Employment Agreement - New York Times Co. and Martin Nisenholtz
EMPLOYMENT AGREEMENT
THE NEW YORK TIMES COMPANY ("The Times"), and MARTIN NISENHOLTZ (the
"Executive") agree, subject to the approval by Compensation Committee appointed
by the Board of Directors of The Times (the "Compensation Committee"), which
approval shall be a condition precedent to the enforceability of this Agreement,
to enter into this EMPLOYMENT AGREEMENT dated as of September 1, 1999, as
follows:
1. Employment.
The Times hereby agrees to employ the Executive, and the Executive hereby agrees
to be employed by The Times, upon the terms and subject to the conditions set
forth in this Agreement.
2. Term of Employment.
The period of the Executive's employment under this Agreement shall begin as of
September 1, 1999 and shall continue for three (3) years until September 1,
2002, unless earlier terminated in accordance with Section 6 below and shall
continue thereafter from year to year unless either party gives notice no less
than 90 days prior to the expiration date, or unless earlier terminated in
accordance with Section 6 below (the "Employment Term").
3. Duties and Responsibilities.
(a) The Times shall employ the Executive as Chief Executive Officer of Times
Company Digital (currently, the Internet business unit of the Times, or
any successor thereto) ("TCD"). In such capacity, the Executive shall
report directly to Arthur Sulzberger, Jr., Chairman of The Times, and
Russell T. Lewis, President and Chief Executive Officer of The Times, or
their successors, and shall perform the customary duties and have the
customary responsibilities of such positions and such other duties as may
be assigned to the Executive from time to time by the Chairman and/or
President and Chief Executive Officer of The Times.
(b) The Executive agrees to faithfully serve The Times and TCD and devote his
full working time, attention and energies to the business of TCD and
perform the duties under this Agreement to the best of his abilities.
(c) The Executive agrees (i) to comply with all applicable laws, rules and
regulations, and all requirements of all applicable regulatory,
self-regulatory, and administrative bodies; (ii) to comply with The
Times's and TCD's rules, procedures, policies, requirements, and
directions; and (iii) not to engage in any other business or employment
without the written consent of the Chairman or the President and Chief
Executive Officer of The Times except as otherwise specifically provided
herein.
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4. Compensation and Benefits.
(a) Base Salary. During the Employment Term, TCD shall pay to the Executive a
base salary at the annual rate of $325,000 per year or such higher rate as
may be determined from time to time by the Compensation Committee of the
Board of Directors of The Times ("Base Salary"). Such Base Salary shall be
paid in accordance with TCD's standard payroll practice for senior
executives.
(b) Annual Bonus. In addition to his Base Salary, the Executive shall be
eligible to receive a target annual cash bonus of forty-five percent (45%)
of his base salary under The New York Times Company 1991 Executive Cash
Bonus Plan (the "Executive Cash Bonus Plan"), of which $125,000 is
guaranteed. The annual cash bonus shall be payable to the Executive
following the close of each calendar year, beginning with the 1999
calendar year, subject to the terms of the Executive Cash Bonus Plan.
(c) Long-Term Performance Award. The Executive shall be eligible to receive a
Long-Term Performance Award under the Executive Cash Bonus Plan, which
award shall be granted in accordance with the terms and conditions set
forth in such plan. Subject to the terms of the Executive Cash Bonus Plan,
the Executive shall be eligible to earn a Long-Term Performance Award of
$250,000, which could increase up to 175% of such amount based upon
performance for each three-year performance cycle, the first such cycle to
commence on January 1, 2000. Provided that the Executive meets the
performance criteria set forth in the Long-Term Performance Award, each
award shall be payable at the end of each such three-year cycle subject to
the terms of the Executive Cash Bonus Plan. Reasonable performance
criteria that the Executive must meet to qualify for the Long-Term
Performance Award for each performance cycle will be determined under the
terms of the Executive Cash Bonus Plan.
(d) Expense Reimbursement. TCD shall promptly reimburse the Executive for the
ordinary and necessary business expenses incurred by the Executive in the
performance of the duties under this Agreement in accordance with The
Times's customary practices applicable to senior executives of
subsidiaries of The Times, provided that such expenses are incurred and
accounted for in accordance with The Times's and/or TCD's policy.
(e) Benefit Plans, Fringe Benefits and Vacations. The Executive shall be
eligible to participate in or receive benefits under any employee benefit
or fringe benefit plan made available to senior executives of TCD in
accordance with the eligibility requirements of such plans and subject to
the terms and conditions set forth in this Agreement.
5. Stock Options and TCD Shares.
The Executive shall be granted 2 million options (the "Options") to purchase
shares of TCD's Class A-2 Common Stock, par value $0.01 per share, (the "TCD
Stock") under the Times Company Digital, Inc. 1999 Stock Option Plan (the "Stock
Option Plan"). The Options shall be subject to the terms of the
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Stock Option Plan and the Executive's Times Company Digital, Inc. Non-Qualified
Stock Option Agreement (the "Grant Agreement"), attached hereto as Exhibit "A".
Subject to the Grant Agreement (which shall finally govern the Options in the
event of any conflict between this Agreement and the Grant Agreement), the
Company and the Executive agree as follows:
(a) Vesting. The Executive shall vest in 200,000 of the Options immediately on
the day he is granted the Options. The Executive shall vest in the
remaining 1.8 million Options over the following 3 years as follows: (i)
600,000 of the remaining 1.8 million Options shall vest on September 1,
2000; and (ii) 300,000 of the remaining 1.2 million Options shall vest
every six months thereafter in four equal installments.
(b) Termination of Employment. Notwithstanding the foregoing subparagraph, in
the event that the Executive's employment is terminated without "Cause"
under Section 6(d) of this Agreement or the Executive resigns his
employment for "Good Reason" under Section 6(e) of this Agreement, (i) all
of the Executive's unvested Options shall immediately be vested in the
Executive, and (ii) the Executive's rights with regard to such vested
Options shall be determined in accordance with Section 6(b)(vi) of the
Stock Option Plan and, if in effect, the applicable provisions of Appendix
A to the Grant Agreement.
(c) Cashless Exercise. If and after the TCD Stock subject to the Options
become publicly traded shares of The Times or of TCD, the Executive shall
be permitted to exercise the Options on a cashless basis, subject to the
Stock Option Plan, using applicable broker procedures, provided that the
use of such procedures does not adversely affect the financial statements
of either The Times or TCD.
(d) Restrictions on Exercise. Notwithstanding anything in this Agreement, the
Stock Option Plan or the Grant Agreement, the Executive agrees that his
ability to exercise any Options or sell any TCD Stock shall be subject to
any restrictions promulgated by any underwriters involved in any initial
public offering involving TCD.
6. Termination of Employment.
The Executive's employment under this Agreement may be terminated under any of
the circumstances set forth in this Section 6. Upon termination, the Executive
(or his beneficiary or estate, as the case may be) shall be entitled to receive
the compensation and benefits described in Section 7 below, and, if applicable,
Section 8 below.
(a) Death. The Executive's employment shall terminate upon the Executive's
death.
(b) Total Disability. The Times may terminate the Executive's employment upon
his becoming "Totally Disabled". For purposes of this Agreement, the
Executive shall be "Totally Disabled" if the Executive is physically or
mentally incapacitated so as to render the Executive incapable of
performing his usual and customary duties under this Agreement. The
Executive's receipt of disability benefits under any TCD long-term
disability benefits plan (the "LTD Plan") or receipt of Social Security
disability benefits shall be deemed conclusive evidence of Total
Disability for purpose of this Agreement; provided, however, that in the
absence of the Executive's receipt of such long-term disability benefits
or Social Security benefits, the Chairman or the President and/or Chief
Executive Officer of The Times may in their reasonable discretion (but
based upon
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appropriate medical evidence) determine that the Executive is Totally
Disabled.
(c) Termination by The Times for Cause. The Times may terminate the
Executive's employment for "Cause". Such termination shall be effective as
of the date specified in the written Notice of Termination provided to the
Executive.
(i) For purposes of this Agreement, the term "Cause" shall mean any of
the following: (A) conviction of a crime (including conviction on a
nolo contendere plea) involving the commission by the Executive of a
felony or of a criminal act involving, in the good faith judgment of
the Chairman or the President and/or Chief Executive Officer of The
Times, fraud, dishonesty, or moral turpitude but excluding any
conviction that results solely from the Executive's title or
position with TCD and is not based on his personal conduct; (B) the
Executive's deliberate and continual refusal to perform employment
duties reasonably requested by the Chairman or the President and/or
Chief Executive Officer of The Times after receiving thirty (30)
days' written notice by certified mail of such failure to perform,
specifying that the failure constitutes cause (other than as a
result of vacation, sickness, illness or injury), provided that if
the Executive cures his nonperformance within the thirty (30) day
period to The Times' satisfaction the Executive shall not be subject
to termination for Cause; (C) fraud or embezzlement determined in
accordance with The Time's normal, internal investigative procedures
consistently applied in comparable circumstances; (D) gross
misconduct or gross negligence in connection with the business of
The Times, TCD, or any other affiliate of The Times that has a
substantial adverse effect on The Times, TCD, or the affiliate; or
(E) breach of any of the covenants set forth in Section 10 hereof.
(ii) Regardless of whether the Executive's employment initially was
considered to be terminated for any reason other than Cause, the
Executive's employment shall be considered to have been terminated
for Cause for purposes of this Agreement if the Chairman or the
President and Chief Executive Officer of The Times subsequently
reasonably determines in good faith that the Executive engaged in an
act constituting Cause.
(d) Termination by The Times without Cause. The Times may terminate the
Executive's employment under this Agreement without Cause after providing
Notice of Termination to the Executive.
(e) Resignation by Executive. The Executive may terminate his employment under
this Agreement after providing written Notice of Termination to The Times.
Such Notice shall state whether the Executive is resigning for "Good
Reason". Resignation by the Executive for Good Reason shall be deemed to
have occurred, if the Executive provides the Notice of Termination within
ninety (90) days after the occurrence of any of the following:
(i) Without the Executive's express written consent, a change in the
Executive's material duties and responsibilities.
(ii) A reduction by The Times in the Executive's Base Salary.
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(iii) The failure of The Times to maintain the Executive's level of
coverage relative to other senior executives of TCD under TCD's
employee benefit plans, policies, practices, or arrangements in
which the Executive participates, both in terms of the amount of
benefits provided and the relative level of the Executive's
participation. For this purpose, TCD may eliminate and/or modify
existing employee benefit plans and coverage levels on a consistent
and non-discriminatory basis applicable to all such executives.
(iv) The failure by The Times or TCD to pay to the Executive any material
amount of his earned compensation, or any material amount of his
compensation deferred under any plan, agreement or arrangement of or
with The Times or TCD, within ten (10) days after the Executive
makes written demand for such amount.
(v) Without the Executive's express written consent, the change of the
Executive's principal place of employment to a location more than 75
miles from his initial principal place of employment, except for
required travel on TCD's or The Times's business to an extent
substantially consistent with the Executive's business travel
obligations.
(vi) Any purported termination of the Executive's employment that is not
effected pursuant to a Notice of Termination, and for purposes of
this Agreement, no such purported termination shall be effective.
(f) Notice of Termination. Any termination of the Executive's employment by
The Times or by the Executive (other than by reason of the Executive's
death) shall be communicated by written Notice of Termination to the other
party in accordance with Section 19 below. For purposes of this Agreement,
a "Notice of Termination" shall mean a notice in writing which shall
indicate the specific termination provision in this Agreement relied upon
to terminate the Executive's employment and shall set forth in reasonable
detail the facts and circumstances claimed to provide a basis for
termination of the Executive's employment under the provision so
indicated.
