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EXHIBIT 10.19
LLC UNIT OPTION AGREEMENT
THIS LLC UNIT OPTION AGREEMENT (this "Agreement"), made and
entered into as of this 3rd day of September, 1999, by and between Xxxxxx
Xxxxxxx Living Omnimedia LLC, a Delaware limited liability company (the
"Company"), and Xxxxx Xxxxxx (the "Executive").
WHEREAS, the Company has agreed pursuant to the Employment
Letter to award the Executive an option to acquire Class A LLC Units of the
Company (the "Class A LLC Units") on the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements hereinafter set forth, the parties hereto hereby agree
as follows:
1. Grant of Option. Pursuant to, and subject to, the terms
and conditions set forth herein, the Company hereby grants to the Executive an
option to acquire 85,715 Class A LLC Units (the "Option"), which number is
based on the implied current outstanding capitalization of the Company of a
total of 10,526,316 units of all classes.
2. Grant Date. The Grant Date of the Option granted hereby is
September 3, 1999.
3. Identification of Option. The Option granted hereby is not
an "incentive stock option" within the meaning of Section 422 of the Internal
Revenue Code of 1986, as amended (the "Code").
4. Exercise Price. The exercise price per Class A LLC Unit
subject to the Option granted hereby is $47.50.
5. Vesting. Subject to the Executive's continued employment
with the Company, such Option shall become vested in four equal annual
installments, beginning on the last day before the first anniversary of the
Start Date; provided, however, that upon a Termination of Employment by the
Company without Cause or upon the occurrence of a Change in Control of the
Company, in either case prior to the last day before the fourth anniversary of
the Start Date, any portion of the Option that is not then vested shall become
fully vested and exercisable.
6. Term. (a) Option Term. The Option shall expire on the
earliest of the dates set forth in clauses (b) through (d) below, as
applicable, or if earlier, the tenth anniversary of the Grant Date.
(b) Termination by Death. If the Executive incurs a Termination
of Employment by reason of death, the Option may thereafter be exercised, to
the extent then vested and exercisable, for a period of one year from the date
of such death or, if earlier, until the tenth anniversary of the Grant Date.
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(c) Termination by Reason of Disability or Retirement. If the
Executive incurs a Termination of Employment by reason of Disability or
Retirement, the Option may thereafter be exercised by the Executive, to the
extent it was vested and exercisable at the time of termination, for a period
of one year from the date of such Termination of Employment or, if earlier,
until the tenth anniversary of the Grant Date; provided, however, that if the
Executive dies within such period, any unexercised portion of the Option shall,
notwithstanding the expiration of such period, continue to be exercisable to
the extent to which it was vested and exercisable at the time of death for a
period of one year from the date of such death or, if earlier, until the tenth
anniversary of the Grant Date.
(d) Other Termination. (A) If the Executive incurs a
Termination of Employment for Cause, the Option shall thereupon terminate and
cease to be exercisable; and (B) if the Executive incurs a Termination of
Employment for any reason other than death, Disability, Retirement or for
Cause, the Option, to the extent it was then vested and exercisable at the time
of termination may be exercised during the three-month period following the
date of such Termination of Employment or, if earlier, until the tenth
anniversary of the Grant Date; provided, however, that if the Executive dies
within such three-month period, any unexercised portion of the Option shall,
notwithstanding the expiration of such three-month period, continue to be
exercisable to the extent to which it was vested and exercisable at the time of
death for a period of one year from the date of such death or, if earlier,
until the tenth anniversary of the Grant Date.
(e) Notwithstanding any other provision of this Section 6 to
the contrary, in the event the Executive incurs a Termination of Employment
other than for Cause during the 24-month period following a Change in Control,
any portion of the Option may thereafter be exercised by the Executive, to the
extent it was vested and exercisable at the time of termination, including on
such accelerated basis as provided in Sections 5 and 7(a), for one year from
such date of termination or, if earlier, until the tenth anniversary of the
Grant Date.
