or any of its subsidiaries, Principals
shall include Ripplewood Partners, L.P.
Pro Rata Portion: Pro Rata Portion means with reference to any Holder
at any time, a fraction, the numerator of which is the total number of shares of
common stock held by such Holder and the denominator of which is the total
number of shares of common stock held by all stockholders participating as
sellers in such transaction.
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Proportionate Amount: a number of Issuable Shares owned by a Holder
equal to the product (calculated as of the date of the relevant proposed
transaction) of:
a. the total number of Issuable Shares then owned by such holder; times
b. the quotient of:
(i) the aggregate number of Issuable Shares proposed to be sold in
such transaction by the Principals; divided by
(ii) the aggregate number of Issuable Shares owned by the
Principals.
Public Equity Offering: an underwritten offering of common stock of
either the Issuer or Weekly Reader pursuant to a registration statement that has
been declared effective by the SEC pursuant to the Act (other than a
registration statement on Form S-8 or otherwise relating to equity securities
issuable under any employee benefit plan of the Issuer or Weekly Reader, as
applicable, and other than any offering registered on Form S-4 or its
equivalent).
Registration Expenses: all (a) registration and filing fees of the
Securities and Exchange Commission, the National Association of Securities
Dealers, Inc. and any securities exchanges, (b) fees and expenses of complying
with state securities or blue sky laws (including fees and disbursements of
counsel for any underwriters in connection with blue sky qualifications), (c)
printing, messenger and delivery expenses, (d) fees and expenses incurred in
connection with the listing of Shares on any securities exchange or NASDAQ, (e)
fees and disbursements of counsel and independent public accountants for the
Issuer or Weekly Reader and (f) fees and expenses of any special experts
retained in connection with a registration.
Reorganization Transaction: A reorganization at the sole discretion of
the Issuer completed in connection with the Initial Public Offering of Weekly
Reader pursuant to which the Issuer shall be converted into a limited liability
company and shall transfer, or cause to be transferred, all or substantially all
its assets (including all the capital stock and debt securities of the
subsidiaries of the Issuer (including Weekly Reader)) to Weekly Reader in
exchange for the assumption by Weekly Reader of all or substantially all the
liabilities of the Issuer, the issuance to the Issuer by Weekly Reader of new
securities (including common and preferred stock) of Weekly Reader and, at the
option of the Issuer, the distribution by the Issuer of (i) the new preferred
stock of Weekly Reader to the holders of preferred stock of the Issuer in
exchange for such preferred stock of the Issuer and/or (ii) Exchange Common
Stock to the Holders of Common Stock as described in Section 2(a) of this
Agreement.
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Right:
a. any warrants, rights or other options exercisable for Shares; and
b. any conversion or exchange privilege or right pursuant to any
security (including, without limitation, any Share) which is
convertible or exchangeable into Shares.
SEC: The Securities and Exchange Commission.
Share: a share of Common Stock or, following the Reorganization
Transaction, Exchange Common Stock.
Subject Securities: (1) Any shares of Common Stock and Exchange Common
Stock and (2) any other securities issued or issuable with respect to the Common
Stock or Exchange Common Stock by way of stock dividend or stock split or in
connection with a combination of shares, recapitalization, merger, consolidation
or other reorganization or otherwise.
Weekly Reader Class A Non-Voting Common Stock: The class A non-voting
common stock, par value $0.01 per share, of Weekly Reader. Upon the occurrence
of an Initial Public Offering of Weekly Reader, the Weekly Reader Class A
Non-Voting Common Stock will automatically convert into Weekly Reader Voting
Common Stock.
Weekly Reader Common Stock: The common stock of Weekly Reader of all
classes.
Weekly Reader Voting Common Stock: The voting common stock, par value
$0.01 per share, of Weekly Reader.
SECTION 2. EXCHANGE RIGHTS
a. Subject to the provisions of this Section 2, the Issuer, at its
option, in connection with the Reorganization Transaction may distribute to the
Stockholders in exchange for the Common Stock held thereby a number of shares of
Exchange Common Stock determined by multiplying the number of such shares of
Common Stock by the Exchange Ratio; provided that if the Initial Public Offering
of Weekly Reader or the Reorganization Transaction is not consummated within ten
business days after such exchange then the Exchange Common Stock will be
converted back to Common Stock using the inverse of the Exchange Ratio used for
the initial exchange and the Issuer shall then have the same rights to cause the
Common Stock to be exchanged for Exchange Common Stock as prior to such
exchange, and such shares of Common Stock shall have been deemed to have been
outstanding as if such shares had never been exchanged for such Exchange Common
Stock for all purposes, including with respect to dividends and other
distributions payable with respect to the Issuer's Common Stock. Dividends on
Common Stock exchanged for Weekly Reader Class A Non-Voting Common Stock which
have been declared but have not been paid as of the Exchange Date shall be
deemed to have accrued on the Exchange Common Stock in equivalent adjusted
amounts.
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b. (i) In the event of an exchange pursuant to Section 2(a) of the
Common Stock for Exchange Common Stock, notice of such exchange specifying the
Exchange Date therefor shall be given to the Stockholders not less than 10 nor
more than 60 days prior to the Exchange Date.