(g) Date of Termination. The effective date of the Executive's termination of
employment shall be
(i) in the event of his death, the date of death;
(ii) in the event of termination for Total Disability, sixty (60) days
after Notice of Termination is given (provided that the Executive
shall not have returned to the performance of his duties on a
full-time basis during such sixty (60) day period); or
(iii) in the event of any other termination, the date specified in the
Notice of Termination.
7. Compensation Following Termination of Employment.
Upon termination of the Executive's employment under this Agreement, the
Executive (or his
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designated beneficiary or estate, as the case may be) shall be entitled to
receive the following compensation:
(a) Earned but Unpaid Compensation. The Times or TCD shall pay to the
Executive any accrued but unpaid Base Salary for services rendered to the
date of termination, any accrued but unpaid expenses required to be
reimbursed under this Agreement, and any vacation accrued to the
Termination Date. In addition, if The Times or TCD terminates the
Executive's employment without Cause or the Executive resigns his
employment for Good Reason after the Executive has earned his Annual Bonus
for the year ending December 31 of each year of the Term but before such
Annual Bonus is paid to the Executive, the Times or TCD shall pay to the
Executive the earned, but unpaid Annual Bonus. Except as set forth above
and in Section 8 below, following the Termination Date, neither The Times
nor TCD shall have any further obligation to pay the Executive any further
amounts, including, but not limited to, any amount for an Annual Bonus
under Section 4(b) or any amount under the Long-Term Incentive Plan under
Section 4(c).
(b) The Times or TCD Separation Pay Policy. The Executive shall not be
entitled to separation pay benefits under the The Times's or TCD's
separation pay policy.
(c) Other Compensation and Benefits. Except as may be provided under this
Agreement,
(i) any benefits to which the Executive may be entitled pursuant to the
plans, policies and arrangements referred to in Section 4(e) above
shall be determined and paid in accordance with the terms of such
plans, policies and arrangements, and
(ii) The Executive shall have no right to receive any other compensation,
or to participate in any other plan, arrangement or benefit, with
respect to future periods after such termination or resignation
except as specifically provided by the Consolidated Omnibus Budget
Reconciliation Act of 1987, as amended.
8. Additional Compensation Payable Following Termination Without Cause or
Resignation for Good Reason.
(a) Requirements for Additional Compensation. In addition to the compensation
set forth in Section 7 above, the Executive shall receive the additional
compensation and benefits set forth in paragraph (b) below, if the
following requirements are met:
(i) the Executive's employment is terminated by The Times pursuant to
Section 6(d) above for reasons other than death, Total Disability or
Cause or the Executive resigns for Good Reason pursuant to Section
6(e) above; and
(ii) the Executive executes a Separation Agreement and Release in the
form attached as Exhibit "B" to this Agreement on or after his
Termination Date.
(b) Additional Compensation. The Times or TCD shall provide the Executive with
the following compensation and benefits:
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(i) Base Salary. The Times or TCD shall pay to the Executive his full
base salary as determined under Section 4(a) at the rate in effect
on his Termination Date, as if his employment had continued until
the end of the 18 month period beginning on the Termination Date.
Such payment shall be made in a single lump sum on or before the
twentieth day following the effective date of the Separation
Agreement and Release.
(ii) Medical and Dental Benefits. The Times or TCD shall provide for the
Executive's continued coverage under all group medical and dental
benefit plans, programs, or arrangements in which the Executive was
entitled to participate immediately prior to the date of his
termination, until the earliest to occur of: (A) the end of the 18
month period beginning on the Termination Date; (B) the Executive's
death; or (C) the date the Executive becomes employed by a
subsequent employer who offers a comparable benefit at a comparable
cost to the Executive and the Executive becomes eligible to
participate in such benefit. In the event that the Executive's
participation in any such employee welfare benefit plan, program, or
arrangement of The Times or TCD is prohibited, The Times shall
arrange to provide the Executive with benefits substantially similar
to those which the Executive would have been entitled to receive
from The Times or TCD under such plan, program, or arrangement, for
such period.
9. Restrictive Covenants.
(a) Protected Information. The Executive recognizes and acknowledges that he
shall have access to various confidential or proprietary information
concerning The Times, TCD, and entities affiliated with The Times and TCD,
of a special and unique value which may include, without limitation, (i)
books and records relating to operation, finance, accounting, sales,
personnel and management, (ii) policies and matters relating particularly
to operations such as customer service requirements, costs of providing
service and equipment, operating costs and pricing matters, and (iii)
various trade or business secrets, including business opportunities,
marketing or business diversification plans, business development and
bidding techniques, methods and processes, financial data and the like
(collectively, the "Protected Information"). The Executive therefore
covenants and agrees that he shall not at any time, either while employed
by The Times or afterwards, knowingly make any independent use of, or
knowingly disclose to any other person or organization (except as
authorized by the Chairman or the President and Chief Executive Officer of
The Times, or their designee in writing) any of the Protected Information.
(b) Competitive Activity. The Executive covenants and agrees that at all times
(i) during his period of employment with The Times, and (ii) during the
period beginning on the date of termination of his employment (whether
such termination is voluntary or involuntary, or otherwise) and ending on
the later of one (1) year following his Termination Date, he shall not,
directly or indirectly, (a) engage in, assist, or have any active interest
or involvement whether as an employee, agent, consultant, creditor,
advisor, officer, director, stockholder (excluding holding of less than 1%
of the stock of a public company), partner, proprietor or any type of
principal whatsoever) in any person, firm, or business entity that is
engaged in the same business as that conducted and
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carried on by TCD and that derives fifty (50) percent or more of its gross
revenue from the sale of Internet based advertising supporting news
content; or (b) in any way, encourage any person or entity that was a
customer or vendee of The Times or TCD to do business with such an entity,
without the specific written consent of the Chairman or the President and
Chief Executive Officer of The Times (or their designee) to do so.
(c) Non-Solicitation. The Executive covenants and agrees that during the
period beginning on the date of termination of his employment (whether
such termination is voluntary or involuntary, or otherwise) and ending one
(1) year following his Termination Date, he shall not directly or
indirectly recruit, solicit, hire, or cause to be hired, any individual
who is then, or who has been within the preceding six (6) month period, an
employee of The Times or TCD.
(d) Non-Disparagement. The Executive covenants and agrees that during the
course of his employment by The Times or at any time thereafter, the
Executive shall not, directly or indirectly, in public or private,
deprecate, impugn, disparage or defame The Times, TCD, or any of its
employees, members of its board of directors or agents, nor shall the
Executive assist any other person, firm or company in so doing.
(e) Return of Documents and Other Materials. The Executive shall promptly
deliver to The Times upon termination of his employment, or at any other
time as The Times may so request, all documents (whether recorded on
paper, electronically or otherwise) containing Protected Information,
including but not limited to, all lists of customers, leads and customer
pricing, data processing programs and documentation, employee information,
memoranda, notes, records, reports, tapes, manuals, drawings, blueprints,
programs, and any other documents and other materials (and all copies
thereof) relating to TCD's business or that of its customers, and all
property associated therewith, which the Executive may then possess or
have under his control.
10. Enforcement of Covenants.
(a) Termination of Employment and Forfeiture of Compensation. The Executive
agrees that in the event that The Times reasonably determines in good
faith that he has breached any of the covenants set forth in Section 9
above during his employment, The Times shall have the right to terminate
his employment for Cause. In addition, the Executive agrees that if The
Times reasonably determines in good faith that he has breached any of the
covenants set forth in Section 9 at any time, The Times shall have the
right to discontinue any or all remaining benefits payable pursuant to
Section 8 above, as applicable. Such termination of employment or
discontinuance of benefits shall be in addition to and shall not limit any
and all other rights and remedies that The Times may have against the
Executive.
(b) Right to Injunction. The Executive acknowledges that a breach of the
covenants set forth in Section 9 above shall cause irreparable damage to
The Times and TCD with respect to which The Times's remedy at law for
damages shall be inadequate. Therefore, in the event of breach or
anticipatory breach of the covenants set forth in this section by the
Executive, the Executive and The Times agree that The Times or TCD shall
be entitled to the following particular forms of relief, in addition to
remedies otherwise available to it at law or equity: (i) injunctions, both
preliminary and permanent,
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enjoining or retraining such breach or anticipatory breach and the
Executive hereby consents to the issuance thereof forthwith and without
bond by any court of competent jurisdiction; and (ii) in the event The
Times successfully enforces the covenants set forth in Section 9 above,
recovery of all reasonable sums expended and costs, including reasonable
attorney's fees, incurred by The Times or TCD to enforce the covenants set
forth in Section 9.
(c) Separability of Covenants. The covenants contained in Section 9 above
constitute a series of separate covenants, one for each applicable State
in the United States and the District of Columbia, and one for each
applicable foreign country. If in any judicial proceeding, a court shall
hold that any of the covenants set forth in Section 9 permitted by
applicable laws, the Executive and The Times agree that such provisions
shall and are hereby reformed to the maximum time, geographic, or
occupational limitations permitted by such laws. Further, in the event a
court shall hold unenforceable any of the separate covenants deemed
included herein, then such unenforceable covenant or covenants shall be
deemed eliminated from the provisions of this Agreement for the purpose of
such proceeding to the extent necessary to permit the remaining separate
covenants to be enforced in such proceeding. The Executive and The Times
further agree that the covenants in Section 9 shall each be construed as a
separate agreement independent of any other provisions of this Agreement,
and the existence of any claim or cause of action by the Executive against
The Times whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by The Times of any of the
covenants set forth in Section 9.
(d) The Executive specifically consents to the jurisdiction of the United
States District Court for the Southern District of New York, or if that
court is unable to exercise jurisdiction for any reason, to the
jurisdiction of the Supreme Court of the State of New York, New York
County, for the purpose of enforcing Sections 9 and 10.
11. Withholding of Taxes.
The Times and/or TCD shall withhold from any compensation and benefits payable
under this Agreement all applicable federal, state, local or other taxes, except
that in the case of the Options, the Executive understands and agrees that he
cannot exercise any Options until he has paid to TCD the appropriate withholding
taxes in accordance with the applicable terms of the Stock Option Plan and the
Grant Agreement.
12. Arbitration of Disputes.
Except as provided in Section 10 above, any controversy or claim arising out of
or relating to this Agreement, or the breach thereof, shall be settled by
arbitration administered by the American Arbitration Association under its
National Rules for the Resolution of Employment Disputes and judgment upon the
award rendered by the arbitrator(s) may be entered by any court having
jurisdiction thereof. Any such arbitration shall take place in the State of New
York.
13. Waiver of Jury Trial.
In the event any controversy or claim arising out of the Executive's employment
or the termination of the Executive's employment is found by a court of
competent jurisdiction not to
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be subject to final and binding arbitration, the Executive and The Times agree
to try such claim or controversy to the Court, without use of a jury or advisory
jury.
14. Non-Disclosure of Agreement Terms.
The Executive agrees that he shall not disclose the terms of this Agreement to
any third party other than his immediate family, attorney, accountants, or other
consultants or advisors or except as may be required by any governmental
authority.
15. No Claim Against Assets.
Nothing in this Agreement shall be construed as giving the Executive any claim
against any specific assets of The Times or TCD or as imposing any trustee
relationship upon The Times in respect of the Executive. The Times shall not be
required to establish a special or separate fund or to segregate any of its
assets in order to provide for the satisfaction of its obligations under this
Agreement. The Executive's rights under this Agreement shall be limited to those
of an unsecured general creditor of The Times and its affiliates.