7. Exercise; Method of Exercise. (a) The vested portion of the
Option shall become exercisable at the earliest of an IPO, a Change in Control
or a Termination of Employment without Cause, subject in each case to the
provisions of this Section 7. Subject to the provisions of this Section 7, the
Option may be exercised, in whole or in part, at any time after the Option has
become vested and exercisable and during the option term by giving written
notice of exercise to the Company specifying the number of Class A LLC Units or
shares of Common Stock, as the case may be, subject to the Option to be
purchased. Such notice shall be accompanied by payment in full of the purchase
price by certified or bank check or such other instrument as the Company may
accept.
(b) Method of Exercise After an IPO.
(i) After an IPO, if approved by the Committee, payment in full
or in part may also be made in the form of unrestricted shares (by
delivery of such share(s) or by attestation) already owned by the
Executive of the same class as the common stock for which the Option
becomes exercisable in connection with the conversion of the
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Company into a corporation (the "Common Stock") subject to the Option
(based on the Fair Market Value of the Common Stock on the date the
Option is exercised); provided that such already owned Common Stock
have been held by the Executive for at least six months at the time of
exercise or had been purchased on the open market.
(ii) In addition, after an IPO, payment in full or in part may
also be made by either or both of the following methods, as selected by
the Committee:
(A) by instructing the Committee to withhold a
number of shares of such Common Stock having a Fair Market Value
on the date of exercise equal to the aggregate exercise price of
the Option; or
(B) by delivering a properly executed exercise
notice to the Company, together with a copy of irrevocable
instructions to a broker to deliver promptly to the Company the
amount of sale or loan proceeds necessary to pay the purchase
price, and, if requested, reduced by the amount of any federal,
state, local or foreign withholding taxes. To facilitate the
foregoing, the Company may enter into agreements for coordinated
procedures with one or more brokerage firms.
(c) No Class A LLC Units or Common Stock shall be issued prior
to the time that full payment therefor has been made; provided that the
issuance of Class A LLC Units or Common Stock shall be subject to Section 10
hereof. The Executive shall have all of the rights of a shareholder of the
Company holding Class A LLC Units or the Common Stock that is subject to the
Option (including, if applicable, the right to receive dividends and, after an
IPO, to vote the Common Stock), when the Executive has given written notice of
exercise and has paid in full for such Class A LLC Units or Common Stock;
provided, that, prior to an IPO, the Executive's rights shall be limited as set
forth in Sections 10, 11 and 12 hereof.
8. Change in Capitalization. In the event of any change in
corporate capitalization, such as a stock split or an extraordinary corporate
transaction, such as any merger, consolidation, spin-off, or other distribution
of stock or property of the Company, any reorganization (whether or not such
reorganization comes within the definition of such term in Section 368 of the
Code) or any partial or complete liquidation of the Company, the Board of
Directors of the Company (the "Board") or the Compensation Committee of the
Board (the "Committee") may make such substitution or adjustments to reflect
such change or transaction in (i) the number, kind and option price of equity
subject to the Option; and/or (ii) such other equitable adjustment as it may
determine to be appropriate in its sole discretion; provided, however, that the
number of units or shares subject to the Option shall always be a whole number
and; provided, further, that if any such substitution or adjustment to reflect
such change or transaction is made with respect to the options outstanding
pursuant to the Company's Nonqualified Class A LLC Unit/Stock Option Plan or
the Company's
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1999 Stock Incentive Plan, the same substitution or adjustment shall be made
with respect to the Option.
9. Conditions to Option Grant; Option Transfer Restrictions.
(a) Nontransferability of Option. The Option shall not be transferable by the
Executive other than (i) by will or by the laws of descent and distribution or
(ii) as otherwise expressly permitted by the Committee including, if so
permitted, pursuant to a transfer to the Executive's immediate family, whether
directly or indirectly or by means of a trust or partnership or otherwise. For
purposes of this Agreement, unless otherwise determined by the Committee,
"immediate family" shall mean the Executive's children, spouse and
grandchildren (the persons referred to in the above clauses (i) and (ii), the
"Permitted Transferees"). The Option shall be exercisable, subject to the terms
of this Agreement, only by the Executive, the guardian or legal representative
of the Executive, or any person to whom the Option is transferred pursuant to
this paragraph, it being understood that the terms "holder" and "Executive"
include such guardian, legal representative and other transferee.