(ii) Notice having been given as aforesaid, from and after the Exchange
Date (unless default shall be made by Weekly Reader issuing Exchange Common
Stock or by the Issuer in distributing Exchange Common Stock, as applicable, in
exchange for Common Stock), all rights of the Stockholders as stockholders or
members of the Issuer (except the right to receive the Exchange Common Stock)
shall cease. The exchange shall be deemed to have been effected immediately
after the close of business on the Exchange Date, and the Stockholder(s) in
whose names the Exchange Common Stock shall be issuable upon such exchange shall
be deemed to have become the Holders of record of the Exchange Common Stock
represented thereby at such time on the Exchange Date. If the Issuer causes new
shares of Weekly Reader Class A Non-Voting Common Stock to be issued to
Stockholders in connection with such exchange in lieu of exchanging such shares
for existing shares of Exchange Common Stock, then the Exchange Ratio shall be
adjusted so that after giving effect to such new issuance of shares of Exchange
Common Stock, the Holders of Exchange Common Stock are in the same economic
position as they would have been had no new shares of Exchange Common Stock been
issued.
(iii) Prior to the issuance of the Exchange Common Stock by Weekly
Reader and the delivery thereof by Weekly Reader or the Issuer, as the case may
be, Weekly Reader and the Issuer shall comply with all applicable Federal and
state laws and regulations which require action to be taken by them with respect
to such issuance and delivery (it being understood that neither Weekly Reader
nor the Issuer shall be required to file a registration statement covering such
shares with the SEC). Holders of Common Stock will be able to exchange their
Weekly Reader Class A Non-Voting Common Stock for Exchange Common Stock only if
the exchange of such securities is exempt from the registration requirements of
the Act, and such securities are qualified for sale or exempt from qualification
under the applicable securities laws of the states in which the various Holders
of securities reside.
c. Weekly Reader will pay any and all documentary stamp or similar
issue or transfer taxes payable in respect of the issuance or delivery of
certificates evidencing the Exchange Common Stock other than those resulting
from transfers to third parties.
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SECTION 3. TAG-ALONG RIGHTS.
a. If any Principal or Principals proposes to sell or otherwise
transfer, directly or indirectly, in a single transaction or a series of related
transactions, shares of Common Stock or Weekly Reader Common Stock (other than
(i) transfers in a Public Equity Offering, (ii) transfers to Affiliates of the
Principals and (iii) sales to persons other than Affiliates of the Principals
that do not exceed, individually or in a series of related transactions, 35% of
the shares of common stock of the Issuer and Weekly Reader then owned by the
Principals) (a "Tag-Along Sale"), each Holder shall have the option to elect to
exercise its rights under this Section 3.
b. In the event of a Tag-Along Sale, one or more of the Principals
shall deliver to each Holder of Issuer Common Stock or Exchange Common Stock a
written notice (a "Tag-Along Notice") setting forth the name and address of the
transferee, the date on which such transaction is proposed to be consummated
(which shall be not less than 20 days after the date such Tag-Along Notice is
given), and the proposed amount and form of consideration and terms and
conditions of payment offered by such transferee, including, without limitation,
the material terms of any debt or equity securities proposed to be included as
part of such consideration, identifying the issuer or issuers thereof. If such
consideration includes any non-cash consideration, such notice shall also state
the fair market value of such non-cash consideration and shall describe in
reasonable detail the method by which such value shall have been determined. Any
Holder of Issuer Common Stock or Exchange Common Stock may elect to participate
in such Tag-Along Sale (a "Tag-Along Right") by giving written notice to the
Principals on or prior to the fifteenth day following receipt of the Tag-Along
Notice (the "Tag-Along Notice Period").
c. The number of shares of Issuer Common Stock and Exchange Common
Stock that any Holder electing to participate in the Tag-Along Sale shall be
eligible to sell pursuant thereto shall be that Holder's Proportionate Amount.
d. The consideration to be received by the Holders pursuant to the
exercise of a Tag-Along Right shall be at the same price per share of common
stock (net, in the case of any options, warrants or rights, of any amounts
required to be paid by the Holder upon exercise thereof) and upon the same terms
and conditions as such proposed transfer of common stock of the Issuer and
Weekly Reader by the Principals. Such consideration shall be of the same type of
consideration received by the Principals. If the securities to be purchased in
the Issuer Sale includes securities other than common stock, the price to be
paid for such securities to the Holders shall be the same price per share or
other denomination paid received by the Principals for such securities purchased
from the Principals.
e. On the closing date for any Tag-Along Sale, any person exercising
Tag-Along Rights (each, a "Tagging Person") shall deliver (i) to the purchaser
specified in the Tag-Along Notice for such Tag-Along Sale a certificate or
certificates representing the shares of common stock of the applicable company
that it has elected to sell, together with appropriate instruments of transfer
duly endorsed in blank, against payment by such purchaser of the total purchase
price payable for such shares as set forth in clause (d) immediately above, and
(ii) to the applicable Principal or Principals all costs, expenses and other
amounts to be paid by such Tagging Person in connection with such Tag-Along Sale
pursuant to Section 3(h).
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f. If at the termination of the Tag-Along Notice Period any Holder
shall not have delivered written notice to the Principals of its election to
participate in the Tag-Along Sale, such Holder will have waived its Tag-Along
Right with respect to such Tag-Along Sale.
g. The Principals and any Tagging Person who exercises its Tag-Along
Right with respect to a proposed Tag-Along Sale pursuant to this Section 3 may
sell the shares of Common Stock or Weekly Reader Common Stock, as applicable,
subject to the Tag-Along Notice with respect to such Tag-Along Sale on the terms
and conditions set forth in such Tag-Along Notice within 120 days of the date on
which the Tag-Along Rights with respect to such Tag-Along Sale shall have been
waived, exercised or expired.
h. All out-of-pocket costs and expenses incurred by any Tagging Person
in connection with a Tag-Along Sale (including, without limitation, fees and
disbursements of any counsel retained by the Holders) shall be paid by such
Tagging Person. Each Tagging Person shall pay its Pro Rata Portion of all direct
selling expenses, discounts or commissions or brokers paid to any Person by or
on behalf of the Principals, the Issuer or Weekly Reader on a per share basis in
connection with such Tag-Along Sale. All other fees and expenses in connection
with such Tag-Along Sale shall be paid by the applicable Principals.