Notwithstanding the foregoing, this Section shall not be construed to waive any
rights guaranteed to the Executive by law.
16. Successors and Assignment.
Except as otherwise provided in this Agreement, this Agreement shall inure to
the benefit of and be binding upon the parties hereto and their respective
heirs, representatives, successors and assigns.
(a) Company Successor. The Times shall require any person (or persons acting
as a group) who acquires ownership or effective control of The Times or
TCD (or, in the event that TCD is not yet separately incorporated, the
Internet business unit of the Times, or any successor thereto) or
ownership of a substantial portion of the business or assets of The Times
or TCD (whether direct or indirect, by purchase, merger, consolidation or
otherwise), by agreement in form and substance satisfactory to the
Executive, expressly to assume and agree to perform this Agreement in the
same manner and to the same extent as The Times would be required to
perform it if no such acquisition had taken place. As used in this
Agreement, "The Times" shall mean The Times as defined in the first
sentence of this Agreement and any person (or group) who acquires
ownership or effective control of The Times or ownership of a substantial
portion of the business or assets of The Times or which otherwise becomes
bound by all the terms and provisions of this Agreement, whether by the
terms hereof, by operation of law or otherwise.
(b) Assignment by Executive. The rights and benefits of the Executive under
this Agreement are personal to him and no such right or benefit shall be
subject to voluntary or involuntary alienation, assignment or transfer;
provided, however, that nothing in this Section 16 shall preclude the
Executive from designating a beneficiary or beneficiaries to receive any
benefit payable on his death.
17. Entire Agreement; Amendment.
This Agreement, the Grant Agreement and the Separation Agreement and Release set
forth the
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entire understanding of the parties with respect to their subject matter and
shall supersede any and all existing oral or written agreements,
representations, or warranties between the Executive and The Times or any of its
subsidiaries or affiliated entities relating to the terms of the Executive's
employment. These agreements may not be amended except by a written agreement
signed by both parties.
18. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York applicable to agreements made and to be performed in that
State, without regard to its conflict of laws provisions.
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19. Notices.
Any notice, consent, request or other communication made or given in connection
with this Agreement shall be in writing and shall be deemed to have been duly
given when delivered or mailed by registered or certified mail, return receipt
requested, or by facsimile or by hand delivery, to those listed below at their
following respective addresses or at such other address as each may specify by
notice to the others:
To The Times:
The New York Times Company
229 West 43rd Street
New York, New York 10036-3959
Attention: Solomon B. Watson IV
To the Executive:
At the address for the Executive set forth below.
20. Miscellaneous.
(a) Waiver. The failure of a party to insist upon strict adherence to any term
of this Agreement on any occasion shall not be considered a waiver thereof
or deprive that party of the right thereafter to insist upon strict
adherence to that term or any other term of this Agreement.
(b) Separability. If any term or provision of this Agreement is declared
illegal or unenforceable by any court of competent jurisdiction and cannot
be modified to be enforceable, such term or provision shall immediately
become null and void, leaving the remainder of this Agreement in full
force and effect.
(c) Headings. Section headings are used herein for convenience of reference
only and shall not affect the meaning of any provision of this Agreement.
(d) Rules of Construction. Whenever the context so requires, the use of the
singular shall be deemed to include the plural and vice versa.
The parties acknowledge and agree that each has read this entire
Agreement, that they have been represented by counsel in the negotiation
and execution of this Agreement, that this Agreement is the product of
negotiation and that neither of the parties shall be considered the
drafter or scrivener of this Agreement.
(e) Survival. The provisions of this Agreement (including, without limitation,
Sections 9, 10 and 12) which by their terms should survive, and the
Executive's and The Times's rights and remedies with respect thereto,
shall survive the termination of this Agreement for any reason.
(f) Counterparts. This Agreement may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original,
and such counterparts shall together constitute but one Agreement.
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IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as of
the day and year set forth below.
THE NEW YORK TIMES COMPANY EXECUTIVE
By: /s/ Russell T. Lewis /s/ Martin Nisenholtz
--------------------------------- ----------------------------------
Name: Russell T. Lewis Date: January 5, 2000
------------------------------- ----------------------------
Title: President & CEO Address: 4 Pioneer Trail
------------------------------ -------------------------
Date: January 25, 2000 Armonk, NY 10504
------------------------------- -------------------------
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EXHIBIT A
TIMES COMPANY DIGITAL, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
THIS NON-QUALIFIED STOCK OPTION AGREEMENT (this "Grant Agreement")
is made as of December 1, 1999 by Times Company Digital, Inc., a Delaware
corporation (the "Company"), and Martin Nisenholtz (the "Optionee"), pursuant to
the Company's 1999 Stock Option Plan (as such may be amended, the "Plan").
Capitalized terms not defined in this Grant Agreement shall have the meanings
set forth in the Plan.
1. Award of Options. The Company hereby grants to the Optionee an option (the
"Option" or "Options") to acquire two (2) million shares of the Company's Class
A-2 Common Stock, par value $0.01 per share (the "Stock"), at the exercise price
of $5.86 per share (the "Exercise Price"), subject to the terms and conditions
set forth in this Grant Agreement (including Appendix A attached hereto) and the
Plan (including, without limitation, the restrictions on exercisability
contained in Section 6(b) of the Plan). The Options granted hereunder are
non-qualified stock options.
2. Expiration Date. Subject to Section 6(b)(vi) of the Plan, the Options shall
expire on December 1, 2009.
3. Vesting. Subject to Section 6(b)(vi) of the Plan and the provisions of
Appendix A attached hereto, the Options shall vest over the following 3 years as
follows: (i) 200,000 of the Options shall vest immediately on the date of this
Grant Agreement; (ii) 600,000 of the remaining 1.8 million Options shall vest on
September 1, 2000; and (iii) 300,000 of the remaining 1.2 million Options shall
vest every six months thereafter in four equal installments.
4. Exercise of Options.
(1) Exercisability. Subject to Section 6(b)(vi) of the Plan and the
provisions of Appendix A attached hereto, vested Options may be
exercised from time to time at any time after the initial
exercisability date set forth in Section 6(b)(v) of the Plan in
accordance with the policies and procedures established by the
Committee.
(2) Payment of Exercise Price. The Exercise Price shall be tendered to
the Company at the time of exercise in cash or in such other
consideration as shall be permitted by the Committee at the time of
exercise, in each case having a total Fair Market Value determined
as of the date of exercise equal to the Exercise Price, or a
combination of cash and such other consideration having a total Fair
Market Value equal to such Exercise Price. The present policies of
Parent (as defined in Appendix A attached hereto) do not permit the
use of stock retention to pay the Exercise Price and applicable
withholding and FICA taxes. However, if in the future Parent's
policies change to generally permit payment of the Exercise Price by
the use of stock retention, stock retention shall also be made
available to the Optionee.
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(3) Optionee's Representations. If requested by the Company at the time
of any exercise, the Optionee agrees as a condition to such exercise
to provide the Company with a representation that it is the
Optionee's intention at the time of such exercise to acquire the
shares being purchased for his or her own account for investment and
not with a view to, or for resale in connection with, the
distribution thereof within the meaning of the Securities Act of
1933, as amended, and such other representations and agreements
requested by the Company as may be required by applicable foreign,
federal or state securities laws.
(4) Legends. The certificates representing the Stock issued upon
exercise of the Options shall bear the following legend, and such
other legends as may be required by applicable foreign, federal or
state securities laws, if required by the Company:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE
RESTRICTIONS AND RIGHTS TO REPURCHASE AND TO REQUIRE TRANSFERS CONTAINED
IN A NON-QUALIFIED STOCK OPTION AGREEMENT, DATED AS OF DECEMBER 1, 1999,
AS SUCH AGREEMENT MAY BE AMENDED, MODIFIED OR RESTATED FROM TIME TO TIME
(A COPY OF WHICH IS ON FILE WITH THE SECRETARY OF THE ISSUER HEREOF)."
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE OR FOREIGN
SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD OR TRANSFERRED EXCEPT
PURSUANT TO (A) AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND IN COMPLIANCE WITH APPLICABLE STATE AND
FOREIGN SECURITIES LAWS OR (B) AN APPLICABLE EXEMPTION FROM REGISTRATION
THEREUNDER AND UNDER APPLICABLE STATE AND FOREIGN SECURITIES LAWS."
Any certificate issued at any time in exchange or substitution for any
certificate bearing such legends shall also bear such legends, unless, in the
opinion of counsel for the Company, the securities represented thereby are no
longer subject to the provisions of Appendix A attached hereto or the
restrictions imposed under applicable foreign, federal and state securities
laws, in which case the applicable legend (or legends) may be removed.
5. Non-transferability of Options. Except to the extent otherwise determined by
the Committee consistent with the Plan or set forth on Appendix A attached
hereto, the Options granted hereunder shall not be assignable or otherwise
transferable other than by will or the laws of descent and distribution. Unless
otherwise provided by the Committee or set forth on Appendix A attached hereto,
during the lifetime of the Optionee the Options shall be exercisable and
elections with respect to the Options may be made only by the Optionee or the
Optionee's duly appointed legal guardian or other duly appointed and qualified
legal representative
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6. Termination of Employment.
(1) Forfeiture and/or Exercise of Options. Except if the Optionee's
employment is terminated without Cause under Section 6(d) or for
Good Reason under Section 6(e) of the Employment Agreement executed
between the Optionee and The New York Times Company, dated as of
September 1, 1999 (the "Employment Agreement"), in the event the
Optionee ceases to be an employee of, or provide services to, the
Company or any Affiliate thereof for any reason, (i) all of the
Optionee's unvested Options shall immediately be forfeited, and (ii)
the Optionee's rights with regard to vested Options shall be
determined in accordance with Section 6(b)(vi) of the Plan and, if
in effect, the applicable provisions of Appendix A attached hereto.
In the event that the Optionee's employment is terminated without
Cause under Section 6(d) or for Good Reason under Section 6(e) of
the Employment Agreement, (i) all of the Optionee's unvested Options
shall immediately be vested in the Optionee, and (ii) the Optionee's
rights with regard to vested Options shall be determined in
accordance with Section 6(b)(vi) of the Plan and, if in effect, the
applicable provisions of Appendix A attached hereto.
(2) Non-Competition and Non-Solicitation. As a condition to the exercise
of any Option that can be exercised after termination, other than
termination by reason of death or disability, of the Optionee's
employment or service relationship with the Company of any of its
Affiliates, the Optionee hereby agrees that (i) the Optionee shall
not, directly or indirectly, engage in, assist, or have any active
interest in or involvement, whether as an employee, agent,
consultant, creditor, advisor, officer, director, stockholder
(excluding holding of less than 1% of the stock of a public
company), partner, proprietor or any type of principle whatsoever in
any person, firm or business entity which, directly or indirectly,
is engaged in the same business as that conducted and carried out by
the Company and which derives fifty (50) percent or more of its
gross revenue from the sale of Internet based advertising supporting
news content for one (1) year after his termination of employment
with the Company for whatever reason, with or without cause or
notice (the "Termination"); (ii) the Optionee shall not, in any way,
encourage any person or entity that was a customer or vendee of the
Company or the Parent to do business with any person, firm or
business entity which, directly or indirectly, is engaged in the
same business as that conducted and carried out by the Company and
which derives fifty (50) percent or more of its gross revenue from
the sale of Internet based advertising supporting news content for
one (1) year following the Termination; (iii) the Optionee shall not
directly or indirectly recruit, solicit, hire or cause to be hired,
any individual who is at the time of the Optionee's Termination or
who has been within the preceding six (6) month period, an employee
of the Company or the Parent for one (1) year following the
Termination; (iv) the Optionee shall not, directly or indirectly, in
public or
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private, deprecate, impugn, disparage or defame the Company, the
Parent, or any of their agents, employees, officers or directors,
nor shall the Optionee assist any other person, firm or company in
doing so at any time following the Termination. If a final judicial
determination is made that the time or territory above are
unenforceable restrictions, the provisions of this Section 6(2)
shall not be rendered void but shall be deemed amended to apply to
such maximum time and territory and to such other extent as such
court may judicially determine or indicate to be reasonable. The
provisions contained in this Section 6(2) are not intended to
supersede the provisions of any agreement the Optionee and the
Company may have concerning the matters contained in this Section,
which shall remain in full force and effect. If the covenants
contained herein are breached by the Optionee, all Options held by
the Optionee and the Optionee's right and ability to exercise the
same shall be automatically forfeited without limiting any other
remedy available to the Company by reason of such breach.