10. Restrictions on LLC Units and Common Stock; Conditions to
Exercise. (a) Notwithstanding any other provision of this Agreement made
pursuant thereto, the Company shall not be required to issue or deliver any
certificate or certificates for Class A LLC Units or shares of Common Stock
under this Agreement prior to fulfillment of all of the following conditions:
(i) any registration or other qualification of such Class A
LLC Units or shares of Common Stock under any state or federal law or
regulation, or the maintaining in effect of any such registration or
other qualification which the Committee shall, in its absolute
discretion upon the advice of counsel, deem necessary or advisable; and
(ii) obtaining any other consent, approval, or permit from any
state or federal governmental agency which the Committee shall, in its
absolute discretion after receiving the advice of counsel, determine to
be necessary or advisable.
(b) Securities Law Restrictions. As a condition to exercise of
the Option granted hereby at any time prior to the date on which an IPO occurs,
the Executive (i) will be required to make representations, warranties and
agreements with respect to the Class A LLC Units obtained through such exercise
substantially similar to the representations, warranties and agreements as set
forth in Exhibit A hereto, as the Committee may reasonably determine based on
the advice of counsel; (ii) understands and agrees that she will not offer,
resell, transfer or otherwise dispose of the Class A LLC Units obtained through
such exercise other than as provided in this Agreement and pursuant to an
available exemption from registration under Securities Act or pursuant to an
effective registration statement, if any; and (iii) shall agree to be subject
to any other restrictions as the Committee may reasonably deem necessary based
on the advice of counsel to comply with all applicable law. The Executive
further understands and agrees that the Company is under no obligation to file
any
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registration statement with the Securities and Exchange Commission in order to
permit transfers of the Class A LLC Units.
(c) Nontransferability of Class A LLC Units and Common Stock.
Unless otherwise permitted by the Board or by will or by the laws of descent
and distribution, Class A LLC Units or Common Stock issued under this Agreement
shall not be transferable by the Executive until the earlier of (i) 180 days
from the date of exercise, and (ii) the effective date of an IPO (subject to
any holding period required by the underwriters).
(d) Legend: The certificates for Class A LLC Units purchased
under this Agreement upon Option exercise prior to an IPO shall bear the
following restrictive legend (and other appropriate language regarding
limitations on transfer):
"The Class A LLC Units represented by this certificate have not been
registered by the Company under the Securities Act of 1933 or state
securities laws. They are subject to an Option Agreement with the
Company and they may not be sold or otherwise transferred except as
therein provided and any sale or other transfer in violation thereof
shall be void and of no effect. A copy of such Agreement is on file at
the Company's principal office."
(e) Form S-8. Within a reasonable time following an IPO, the
Company shall register the issuance of the Common Stock underlying the Option
on Form S-8 (or any successor form) and will use its reasonable efforts to
cause such registration statement to remain effective until the full exercise
or expiration of the Option, and to the extent necessary will promptly prepare
and deliver any prospectus in connection with the resale of the Common Stock
underlying the Option.
11. Voting Rights Prior to IPO. Prior to an IPO, Class A LLC
Units purchased by the Executive under this Option shall be subject to a proxy
pursuant to which Xxxxxx Xxxxxxx, or in the event of her death or disability,
her legally designated representative who becomes the majority Class A LLC
unitholder, shall exercise all voting rights over such Common Stock with
respect to all matters submitted for the vote or consent of holders of shares
of Common Stock. Until the effective date of an IPO, such proxy shall be
irrevocable and coupled with an interest for purposes of Delaware law. The
Executive agrees, as a condition to the receipt of this Option, to execute any
additional documents that may be required to effect such proxy, as determined
by the Board.