SECTION 4. DRAG-ALONG RIGHTS.
a. If any Principal or Principals, directly or indirectly, approve or
authorize a sale or exchange (the "Issuer Sale") of not less than 35% of the
then outstanding capital stock of Weekly Reader or the Issuer in a bona fide
arm's-length transaction to a third party that is not an Affiliate of any
Principal or of the Issuer or Weekly Reader (an "Independent Third Party"), then
the Principal or Principals (directly or through one or more Affiliates) shall
have the right, subject to all the provisions of this Section 4 (the "Drag-Along
Right"), to require each of the Holders of Issuer Common Stock and Exchange
Common Stock to sell, transfer and deliver or cause to be sold, transferred and
delivered to such Independent Third Party all Issuer Common Stock and Exchange
Common Stock owned by them; provided, however, that if the Principals agree to
sell less than all of their shares to such Independent Third Party, each of the
Stockholders shall only be required to sell, transfer and deliver to such
Independent Third Party their Proportionate Amount of Issuer Common Stock and
Exchange Common Stock.
b. If one or more of the Principals desire to exercise Drag-Along
Rights, it shall give written notice to the Holders (the "Drag-Along Notice") of
the Issuer Sale, setting forth the name and address of the transferee, the date
on which such transaction is proposed to be consummated (which shall be not less
than 20 days after the date such Drag-Along Notice is given), and the proposed
amount and form of consideration and terms and conditions of payment offered by
such transferee, including, without limitation, the material terms of any debt
or equity securities proposed to be included as part of such consideration,
identifying the issuer or issuers thereof. If such consideration includes any
non-cash consideration, such notice shall also state the fair market value of
such non-cash consideration and shall describe in reasonable detail the method
by which such value shall have been determined.
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c. The consideration to be received by the Holders of Issuer Common
Stock and Exchange Common Stock shall be at the same price per share of common
stock (net, in the case of any options, warrants or rights, of any amounts
required to be paid by the Holder upon exercise thereof) and upon the same terms
and conditions as such proposed transfer of common stock of the Issuer and
Weekly Reader by the Principals. Such consideration shall be of the same type of
consideration received by the Principals. If the securities to be purchased in
the Issuer Sale includes securities other than common stock, the price to be
paid for such securities to the Holders shall be the same price per share or
other denomination paid received by the Principals for such securities purchased
from the Principals.
d. On the closing date for a sale pursuant to the exercise of
Drag-Along Rights, each Holder shall deliver to the transferee specified in the
Drag-Along Notice for such Issuer Sale a certificate or certificates
representing all of such Holder's Issuer Common Stock and Exchange Common Stock,
or, if the Principals agree to sell less than all of their shares in such Issuer
Sale, a certificate or certificates representing an amount of Issuer Common
Stock and Exchange Common Stock equal to the product obtained by multiplying the
amount by such Holder's Pro Rata Portion, together with appropriate instruments
of transfer duly endorsed in blank, against payment by such transferee of the
total purchase price for such shares as set forth in clause (c) immediately
above and certificates containing such representations as are customary in
similar transactions and reasonably requested by the transferee.
e. All out-of-pocket costs and expenses incurred by any Stockholder in
connection with an Issuer Sale (including, without limitation, fees and
disbursements of any counsel retained by the Stockholders) shall be paid by such
Stockholder. Each Stockholder shall pay its Pro Rata Portion of all direct
selling expenses, discounts or commissions or brokers' fees paid to any Person
by the Principals, the Issuer or Weekly Reader on a per share basis in
connection with such Issuer Sale. All other fees and expenses in connection with
such Issuer Sale shall be paid by the applicable Principals.
SECTION 5. TRANSFERS
No Stockholder may sell, pledge, hypothecate or transfer, in whole or
in part, any Subject Securities without the prior written consent of the Issuer;
provided that each Stockholder who is a natural person may transfer Subject
Securities to his or her spouse or lineal descendant or any trust the
beneficiaries of which include only such spouse and lineal descendants without
the consent of the Issuer, subject to such transferee's prior written agreement
to be bound by the terms of this Agreement. Any attempt by a Stockholder to
sell, pledge, hypothecate or transfer subject securities in violation of this
Section 6 shall be void.