(3) Determination of Disability. Subject to any existing agreements
between the Optionee and the Company, the existence of any
disability which results in termination of employment shall be
determined by the Committee, in its sole discretion.
7. Withholding Tax. In accordance with Section 8(d) of the Plan, the Optionee
may be subject to withholding taxes as a result of the exercise or settlement of
an Option or other payment in respect of an Option, and the satisfaction of such
withholding requirements shall be a condition precedent to the delivery to the
Optionee of certificates for shares of Stock pursuant to any exercise of an
Option.
8. Restrictions on Transfers of Stock. The Optionee hereby agrees to be bound as
an "Employee Stockholder" by the provisions of Appendix A attached hereto and
made a part hereof, as such provisions may be amended, modified or restated by
the Company from time to time in its sole discretion; provided, however, that
any such amendment, modification or change shall not (other than by operation of
Section 8(c) of the Plan) (i) reduce the number of shares of Stock subject to
Options granted under this Grant Agreement, (ii) change the securities for which
the Options are exercisable, (iii) increase the Exercise Price or (iv) lengthen
the time periods contained herein or in the Plan respecting the vesting of such
Options.
9. Sale of the Company. In the event that Parent effects a "Sale of the Company"
(as defined in Appendix A attached hereto), (i) the Plan may be terminated by
the Company, (ii) all unvested Options that would not have vested within one
year after the Sale of the Company shall terminate at the time of the sale, and
(iii) the vesting of certain unvested Options shall be accelerated as more fully
described in Section 6(e) of the Plan.
10. Confidentiality. The Optionee shall hold in strict confidence, unless
compelled to disclose by judicial or administrative process or other
requirements of law, all documents and information concerning the Company
furnished to the Optionee which are marked or identified as confidential, except
to the extent that such information is now or hereafter in the public domain
through no fault of the Optionee. Failure to comply with this confidentiality
provision shall
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result in the automatic termination of all Options (vested and unvested) held by
the Optionee.
11. Governing Law. This Grant Agreement shall be governed by the laws of the
State of Delaware, without giving effect to principles of conflicts of laws.
12. Counterparts. This Grant Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
EXECUTIVE
/s/ Martin Nisenholtz
----------------------------------------
Name: Martin Nisenholtz
TIMES COMPANY DIGITAL, INC.
By: /s/ Rhonda L. Brauer
------------------------------
Name: Rhonda Brauer
Title: Assistant Secretary
The undersigned agrees to be bound by the
provisions of the attached Appendix A attached hereto applicable to it:
THE NEW YORK TIMES COMPANY
By: /s/ Rhonda L. Brauer
------------------------------
Name: Rhonda Brauer
Title: Assistant Secretary
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ARTICLE I
CERTAIN DEFINITIONS
1.1. Defined Terms.
The following terms, as used in this Appendix A, have the meanings
set forth below. Other defined terms are defined in the following Sections of
this Appendix A.
"Affiliate" means, with respect to any Person, any other Person that
controls, is controlled by, or is under common control with, such Person. For
the purposes of this definition, "control" (including, with its correlative
meanings, the terms "controlled by" and "under common control with"), as used
with respect to any Person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of securities, by contract or
otherwise. For purposes of this Agreement, employees and directors of Parent and
its Affiliates shall not be "Affiliates" of Parent.
"Agreement and Plan of Merger" means the Agreement and Plan of Merger,
dated as of July 22, 1999, among Parent, the Company, ABZ Acquisition, Inc.,
Abuzz Technologies, Inc. and the other parties thereto.
"Asset Contribution Agreement" has the meaning ascribed to such term in
the Agreement and Plan of Merger.
"Board" means the Board of Directors of the Company.
"Class A Common Stock" means (i) (a) the Company's Class A-1 Common Stock,
par value $0.01 per share, and the Company's Class A-2 Common Stock, par value
$0.01 per share, (b) any securities into which such common stock shall have been
changed or (c) any securities resulting from any reclassification or
recapitalization of such common stock, and (ii) all other securities (other than
Class B Common Stock) of any class or classes (however designated) of the
Company the holders of which have the right, without limitation as to amount,
after payment on any securities entitled to a preference on dividends or other
distributions upon any dissolution, liquidation or winding-up, either to all or
to a share of the balance of payments upon such dissolution, liquidation or
winding-up.
"Class B Common Stock" means the Company's Class B Common Stock, par value
$0.01 per share, any securities into which such Class B Common Stock shall have
been changed or any securities resulting from any reclassification or
recapitalization of such Class B Common Stock.
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"Class A Enterprise Value" means that portion of the Enterprise Value,
expressed in dollars, represented by a share of Class A Common Stock.
"Class A Stockholders" means the holders of the Class A Common Stock.
"Class B Stockholders" means the holders of Class B Common Stock.
"Common Stock" means collectively the Class A Common Stock and the Class B
Common Stock.
"Company" means Times Company Digital, Inc., a Delaware corporation.
"Company IPO" means the consummation of an underwritten initial public
offering of the Company's Class A-2 Common Stock registered under the Securities
Act.
"Company Securities" means the Class A Common Stock, the Class B Common
Stock, any Options, and any securities issued with respect thereto as a result
of any stock dividend, stock split, reclassification, recapitalization,
reorganization, merger, consolidation or similar event or upon the conversion,
exchange or exercise thereof; provided, however, that for the purpose of this
Appendix A, "Company Securities" held by any Optionee shall only include Options
and any securities acquired in connection with the exercise of Options (other
than Special Options as defined in the Agreement and Plan of Merger) held by
such Optionee.
"Diluted Basis" means, with respect to the calculation of the number of
shares of Class A Common Stock, all shares of Class A Common Stock outstanding
at the time of determination and all shares issuable upon the exercise of
Options or deliverable in connection with other outstanding options or
convertible or exchangeable securities or warrants; provided, however, that with
respect to any Options or any other options, shares of Class A Common Stock
shall only be included in the determination of Diluted Basis to the extent such
Options or other options are vested.
"Effective Time" has the meaning ascribed to such term in the Agreement
and Plan of Merger.
"Employee Stockholder" means any employee of, or service provider to, the
Company or any of its Affiliates who receives an Option under the Option Plan,
whether or not such Option is exercised, so long as any such Person shall hold
Company Securities.
"Enterprise Value" means the value of the Company, on a consolidated basis
and
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disregarding any transfer of assets and liabilities made in contemplation of a
Tracking Stock IPO or a Publico IPO, as reflected by the initial public offering
price in a Tracking Stock IPO or a Publico IPO.
"Exercise Price" means the price payable to purchase shares of Class A
Common Stock under an Option.
"Fair Market Value" means, with respect to the purchase of any share of
Class A Common Stock, as of any particular date, that Value of the Company as
determined in good faith by the Board (or any duly appointed committee thereof)
based on their knowledge of the value of the Company and, if requested by any
member of the Board or such committee, the advice of a third party financial
advisor that has experience in providing valuation of companies similar to the
Company. Fair Market Value shall be determined as of any particular date
required by this Agreement and such other dates as the Board (or any duly
appointed committee thereof) shall determine. "Value" shall be based on (i) the
fully distributed equity value of the Company (assuming the Class B Common Stock
has been converted into Class A Common Stock) as if the Company were freely
trading in the public equity market, without taking into account any fees or
expenses associated with the issuance of the shares of Class A Common Stock to
the public, any minority discount (or premium) or any discount for liquidity,
and (ii) the valuation techniques as reasonably determined by the Board (or any
duly appointed committee thereof) at the time of the determination of Value, as
advised by any financial advisor, and may include, but not be limited to, an
analysis of comparable companies and revenues, earnings or a discounted cash
flow analysis. "Fair Market Value" with respect to any Option shall mean the
Fair Market Value of the Class A Common Stock with respect to which such Option
may be exercised less the exercise price with respect to such Option.
"Grant Agreement" means the agreement between the Company and a recipient
of an Option, setting forth the number of Options granted and certain terms and
conditions relating thereto.
"Involuntary Transfer" means, with respect to Company Securities of any
Employee Stockholder, any involuntary Transfer or Transfer by operation of law
of such Company Securities (other than to a Permitted Transferee of such
Employee Stockholder who executes a Joinder Agreement) by or in which such
Employee Stockholder shall be deprived or divested of any right, title or
interest in or to Company Securities, including, without limitation, by seizure
under levy of attachment or execution, by foreclosure upon a pledge, in
connection with any voluntary or involuntary bankruptcy or other court
proceeding to a debtor in possession, trustee in bankruptcy or receiver or other
officer or agency, pursuant to any statute pertaining to escheat or abandoned
property, pursuant to a divorce or separation agreement or a final decree of a
court in a divorce action, upon or occasioned by the legal incompetence of any
Employee Stockholder
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and to a legal representative of any Employee Stockholder. Notwithstanding the
foregoing, Involuntary Transfer shall not include the Transfer of Company
Securities by a Stockholder to a Permitted Transferee of such Stockholder
provided such Permitted Transferee is a party to a Grant Agreement or executes a
Joinder Agreement.
"Joinder Agreement" means an agreement pursuant to which a Person
subscribes to, and agrees to be bound by, the provisions of this Appendix A as
an Employee Stockholder.
"Lien" means any lien, claim, charge, encumbrance, security interest or
other adverse claim of any kind.
"Market Price" means, with respect to each share of Parent Class A Common
Stock as of a particular date, the average of the closing prices of such Parent
Class A Common Stock on the New York Stock Exchange, Inc. on each of the thirty
(30) trading days next preceding such date or, if such Parent Class A Common
Stock is not then listed or admitted to trading on such exchange, on the
principal national securities exchange on which such Parent Class A Common Stock
is listed or admitted to trading or, if not listed or admitted to trading on any
national securities exchange, on the Nasdaq National Market, or if such Parent
Class A Common Stock is not then listed or admitted to trading on a national
securities exchange or quoted on the Nasdaq National Market, the average of the
closing bid and asked prices in the over-the-counter market as furnished by any
New York Stock Exchange member firm selected by the Board of Directors of Parent
or if no such prices are available, the market price per share as determined in
good faith by the Board of Directors of Parent.
"Minimum Value" has the meaning ascribed to such term in the Agreement and
Plan of Merger.
"Option" means any option granted pursuant to any Option Plan.