12. Company's Call Right Prior to IPO. (a) Call Option
Exercise. The Company shall have the right to acquire, and the Executive shall
have the obligation to sell, Class A LLC Units acquired by the Executive upon
exercise of the Option, pursuant to the terms of this Section 12 (the "Call
Option"). Upon receipt of written notification from the Company of its decision
to exercise the Call Option with respect to such Class A LLC Units, the
Executive agrees to sell all shares of Class A LLC Units at the lower of their
Fair Market Value and Book Value on the "Call Date." The "Call Date" shall be
the date on which the Company delivers written notice to the Executive of its
decision to exercise the Call Option.
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(b) Delivery of Certificates and Payment Following a Call. The
Executive or her legal representative shall deliver the share certificates for
any Class A LLC Units covered by the Call Option to the Company at its
principal office, duly assigned to the Company with signature guaranteed, no
later than thirty days following the delivery to the Executive of written
notice by the Company of its intention to exercise the Call Option. In exchange
therefore, the Company shall pay the Executive the lower of the Fair Market
Value and the Book Value of the Class A LLC Units subject to the Call Option.
Payment for such shares of Class A LLC Units shall be made either, at the
discretion of the Board, in (1) cash or (2) in the event restrictions pursuant
to indebtedness of the Company (whether owed to financial institution or other
parties) prevent such payment, by delivery of a promissory note. Such
promissory note shall be payable as soon as practicable following the date on
which such restrictions are no longer applicable, as determined by the Board,
and shall bear interest at a rate of 5% per annum, compounded annually. The
Company shall pay all transfer taxes, if any, due in connection with the sale
of Class A LLC Units in connection with a Call Option.
(c) Duration of Call Option. The Call Option shall remain in
effect until the earlier of: (a) the consummation of an IPO and (b) a Change in
Control of the Company..
13. Amendment and Waiver. This Agreement may be amended or
modified by a written agreement executed by the parties hereto. The waiver of
or failure to enforce or delay in enforcing any breach of or default under this
Agreement shall not be deemed to be a waiver or acquiescence in any other
breach thereof and shall not impair any right, power or remedy under this
Agreement. Any waiver, permit, consent or approval of any kind or character on
the part of any party of any breach or default under this Agreement, or any
waiver on the part of any party of any provisions or conditions of this
Agreement, shall be in writing and shall be effective only to the extent
specifically set forth in such writing.
14. Integration. This Agreement contains the entire
understanding of the parties with respect to its subject matter. There are no
restrictions, agreements, promises, representations, warranties, covenants or
undertakings with respect to the subject matter hereof other than those
expressly set forth herein. This Agreement supersedes all prior agreements and
understandings between the parties with respect to its subject matter,
including, without limitation, the Employment Letter.
15. Successors, Assigns and Transferees. This Agreement shall
be binding upon and shall inure to the benefit of the parties hereto and each
of their respective successors, assigns and transferees, provided that the
Executive may not assign to any person any of his rights hereunder other than
in connection with a transfer to such person of the Option granted hereby in
accordance with the provisions hereof.
16. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but which
together constitute one and the same instrument. Notwithstanding the foregoing,
any duly authorized officer of the
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Company may execute this Agreement by providing an appropriate facsimile
signature, and any counterpart or amendment hereto containing such facsimile
signature shall for all purposes be deemed an original instrument duly executed
by the Company. In the event that such a facsimile signature is used, such duly
authorized officer shall execute, in original, a certificate attesting to the
entry into this Agreement or all similar Agreements or any amendment hereto or
thereto, which certificate shall list the names of all of the parties to such
Agreements or amendments and shall be filed with the permanent records of the
Company.
17. Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of Delaware
without regard to the principles of conflict of laws.