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SECTION 6. PIGGY-BACK REGISTRATION RIGHTS
If the Issuer or (following or in connection with the Reorganization
Transaction, Weekly Reader), proposes to file a registration statement under the
Act with respect to an initial public offering by the Issuer or Weekly Reader
that includes all or any portion of the Principals' Shares, then the Issuer or
Weekly Reader, as the case may be, shall give written notice of such proposed
filing to each Stockholder at least 10 days before the filing date, and such
notice shall offer such Stockholder the opportunity to register such number of
Shares as such Stockholder may request up to a Proportionate Amount of such
Stockholder's Shares. If such offer is accepted by written notice to the Issuer
or Weekly Reader, as the case may be, from such Stockholder within 5 days of the
giving of the written notice provided for in the preceding sentence, the Issuer
or Weekly Reader, as the case may be, shall use its reasonable best efforts to
cause the managing underwriter or underwriters to permit the Shares such
Stockholder requested to be included in such offering to be included in such
offering on the same terms and conditions as the corresponding Shares of the
Principals included therein; provided that (i) if, at any time after giving
written notice of its intention to register any Shares and prior to the
effective date of the registration statement filed in connection with such
registration, the Issuer or Weekly Reader, as the case may be, shall determine
for any reason not to proceed with the proposed registration, the Issuer or
Weekly Reader, as the case may be, may, at its election, give written notice of
such determination to each Stockholder and thereupon shall be relieved of its
obligation to register any Shares in connection with such registration and (ii)
each electing Stockholder must sell its Shares to underwriters who shall have
been selected by the Issuer or Weekly Reader, as the case may be, on the same
terms and conditions as apply to the selling Principals (including, without
limitation, entering into an underwriting agreement and related documents on the
same terms and conditions as apply to the selling Principals). Each electing
Stockholder may elect in writing, prior to the effective date of the
registration statement filed in connection with such registration, to withdraw
its request and not to have its Shares registered in connection with such
registration. If the managing underwriter or underwriters advise the Issuer or
Weekly Reader, as the case may be, in writing that, in their opinion, (i) the
number of Shares intended to be included in such registration exceeds the
largest number of such Shares which can be sold in such offering without having
an adverse effect on such offering (including, but not limited to, the price at
which such Shares can be sold) or (ii) the inclusion of the Shares in such
registration would have an adverse effect on such offering, then the Issuer or
Weekly Reader, as the case may be, will include in such registration (A) first,
100% of the Shares proposed to be sold by the Issuer or Weekly Reader, as the
case may be, and any other shareholder whose shares the Issuer or Weekly Reader,
as the case may be, is obligated to include in such registration in priority to
the Stockholders and (B) second, to the extent that the number of Shares
requested to be included in such registration can, in the opinion of such
managing underwriter, be sold without having the adverse effect referred to
above, the number of Shares which the Principals, any other stockholder whose
Shares the Issuer or Weekly Reader, as the case may be, is obligated to include
in such registration and the electing Stockholders have requested to be included
in such registration, such amount to be allocated pro rata among the Principals,
the other stockholders and the electing Stockholders on the basis of the
relative number of Shares the Principals, the other stockholders and the
electing Stockholders have requested for registration. The Issuer or Weekly
Reader, as the case may be, may require each electing Stockholder to furnish the
Issuer or Weekly Reader, as the case may be, with such information regarding
such electing Stockholder and pertinent to the disclosure requirements relating
to the registration and distribution of such electing Stockholder's Shares as
the Issuer or Weekly Reader, as the case may be, may from time to time
reasonably request in writing. The Issuer or Weekly Reader, as the case may be,
shall pay all Registration Expenses in connection with registration of Shares
subject to this Section 6. Each electing Stockholder shall pay all (x)
underwriting discounts and commissions and transfer taxes, if any, (y) internal
administrative and similar costs of such electing Stockholder and (z) fees and
disbursements of counsel for such electing Stockholder, in each case relating to
the registration, sale or disposition of such electing Stockholder's Shares
pursuant to a registration statement effected pursuant to this Section 6.
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SECTION 7. VOTING
a. Without limiting the proxy granted pursuant to Section 7(b), at any
meeting of the stockholders of the Issuer or any action by written consent of
the stockholders of the Issuer or in any other circumstance upon which a vote,
consent or approval of the stockholders of the Issuer, each Stockholder shall,
including by executing a written consent if requested by the Issuer, vote (or
cause to be voted) the shares of Common Stock owned by such Stockholder as
directed in writing by the Issuer; provided that no stockholder shall be
required to vote for any proposal that would affect the shares of Common Stock
held by such Stockholder differently than all other shares of Common Stock.
Without limiting the foregoing, upon the request of the Issuer, the stockholders
will vote for and take all other necessary or desirable actions in connection
with the approval and consummation of the Reorganization Transaction, including,
without limitation, the conversion of Issuer to a limited liability company
pursuant to Section 266 of the General Corporation Law of the State of Delaware.
b. Each Stockholder hereby irrevocably grants to, and appoints, Issuer
and any individual designated in writing by Issuer, and each of them
individually, as each such Stockholder's proxy and attorney-in-fact (with full
power of substitution), for and in the name, place and stead of each such
Stockholder, to vote the shares of Common Stock held by each such Stockholder.
Each Stockholder understands and acknowledges that Issuer is entering into the
Merger Agreement in reliance upon each Stockholder's execution and delivery of
this Agreement. Each Stockholder hereby affirms that the irrevocable proxy is
coupled with an interest and may under no circumstances be revoked. Each
Stockholder hereby ratifies and confirms all that such irrevocable proxy may
lawfully do or cause to be done by virtue hereof. Such irrevocable proxy is
executed and intended to be irrevocable in accordance with the provisions of
Section 212 of the General Corporation Law of the State of Delaware.