"Option Plan" means (i) the 1999 Stock Option Plan of the Company, as the
same may be hereinafter amended, modified or restated, and (ii) any additional
stock option plans or compensation or incentive plans which provide for the
issuance of Class A Common Stock established by the Company for the benefit of
its employees and/or the employees of its Affiliates, including without
limitation, the Newco Special Options (as defined in the Agreement and Plan of
Merger).
"Parent" means The New York Times Company, a New York corporation.
"Parent Class A Common Stock" means Parent Class A Common Stock, par value
$0.10 per share, and any securities into which such Parent Class A Common Stock
shall have been
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changed or any securities resulting from any reclassification or
recapitalization of such Parent Class A Common Stock.
"Permitted Transferee" means:
(i) as to any Employee Stockholder who is a natural person, any of
the following: a lineal ancestor, sibling or descendant (including
by adoption) of such Employee Stockholder, or a spouse of such
Employee Stockholder, or a natural person who qualifies as a member
of the Employer Stockholder's "Immediate Family" (as defined in the
1999 Stock Option Plan of the Company), or one natural person
designated by such Employee Stockholder with whom such Employee
Stockholder shares his or her principal residence and to whom such
Employee Stockholder shall have Transferred Company Securities for
no or nominal consideration, or any trust of which such Employee
Stockholder is the trustee and which is established solely for the
benefit of any of the foregoing individuals and whose terms are not
inconsistent with the terms of this Appendix A, or any partnership,
the general partner(s) and limited partner(s) (if any) of which are
one or more Persons identified in this clause (i);
(ii) as to any Class B Stockholder, any other Class B Stockholder or
any Affiliate of Parent;
(iii) as to any Employee Stockholder, any Class A Stockholder or
Class B Stockholder; and
(iv) as to any Third Party that becomes a Stockholder and that is
not a natural Person, any Affiliate of such Stockholder.
"Person" means an individual, partnership, corporation, limited liability
company, trust, unincorporated organization, joint venture, government (or
agency or political subdivision thereof) or any other entity of any kind.
"Pro Rata" means, with respect to one or more Stockholders, in proportion
to the number of shares of Common Stock on a Diluted Basis owned by such
Stockholder or Stockholders.
"Publico Stock Exchange Ratio" means the quotient obtained by dividing (i)
the Class A Enterprise Value by (ii) the price per share of Publico Stock to the
public in a Publico IPO, with all appropriate adjustments to equitably reflect
any subsequent stock dividend, stock split, reclassification, recapitalization,
reorganization, merger, consolidation or similar event.
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"Qualifying Offering" means the consummation of a Company IPO or the
consummation of an underwritten initial public offering of (i) Class A Common
Stock registered under the Securities Act (a "Company IPO") or (ii) shares of a
class of common equity ("Publico Stock") registered under the Securities Act of
an entity ("Publico") that becomes for the purpose of effecting such public
offering the owner, directly or indirectly, of an equity interest in the
businesses conducted, indirectly or directly, by the Company provided that the
balance of the equity of such businesses, to the extent not owned by the
Company, is owned, directly or indirectly by the Parent (a "Publico IPO") or
(iii) shares of a class of common equity ("Tracking Stock") registered under the
Securities Act of Parent designed to track the performance of the businesses of
the Company, whether such businesses are conducted through the Company or
through another Subsidiary or division of Parent (a "Tracking Stock IPO").
"Sale of the Company" means the sale of the Company (whether by merger,
consolidation, recapitalization, reorganization, sale of securities, sale of
assets or otherwise but otherwise than a Qualifying Offering) in one transaction
or series of related transactions to a Person or Persons not an Affiliate of
Parent pursuant to which such Person or Persons (together with its Affiliates)
acquires (i) securities representing at least a majority of the voting power of
all securities of the Company, assuming the conversion, exchange or exercise of
all securities convertible, exchangeable or exercisable for or into voting
securities, or (ii) all or substantially all of the Company's assets on a
consolidated basis.
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations of the Securities and Exchange Commission promulgated
thereunder.
"Stockholders" means each of the Employee Stockholders, to the extent such
Employee Stockholder has exercised his or her Options, and any additional
stockholders of the Company, whether or not such additional stockholders hold
Company Securities on the date of the Grant Agreement to which this Appendix A
is attached or hereinafter acquire such Company Securities, so long as such
Person shall hold Company Securities.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, association or other business entity of which (i) if a corporation,
a majority of the total voting power of shares of stock entitled (without regard
to the occurrence of any contingency) to vote in the election of directors,
managers or trustees thereof is at the time owned or controlled, directly or
indirectly, by that Person or one or more of the other Subsidiaries of that
Person or a combination thereof, or (ii) if a partnership, association or other
business entity, a majority of the partnership or other similar ownership
interest thereof is at the time owned or controlled, directly or indirectly, by
any Person or one or more Subsidiaries of that Person or a combination thereof.
For purposes hereof, a Person or Persons shall be deemed to have a majority
ownership interest
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in a partnership, association or other business entity if such Person or Persons
shall be allocated a majority of partnership, association or other business
entity gains or losses or shall be or control the managing director or general
partner of such partnership, association or other business entity.
"Tracking Stock Exchange Ratio" means the quotient obtained by dividing
(i) the Class A Enterprise Value by (ii) the price per share of Tracking Stock
to the public in a Tracking Stock IPO, with all appropriate adjustments to
equitably reflect any subsequent stock dividend, stock split, reclassification,
recapitalization, reorganization, merger, consolidation or similar event.
"Transfer" means, directly or indirectly, any sale, transfer, assignment,
hypothecation, pledge or other disposition of any Company Securities or any
interests therein.
ARTICLE II
TRANSFERS OF COMPANY SECURITIES
2.1 Restrictions Generally; Securities Act.
(a) Each Employee Stockholder agrees that he or she will not,
directly or indirectly, Transfer any Company Securities except in accordance
with the terms of this Appendix A. Any attempt by any Employee Stockholder to
Transfer any Company Securities not in accordance with the terms of this
Appendix A shall be null and void and neither the issuer of such securities nor
any transfer agent of such securities shall give any effect to such attempted
Transfer in its stock records. Notwithstanding anything contained in this
Appendix A to the contrary, any transfer of Options shall also be subject to the
provisions of the Option Plan and applicable Grant Agreement. In addition, if
any Employee Stockholder transfers any Class A Common Stock obtained upon
exercise of any Option, pursuant to the terms and limitations of this Appendix
A, any Person acquiring such Class A Common Stock shall be considered an
Employee Stockholder for the purposes of this Appendix A, except that the
provisions of Article IV shall not apply to such Person unless he or she is or
thereafter becomes an employee of the Company or any of its Affiliates.
(b) Each Employee Stockholder agrees that, in addition to the other
requirements imposed herein relating to Transfer, he or she will not Transfer
any Company Securities except pursuant to an effective registration statement
under the Securities Act, and in compliance with all other applicable foreign
and state securities laws, or upon receipt by the Company of an opinion of
counsel to the Employee Stockholder reasonably satisfactory (as to both counsel
and form of opinion) to the Company or, if agreed by the Board, counsel to the
Company, or a no-action letter from the Securities and Exchange Commission
addressed to the Company, to the effect that no registration statement is
required because of the availability of an
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exemption from registration under the Securities Act and, in the case of such
opinion of counsel, that such Transfer is in compliance under all applicable
foreign and state securities laws.
2.2 Transfers by Employee Stockholders. Each of the Employee Stockholders
severally agrees that he or she will not Transfer any Company Securities, except
(i) to his or her Permitted Transferee who shall have executed a Joinder
Agreement; or (ii) to Parent or any of its Affiliates; or (iii) pursuant to
Section 2.4 or 2.5 or Article III, IV or V of this Appendix A; or (iv) pursuant
to Section 2.3 of this Appendix A; provided, however, that none of the Employee
Stockholders shall Transfer any Company Securities pursuant to Section 2.3 until
January 1, 2002 or Transfer any Company Securities at any time after a Tracking
Stock IPO or a Publico IPO except by exercise of the Tracking Stock Exchange
Right or Publico Exchange Right; provided, further, that in the case of Class A
Common Stock obtained upon the exercise of Options, the provisions of Section
4.1 shall apply in the event the Employee Stockholder's employment with the
Company or any of its Affiliates has been terminated; and provided, further,
that in the case of Options, any such Transfer shall also be subject to the
provisions of the Option Plan and the applicable Grant Agreement.
2.3 Right of First Refusal.
(a) Except for Transfers permitted pursuant to clauses (i) through
(iii) of Section 2.2, if any Employee Stockholder (a "Selling Stockholder")
desires to Transfer any Class A Common Stock permitted to be Transferred under
Section 2.2 (the "Offered Securities") to any person (a "Third Party"), prior to
any Transfer such Selling Stockholder shall give written notice of the proposed
Transfer (the "Notice of Intention") to Parent, specifying the type and number
of Offered Securities which such Selling Stockholder wishes to Transfer, the
name of the Third Party, the proposed cash purchase price (the "Offer Price")
therefor, and all other material terms and conditions of the proposed Transfer
and setting forth a representation of the Selling Stockholder that the terms
reflect an actual, bona fide, arm's-length offer from an unrelated financially
responsible Person.
(b) For a period of thirty (30) days following its receipt of the
Notice of Intention, Parent or its designee or designees shall have the right to
purchase at the Offer Price and on the other terms specified in the Notice of
Intention, all, but not less than all, of the Offered Securities. The right of
Parent pursuant to this Section 2.3(b) shall be exercisable by delivery of a
notice to the Selling Stockholder (the "Prospective Buyer Notice") and shall
expire if unexercised by Parent within such 30-day period. Parent shall have the
right, at its option, to pay for the Offered Securities by delivering the Offer
Price in (i) cash or (ii) the number of shares of Parent Class A Common Stock
equal to the number obtained by dividing the Offer Price by the Market Price per
share of Parent Class A Common Stock, determined as of the date of the delivery
to the Selling Stockholder of the Prospective Buyer Notice, plus cash in lieu of
any
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fractional share.
(c) If the Notice of Intention has been duly given, and Parent
determines not to exercise its option to purchase the Offered Securities, then
the Selling Stockholder shall have the right, for a period of sixty (60) days
from the earlier of (i) the expiration of the option period pursuant to
subsection (b) of this Section 2.3 or (ii) the date on which such Selling
Stockholder receives notice from Parent that it will not exercise the option
granted pursuant to subsection (b) of this Section 2.3, to sell to the Third
Party the Offered Securities under this Section 2.3 at a price not less than the
Offer Price and on the other terms set forth in the Notice of Intention, subject
to compliance with any applicable Federal, state or foreign securities laws;
provided that prior to any such Transfer to the Third Party, such Third Party
executes and delivers to the Company, a Joinder Agreement.
(d) The closing of any purchase and sale pursuant to this Section
2.3 shall (i) take place on such date, not later than sixty (60) business days
after the delivery to the Selling Stockholder of a Prospective Buyer Notice, as
Parent and the Selling Stockholder shall select, and (ii) be in accordance with
the procedures set forth in Section 7.15.