18. Withholding. No later than the date as of which an amount
first becomes includible in the gross income of the Executive for federal
income tax purposes with respect to the Option, the Executive shall pay to the
Company, or make arrangements satisfactory to the Company regarding the payment
of, any federal, state, local or foreign taxes of any kind required by law to
be withheld with respect to such amount. If the Executive elects, such
withholding obligations may be settled with Class A LLC Units or Common Stock,
including Class A LLC Units or shares of Common Stock that are part of the
Option that gives rise to the withholding requirement; provided, that such
withholding of Class A LLC Units or shares of Common Stock shall not exceed the
minimum amount necessary to satisfy the legal requirements for such
withholding. The obligations of the Company under this Agreement shall be
conditional on such payment or arrangements, and the Company and its Affiliates
shall, to the extent permitted by law, have the right to deduct any such taxes
from any payment otherwise due to the Executive. The Committee may establish
such procedures as it deems appropriate, including making irrevocable
elections, for the settlement of withholding obligations with the Class A LLC
Units or Common Stock.
19. Certain Definitions.
"Agreement" has the meaning set forth in the preamble hereof.
"Affiliate" means a corporation or other entity controlled by,
controlling or under common control with the Company and designated by the
Committee from time to time as such.
"Board" has the meaning set forth in Section 8.
"Book Value" of a Class A LLC Unit means the amount determined by
the Board, in its sole discretion, on a semiannual basis based on generally
accepted accounting principles as consistently applied. In the event a
transaction that requires a determination of Book Value falls between the
semiannual valuation dates, the determination of Book Value made on the
semiannual valuation date immediately preceding such a transaction shall be
used. The Board's determination of Book Value, including without limitation the
method to be applied, shall be binding on both the Company and the Executive.
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"Call Date" has the meaning set forth in Section 12(a).
"Call Option" has the meaning set forth in Section 12(a).
"Cause" has the meaning set forth in the Employment Letter.
"Change in Control" means the happening of any of the following
events:
(i) the acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Exchange
Act) (a "Person") of beneficial ownership (within the meaning of Rule
13d-3 promulgated under the Exchange Act) of both (A) 30% or more of
either (1) the then outstanding total LLC Units or shares of common
stock of the Company (the "Outstanding Company Equity") or (2) the
combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors (the
"Outstanding Company Voting Power") and (B) more than both the
Outstanding Company Common Stock and the Outstanding Company Voting
Power owned or controlled directly or indirectly by Xxxxxx Xxxxxxx;
provided, however, that for purposes of this subsection (i), the
following acquisitions shall not constitute a Change in Control: (1)
any acquisition directly from the Company, (2) any acquisition by the
Company, (3) any acquisition by any employee benefit plan (or related
trust) sponsored or maintained by the Company or any corporation
controlled by the Company or (4) any acquisition by any corporation
pursuant to a transaction which complies with clauses (1), (2) and (3)
of subsection (iii) of this Section 13(c); or
(ii) individuals who, as of the effective date of this
Agreement, constitute the Board (the "Incumbent Board") cease for any
reason not to constitute at least a majority of the Board; provided,
however, that any individual becoming a director subsequent to the
effective date of this Agreement whose election, or nomination for
election by the Company's equityholders, was approved by Xxxxxx Xxxxxxx
and her controlled affiliates at a time when such entities controlled
at least a majority of the Outstanding Company Voting Power or by a
vote of at least a majority of the directors then comprising the
Incumbent Board shall be considered as though such individual were a
member of the Incumbent Board, but excluding, for this purpose, any
such individual whose initial assumption of office occurs as a result
of an actual or threatened election contest with respect to the
election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person other
than the Board; or
(iii) consummation of a reorganization, merger or
consolidation or sale or other disposition of all or substantially all
of the assets of the Company (a "Business Combination"), in each case,
unless, following such Business Combination: (1) all or substantially
all of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Company Equity and Outstanding Company
Voting Power immediately prior to such Business Combination
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beneficially own, directly or indirectly, more than 50% of,
respectively, the then outstanding shares of common stock and the
combined voting power of the then outstanding voting securities
entitled to vote generally in the election of directors, as the case