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SECTION 8. LEGENDED CERTIFICATES
a. Each certificate representing shares of Subject Securities now or
hereafter owned by any Stockholder shall be endorsed with the following legend
unless the applicable restrictions referenced below shall have lapsed by the
terms of this Agreement (in which event the legend shall be modified or removed
from such certificate as appropriate):
"THE SALE, PLEDGE, HYPOTHECATION OR TRANSFER OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO TRANSFER AND VOTING
RESTRICTIONS SET FORTH IN A STOCKHOLDERS AGREEMENT DATED AS OF MAY 4,
2001 BETWEEN THE ISSUER AND CERTAIN OF ITS STOCKHOLDERS. ANY TRANSFER
OF THE SECURITIES IN VIOLATION OF SUCH STOCKHOLDERS AGREEMENT SHALL BE
VOID. COPIES OF SUCH STOCKHOLDERS AGREEMENT MAY BE OBTAINED UPON
WRITTEN REQUEST TO THE SECRETARY OF THE CORPORATION."
b. Each certificate representing shares of Subject Securities now or
hereafter owned by any Stockholder shall be endorsed with the following legend:
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT OF 1933"), OR THE
SECURITIES LAWS OF ANY STATE OR OTHER JURISDICTION. NEITHER THIS
SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY BE REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED
OF IN THE ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS
EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION; PROVIDED, HOWEVER,
THATNEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN MAY
BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF PURSUANT TO REGULATION S OF THE SECURITIES ACT OF
1933."
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SECTION 9. INDEMNIFICATION.
a. Indemnification by the Stockholders. (i) The Stockholders
shall indemnify the Issuer and its affiliates (including the Surviving
Corporation) and each of their respective officers, directors,
employees, stockholders, agents and representatives against, and hold
them harmless from, any loss, liability, claim, damage or expense
(including reasonable legal fees and expenses) ("Losses"), as incurred
(payable promptly upon written request), arising from, in connection
with or otherwise with respect to any breach of any representation or
warranty of the Company that is contained in the Merger Agreement, the
Exchange Agreement or any closing certificate delivered in connection
therewith (for purposes of the right to indemnification pursuant hereto
such representations and warranties of the Company shall be deemed not
qualified by any references therein to materiality generally or to
whether or not any breach results or may result in a Company Material
Adverse Effect).
(ii) The Stockholders shall not have any liability under
Section 9(a)(i) unless the aggregate of all Losses for which all
Stockholders would, but for this clause (ii), be liable exceeds on a
cumulative basis an amount equal to $50,000, and then only to the
extent of any such excess. All indemnification obligations under this
Section 9(a) shall be satisfied as set forth in Section 9(e).
b. Calculation of Losses. The amount of any Loss for which
indemnification is provided hereunder shall be (i) increased to take account of
any net Tax cost incurred by the indemnified party arising from the receipt of
indemnity payments hereunder (grossed up for such increase) and (ii) reduced to
take account of any net Tax benefit realized by the indemnified party arising
from the incurrence or payment of any such Loss. In computing the amount of any
such Tax cost or Tax benefit, the indemnified party shall be deemed to recognize
all other items of income, gain, loss deduction or credit before recognizing any
item arising from the receipt of any indemnity payment hereunder or the
incurrence or payment of any indemnified Loss. Upon written request by the
indemnifying party, the indemnified party shall provide the indemnifying party a
certificate setting forth the amount of any net Tax cost or net Tax benefit.
c. Termination of Indemnification. The obligations to indemnify and
hold harmless any party under this Section 9 shall terminate on the date that is
18 months following the Closing Date; provided, however, that such obligations
to indemnify and hold harmless (i) shall not terminate prior to and shall
survive until the date that is 48 months following the Closing Date with respect
to any item arising under subclause (i) of Section 9(a) due to the breach of any
representation contained in Section 3.12 of the Merger Agreement and (ii) shall
not terminate with respect to any item as to which the person to be indemnified
shall have, before the expiration of the applicable period, previously made a
claim by delivering a notice of such claim pursuant to Section 9(e) to ▇▇▇▇▇
▇▇▇▇▇, as stockholder agent (the "Stockholder Agent").
13
d. Procedures. (i) Third Party Claims. In order for a party
(the "indemnified party"), to be entitled to any indemnification
provided for under this Agreement in respect of, arising out of or
involving a claim made by any person against the indemnified party (a
"Third Party Claim"), such indemnified party must notify the
Stockholder Agent in writing of the Third Party Claim within 10
Business Days after receipt by such indemnified party of written notice
of the Third Party Claim; provided, however, that failure to give such
notification shall not affect the indemnification provided hereunder
except to the extent the Stockholders shall have been actually and
materially prejudiced as a result of such failure. Thereafter, the
indemnified party shall deliver to the Stockholder Agent, within five
business days' time after the indemnified party's receipt thereof,
copies of all notices and documents (including court papers) received
by the indemnified party relating to the Third Party Claim.
(ii) Participation. If a Third Party Claim is made against an
indemnified party, each Stockholder shall be entitled to participate in
the defense thereof and to employ counsel at its own expense, separate
from the counsel employed by the indemnified party, it being understood
that the indemnified party shall control such defense. The Stockholders
shall continue to be liable for the fees and expenses of counsel
employed by the indemnified party. The indemnified party shall not
admit any liability with respect to, or settle, compromise or
discharge, such Third Party Claim without the prior written consent of
a majority in interest of the Stockholders (which consent shall not be
unreasonably withheld).