2.4 Involuntary Transfers.
(a) Upon the occurrence of any event which would cause any Company
Securities owned by an Employee Stockholder to be Transferred by Involuntary
Transfer (other than to a Permitted Transferee), (i) each unvested Option so
Transferred shall lapse and become null and void, and (ii) such Employee
Stockholder (or his legal representative or successor) shall give Parent written
notice thereof stating the terms of such Involuntary Transfer, the identity of
the transferee or proposed transferee, the price or other consideration, if
readily determinable, for which the Company Securities are proposed to be or
have been Transferred and the number of Company Securities which are the subject
of such Transfer. After its receipt of such notice or, failing such receipt,
after Parent otherwise obtains actual knowledge of such a proposed or completed
Involuntary Transfer, Parent or its designee or designees shall have the right
and option to purchase all or any portion of such Company Securities, which
right shall be exercised by written notice given by Parent to the transferor (or
transferee following the occurrence of any Involuntary Transfer) within sixty
(60) days following the later of (i) Parent's receipt of such notice or, failing
such receipt, Parent's obtaining actual knowledge of such proposed or completed
Transfer and (ii) the date of such Involuntary Transfer.
(b) Any purchase pursuant to this Section 2.4 shall be at the price
and on the terms applicable to such Involuntary Transfer. If the nature of the
event giving rise to such Involuntary Transfer is such that no readily
determinable consideration is to be paid for or assigned to the Transfer of the
Company Securities, the price to be paid by Parent for each share
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of Company Securities (other than Options) shall be the Fair Market Value
thereof as of the date of Transfer, and the price to be paid by Parent for each
Option shall be the (x) Fair Market Value of the Class A Common Stock with
respect to which such Option may be exercised less (y) the Exercise Price with
respect to such Option. The closing of the purchase and sale of such Company
Securities pursuant to this Section 2.4 shall be held at the place and on the
date established by Parent, which in no event shall be less than ten (10) nor
more than forty-five (45) days from the date on which Parent gives notice of its
election to purchase such Company Securities, and shall be in accordance with
the procedures set forth in Section 7.15.
2.5 Sale of the Company. If the Class B Stockholders and/or their
Permitted Transferees or the Company sign an agreement of sale, merger agreement
or similar agreement relating to a Sale of the Company, Parent shall notify each
Employee Stockholder, in writing, of the terms and conditions of such proposed
sale including all arrangements between the Company, Parent (or its Affiliates),
on the one hand, and the proposed buyer, on the other hand. Notwithstanding any
other provision of this Appendix A, each such Employee Stockholder will take all
necessary and desirable actions in connection with the consummation of such Sale
of the Company, and if such transaction is structured as a sale of Company
Securities, within ten (10) business days of the receipt of such notice (or such
longer period of time as Parent shall designate in such notice) such Employee
Stockholders shall cause all of their respective Company Securities (with
respect to Options, only to the extent vested, including vesting under the
provisions of Section 6(e) of the Company's 1999 Stock Option Plan, and all
unvested Options shall terminate and be null and void) to be sold to the
designated purchaser on the same terms and conditions and for the same per share
consideration (less the Exercise Price in the case of vested Options) as the
Company Securities being sold by the Class B Stockholders or their Permitted
Transferees. In furtherance of, and not in limitation of the foregoing, in
connection with a Sale of the Company, each Employee Stockholder will (i)
consent to and raise no objections against the Sale of the Company or the
process pursuant to which it was arranged, (ii) waive any dissenter's or
appraisal rights and other similar rights, and (iii) execute all documents
containing such terms and conditions as those executed by other Stockholders as
directed by the Class B Stockholders or their Permitted Transferees. All
Stockholders will bear their Pro Rata share of the costs and expenses incurred
in connection with a Sale of the Company. Costs incurred by any Stockholder on
its own behalf will not be shared by other Stockholders. No Employee Stockholder
shall be obligated under this Section 2.5 unless: (i) the Sale of the Company is
a bona fide arm's-length transaction; (ii) all holders of Common Stock are
treated equally in the transaction; (iii) the Board determines that the
transaction is fair to the Company and the Stockholders; (iv) the price paid for
all outstanding Company Securities is at least equal to the Fair Market Value as
determined by the Board; and (v) no representations or warranties, or indemnity,
are required from an Employee Stockholder other than as to the ownership of such
Employee Stockholder's Company Securities free and clear of Liens.
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ARTICLE III
RIGHTS OF INCLUSION
3.1 Rights of Inclusion.
(a) If the Class B Stockholders and/or their Permitted Transferees
(the "Transferor") propose to Transfer any Company Securities ("Transferor
Shares"), except as set forth in Section 3.2, to one or more Persons (any such
Persons are referred to as the "Buyer"), then, as a condition to such Transfer,
the Transferor shall cause the Buyer to include a written offer (the "Article
III Offer"), subject to compliance with any applicable Federal, state or foreign
securities laws, to each of the Employee Stockholders and each other holder of
Class A Common Stock (collectively, the "Offerees"), to purchase from each
Offeree, at the option of each Offeree, up to a Pro Rata number of shares of
Class A Common Stock as the Class B Common Stock sold by the Transferor, on the
same terms and conditions as are applicable to the Transferor Shares, all of
which terms shall be specified in the Article III Offer, except that none of the
Offerees shall be required to provide any representation or warranty or other
undertaking other than with respect to its ownership of, and authority to
transfer, such Class A Common Stock free and clear of all Liens. Notwithstanding
the foregoing, if any Offeree does not accept its Article III Offer in full, the
other Offerees shall have the right to sell pursuant to the Article III Offer up
to the number of shares of Class A Common Stock not being sold by such Offeree,
Pro Rata among such Offerees, until all such shares are sold or until they do
not desire to sell any more shares. The Transferor shall provide a written
notice (the "Inclusion Notice") of the Article III Offer to each Offeree, who
may accept the Article III Offer by providing a written notice of acceptance of
the Article III Offer to the Transferor within thirty (30) days of delivery of
the Inclusion Notice.
(b) The Buyer shall have ninety (90) days, commencing on the
fifteenth (15th) day following delivery of the Inclusion Notice, in which to
purchase the Class A Common Stock with respect to which an Article III Offer was
accepted along with the Transferor Shares. The material terms of such sale,
including, without limitation, price and form of consideration, shall be as set
forth in the Inclusion Notice. If at the end of such 90-day period the Buyer has
not completed the purchase of all the Transferor Shares and all the Offerees'
Class A Common Stock proposed to be sold, the Transferor Shares and such
Offerees' Class A Common Stock will not be sold and the provisions of this
Article III shall continue to be in effect as to future Transfers.
(c) Concurrently with the Transfer of the Transferor Shares and
shares of Class A Common Stock of the Offerees to the Buyer pursuant to the
Article III Offer, the Buyer shall pay, and the Transferor shall cause the Buyer
to pay, to each Offeree its respective portion of the sales price of the shares
of Class A Common Stock sold pursuant thereto.
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3.2 Certain Transfers. The provisions of this Article III shall not apply
to any Transfer or proposed Transfer of Company Securities by the Class B
Stockholders and any of their Permitted Transferees (i) to a Permitted
Transferee thereof who shall have executed a Joinder Agreement, (ii) pursuant to
a Sale of the Company in which the designated purchaser has agreed to purchase
from all Employee Stockholders all their respective Company Securities on the
terms and conditions set forth in Section 2.5 or (iii) which, together with all
other Transfers of Company Securities by the Class B Stockholders and their
Permitted Transferees (not including Transfers to Permitted Transferees),
represent less than fifteen percent (15%) of the Common Stock, on a Diluted
Basis.
ARTICLE IV
REPURCHASE OF COMPANY SECURITIES OWNED
BY EMPLOYEE STOCKHOLDERS
4.1 Termination of Employment or Services. In the event that any Employee
Stockholder who, on, or at any time after, the date of the Grant Agreement to
which this Appendix A is attached, is employed by the Company or any of its
Affiliates shall cease to be employed by or cease to provide services to, the
Company or any of its Affiliates for any reason (including death, permanent
disability, voluntary termination of employment, termination for cause,
termination without cause, or retirement or otherwise), such Employee
Stockholder (or his personal representative) shall promptly notify Parent of the
termination and, within ninety (90) days after Parent's receipt of such notice,
Parent or its designee or designees may, at their option, elect to purchase the
Company Securities owned by such Employee Stockholder (or his personal
representative) and his Permitted Transferees, which would include for this
purpose any Company Securities transferred to any spouse or other person by such
Employee Stockholder, whether or not such transferee is an Employee Stockholder
(collectively, "Sellers"), exercisable by written notice (a "Purchase Notice")
delivered to Sellers and, upon the giving of such notice, Sellers shall be
obligated to sell those Company Securities which are designated in the Purchase
Notice; provided, however, that in the event notice of such termination is not
given, a Purchase Notice may in any event be given by Parent at any time
following the termination. As provided in the Option Plan, unless otherwise
provided in the Grant Agreement to which this Appendix A is attached, all
unvested Options will terminate upon such termination of employment (or
termination of service relationship). Employee Stockholders who cease to be
employees of, or service providers to, the Company or any of its Affiliates will
have the right to exercise their vested Options after termination of employment
(or termination of service relationship) to the extent provided in the Option
Plan and Grant Agreement, subject to the conditions and limitations (including
time periods) set forth in the applicable Option Plan and Grant Agreement to
which this Appendix A is attached. Notwithstanding anything herein to the
contrary, with respect to (x) any Option that shall have survived such
termination of employment (or termination of service relationship) pursuant to
the terms of any applicable Option Plan or Grant
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Agreement, and (y) shares of Class A Common Stock that might have been acquired
by reason of the exercise of an Option within six months prior to the
termination date, Parent's purchase right under this Section 4.1 shall be
applicable only to shares of Class A Common Stock obtained upon the exercise of
such Option, and in each case held by the Employee Stockholder for at least six
months after such exercise or delivery, such right to be exercisable by delivery
of a Purchase Notice as aforesaid during the ninety day period after the day on
which such Employee Stockholder has held such shares for six months.
Notwithstanding anything herein to the contrary, Employee Stockholders, on their
behalf and on behalf of their personal representatives and Permitted
Transferees, agree not to transfer any Class A Common Stock received upon such
exercise of until the expiration of the period during which Parent has the right
to purchase such stock.
4.2 Purchase Price.
(a) The purchase price for each share of Company Securities (other
than Options) to be purchased pursuant to Section 4.1 shall be the Fair Market
Value thereof as of the date of the termination of employment, and the purchase
price for each Option to be purchased shall be the Fair Market Value of the
shares of Class A Common Stock with respect to which the Option may be
exercised, as of the date of termination of employment, less the Exercise Price
with respect of such Options.
(b) Parent shall have the right, at its option, to pay for the
Company Securities to be purchased by delivering (i) the purchase price in cash,
(ii) a note of Parent with a term of not greater than two years and bearing
interest at the rate then paid by Parent to its principal lending bank and with
a principal amount equal to the purchase price, or (iii) a number of shares of
Parent Class A Common Stock equal to the number obtained by dividing the
aggregate purchase price by the Market Price per share of Parent Class A Common
Stock, determined as of the date of the delivery of the Purchase Notice, plus
cash in lieu of any fractional share.
4.3 Closing. The closing for all purchases and sales of Company Securities
provided for in this Article IV shall be held at the principal executive offices
of Parent at 10:00 a.m., local time, on such date as may be designated in
writing by Parent, but no later than the 60th day after the date of the delivery
of the Purchase Notice and shall be in accordance with the procedures set forth
in Section 7.15.
ARTICLE V
CONVERSION OF OPTIONS; EXCHANGE OF COMPANY SECURITIES
5.1 Conversion of Options; Exchange Rights.
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(a) Upon the consummation of a Tracking Stock IPO, and without any
action by the Company or the Optionee, each unexercised Option shall
automatically be converted into an Option to purchase shares of Tracking Stock
with appropriate adjustment in the number of shares and exercise price
consistent with the Tracking Stock Exchange Ratio and having the same remaining
term and vesting schedule as the Option so converted. Upon the consummation of a
Tracking Stock IPO (or at any time thereafter), each Employee Stockholder
holding Class A Common Stock shall have the right (the "Tracking Stock Exchange
Right") to acquire from Parent, in exchange for all or any portion of the Class
A Common Stock then owned by such Stockholder such number of shares of Tracking
Stock equal to the product of (i) the number of shares of Class A Common Stock
to be exchanged by such Stockholder and (ii) the Tracking Stock Exchange Ratio.