may be, of the corporation resulting from such Business Combination
(including, without limitation, a corporation which as a result of such
transaction owns the Company or all or substantially all of the
Company's assets either directly or through one or more Subsidiaries),
(2) in the event that Xxxxxx Xxxxxxx and her controlled affiliates do
not own or control at least 50% of the Outstanding Company Equity upon
the commencement of the Business Combination, no Person (excluding any
employee benefit plan (or related trust) of the Company or such
corporation resulting from such Business Combination) beneficially
owns, directly or indirectly, 20% or more of, respectively, the then
outstanding shares of common stock of the corporation resulting from
such Business Combination or the combined voting power of the then
outstanding voting securities of such corporation except to the extent
that such person had such ownership of the Outstanding Company Equity
or Outstanding Company Voting Power immediately prior to the Business
Combination and (3) at least a majority of the members of the board of
directors of the corporation resulting from such Business Combination
were members of the Incumbent Board at the time of the execution of the
initial agreement, or of the action of the Board, providing for such
Business Combination; provided, that, the conversion of the Company
whether by merger, share exchange or otherwise, into a corporation in
anticipation of an IPO shall not be deemed a Change in Control; or
(iv) approval by the shareholders of the Company of a
complete liquidation or dissolution of the Company.
"Code" has the meaning set forth in Section 3.
"Committee" has the meaning set forth in Section 8.
"Common Stock" has the meaning set forth in Section 7(b)(i).
"Class A LLC Unit" means a Class A LLC Unit of the Company.
"Company" means Xxxxxx Xxxxxxx Living Omnimedia LLC, or any
successor entity.
"Disability" means the permanent and total inability of the
Executive by reason of mental or physical infirmity, or both, to perform the
work customarily assigned to her, if a medical doctor selected or approved by
the Board, and knowledgeable in the field of such infirmity, advises the
Committee either that it is not possible to determine when such Disability will
terminate or that it appears probable that such Disability will be permanent
during the remainder of the Executive's lifetime.
"Employment Letter" means the Employment Letter between the
Company and the Executive, dated September 3, 1999.
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"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Executive" has the meaning set forth in the preamble hereof.
"Fair Market Value" of a Class A LLC Unit means the amount
determined by the Board, in its sole discretion, on a semiannual basis, to the
extent necessary, based on consultation with investment bankers or other
financial advisors. In the event a transaction prior to an IPO that requires a
determination of Fair Market Value falls between the semiannual valuation
dates, the determination of Fair Market Value made on the semiannual valuation
date immediately preceding such a transaction shall be used. The Board's
determination of Fair Market Value, including without limitation the method to
be applied, shall be binding on both the Company and the Executive.
"Initial Public Offering" or "IPO" means the completion of the
initial public sale of shares of the common stock of the Company pursuant to an
effective registration statement under the Securities Act, following which
shares of Common Stock with a market value of at least $50 million are publicly
held and freely transferable.
"Option" has the meaning set forth in Section 1.
"Permitted Transferees" has the meaning set forth in Section 9.
"Retirement" means retirement from the employ of the Company or
its Subsidiaries or Affiliates at the normal or early retirement date as set
forth in any tax-qualified retirement/pension plan of the Company.
"Securities Act" means the Securities Act of 1933, as amended.
"Start Date" has the meaning set forth in the Employment Letter.
"Subsidiary" means any corporation, partnership, joint venture
or other entity during any period in which at least a 50% voting or profits
interest is owned, directly or indirectly, by the Company or any successor to
the Company.
"Termination of Employment" means the termination of the
Executive's employment with, or performance of services for, the Company and
any of its Subsidiaries or Affiliates. Temporary absences from employment
because of illness, vacation or leave of absence and transfers among the
Company and its Subsidiaries and Affiliates shall not be considered
Terminations of Employment. For purposes of this Agreement, the Executive's
employment shall be deemed to have terminated at the close of business on the
day preceding the first date on which she is no longer for any reason
whatsoever employed by the Company or any of its Subsidiaries or Affiliates.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be
duly executed by its duly authorized officer and the Executive has hereunto
signed this Agreement on her own behalf, thereby representing that she has
carefully read and understands this Agreement as of the day and year first
written above.