(iii) Other Claims. In the event any indemnified party should
have a claim against the Stockholders hereunder that does not involve a
Third Party Claim being asserted against or sought to be collected from
such indemnified party, the indemnified party shall deliver notice of
such claim with reasonable promptness to the Stockholder Agent. Subject
to Section 9(d), the failure by any indemnified party so to notify the
Stockholder Agent shall not relieve the Stockholders from any liability
that they may have to such indemnified party hereunder, except to the
extent that the Stockholders demonstrate that they have been materially
prejudiced by such failure. If the Stockholder Agent does not notify
the indemnified party within ten calendar days following its receipt of
such notice that the Stockholders dispute their liability to the
indemnified party hereunder, such claim specified by the indemnified
party in such notice shall be conclusively deemed a liability of the
Stockholders and the Stockholder Agent shall cause such liability to be
satisfied as set forth in Section 9(e).
e. Escrowed Shares. The shares of Parent Common Stock and the Escrowed
Funds held by the Escrow Agent pursuant to the Escrow Agreement shall be
available to satisfy any indemnification obligations of the Stockholders
hereunder. For the purposes of satisfying such indemnification obligations, the
shares of Parent Common Stock shall be valued at their Closing Date Value. All
transfers of shares of Parent Common Stock in satisfaction of any
indemnification shall be accompanied by transfers of all Escrowed Funds received
by the Escrow Agent with respect to such shares and the amount of such cash
shall not be considered to have been applied to the satisfaction of any
indemnified obligation. The sole and exclusive remedy of Parent and the other
indemnified parties with respect to any indemnification obligation contained
herein (i) first shall be recourse to the Escrowed Shares and Escrowed Funds
pursuant to this Section 9(e) and (ii) second, shall be pursuant to Section
2.02(h) of the Merger Agreement; provided that following the release of the
Escrowed Shares and Escrowed Funds pursuant to Section 9(i)(ii), each
Stockholder shall personally indemnify the indemnified parties with respect to
any item arising under Section 9(a)(i) due to a breach of any representation
contained in Section 3.12 of the Merger Agreement up to an cumulative amount for
such Stockholder equal to the aggregate number of Escrowed Shares received by
such Stockholder multiplied by $40.00, until such indemnification obligation
terminates pursuant to Section 9(c); provided further that such indemnification
obligation may be satisfied by transferring to Parent the Escrowed Shares and
Escrowed Funds received by such Stockholder valued at $40.00 per each Escrowed
Share and related Escrowed Funds.
14
f. No Limitation of Rights. The indemnification rights contained herein
shall be in addition to any other rights that Issuer or the other indemnified
parties may have pursuant to or arising under the Merger Agreement, the Exchange
Agreement, the Voting Agreement or this Agreement and the provisions of these
indemnification provisions (including, without limitation, Section 9(e)) shall
not in any manner restrict the obligations and liabilities or remedies of the
parties with respect to such rights.
g. (i) Closing Liability Amount. Issuer shall, within 60 days
after the Closing Date or as soon thereafter as practical, obtain from
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co. LLP ("AA") (or such other firm of independent
public accountants as may be selected by the Issuer) and deliver to the
Stockholder Agent a written statement (the "Statement"), of such firm
setting forth the amount (the "Closing Liability Amount") of all
liabilities of the Company as of close of business on the Closing Date,
as such amount would be set forth on a balance sheet of the Company
prepared in accordance with GAAP applied in the manner the Company
applies such principles to its operations (it being understood that the
Closing Liability Amount shall in no event include any liabilities (i)
under the Group One Notes, (ii) owing to the Issuer, Weekly Reader or
any of their affiliates (including any accrued prepaid development
costs) or (iii) under the Company's preferred stock) . Such
determination shall be final for all purposes. In acting hereunder, AA
or such other firm shall be entitled to the privileges and immunities
of arbitrators. The amount, if any, by which the Closing Liability
Amount exceeds $2,725,000i shall be deemed a "Loss" pursuant to Section
9(a) and Parent shall be entitled to be indemnified for such Loss
pursuant to the terms of this Section 9.
(ii) During the 30-day period following the Stockholder
Agent's receipt of the Statement, the Stockholder Agent shall be
permitted to review the working papers of Issuer's independent auditors
relating to the Statement. The Statement shall become final and binding
upon the parties on the 30th day following delivery thereof, unless the
Stockholder Agent gives written notice of its disagreement with the
Statement (a "Notice of Disagreement") to Issuer prior to such date.
Any Notice of Disagreement shall (i) specify in reasonable detail the
nature of any disagreement so asserted, (ii) only include disagreements
based on mathematical errors or based on Closing Liability Amount not
being calculated in accordance with this Section 9(g) and (iii) be
accompanied by a certificate of the independent auditors chosen by the
Stockholder Agent that they concur with each of the positions taken by
the Stockholder Agent in the Notice of Disagreement. If a Notice of
Disagreement is received by Issuer in a timely manner, then the
Statement (as revised in accordance with this sentence) shall become
final and binding upon the Stockholders, the Stockholder Agent and the
Issuer on the earlier of (A) the date the Stockholder Agent and Issuer
resolve in writing any differences they have with respect to the
matters specified in the Notice of Disagreement or (B) the date any
disputed matters are finally resolved in writing by the Accounting Firm
(as defined below). During the 30-day period following the delivery of
a Notice of Disagreement, the Stockholder Agent and Issuer shall seek
in good faith to resolve in writing any differences that they may have
with respect to the matters specified in the Notice of Disagreement.
During such period Issuer and its auditors shall have access to the
working papers of the Stockholder Representative's auditors prepared in
connection with their certification of the Notice of Disagreement. At
the end of such 30-day period, the Issuer and the Stockholder Agent
shall submit to an independent accounting firm (the "Accounting Firm")
for arbitration any and all matters that remain in dispute and which
were properly included in the Notice of Disagreement. The Accounting
Firm shall be Deloitte & Touche LLP or, if such firm is unable or
unwilling to act, such other nationally recognized independent public
accounting firm as shall be agreed upon by the parties hereto in
writing. The Stockholder Agent and Issuer shall use reasonable efforts
to cause the Arbitrator to render a decision resolving the matters
submitted to the Arbitrator within a 30 days following submission.