(b) Upon the consummation of a Publico IPO, and without any action
by the Company or the Optionee, each unexercised Option shall automatically be
converted into an Option to purchase shares of Publico Stock with appropriate
adjustments in the number of shares and exercise price consistent with the
Publico Stock Exchange Ratio and having the same remaining term and vesting
schedule as the Option so converted. Upon the consummation of a Publico IPO (or
at any time thereafter), Parent shall cause Publico to provide to each Employee
Stockholder holding Class A Common Stock the right (the "Publico Exchange Right"
and collectively with the Tracking Stock Exchange Right, the "Exchange Rights")
to acquire from Publico, in exchange for all or any portion of the Class A
Common Stock then owned by such Employee Stockholder, such number of shares of
Publico Stock equal to the product of (i) the number of shares of Class A Common
Stock and (ii) the Publico Stock Exchange Ratio.
5.2 Exercise of the Exchange Rights. In order to exercise an Exchange
Right, an Employee Stockholder holding Class A Common Stock must notify Parent
or Publico, as the case may be (the "Issuer"), in writing (the "Exchange
Notice") of such exercise of the Exchange Right.
5.3 Closing of the Exchange. The closing of the Exchange Right exercise
shall occur at 10:00 a.m., ten (10) business days after delivery of the Exchange
Notice at the principal executive officers of the Issuer (or at such other time
and/or place as may be agreed by the Issuer and the Employee Stockholder holding
Class A Common Stock) and in accordance with the procedures set forth in Section
7.15. Each Employee Stockholder holding Class A Common Stock acknowledges and
agrees that the Tracking Stock or Publico Stock issued to him or her will be
subject to applicable restrictions under Federal and state securities laws and
will bear appropriate legends to such effect.
5.4 Lock-Up.
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(a) Each Employee Stockholder holding Class A Common Stock agrees
not to offer, sell, contract to sell or otherwise dispose of any Tracking Stock
within seven (7) days before or during the lock-up period after the date of any
final prospectus relating to a Tracking Stock IPO or any other underwritten
offering of Tracking Stock, except pursuant to the written consent of the
underwriters for such offering. Each holder of Class A Common Stock agrees to
execute and deliver to such underwriters an agreement, in customary form,
confirming the foregoing.
(b) Each Employee Stockholder holding Class A Common Stock agrees
not to offer, sell, contract to sell or otherwise dispose of any Publico Stock
within seven (7) days before or during the lock-up period after the date of any
final prospectus relating to a Publico IPO or any other underwritten offering of
Publico Stock, except pursuant to the written consent of the underwriters for
such offering. Each Employee Stockholder holding Class A Common Stock agrees to
execute and deliver to such underwriters an agreement, in customary form,
confirming the foregoing.
ARTICLE VI
CERTAIN OTHER MATTERS; WORKING CAPITAL NEEDS
6.1 Transferees. Unless otherwise consented to by Parent, the parties
hereto agree that as a condition precedent to the issuance by the Company of
shares of Class A Common Stock to a Permitted Transferee of an Employee
Stockholder or any Third Party, the Company shall require such Person to execute
a Joinder Agreement. Notwithstanding the foregoing, to the extent approved by
Parent and specified in any Joinder Agreement (or amendment thereto) pursuant to
which any Person agrees to be bound by the terms hereof, the provisions of this
Appendix may be varied to be more or less restrictive with respect to any such
Person.
6.2 Stock Issuance. The Company shall issue no shares of Class A Common
Stock or securities convertible, exchangeable or exercisable for or into shares
of Class A Common Stock after a Tracking Stock IPO or a Publico IPO.
6.3 No Right to Employment. Nothing contained herein nor the ownership of
any Company Securities shall confer upon any Employee Stockholder the right to
employment or to remain in the employ of the Company or any of its Affiliates.
6.4 Working Capital. It is contemplated that the Company may require
additional funds for working capital. Should Parent, in its discretion,
determine to provide such funds (including, without limitation, pursuant to
Section 2.07(c) of the Agreement and Plan of Merger),
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it may do so (i) by purchasing shares of Class A Common Stock or Class B Common
Stock at the most recent Fair Market Value per share of Class A Common Stock
(the Class B Common Stock being valued at the same per share price as the Class
A Common Stock) calculated prior to the date of the capital contribution, or
(ii) by lending funds to the Company at an interest rate not to exceed three
percentage points over the prime rate of Parent's principal lending bank. In the
event of a loan, the Company shall keep a record of the number of shares of
Class A Common Stock or Class B Common Stock that could have been purchased with
such funds at the most recent Fair Market Value per share of Class A Common
Stock calculated prior to the date of such working capital advance, subject to
customary anti-dilution adjustments (the "Conversion Value"). Parent at its
option, may thereafter, at any time, convert all or any part of such loan into
shares of Class A Common Stock or Class B Common Stock either at the most recent
Fair Market Value per share of Class A Common Stock calculated prior to the
conversion date or at the Conversion Value. Notwithstanding the foregoing, in
the event Parent or any of its Affiliates determines to provide the Company with
funds for working capital within six months of the Effective Time (other than
$5,000,000 to be provided pursuant to the Asset Contribution Agreement), if
funds are provided by such Person, such shares (or any other securities of the
Company convertible into Class A Common Stock, Class B Common Stock or other
securities) shall be purchased, or such Conversion Value shall be calculated, on
the basis of a market value of the Company equal to the greater of (i) the
valuation of the Company as of the Effective Time prepared by Ernst & Young LLP
or (ii) $500,000,000.
ARTICLE VII
MISCELLANEOUS
7.1 Governing Law. The corporate laws of the State of Delaware will govern
all questions concerning the relative rights of the Company and its Stockholders
hereunder. All other questions concerning the construction, validity and
interpretation of this Agreement shall be governed and construed in accordance
with the domestic laws of the State of New York, without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of New
York or any other jurisdiction) that would cause the application of the laws of
any jurisdiction other than the State of New York.
7.2 Entire Agreement; Amendments. This Appendix A (together with the
related Grant Agreement) constitutes the entire agreement of the parties with
respect to the subject matter hereof and may be amended, modified or
supplemented only by a written instrument duly executed by the Company and
Parent, except that (i) any amendment, modification or supplement that
materially, adversely and disproportionately affects the Employee Stockholders
at any time after such Stockholders have exercised Options and received shares
of Class A Common Stock shall require the consent of the Employee Stockholders
who hold such Class A
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Common Stock in accordance with Section 7.4 hereof, and (ii) any amendment,
modification or supplement made before an Employee Stockholder exercises an
Option shall be governed by the provisions of Section 7 of the related Grant
Agreement. Notwithstanding anything to the contrary contained herein, no
provision of this Appendix A shall prevent or otherwise restrict Parent from
purchasing Company Securities from Employee Stockholders pursuant to this
Appendix A or otherwise at a price per share different from that specified in
this Appendix A.
7.3 Term. As to an Employee Stockholder, this Appendix A shall terminate
upon the earlier of (a) a Sale of the Company, (b) the repurchase of all of the
Employee Stockholder's Options and shares of Class A Common Stock pursuant to
Article IV or (c) with the exception of Section 2.1, the exchange of all of the
Employee Stockholder's shares of Class A Common Stock for Tracking Stock or
Publico Stock and the conversion of the Options into options to acquire Tracking
Stock or Publico Stock, as the case may be, pursuant to Article V. The
provisions of Sections 2.2, 2.3, 2.4 and 2.5, Article III and Sections 6.1 and
6.2 shall terminate upon the consummation of a Company IPO.
7.4 Certain Actions. Unless otherwise expressly provided herein, whenever
any action is required under this Appendix A by the Employee Stockholders, it
shall be by the affirmative vote of those Employee Stockholders who hold Class A
Common Stock representing more than 50% of such Class A Common Stock on a
Diluted Basis (but not taking into account any Options, the holders of which
shall have no vote unless and until they have exercised such Options and
received Class A Common Stock) then held by the Employee Stockholders as a
group.
7.5 Recapitalization, Exchanges, Etc., Affecting Company Securities. The
provisions of this Appendix A shall apply, to the full extent set forth herein
with respect to the Company Securities, to any and all shares of the Company
capital stock or any successor or assign of the Company (whether by merger,
consolidation, sale of assets, or otherwise, including shares issued by a parent
corporation in connection with a triangular merger) which may be issued in
respect of, in exchange for, or in substitution of, Company Securities, and
shall be appropriately adjusted for any stock dividends, splits, reverse splits,
combinations, reclassifications and the like occurring after the date hereof.
7.6 Waiver. No waiver by any party of any term or condition of this
Appendix A, in one or more instances, shall be valid unless in writing, and no
such waiver shall be deemed to be construed as a waiver of any subsequent breach
or default of the same or a similar nature.
7.7 Assignment; Successors and Assigns.
(a) Parent may assign any of its rights, interests or obligations
under Sections 2.3 or 2.4 or Articles IV or V to any Person.
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(b) Except as otherwise expressly provided herein, this Appendix A
shall be binding upon and inure to the benefit of the parties hereto and their
respective heirs, personal representatives, successors and assigns (including,
without limitation, transferees of Company Securities); provided, however, that
(i) nothing contained herein shall be construed as granting any Employee
Stockholder the right to Transfer any Company Securities except in accordance
with this Appendix A and with respect to Options, the applicable Option Plan;
and (ii) any Third Party which acquires Company Securities in accordance with
Section 2.3 shall be bound by the provisions of this Appendix A as an Employee
Stockholder with respect to such Company Securities, except that the provisions
of Article IV shall not apply to the Company Securities of such Third Party
(unless such Third Party is also or thereafter becomes an employee of the
Company or any of its Subsidiaries).
7.8 Remedies. In the event of a breach by any party to this Appendix A of
its obligations under this Agreement, any party injured by such breach, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages and costs (including reasonable attorneys' fees), will be
entitled to specific performance of its rights under this Appendix A. The
parties agree that the provisions of this Appendix A shall be specifically
enforceable, it being agreed by the parties that the remedy at law, including
monetary damages, for breach of any such provision will be inadequate
compensation for any loss and that any defense in any action for specific
performance that a remedy at law would be adequate is waived.
7.9 Income Tax Withholding. Each Employee Stockholder who is or becomes an
employee of the Company or any Affiliate thereof authorizes the Company or such
Affiliate to make any required withholding for the payment of any and all income
taxes and other sums that may be due any governmental authority as a result of
the receipt by such Employee Stockholder of compensation income under Section 83
of the Internal Revenue Code of 1986, as amended, or similar provisions of
foreign, state or local law, if required by applicable law, and agrees, if
requested by the Company or any Affiliate thereof and in lieu of all or a
portion of such withholding, to pay the Company or such Affiliate in a lump sum
such amounts as the Company or such Affiliate may be required to remit to any
governmental authority on behalf of such Employee Stockholder in respect of any
such taxes and other sums.