XXXXXX XXXXXXX LIVING OMNIMEDIA LLC
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxxx
Title: Chairman and Chief Executive Officer
EXECUTIVE
/s/ Xxxxx Xxxxxx
----------------------------------------------------
Xxxxx Xxxxxx
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EXHIBIT A
The Executive has made the following representations, warranties
and agreements with respect to the Class A LLC Units (for the purpose of this
Exhibit A only, the term "Affiliate" shall mean affiliate as such term is
defined in Rule 12b-2 under the Exchange Act):
1. No Registration. The Executive understands and
acknowledges that the Class A LLC Units have not been registered under the
Securities Act or the securities laws of any state or foreign jurisdiction and,
unless so registered, may not be offered, sold, transferred or otherwise
disposed of except pursuant to an exemption from, or in a transaction not
subject to, the registration requirements of the Securities Act of 1934, as
amended (the "Securities Act") and any applicable securities laws of such other
jurisdictions.
2. Nature of Executive.
(a) the Executive either
(i) is an "accredited investor," as defined in Regulation D
under the Securities Act; or
(ii) has such knowledge and experience in financial and
business matters that she is capable of evaluating the merits and risks
of an investment in the Class A LLC Units on the basis of her
investment, business or professional experience and/or education; and
(iii) has discussed with her "purchaser representative" (as
defined in Regulation D under the Securities Act) whether such
investment is appropriate in light of her financial circumstances, has
received the advice of such purchaser representative with respect to the
merits and risks of such investment, and together with such purchaser
representative, and with the benefit of such purchaser representative's
advice, has such knowledge and experience in financial and business
matters so as to be capable of evaluating the merits and risks of such
investment;
(b) the Executive is able to bear the economic risk of an
investment in the Class A LLC Units for an indefinite period of time, including
the risk of a complete loss of her investment.
3. Purchase for Investment. The Executive is acquiring the
for her own account for investment purposes and not with a view to, or for
offer or sale on behalf of or herself or for the Company in connection with,
the distribution or resale thereof.
4. Receipt of, Access to and Reliance on Information. (a) The
Executive acknowledges that (i) she has received a copy of the preliminary
Prospectus of Xxxxxx Xxxxxxx Living Omnimedia, Inc. included in the
registration statement on Form S-1 filed with the Securities and Exchange
Commission on July 29, 1999 (the "Prospectus"); (ii) the
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Company has given her, at a reasonable time prior to the date of purchase or
grant, an opportunity to ask questions and receive answers concerning the terms
and conditions of the Option; (iii) the Company has given her at a reasonable
time prior to the date of purchase or grant, an opportunity to obtain any
additional information that the Company possesses or can acquire without
unreasonable effort or expense deemed necessary by her to verify the accuracy
of the information provided, and she has received all such additional
information requested; and (iv) she has not relied on any of the Company or any
of its respective Affiliates, officers, employees or representatives in
connection with her investigation of the accuracy of the information provided
or her investment decision.
(b) The Executive acknowledges that no person has been
authorized to give any information or to make any representation concerning the
Class A LLC Units, written or oral, that does not conform to the information
included in the Prospectus and if given or made, such other information or
representation should not be relied on as having been authorized by any of the
Company or any of its respective Affiliates, officers, employees or
representatives.
5. No Misrepresentation; Notification of Any Change. The
Executive understands that the Company and others will rely upon the truth and
accuracy of the foregoing acknowledgments, representations and agreements, and
agrees that if any of the acknowledgments, representations and warranties
deemed to have been made by it upon its acquisition of Class A LLC Units are no
longer accurate at any time, she shall promptly notify the Company.
A-2