Judgment may be entered upon the determination of the Accounting Firm
in any court having jurisdiction over the party against which such
determination is to be enforced. The fees and expenses of the
Accounting Firm incurred pursuant to this Section 1.05 shall be borne
50% by the Stockholders and 50% by Issuer. The fees and disbursements
of the Stockholder Agent's independent auditors incurred in connection
with their review of the Statement and certification of any Notice of
Disagreement shall be borne by the Stockholders, and the fees and
disbursements of Issuer's independent auditors incurred in connection
with their preparation of the Statement and review of any Notice of
Disagreement shall be borne by Issuer.
15
h. Order of Indemnification. (i) Any transfers of Escrowed Shares to
satisfy an indemnification obligation hereunder shall be deemed to be made (A)
first (regardless of whether such transfer is made prior to or following the
Payment Date) from the Contingent Shares, if any, issued to the Escrow Agent on
the Payment Date for the account of each Stockholder in an amount of Contingent
Shares equal to such Stockholder's Applicable Contingent Percentage of the total
number of all Contingent Shares so transferred and (B) second, to the extent of
any remaining unreimbursed indemnified obligations, from the remaining Escrowed
Shares held by the Escrow Agent for the account of each Stockholder in an amount
of Escrowed Shares equal to such Stockholder's Applicable Escrowed Percentage of
the total number of all Escrowed Shares so transferred.
(ii) For purposes of this Section 9(h), (A) "Applicable
Escrowed Percentage" means, with respect to any Stockholder, the
percentage of the total Escrowed Shares (other than Contingent Shares)
held by the Escrow Agent represented by the Escrowed Shares (other than
Contingent Shares) held by the Escrow Agent for the account of such
Stockholder and (B) "Applicable Contingent Percentage" means, with
respect to any Stockholder, the percentage of the total Contingent
Shares issued to the Escrow Agent represented by the Contingent Shares
issued to the Escrow Agent for the account of such Stockholder.
i. Escrow Certificates. Parent and the Stockholder Agent shall promptly
execute and deliver to the Escrow Agent certificates pursuant to the Escrow
Agreement, instructing the Escrow Agent (i) to release the Escrowed Shares and
Escrowed Funds to satisfy any indemnification obligations pursuant to Section
9(e) and (ii) to release all Escrowed Shares and Escrowed Funds to the
Stockholders upon the termination of all indemnification obligations pursuant to
Section 9(d) other than the indemnification obligations referenced in the
proviso thereto.
SECTION 10. ACCREDITED INVESTOR.
Each of the Stockholders represents and warrants to each of Issuer and
Weekly Reader that it has such knowledge and experience in financial and
business matters that it is capable of evaluating the merits and risks of its
investment in the Issuer and Weekly Reader, and is able to bear the economic
risk of such investment for an indefinite period of time, and it has received
all such information and documents as it has requested and has been afforded an
opportunity to ask questions of and receive answers from representatives of the
Issuer and Weekly Reader, and to consult with counsel, concerning the terms and
conditions of this Agreement and the securities.
SECTION 11. STOCKHOLDER AGENT
a. As of the date hereof, ▇▇▇▇▇ ▇▇▇▇▇ is hereby appointed as the
"Stockholder Agent" hereunder, and ▇▇▇▇▇ ▇▇▇▇▇ hereby accepts such appointment.
b. Each Stockholder hereby consents to such appointment, and to the
appointment of the Stockholder Agent as representative and attorney-in-fact for
and on behalf of each Stockholder and for and on behalf of the Stockholders as a
whole.
16
c. The Stockholder Agent shall have the powers and duties set forth
herein and in the Escrow Agreement.
d. The Stockholder Agent will incur no liability with respect to any
action taken or suffered by him or her in reliance upon any notice, direction,
instruction, consent, statement or other document reasonably believed by him to
be genuine and to have been signed by the proper person or entity (and shall
have no responsibility to determine the authenticity thereof), nor for any other
action or inaction, except his own willful misconduct or gross negligence. In
all questions arising under this Agreement, the Stockholder Agent may rely on
the advice of counsel, and the Stockholder Agent will not be liable to any
Stockholder for anything done, omitted or suffered in good faith by the
Stockholder Agent based on such advice. The Stockholder Agent will not be
required to take any action involving any expense unless the payment of such
expense is made or provided for in a manner satisfactory to him or her.
e. At any time, Stockholders that hold a majority in interest of the
Escrowed Shares, by a written consent signed by holders of a majority in
interest of the Escrowed Shares, may appoint a new Stockholder Agent by sending
a written notice appointing such new Stockholder Agent to Parent. Such
appointment will be effective upon the later of the date indicated in the notice
or the date such notice is received by Parent.
f. The Stockholder Agent will serve without compensation.
SECTION 12. MISCELLANEOUS.
a. Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to departures from
the provisions hereof may not be given unless the Issuer has obtained the
written consent of Stockholders then holding of a majority of the then
outstanding Subject Securities held by all Stockholders. Notwithstanding the
foregoing, a waiver or consent to departure from the provisions hereof that
relates exclusively to one or more Stockholders and that does not affect
directly or indirectly the rights or obligations of other Stockholders may be
given by each such Stockholder.
b. Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
i. if to a Stockholder, at the address set forth in Schedule I
hereof; and
17
ii. if to the Issuer:
WRC Media Inc.