7.10 Invalid Provisions. If any provision of this Appendix A is held to be
illegal, invalid or unenforceable under any present or future law, and if the
rights or obligations of any Employee Stockholder, the Company or Parent under
this Appendix A will not be materially and adversely affected thereby, (i) such
provision will be fully severable, (ii) this Appendix A will be construed and
enforced as if such illegal, invalid or unenforceable provision had never
comprised a part hereof, (iii) the remaining provisions of this Appendix A will
remain in full force and effect and will not be affected by the illegal, invalid
or unenforceable provision or by its
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severance herefrom and (iv) in lieu of such illegal, invalid or unenforceable
provision, there will be added automatically as a part of this Appendix a legal,
valid and enforceable provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible.
7.11 Headings. The headings used in this Appendix A have been inserted for
convenience of reference only and do not define or limit the provisions hereof.
7.12 Further Assurances. Each party hereto shall cooperate and shall take
such further action and shall execute and deliver such further documents as may
be reasonably requested by any other party in order to carry out the provisions
and purposes of this Appendix A.
7.13 Gender. Whenever the pronouns "he" or "his" are used herein they
shall also be deemed to mean "she" or "hers" or "it" or "its" whenever
applicable. Words in the singular shall be read and construed as though in the
plural and words in the plural shall be construed as though in the singular in
all cases where they would so apply.
7.14 Notices. All notices, requests and other communications hereunder
must be in writing and will be deemed to have been duly given only if delivered
personally against written receipt or by facsimile transmission or mailed by
prepaid first class mail, return receipt requested, or if delivered to a
nationally recognized overnight courier prepaid to the parties at the following
addresses or facsimile numbers:
(i) If to the Company, to:
Times Company Digital, Inc.
1120 Avenue of the Americas
New York, New York 10036
Attention: Kenneth A. Richieri, Esq.
Facsimile: (212) 556-4634
with a copy to:
(ii) If to Parent, to:
The New York Times Company
229 West 43rd Street
New York, New York 10036
Attention: Solomon B. Watson IV, Esq.
Facsimile: (212) 556-4634
(iii) If to an Employee Stockholder, to the address of such Person
set forth in
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the records of the Company.
All such notices, requests and other communications will (w) if delivered
personally to the address as provided in this Section 7.14 be deemed given upon
delivery against written receipt, (x) if delivered by facsimile transmission to
the facsimile number as provided in this Section 7.15 be deemed given upon
receipt, (y) if delivered by mail in the manner described above to the address
as provided in this Section 7.14 upon the earlier of the third business day
following mailing or upon receipt and (z) if delivered by a nationally
recognized overnight courier to the address as provided in this Section 7.14, be
deemed given on the earlier of the first business day following the date sent by
such overnight courier or upon receipt (in each case regardless of whether such
notice, request or other communication is received by any other Person to whom a
copy of such notice is to be delivered pursuant to this Section 7.14). Any party
from time to time may change its address, facsimile number or other information
for the purpose of notices to that party by giving notice specifying such change
to the other parties hereto.
7.15 Closing Procedures. At the closing of any purchase and sale of
Company Securities under this Appendix A, the selling Stockholder shall deliver
certificates evidencing the securities being sold duly endorsed, or accompanied
by written instruments of transfer in form satisfactory to the purchaser, duly
executed by the selling Stockholder, free and clear of any Liens, against
delivery of a certified or bank cashier's check in the amount of the purchase
price or, if applicable, certificates for the number of Parent Class A Common
Stock (plus cash in lieu of any fractional share) to which such selling
Stockholder is entitled. In the event that Parent delivers Parent Class A Common
Stock to such selling Stockholder, the selling Stockholder shall, in addition,
deliver to Parent such representations and documents as Parent reasonably deems
necessary or advisable to effect compliance with all applicable provisions of
the Securities Act and any other federal, state or foreign securities laws or
regulations, and Parent, in its absolute discretion, may take such additional
actions as it deems appropriate to effect such compliance, including, without
limitation, placing legends on certificates for Parent Class A Common Stock and
issuing stop-transfer orders to transfer agents.
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EXHIBIT B
SEPARATION AGREEMENT AND RELEASE
1. Termination of Employment. My employment with The New York Times
Company ("The Times") terminated effective as of ______________________________.
2. Consideration. I understand that in consideration for my execution of
this Separation Agreement and Release (the "Separation Agreement"), and my
fulfillment of the promises made in this Separation Agreement and the Employment
Agreement between The Times and me dated as of September 1, 1999 (the
"Employment Agreement"), The Times agrees to provide me with the compensation
and benefits set forth in Section 8 of the Employment Agreement.
3. Conditions Applying to Payment of Benefits. I understand and agree that
the compensation and benefits payable to me pursuant to Section 2 above are
subject to my compliance with the terms and conditions set forth in this
Separation Agreement and the Employment Agreement.
4. General Release of Claims. I hereby voluntarily release The Times,
Times Company Digital, and their subsidiaries, partners, affiliates, owners,
agents, officers, directors, employees, successors and assigns, and all related
persons, individually and in their official capacities (hereinafter collectively
referred to as the "Released Parties"), of and from any and all claims, known
and unknown, relating to my employment or cessation of employment that I, my
heirs, executors, administrators, successors, and assigns, have or may have as
of the date of execution of this Separation Agreement, including, but not
limited to, any alleged violation of:
o The National Labor Relations Act;
o Title VII of the Civil Rights Act of 1964;
o Sections 1981 through 1988 of Title 42 of the United States Code;
o Civil Rights Act of 1991;
o The Employee Retirement Income Security Act of 1974 ("ERISA");
o The Age Discrimination in Employment Act of 1967;
o The Americans with Disabilities Act of 1990;
o The Fair Credit Reporting Act;
o The Fair Labor Standards Act;
o The Occupational Safety and Health Act;
o The Family and Medical Leave Act of 1993;
o Executive Order 11246;
o The New York Equal Pay Law;
o The New York Human Rights Law;
o The New York Civil Rights Act;
o The New York State Wage and Hour Laws;
o The New York City Administrative Code, Title VII;
o The New York Occupational Safety and Health Laws;
o any other federal, state or local civil or human rights law or any
other local, state or federal law, regulation or ordinance;
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o any public policy, contract, tort, or common law;
o any claims for vacation, sick or personal leave, pay or payment
pursuant to any practice, policy, handbook, or manual of The Times;
or
o any allegation for costs, fees or other expenses including
attorneys' fees incurred in these matters.
Notwithstanding the foregoing, the release set forth in this Section 4 shall not
apply to any vested benefits accrued by me prior to the effective date of this
Separation Agreement under any compensation or benefit plans, programs and
arrangements maintained by The Times for the benefit of its employees and
subject to ERISA.
5. No Existing Claims. I confirm that no claim, charge, or complaint
against the Released Parties exists before any federal, state, or local court or
administrative agency.
6. No Recovery or Relief. I hereby waive my right to accept any relief or
recovery, including costs and attorney's fees, from any charge or complaint
filed by me or on my behalf against the Released Parties before any federal,
state, or local court or administrative agency, except as such waiver is
prohibited by law.
7. No Participation In Claims. I understand that if this Separation
Agreement were not signed, I would have the right to voluntarily assist other
individuals in bringing claims against the Released Parties. I hereby waive that
right and shall not provide any such assistance other than assistance in an
investigation or proceeding conducted by an agency of the United States
government.
8. Nonadmission of Wrongdoing. I agree that neither this Separation
Agreement nor the furnishing of the consideration for the general release set
forth in this Separation Agreement shall be deemed or construed at any time for
any purpose as an admission by the Released Parties of any liability or unlawful
conduct of any kind.
9. Breach of Agreement. I agree that if I breach any of the promises set
forth in this Separation Agreement or if I challenge the general release set
forth in this Separation Agreement, The Times shall have the right to terminate
the benefits payable under the Separation Agreement and to require me to return
all monies paid by The Times in consideration for my signing the general release
included in this Separation Agreement.
10. Governing Law and Interpretation. This Separation Agreement shall be
governed by and construed in accordance with the laws of the State of New York
without regard to its conflict of laws provisions. If any provision of the
Separation Agreement other than the general release set forth in section 4
above, is declared legally or factually invalid or unenforceable by any court of
competent jurisdiction and if such provision cannot be modified to be
enforceable to any extent or in any application, then such provision immediately
shall become null and void, leaving the remainder of this Separation Agreement
in full force and affect. If any portion of the general release set forth in
this Separation Agreement is declared to be unenforceable by a court of
competent jurisdiction in any action in which I participate or join, I agree
that all consideration paid to me under this Separation Agreement and the
Employment Agreement shall be offset against any monies that I may receive in
connection with any such action.
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<PAGE>
11. Entire Agreement. This Separation Agreement sets forth the entire
agreement between me and the Released Parties and it supersedes any and all
prior agreements or understandings, whether written or oral, between the
parties, except as otherwise specified in this Separation Agreement and the
Employment Agreement (including Sections 9 and 10 thereof). I acknowledge that I
have not relied on any representations, promises, or agreements of any kind made
to me in connection with my decision to sign this Separation Agreement, except
for those set forth in this Separation Agreement and the Employment Agreement.
12. Amendment. This Separation Agreement may not be amended except by a
written agreement signed by both parties which specifically refers to this
Separation Agreement.
13. Right to Revoke. I understand that I have the right to revoke this
Separation Agreement at any time during the seven (7) day period following the
date on which I first sign the Separation Agreement.
If I want to revoke, I must make a revocation in writing which states: "I
hereby revoke my acceptance of the Separation Agreement and General Release."
This written revocation must be delivered by hand or sent by certified mail with
a postmark dated before the end of the seven-day revocation period to Solomon B.
Watson IV, The New York Times Company, 229 West 43d Street, New York, NY 10036;
otherwise, such revocation shall not be effective.
14. Effective Date. This Separation Agreement shall not become effective
or enforceable until the expiration of the 7-day revocation period described in
Section 12 above.
I UNDERSTAND THAT BY SIGNING THIS SEPARATION AGREEMENT, I SHALL BE WAIVING MY
RIGHTS UNDER FEDERAL, STATE AND LOCAL LAW TO BRING ANY CLAIMS THAT I HAVE OR
MIGHT HAVE AGAINST THE RELEASED PARTIES.
I UNDERSTAND THAT MY RIGHT TO RECEIVE BENEFITS SET FORTH IN SECTION 8 OF THE
EMPLOYMENT AGREEMENT IS SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN THIS
SEPARATION AGREEMENT AND THAT I WOULD NOT RECEIVE SUCH BENEFITS BUT FOR MY
EXECUTION OF THIS SEPARATION AGREEMENT.
I HAVE BEEN ADVISED IN WRITING TO CONSULT WITH AN ATTORNEY PRIOR TO SIGNING THIS
SEPARATION AGREEMENT. I ALSO HAVE BEEN ADVISED IN WRITING BY THE TIMES THAT I
HAVE TWENTY-ONE (21) DAYS TO CONSIDER THIS SEPARATION AGREEMENT. I AGREE THAT
ANY MODIFICATIONS, MATERIAL OR OTHERWISE, MADE TO THIS SEPARATION AGREEMENT DO
NOT RESTART OR AFFECT IN ANY MANNER THE ORIGINAL TWENTY-ONE (21) DAY
CONSIDERATION PERIOD.
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IN WITNESS WHEREOF, I have executed this Separation Agreement and Release
as of the date set forth below.
Signed:________________________________________________________________________
Name: _________________________________________________________________________
Date: _________________________________________________________________________
ACCEPTED AND ACKNOWLEDGED BY THE NEW YORK TIMES COMPANY
By: _________________________________
Name: _______________________________
Title: ______________________________
Date: _______________________________
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