Weekly Reader Corporation
▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Ripplewood Holdings L.L.C.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five Business
Days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next Business Day, if timely delivered to an air courier guaranteeing overnight
delivery.
c. Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Stockholders; provided, that nothing herein shall be deemed to permit any
assignment, transfer or other disposition of Common Stock by any Stockholder in
violation of the terms hereof or of the Merger Agreement or Exchange Agreement.
If any transferee of any Holder shall acquire Subject Securities in any manner,
whether by operation of law or otherwise, such Subject Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Subject Securities such Person shall be conclusively deemed to have agreed to be
bound by and to perform all of the terms and provisions of this Agreement,
including the restrictions on resale and voting agreement set forth in this
Agreement and, if applicable, the Merger Agreement, and such Person shall be
entitled to receive the benefits hereof.
d. Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
18
e. Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
f. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
g. Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
h. Entire Agreement. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted with respect to the Subject
Securities. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
i. Termination. Section 5 and Section 7 of this Agreement shall
terminate upon the occurrence of an Initial Public Offering. All other
provisions of this Agreement shall survive until terminated by mutual written
agreement of the parties.
j. Additional Stockholders. Pursuant to Section 2.02(i) of the Merger
Agreement, each Contingent Holder and Contingent Option Holder is required to
enter into this Agreement as a condition to the issuance of Contingent Shares to
the Escrow Agent's for its benefit. Upon execution and delivery after the date
hereof by the Issuer, Weekly Reader and such a Contingent Holder or Contingent
Option Holder of an instrument in the form of Annex 1, such Contingent Holder or
Contingent Option Holder shall become a Stockholder hereunder with the same
force and effect as if originally named as a Stockholder herein. The execution
and delivery of any instrument adding an additional Stockholder as a party to
this Agreement shall not require the consent of any other Stockholder hereunder.
The rights and obligations of each Stockholder hereunder shall remain in full
force and effect notwithstanding the addition of any new Stockholder as a party
to this Agreement.
[Signature Page Follows]
19
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
WRC MEDIA, INC.,
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇
Title: Vice President
WEEKLY READER CORPORATION,
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Secretary
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ UDINE
/s/ ▇▇▇▇▇ Udine
---------------------------------
▇▇▇▇▇ AND ▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
/s/ ▇▇▇ ▇▇▇▇▇▇▇
---------------------------------
20
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
AGENCY FOR INSTITUTIONAL TECHNOLOGY
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
THE ST.▇▇▇▇▇▇▇ FAMILY TRUST,
By: /s/ ▇▇▇ ▇▇▇▇▇
----------------------------------
Name: ▇▇▇ ▇▇▇▇▇
Title: Trustee
21
D & L PARTNERS, L.P.,
By: /s/ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Title: Authorized Signature
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------------------
Annex 1 to the
Stockholders Agreement
SUPPLEMENT NO. __ dated as of May 9, 2001, to the
Stockholders Agreement dated as of May 9, 2001 (the
"Stockholders Agreement"), among WRC MEDIA INC., a
Delaware corporation, WEEKLY READER CORPORATION, a
Delaware corporation, and each stockholder listed on
Schedule I thereto. Capitalized terms used herein and
not otherwise defined herein shall have the meanings
assigned to such terms in the Stockholders Agreement.
The Issuer, Weekly Reader and the undersigned Contingent
Holders and Contingent Option Holders (the "New Stockholders") hereto
agree as follows:
SECTION 1. In accordance with Section 8(i) of the Stockholders
Agreement, each New Stockholder by its signature below becomes a
Stockholder under the Stockholders Agreement with the same force and
effect as if originally named therein as a Stockholder and each New
Stockholder hereby (a) agrees to all the terms and provisions of the
Stockholders Agreement applicable to it as a Stockholder thereunder and
(b) represents and warrants that the representations and warranties
made by it as a Stockholder thereunder are true and correct on and as
of the date hereof. Each reference to a "Stockholder" in the
Stockholders Agreement shall be deemed to include each New Stockholder.
SECTION 2. Each New Stockholder represents and warrants to the
Issuer and Weekly Reader that this Supplement has been duly authorized,
executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its
terms.
SECTION 3. This Supplement may be executed in counterparts
(and by different parties hereto on different counterparts), each of
which shall constitute an original, but all of which when taken
together shall constitute a single contract. This Supplement shall
become effective with respect to any New Stockholder when the Issuer
shall have received counterparts of this Supplement that, when taken
together, bear the signatures of the New Stockholder, the Issuer and
Weekly Reader. Delivery of an executed signature page to this
Supplement by facsimile transmission shall be as effective as delivery
of a manually signed counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the
Stockholders Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
THE CONFLICT OF LAW RULES THEREOF.
2
SECTION 6. In case any one or more of the provisions contained
in this Supplement should be held invalid, illegal or unenforceable in
any respect, the validity, legality and enforceability of the remaining
provisions contained herein and in the Security Agreement shall not in
any way be affected or impaired thereby (it being understood that the
invalidity of a particular provision in a particular jurisdiction shall
not in and of itself affect the validity of such provision in any other
jurisdiction). The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable
provisions with valid provisions the economic effect of which comes as
close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be
in writing and given as provided in Section 12(b) of the Stockholders
Agreement. All communications and notices hereunder to a New
Stockholder shall be given to it at the address set forth under its
signature below.
IN WITNESS WHEREOF, the New Stockholders, the Issuer and
Weekly Reader have duly executed this Supplement to the Stockholders
Agreement as of the day and year first above written.
WRC MEDIA, INC.,
By:_________________________________
Name:
Title:
WEEKLY READER CORPORATION,
By:_________________________________
Name:
Title:
[NEW STOCKHOLDERS]
